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Exhibit 10.1
Portions herein identified by [***] have been omitted pursuant to a
request for confidential treatment under Rule 24b-2 of the
Securities Exchange Act of 1934. A complete copy of this document
has been filed separately with the Securities and Exchange
Commission.
ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement is entered into as of the 3rd day of
November, 2006, by and among Baxter Healthcare S.A., a Swiss
corporation having offices at Hertistrasse 2, CH-8304,
Wallisen, Switzerland, Baxter International, Inc., a Delaware
corporation, having offices at One Baxter Parkway, Deerfield,
IL 60015 and Baxter Oncology GmbH, a German corporation having
offices at Kantstrasse 2, 33790 Halle/Westfalen (“Baxter
Oncology”), (collectively, the “Sellers”) on
the one hand, and Ziopharm Oncology, Inc. a Delaware
corporation having offices at 1180 Avenue of the
Americas, Suite 1920, New York, NY 10036 (the
“Buyer”) on the other hand.
Whereas,
the Sellers are engaged in the research, development and
manufacturing of pharmaceutical agents and, in particular, the
Indibulin molecule, as part of its Indibulin Project (defined
below);
Whereas,
the Sellers own certain assets, including patents, contracts
and regulatory submissions, and other related assets relating
to the Indibulin Project, and Baxter Oncology owns inventory
of Indibulin; and
Whereas,
the Sellers desire to sell or otherwise transfer such assets
to the Buyer, and the Buyer wishes to purchase such assets
from the Sellers.
Now,
therefore, in consideration of the promises and the mutual
covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as
follows:
ARTICLE I
DEFINITIONS
1.1
Defined Terms .
As used in this Agreement, the following terms shall have the
following meanings:
“
Action ”
means any claim, action, suit, arbitration, mediation, inquiry,
proceeding or investigation by or before any Governmental Authority
(or arbitrator or mediator, as the case may be), whether at law or
in equity.
“
Affiliate ”
means, with respect to any specified Person, any other Person that
directly, or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such
specified Person. As used in this definition, “control”
(including, with its correlative meanings, “controlled
by” and “under common control with”) means
possession, directly or indirectly, of power to direct or cause the
direction of management and policies (whether through ownership of
securities, partnership or other ownership interests.
“
Agreement ”
or “
this Agreement ”
means this Asset Purchase Agreement dated the date hereof between
the Buyer and the Sellers, as amended, modified or supplemented
from time to time in accordance with the provisions
hereof.
“
Applicable Permits ”
has the meaning set forth in the Purchased Assets definition
of
Section 1.1 of
this Agreement.
“
Assumed Liabilities ”
has the meaning set forth in
Section 2.10 of
this Agreement.
“
Buyer ”
has the meaning specified in the recitals to this
Agreement.
“
Closing ”
has the meaning specified in
Section 2.7 of
this Agreement.
“
Closing Date ”
has the meaning specified in
Section 2.7 of
this Agreement.
“
Composite Product ”
shall mean a product combination encompassing one or more
Product(s) and one or more separate products, wherein the Composite
Product is sold as a complete package for purposes of selling the
one or more Product(s).
“
Contracts ”
means those written contracts, agreements and assignments listed
on
Exhibit D .
“
Control ”
(including the terms “controlled by” and “under
common control with”), with respect to the relationship
between or among two or more Persons, means the possession,
directly or indirectly or as trustee or executor, of the power to
direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as
trustee or executor, by contract or otherwise, including the
ownership, directly or indirectly, of securities having the power
to elect a majority of the board of directors or similar body
governing the affairs of such Person.
“
CTA ”
shall mean the European EMEA equivalent of an IND.
“
Damages ”
has the meaning specified in
Section 6.2 of
this Agreement.
“
EMEA ”
means European Agency for the Evaluation of Medicinal Products, or
any successor agency thereto.
“
Encumbrance ”
shall mean any security interest, pledge, mortgage, lien (including
environmental and Tax liens), license, charge, conditional sale
agreement, right of first refusal, option or other
encumbrance.
“
Excluded Assets ”
means any of the following:
(i)
any software intellectual property associated with the Indibulin
Project;
(ii)
any asset, document or record, tangible or intangible, utilized by
Sellers or its Affiliates in multiple product lines or businesses
and not exclusive to the Indibulin Project;
(iii)
any logo or trade name that includes or incorporates the name
Baxter;
(iv)
the intellectual property licensed to the Buyer under the
NanoSuspension License Agreement, including without limitation
intellectual property associated with nanoparticulate or
microparticulate formulations of Indibulin and Indibulin related
compounds.
(v)
Any intellectual property associated with the manufacture of
nanoparticulate or microparticulate formulations of Indibulin and
Indibulin related compounds including, but not limited to,
Indibulin-related Nanosuspensions; and
“
Excluded Liabilities ”
has the meaning specified in
Section 2.9 of
this Agreement.
“
FDA ”
means the United States Food and Drug Administration or any
successor agency thereto.
“
German Inventor’s Payment ”
shall mean the payment to be made by the Sellers to all inventors
of the Patents that are subject to the
German Inventor Remuneration Law (Arbeitnehmererfindergesetz
(ArbErfG)) ,
in order to settle and satisfy such law’s
requirements.
“
Good Practices ”
means compliance with the applicable requirements contained in
regulations promulgated by the EMEA and comparable international
standards.
“
Governmental Authority ”
means any United States federal, state or local or any foreign
government, governmental, regulatory or administrative authority,
agency or commission or any court, tribunal or arbitral
body.
“
Indemnified Party ”
means the party entitled or seeking rights to indemnification
under
Article VI .
“
Indemnifying Party ”
means the party from whom indemnification is sought by the
Indemnified Party under
Article VI .
“
Indibulin ”
shall mean all dosage forms, formulations, strengths, package sizes
and types of pharmaceutical products containing
N-(Pyridin-4-yl)-[1-(4-chlorobenzyl)-indol-3-yl]-glyoxylic acid
amide, also known by its project code as “D-24851,” a
structure of which is shown in
Exhibit A ,
excluding any nanoparticulate or microparticulate formulations
subject to the NanoSuspension License Agreement or the manufacture
thereof.
“
Indibulin Project ”
shall mean and include (a) the research, product development,
formulation, manufacturing, and clinical development of Indibulin
and (b) the research, product development, formulation and clinical
development (but not the manufacturing) of Indibulin-related
NanoSuspension, being conducted by or on behalf of the
Sellers.
“
Indibulin-related NanoSuspension ”
shall mean shall mean a compound as claimed in claim 1 of U.S.
Patent Application No. 11/266,518, filed on November 3, 2005,
formulated as particles and, optionally, suspended in a
composition.
“
Initial Asset Payment ”
has the meaning specified in
Section 2.2 of
this Agreement.
“
Initial Payment ”
has the meaning specified in
Section 2.11 of
this Agreement.
“
Intangible Property Rights ”
has the meaning set forth in the Purchased Assets definition of
this
Section 1.1 .
“
Inventory ”
shall mean the inventories of Indibulin capsules and powder set
forth on
Exhibit B .
“
Inventory Payment ”
has the meaning set forth in
Section 2.11 .
“
Issued Patent ”
shall mean U.S. Patent No. 6,344,467.
“
Licensed Assets ”
shall mean the Non-Exclusive Intangible Property Rights and the
Licensed Patents and the Intangible Property Rights (as such terms
are defined in the NanoSuspension License Agreement).
“
Marketing Approval ”
shall mean regulatory approval of the marketing of a Product by the
FDA or the EMEA.
“
NanoSuspension License Agreement ”
shall mean the license agreement entered into by the parties on the
date hereof with respect to the Sellers’ NanoSuspension
technology.
“
Net Sales ”
shall mean the total amount invoiced in U.S. dollars (or, if in
another currency, as converted by the Buyer in accordance
with
Section 2.5(f) )
by the Buyer or its subsidiaries, Affiliates, licensees or
licensees’ sublicensees for the sale of any Product after
deducting the following costs, provided and to the extent such
costs are attributable to such sale of the Product in accordance
with U.S. generally accepted accounting principles as consistently
applied by the Buyer and are actually borne by or on behalf of the
Buyer or its subsidiaries, Affiliates, licensees or
licensees’ sublicensees: (i) invoiced freight, shipping and
shipping insurance charges, (ii) discounts allowed and taken, in
amounts customary in the trade, (iii) taxes, including sales, use,
turnover, excise, import and other taxes or duties, separately
billed or invoiced and borne by or on behalf of the Buyer or its
subsidiaries, Affiliates, licensees or licensees’
sublicensees, imposed by a Governmental Authority on the
production, sale, use or transfer of the Product, (iv) amounts
repaid or credited by reason of rejection or return of any
previously sold Products and uncollectible portions of invoiced
amounts with respect to any previously sold Products and
(v) rebates, chargebacks, retroactive price reductions,
allowances and fees paid or credited to customers wholesalers,
distributors, Third Party payors, governmental agencies,
administrators and contractees with respect to Products
sold.
If
a Product is sold as part of a Composite Product, then Net
Sales for such Composite Product will be adjusted by
multiplying (x) actual Net Sales of the Composite Product for
the calendar quarter in the country in which the Composite
Product is being sold by (y) the fraction A/(A+B) where A
is the average invoice price of the Product in such country
during such period, if sold separately (i.e., without one or
more products), and B is the average invoice price of the
other products in the Composite Product in such country during
such period, if sold separately. If in a given country A
and/or B are not sold separately, the related value of the
Product and the other products in the Composite Product shall
be determined based on a good faith estimate by the Buyer
based upon the respective fair market values of the Product as
if it were sold separately and the other product(s) as if they
were sold separately, which good faith estimate shall be
subject to approval by the Sellers, which approval shall not
be unreasonably withheld. In the event the parties cannot
agree on a fair market value of the Product relative to
Composite Product sales, upon the request of any one of the
parties, the parties shall submit the valuation matter to a
mutually agreed to, independent consultant. The parties shall
accept the fair market value as determined by the independent
consultant. No sales shall result from any transfer between
the Buyer or any of its subsidiaries, Affiliates, licensees or
licensees’ sublicensees for resale, but shall result
from the resale by the subsidiary, Affiliate, licensee or
licensees’ sublicensees.
“
Non-Exclusive Intangible Property Rights ”
shall mean intangible property rights (other than the Patents) to
the extent that such intangible property rights primarily relate
to, but do not relate exclusively to, Indibulin or the Indibulin
Project (with respect to Indibulin), whether or not patentable,
including but not limited to inventions, discoveries, trade
secrets, technical information, master formulations, master
processes used for manufacturing Indibulin, know-how, copyrights
and other confidential business information.
“
Order ”
means any order, writ, judgment, injunction, decree, demand letter,
stipulation, determination or award issued or entered by or agreed
to with any Governmental Authority.
“
Patents ”
shall mean all U.S. and foreign patents, provisional and
non-provisional patent applications and invention records listed
on
Exhibit C and
(i) any coninuations, continuations-in-part, divisionals and
reissue patent applications and resulting patents, derived from
such prior filed patent and patent applications, and any foreign
counterparts and any issued patents therof and (ii) any patent
applications, filed patents and any continuations,
continuations-in-part, divisionals and reissue patent applications
and resulting patents and any foreign counterparts and any issued
patents thereof embraced by the disclosures in such invention
records.
“
Person ”
means any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity.
“
Product ”
shall mean any product the manufacture, use, sale, offer for sale
or importation of which falls within the scope of a Valid
Claim.
“
Purchased Assets ”
means the following assets, rights and claims of the Sellers
acquired for, used in, held for use in, relating to or arising from
the conduct of the Indibulin Project:
(a)
all
Patents;
(b)
all Inventory;
(c)
all regulatory approvals, registrations and related materials
exclusively relating to Indibulin, Indibulin-related NanoSuspension
(other than with respect to manufacturing) or the Indibulin
Project;
(d)
the Contracts;
(e)
intangible property rights (other than the Patents) to the extent
that such intangible property rights relate exclusively to
Indibulin or the Indibulin Project (with respect to Indibulin)
whether or not patentable including but not limited to, inventions,
discoveries, trade secrets, technical information, master
formulations, master processes used for manufacturing Indibulin,
know-how, copyrights and other confidential business information
(collectively, the “Intangible Property
Rights”);
(f)
all warranties and guarantees and other similar contractual rights
made by third parties in favor of the Sellers with respect to
Indibulin, or the Indibulin Project;
(g)
copies of all supplier lists, marketing studies, consultant
reports, physician databases, and correspondence (excluding
invoices) with respect to Indibulin, Indibulin-related
NanoSuspension (other than with respect to manufacturing) or the
Indibulin Project to the extent maintained by the Sellers, and all
complaint files and adverse event files with respect to Indibulin,
Indibulin-related NanoSuspension (other than with respect to
manufacturing) or the Indibulin Project;
(h)
all permits, licenses, franchises or authorizations from any
Governmental Authority that are material to the Indibulin Project
(collectively, the “Applicable Permits”);
and
(i)
the Scientific Data or, to the extent not owned by the Sellers, any
rights of access that the Sellers have to the Scientific
Data.
provided,
however, that the definition of Purchased Assets shall not
include any assets specifically identified in the definition
of Excluded Assets.
“
Scientific Data ”
shall have the meaning set forth in
Section 3.14 .
“
Sellers ”
shall mean, jointly and severally, Baxter Healthcare S.A., Baxter
International Inc. and Baxter Oncology.
“
Specifications ”
has the meaning set forth in
Section 3.15 of
this Agreement.
“
Tax ”
or “
Taxes ”
means any and all taxes, fees, levies, duties, tariffs, imposts,
and other charges of any kind (together with any and all interest,
penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any government or taxing authority,
including taxes or other charges on or with respect to income,
franchises windfall or other profits, gross receipts, property,
sales, use, capital stock, payroll, employment, social security,
workers’ compensation, unemployment compensation, or net
worth; taxes or other charges in the nature of excise, withholding,
ad valorem, stamp, transfer, value added, or gains taxes; license,
registration and documentation fees; and customs’ duties,
tariffs, and similar charges.
“
Third Party ”
shall mean any Person that is not a party hereto or an Affiliate of
such party and in addition, in the case of the Buyer, a licensee of
the Buyer or sublicensee of a licensee of the Buyer of the
Purchased Assets or Licensed Assets.
“
Transaction Documents ”
means this Agreement, the NanoSuspension License Agreement and any
other certificate, instrument, report or other document delivered
pursuant to this Agreement or the NanoSuspension License
Agreement.
“
Valid Claim ”
means a claim of an issued and unexpired patent within the Patents
that has not been (i) held permanently revoked, unenforceable,
unpatentable or invalid by a decision of a court or governmental
body of competent jurisdiction, unappealable or unappealed within
the time allowed for appeal, (ii) rendered unenforceable
through written disclaimer, (iii) lapsed or abandoned for
failure to pay maintenance fees with no further remedy available to
reinstate, or (iv) lost through an interference
proceeding.
ARTICLE II
PURCHASE AND SALE OF THE PURCHASED ASSETS
2.1
Transfer of Purchased Assets to the Buyer
. Upon the terms and subject to the conditions set forth in this
Agreement, on the Closing Date, the Sellers shall sell, transfer,
convey and assign to the Buyer, and the Buyer shall purchase from
the Sellers, all of the Sellers’ right, title and interest
in, to or arising from the Purchased Assets, free and clear of all
Encumbrances.
2.2
Initial Asset Payment .
In consideration for the sale of the Purchased Assets (other than
the Inventory), and the license granted under
Section 2.12 to
the Buyer, the Buyer shall pay to the Sellers a payment of One
Million One Hundred Twenty-Five Thousand Dollars ($1,125,000) (the
“Initial Asset Payment”). The Buyer shall deliver the
Initial Asset Payment in the form of a cash payment by wire
transfer, at Closing, in immediately available funds, to such
account designated by the Sellers in writing.
2.3
Diligence Payment .
In further consideration for the sale of the Purchased Assets and
the license granted under
Section 2.12 to
the Buyer, the Buyer shall pay to the Sellers [**********] United
States dollars ($[**********]) on the sixth anniversary of the
Closing Date and on each anniversary thereafter with the last such
payment due on such anniversary in 2017; provided, however that no
such payment shall be due at any time after there ceases to be any
Valid Claims under the Issued Patent except if the Issued Patent
ceases to have Valid Claims due to the abandonment of the Valid
Claims in accordance with clause (iii) of the definition of Valid
Claims.
2.4
Milestone Payments .
(a) In further consideration for the sale of the Purchased Assets
to the Buyer, the Buyer shall pay to the Sellers the following
milestone payments:
| (i) |
Six
Hundred Twenty-Five Thousand Dollars ($625,000) within thirty (30)
days of the first effectiveness of an IND submitted to the FDA or a
CTA submitted to the EMEA permitting the Buyer to initiate human
clinical trials of Indibulin or Product in the United States or
Europe, whichever comes first;
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| (ii) |
[**********]
Dollars ($[**********]) within thirty (30) days of the date of
[********************];
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| (iii) |
[**********]
Dollars ($[**********]) within thirty (30) days of the date of
[********************]; and
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| (iv) |
[**********]
Dollars ($[**********]) within thirty (30) days of the date of
[********************].
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(b)
For the avoidance of doubt, the term “Buyer” in each
occurrence of Sections 2.4(i)-(iv) shall mean “Buyer, its
subsidiaries, Affiliates, licensees or licensees’
sublicensees.”
2.5
Sales-Based Contingent Payments .
(a)
In further consideration for the sale of the Purchased Assets to
the Buyer, the Buyer shall pay, or cause to be paid to, the Sellers
the following amounts based on Net Sales of Products:
| (i) |
[*****]
percent ([*****]%) of worldwide calendar year annual Net Sales less
than [**********] Dollars ($[**********]);
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| (ii) |
[*****]
percent ([*****]%) of worldwide calendar year annual Net Sales from
[**********] Dollars ($[**********]) up to [**********] Dollars
($[**********]); and
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| (iii) |
[*****]
percent ([*****]%) of worldwide calendar year annual Net Sales in
excess of [*********] U.S. Dollars ($[*********]).
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With
respect to each Product, sales-based contingent payments will
be payable on a country-by-country basis, so long as the
making, using or selling of the Product was covered by a Valid
Claim in the country at the time in which such Product was
made, used or sold.
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(b) |
Reports, Audit and Payment Schedule .
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| (i) |
The
Buyer shall keep and maintain detailed records of all sales of
Product worldwide;
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| (ii) |
The
Buyer shall make quarterly payments to the Sellers within
forty-five (45) days of the close of each calendar quarter (March
31, June 30, September 30 and December 31) based on Net Sales in
such quarter, and shall additionally provide, together with such
payment, a sales report detailing the Net Sales of Products sold
per country and the calculation of the amount owed pursuant
to
Section 2.5(a) ;
and
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| (iii) |
The
Sellers shall have the right annually, at the Sellers’
expense, to audit the Buyer’s records, or the Buyer’s
subsidiaries, Affiliates, licensees or licensees’
sublicensees, as the case may be, in order to verify the
calculation of Net Sales of Products. The Buyer shall reasonably
cooperate with the Sellers to provide Buyer access to such records;
provided that:
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(A)
Such audit shall be conducted by the Sellers’ independent
auditors;
(B)
Such audit 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 the business of the Buyer
its subsidiaries, Affiliates, licensees or licensee’s
sublicensees;
(C)
the Sellers shall treat all information reviewed or learned of in
the course of such audit in accordance with
Section 7.14 ;
and
(D)
prior to such audit, the Sellers shall cause its auditors to enter
into a reasonably acceptable confidentiality agreement with the
Buyer obligating such auditors to maintain all financial
statements.
| (c) |
No Multiple Payments .
For payments pursuant to
Section 2.5(a) ,
only one payment shall be paid for each Product sold, regardless of
the number of Patents or claims thereof that cover such
Product.
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| (d) |
Sales-Based Contingent Payment Reduction .
In the event Buyer or its subsidiaries, Affiliates or licensees
licenses Third Party patent rights in order to have freedom to
make, have made or sell Indibulin without infringing such patent
rights, the Buyer shall be allowed to deduct from the sales-based
contingent payments due pursuant to
Section 2.5(a) ,
fifty percent (50%) of any royalties or any other license fees paid
or incurred in connection with such licensor up to a maximum of
fifty percent (50%) of the sales-based contingent payments due
pursuant to
Section 2.5(a) (with
any amount not deducted due to such deduction limitation carried
forward to subsequent calendar quarters for deduction, but subject
to the fifty percent (50%) maximum deduction limitation provided by
this
Section 2.5(d) for
such subsequent calendar quarters).
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| (e) |
Sales-Based Contingent Payment Credits .
The Buyer shall be allowed to deduct from the sales-based
contingent payments due to the Sellers under
Section 2.5(a) any
payments made by it to the Sellers pursuant to
Section 2.3 .
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| (f) |
Currency Exchange .
In the event sales are invoiced in a currency other than United
States dollars, Net Sales shall be calculated in the following
manner: cumulative non-United States dollars sales invoiced by
month shall be converted to United States dollars by multiplying or
dividing, whichever is applicable, this amount by the simple
average of the daily NY close rates for each day in the month as
published by Bloomberg, Reuters or some other generally accepted
source for publishing NY close foreign currency rates. The rate
source shall be reviewed with the Sellers prior to commencing
payment of the sales-based contingent payments to the
Sellers
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| (g) |
Withholding Taxes .
The Buyer may withhold taxes in the event that revenue authorities
in any country require the withholding of taxes on amounts paid
hereunder to the Sellers. The Buyer will deduct such taxes from
such payment and such taxes will be paid by the Buyer to the proper
taxing authority on behalf of the Sellers. In the event such taxing
authority routinely provides a tax receipt upon payment, the Buyer
will procure such tax receipt and forward it to the Sellers. The
Buyer agrees to assist the Sellers in claiming exemption from such
deductions or withholdings under any applicable double taxation or
similar agreement or treaty.
|
| (h) |
Value Added Tax .
The Buyer shall pay to the relevant Governmental Authority, any
value added tax (“VAT”) accruing to any payment by
Buyer to Sellers hereunder, and shall be permitted to deduct such
amount from such payment to Sellers. Buyer shall cooperate with
Sellers in Sellers recovery of such VAT.
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2.6
Employment of the Sellers’ Employees
.
The Buyer shall assume no liability in connection with any employee
of the Sellers. No portion of the assets of any employee benefit
plan, fund, program or arrangement, written or unwritten,
heretofore sponsored or maintained by either of the Sellers (and no
amount attributable to any such plan, fund, program or arrangement)
shall be transferred to the Buyer, and the Buyer shall not be
required to continue any such plan, fund, program or arrangement
after the Closing Date.
2.7
Closing .
The closing of the transaction contemplated by this Agreement (the
“Closing”) shall take place at the offices of the
Sellers, Deerfield, Illinois, concurrently with the execution of
this Agreement (the “Closing Date”). At the Closing,
subject to the terms and conditions hereof:
(a)
the Sellers shall:
(i)
execute and deliver, or cause to be executed and delivered, to the
Buyer, a Bill of Sale, an Assignment and Assumption
Agreement ,
an assignment of Patents, and
the NanoSuspension License Agreement;
(ii)
deliver to the Buyer copies of the notices to regulatory
authorities or otherwise set forth on
Exhibit E ;
and
(iii)
deliver
to the Buyer such other documents and instruments as may be
reasonably necessary to effect or evidence the transactions
contemplated by this Agreement and by the other Transaction
Documents, including such documents necessary to record the
assignment of the Patents.
(b)
the Buyer shall:
(i)
pay to the Sellers the Initial Asset Payment in full by wire
transfer of immediately available funds directly to the bank
account designated by the Sellers;
(ii)
execute and deliver to the Sellers the Bill of Sale, the Assignment
and Assumption Agreement and the NanoSuspension License Agreement;
and
(iii)
deliver
to the Sellers such other documents and instruments as may be
reasonably necessary to effect or evidence the transactions
contemplated by this Agreement and other Transaction
Documents.
2.8
Title; Risk of Loss .
Legal title and risk of loss with respect to the Purchased Assets
other than the Inventory shall not pass to the Buyer (or its
designated affiliate) until such Purchased Assets are transferred
at Closing. Legal title and risk of loss with respect to the
Inventory shall not pass to the Buyer (or its designated affiliate)
until the Inventory is delivered at the location provided in
Section 2.11 below.
2.9
No General Assumption of Pre-Closing Liabilities
.
The Buyer shall not be the successor to the Sellers. Except as
expressly set forth in
Section 2.10 ,
and for those matters as to which the Buyer has agreed to indemnify
the Sellers under
Section 6.2(b) ,
the Buyer does not and shall not assume, and shall not be liable or
responsible for, any debt, obligation or liability of the Sellers
or any of the Sellers’ Affiliates that is in any way related
to Indibulin, NanoSuspension-related Indibulin, the Indibulin
Project, the Purchased Assets, the Licensed Assets or otherwise,
including any debt, liability or obligation of any kind, whether
known or unknown, contingent, absolute, liquidated or unliquidated,
due or to become due or otherwise all of which are retained by the
Sellers (the “Excluded Liabilities”), including without
limitation the following Excluded Liabilities:
(a)
Any product liability or similar claim for injury to person or
property, regardless of when made or asserted in connection with
the use of Indibulin or Indibulin-related NanoSuspension prior to
the Closing Date, including any Third Party claim seeking recovery
for consequential damages, lost revenue or income, but excluding
any Third Party liability or claim made or asserted in connection
with (i) the treatment of any Person or property after the Closing
Date or (ii) any use of Indibulin, Indibulin-related
NanoSuspension, the Purchased Assets or the Licensed Assets after
the Closing Date, including any claim seeking recovery for
consequential damages, lost revenue or income;
(b)
Any federal, state or local income or other Tax (i) payable with
respect to the assets, properties or operations of the Sellers for
any period prior to the Closing Date, or (ii) incident to or
arising as a consequence of the negotiation or consummation by the
Sellers of this Agreement and the transactions contemplated hereby
(except that the Buyer shall be responsible for any transfer,
sales, use or similar tax payable as a result of the consummation
of the transactions contemplated hereby);
(c)
Any liability or obligation arising prior to or as a result of the
Closing to any employees, agents or independent contractor of the
Sellers, whether or not employed by the Buyer after the Closing, or
under any benefit arrangement with respect thereto;
and
(d)
Any liability or obligation relating to or arising from litigation
or any other disputes with third parties, if any, pending at the
Closing or, to the knowledge of the Sellers, threatened, on or
prior to the Closing Date.
2.10
Assumption of Post-Closing Liabilities under Contracts and
Product Liability Claims .
At Closing the Buyer shall (a) assume all liability or obligations
of the Sellers that are required to be paid, performed or
discharged under the Contracts after the Closing Date other than
liabilities and obligations that were otherwise required to have
been paid, performed or discharged on or before the Closing (the
“Assumed Liabilities”); and (b) be responsible for
those matters as to which the Buyer has agreed to indemnify the
Seller Indemnified Parties (as defined below) pursuant to
Section 6.2(b)(iii) .
2.11
Inventory .
Within thirty (30) days of the Closing, the Sellers shall transfer
and convey to the Buyer the Inventory, which shall be delivered to
Fisher Clinical Scientific at an address to be provided by the
Buyer. The delivered Inventory shall be accompanied by a
certificate of analysis certifying that the delivered Inventory is
in conformance with the Specifications. In consideration for the
transfer and conveyance of the Inventory to the Buyer, the Buyer
shall pay to Baxter Oncology a payment of One Hundred Thousand
Dollars ($100,000) (the “Inventory Payment” and
together with the Initial Asset Payment, the “Initial
Payment”). The Buyer shall deliver the Inventory Payment in
the form of a cash payment by wire transfer, in immediately
available funds, to such account designated by Baxter Oncology in
writing, within seven (7) days of the receipt by the Buyer of the
Inventory and the certificate of analysis with respect to the
Inventory.
2.12
Non-Exclusive Intangible Property Rights .
Sellers hereby grant to Buyer a worldwide, non-royalty bearing,
exclusive right and license, with the right to grant sublicenses,
under the Non-Exclusive Intangible Property Rights to use, market,
sell, make, offer to sell and manufacture Indibulin.
2.13
Further Assurances .
From time to time after the Closing, at the reasonable request of
the Buyer and without further consideration, the Sellers shall
execute and deliver such other instruments of sale, transfer,
conveyance and assignment and take such actions as the Buyer may
reasonably request to more effectively transfer, convey and assign
to the Buyer, and to confirm the Buyer’s rights to, title in
and ownership of, the Purchased Assets and to place the Buyer in
actual possession and operating control thereof.
2.14
Payment Instructions .
Buyer shall make payments to Sellers hereunder in accordance with
Sellers’ written instructions, which Sellers’ may amend
from time to time, pursuant to the notice provision of
Section 7.11.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
As
an inducement to the Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, the Sellers
hereby jointly and severally represent and warrant to the
Buyer as follows:
3.1
Organization and Qualification .
Baxter Healthcare S.A. is a corporation duly incorporated, validly
existing and in good standing under the laws of Switzerland, and
Baxter International, Inc. is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware.
Each is duly licensed or qualified to transact business as a
foreign corporation and is in good standing in each jurisdiction in
which the ownership or leasing of its assets or properties requires
it to be so licensed or qualified, except where the failure to be
so licensed or qualified would not prevent or materially delay the
ability of the Sellers to perform their obligations hereunder or to
consummate the transactions contemplated hereby.
3.2
Corporate Power and Authority; Validity .
Each of the Sellers has the corporate power and authority to own,
operate and hold its respective assets and properties. Each of
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