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Exhibit 10.55
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS
EXHIBIT. THE
COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE
CONFIDENTIALITY
REQUEST. OMISSIONS ARE DESIGNATED AS ***. A COMPLETE VERSION OF
THIS EXHIBIT
HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
ASSET PURCHASE AGREEMENT
dated as of December 8, 2006
by and between
SIEGFRIED LTD.
SIEGFRIED DIENSTE AG
and
CELGENE CHEMICALS SARL
*** - indicates material omitted pursuant to a Confidential
Treatment Request
and filed separately with the Securities and Exchange
Commission.
Seigfried Asset Purchase Agreement 1
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ARTICLE 1
DEFINITIONS.........................................................5
1.1 Definitions 5
1.2 Construction 5
ARTICLE 2 PURCHASE AND
SALE...................................................5
2.1 Purchase and Sale of Assets 5
ARTICLE 3 PURCHASE
PRICE......................................................6
3.1 Purchase Price 6
3.2 Purchase Price Payment 6
ARTICLE 4
GUARANTY............................................................7
ARTICLE 5 CLOSING AND CLOSING
DELIVERIES......................................7
5.1 Closing 7
5.2 Conditions Precedent to Closing 7
5.3 Closing Deliveries 7
ARTICLE 5A REPRESENTATIONS AND
WARRANTIES.....................................9
5A.1 Organization and Qualification 9
5A.2 Asset Sellers' Representations or Warranties 9
5A.3 Litigation 9
5A.4 Transferred Employees 9
5A.5 Social Security 10
5A.6 Insurance 10
5A.7 Registrations 10
5A.8 Taxes 10
5A.9 Technical Equipment and Other Personal Property 10
5A.10 Real Property 10
ARTICLE 6 COVENANTS AND
AGREEMENTS...........................................11
6.1 Books and Records; Cooperation 11
6.2 Transferred Employees 12
6.3 Further Assurances 13
6.4 Real Property Deed 13
6.5 Technical Services Agreement 13
6.6 Toll Manufacturing Agreement 13
6.7 GMP Agreement. 13
6.8 Undertaking and Agreement in relation to the Use
and Operation of Acquired Assets 13
6.9 Maintenance and Capital Investments 14
6.10 Insurance 14
6.11 Environmental 14
6.12 Sale Back Option of Asset Buyer 15
6.13 Right of First Refusal of Asset Sellers 16
6.14 Asset Sellers' Right to Buy Back the Acquired Assets 16
6.15 Community of Co-Owners ("Stockwerkeigentumergemeinschaft").
16
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ARTICLE 7
MISCELLANEOUS......................................................17
7.1 Assignment 17
7.2 Expenses 17
7.3 Confidentiality 17
7.4 Public Announcement Pertaining to this Agreement
and the Transaction Agreements 17
7.5 Severability 17
7.6 Amendment 17
7.7 Waiver 18
7.8 Governing Law 18
7.9 Term of this Agreement 18
7.10 Arbitration; Venue 18
7.11 Counterparts; Language 18
7.12 Notices 18
SCHEDULE 1.1
DEFINITIONS.....................................................21
SCHEDULES:
1.1
Definitions........................................................21
2.1(a) Real Property Documentation
2.1(b) Technical Equipment and Other Tangible Personal Property
3.2 Bank Account of Asset Sellers
6.2(a) Transferred Employees
EXHIBITS:
3.1 VAT Notification Form
3.2 Bank accounts
4 Guaranty
6.4 Real Property Deed
6.5 Technical Services Agreement
6.6 Manufacturing Agreement
6.7 GPM Agreement
Seigfried Asset Purchase Agreement 3
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ASSET PURCHASE AGREEMENT
------------------------
THIS ASSET PURCHASE AGREEMENT, dated as of December 8, 2006
("AGREEMENT"), is entered into by and between Siegfried Ltd.
("ASSET SELLER 1")
and Siegfried Dienste AG ("ASSET SELLER 2") on the one hand, both
companies
organized under the laws of Switzerland with registered office at
Untere
Bruhlstrasse 4, 4800 Zofingen, Switzerland, (together "ASSET
SELLERS"), and
Celgene Chemicals Sarl., a company organized under the laws of
Switzerland with
its registered office at Faubourg du Lac 11, 2000 Neuchatel,
Switzerland ("ASSET
Buyer"). Asset Sellers and Asset Buyer sometimes are referred to
herein
collectively as the "PARTIES" and individually as a "PARTY".
W I T N E S S E T H
WHEREAS, Asset Buyer is an affiliate of Celgene Corporation, a
company
organized under the laws of Delaware and listed on Nasdaq
("CELGENE"), and Asset
Sellers are affiliates of Siegfried Holding Ltd., a company
organized under the
laws of Switzerland and listed on the Swiss stock exchange
("SIEGFRIED");
WHEREAS, Asset Buyer has needs for a manufacturing facility in
order to
manufacture the active pharmaceutical ingredient ("API") for
Celgene drug
products, including in particular for the Products;
WHEREAS, Asset Sellers have a suitable manufacturing facility
available
for Asset Buyer;
WHEREAS, Asset Sellers desire to sell, transfer, convey, assign
and
deliver, and Asset Buyer desires to purchase, acquire and accept
the Acquired
Assets upon the terms and subject to the conditions set forth in
this Agreement.
NOW, THEREFORE, the Parties agree as follows:
Seigfried Asset Purchase Agreement 4
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ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. In addition to the terms defined above and
other
terms defined in other Articles of this Agreement, the terms set
forth in
SCHEDULE 1.1 shall have the meanings specified or referred to in
such Schedule
and shall be equally applicable to both the singular and plural
forms.
1.2 CONSTRUCTION. The language in all parts of this Agreement
shall
be construed, in all cases, according to its fair meaning. "Days"
or "days"
means calendar days unless otherwise specified. The words "hereof",
"herein" and
"hereunder" and words of similar import when used in this Agreement
shall refer
to this Agreement as a whole (including any Schedules hereto) and
not to any
particular provision of this Agreement, and all Article, Schedule
and Exhibit
references are to this Agreement unless otherwise specified.
ARTICLE 2
PURCHASE AND SALE
2.1 PURCHASE AND SALE OF ASSETS. Asset Sellers hereby
undertake,
subject to the terms of this Agreement, to sell, transfer, assign,
convey and
deliver to Asset Buyer, and Asset Buyer hereby undertakes, subject
to the terms
of this Agreement, to purchase, acquire and accept from Asset
Sellers, on the
Closing, on the terms herein provided, Seller's right, title and
interest in and
to the following assets (the "ACQUIRED ASSETS"):
(a) Seller's ownership in the condominium-principled
co-ownership
unit ("Stockwerkeigentums-Einheit"), Grundbuch Zofingen, Nr.
4651.01 all as
identified and described on SCHEDULE 2.1(a), free and clear of any
Encumbrances
except for the Permitted Encumbrances identified and described on
SCHEDULE
2.1(a), (such unit being the "REAL PROPERTY");
(b) all TECHNICAL EQUIPMENT AND OTHER TANGIBLE PERSONAL
PROPERTY
listed on SCHEDULE 2.1(b).
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ARTICLE 3
PURCHASE PRICE
3.1 PURCHASE PRICE. The aggregate purchase price to be paid by
Asset
Buyer to Asset Sellers for the Acquired Assets is CHF 55,500,000
(Swiss Francs
fifty-five million five hundred thousand), exclusive of any
applicable
value-added tax (the "PURCHASE PRICE"). Any value-added Tax
resulting from the
transactions including self supplies will be borne and paid by
Asset Buyer. The
Purchase Price includes an amount, exclusive of any applicable
value-added Tax,
of CHF 2,700,000 (Swiss Francs two million seven hundred thousand)
for the Real
Property which is sold by Asset Seller 2 to Asset Buyer.
The Parties agree, where possible, to apply the VAT
notification
procedure according to art. 47 para 3 VATL. If not possible, Asset
Seller 1 will
charge Asset Buyer with VAT on the Purchase Price portion relating
to the
Technical Equipment and Other Tangible Personal Property. In
connection with the
Real Property, Asset Seller 2 will try to opt for VAT and Asset
Buyer will
support Asset Seller 2 in this regard. If Asset Seller 2
successfully opts for
VAT on the sale of the Real Property, Asset Seller 2 will charge
Asset Buyer
with VAT on the Purchase Price portion relating to the Real
Property.
In the event value-added Taxes are to be paid by Asset Sellers,
Asset
Buyer shall reimburse Asset Sellers for such payments at the time
when Asset
Buyer files its first VAT return , but no later than by June 30,
2007.
3.2 PURCHASE PRICE PAYMENT. The Purchase Price shall be paid by
Asset Buyer to Asset Sellers as follows into the notary's and Asset
Sellers'
bank accounts set forth on SCHEDULE 3.2 or, as may be the case for
payments
after the Closing, as otherwise designated in written instructions
by Asset
Sellers to Asset Buyer:
3.2.1 at Closing the sum of CHF 15,000,000 (the "CLOSING
PAYMENT")
shall be made into the notary's and Asset Sellers' bank accounts as
set forth on
SCHEDULE 3.2.
3.2.2 thereafter 5 annual instalments, each in an amount of
four
million one hundred thousand Swiss francs (CHF 4,100,000), the
first such
instalment payable on June 30, 2007, the second on June 30, 2008,
the third on
June 30, 2009, the fourth on June 30, 2010 and the fifth on June
30, 2011;
3.2.3 thereafter, subject to ARTICLE 6.13, 5 annual instalments,
each
in an amount of four million Swiss francs (CHF 4,000,000), the
first such
instalment payable on June 30, 2012, the
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second on June 30, 2013, the third on June 30, 2014, the fourth on
June 30, 2015
and the last such instalment being due on June 30, 2016.
No set off shall be allowed in respect of any of the payments owed
under
this ARTICLE 3.2 against any counterclaims, unless such
counterclaim amounts to
a minimum amount of CHF 4,100,000.
ARTICLE 4
GUARANTY
At the Closing, Asset Buyer will deliver to Asset Sellers a duly
signed
Guaranty of Celgene International Sarl in the form set forth in
EXHIBIT 4.
ARTICLE 5
CLOSING AND CLOSING DELIVERIES
5.1 CLOSING. The transactions contemplated by this Agreement
shall
be consummated at a closing (the "CLOSING") which shall be held at
the offices
of Asset Sellers on December 8th, 2006, except as otherwise
mutually agreed in
writing by the Parties (the "CLOSING DATE").
5.2 CONDITIONS PRECEDENT TO CLOSING. Each Party shall be entitled
to
refuse Closing for as long as any of the following conditions has
not been met
or waived as being a condition precedent to Closing, provided that
such
condition is legally waivable:
(i) a Governmental Approval relevant for the material
consummation of this Agreement has not been obtained;
(ii) the Real Property Deed has not been signed;
(iii) only Asset Sellers shall be entitled to refuse Closing,
if and for as long as the Guaranty according to ARTICLE 4 of this
Agreement has
not been delivered.
5.3 CLOSING DELIVERIES.
(a) At the Closing, Asset Sellers shall deliver to Asset Buyer:
Seigfried Asset Purchase Agreement 7
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(i) any notarial deeds or other transaction agreements or
documents required under Swiss law for Asset Sellers to sell,
assign, transfer
and convey and, as appropriate, record and perfect unencumbered
title to a
particular Acquired Asset to Asset Buyer, duly executed by Asset
Sellers,
including in particular the Real Property Deed and the related
application to
the real estate register, completed and signed by Asset Sellers and
ready for
immediate filing with the real property register by Asset
Buyer;
(ii) the means necessary for Asset Buyer to take possession
of the Acquired Assets;
(iii) a receipt from Asset Sellers for the Closing Payment
paid to Asset Sellers;
(iv) copy of a resolution of the board of directors of Asset
Sellers authorizing and approving this Agreement and the
transactions
contemplated under this Agreement;
(v) the Transaction Agreements to which Asset Seller 2 is a
Party, duly executed by Asset Seller 2;
(vi) the Transaction Agreements to which Asset Seller 1 is a
Party, duly executed by Asset Seller 1; and
(vii) copy of the complete employment files of all Transferred
Employees (including their employment agreements and any other
employment,
compensation and benefits related documentation).
(b) At the Closing, Asset Buyer shall deliver to Asset Seller:
(i) the amount of the Closing Payment by wire transfer of
immediately available funds to the bank accounts as designated by
Asset Sellers
in SCHEDULE 3.2 ;
(ii) a receipt evidencing Asset Buyer's receipt of the
Acquired Assets;
(iii) the Transaction Agreements to which Asset Buyer is a
party, duly executed by Asset Buyer;
(iv) copy of a resolution of the board of directors of Asset
Buyer authorizing and approving this Agreement and the transactions
contemplated
under this Agreement; and
(v) the Guaranty.
Seigfried Asset Purchase Agreement 8
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ARTICLE 5A
REPRESENTATIONS AND WARRANTIES
5A.1 ORGANIZATION AND QUALIFICATION. Asset Sellers on the one
hand
and Asset Buyer on the other hand represent and warrant to each
other that as of
the time of signing of this Agreement and as of the Closing
Date:
(i) They are duly organized and validly existing under Swiss
law,
(ii) They have the requisite power and authority to enter
into and to perform this Agreement and the Transaction Agreements
and have taken
all necessary corporate actions to authorise the execution,
delivery and
performance of this Agreement and the Transaction Agreements;
(iii) This Agreement and the other documents thereto executed
and delivered by the Parties at the time of signing of this
Agreement and/or on
the Closing Date (including the Transaction Agreements) constitute
legal, valid
and binding obligations of the Parties enforceable against them in
accordance
with their respective terms; and
(iv) The execution, delivery and performance by the Parties
of this Agreement and/or of the Transaction Agreements will not (a)
result in
breach of any provision of each Party's articles of association and
internal
regulations, and (b) result in a breach of any order, judgment or
decree of any
court or governmental agency by which either Party is bound.
5A.2 ASSET SELLERS' REPRESENTATIONS OR WARRANTIES. Asset
Sellers
represent and warrant to Asset Buyer for a period of *** months as
from the
Closing Date (except where otherwise indicated) that as of the time
of signing
of this Agreement and as of the Closing Date (except where
otherwise indicated):
5A.3 LITIGATION. There is no material litigation or
arbitration,
administrative proceedings, governmental inquiries or
investigations pending or,
to the knowledge of Asset Sellers, threatened in writing relating
to the
Acquired Assets and/or the Transferred Employees.
5A.4 TRANSFERRED EMPLOYEES. All Transferred Employees are
insured
according to Swiss labor laws and are beneficiaries of requisite
pension funds.
All dues to pension funds with respect to the Transferred
Employees'
compensation have been paid or shall be paid when due. As of the
signing of this
Agreement, none of the Transferred Employees hereto has tendered
or, to the
knowledge of Asset Sellers, threatened his/her resignation. The
employment
agreements of the Transferred Employees are valid and in full force
and effect
as of the Closing Date in all
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material respects. Asset Sellers have not given notice of
termination of any
such agreement. No employees other than Transferred Employees shall
be
transferred to the Asset Buyer.
5A.5 SOCIAL SECURITY. All social security returns, reports and
forms
relating to Transferred Employees required to be filed in
accordance with all
applicable laws have been prepared and filed in the manner required
by
applicable law, are true, correct and complete in all material
respects, and
reflect in all material respects the liability for social security
for the
relevant terms. All social security contributions relating to
Transferred
Employees and to any period prior to Closing have been paid in due
course or
shall be paid when due. There are no audits, investigations or
reassessments
relating to social security pending or, to the knowledge of Asset
Sellers,
threatened with respect to the Transferred Employees. This
representation and
warranty shall survive and be valid and enforceable until expiry of
the relevant
statute of limitation.
5A.6 INSURANCE. The Acquired Assets, and in particular the Real
Property, are covered by currently effective insurance policies
with insurance
companies in such minimum types and amounts as are consistent with
customary
practices applicable in Switzerland for pharmaceutical API
manufacturing.
Insurance policies held by and previously disclosed to Asset Buyer
by Asset
Sellers are in full force and effect. As of Closing, Asset Sellers
are not in
material default under any of them nor, to the knowledge of Asset
Sellers, has
any insurer threatened in writing to terminate any of these
policies. As of
Closing, no claims exist under any insurance policy in relation to
the Acquired
Assets.
5A.7 REGISTRATIONS. Asset Sellers possess all those material
governmental licenses, permits and authorizations necessary for the
manufacture
of the Products as currently produced.
5A.8 TAXES. There are no encumbrances on any of the Acquired
Assets
that arose in connection with any failure or alleged failure to pay
any Tax.
This representation and warranty shall survive and be valid and
enforceable
until expiry of the relevant statute of limitation.
5A.9 TECHNICAL EQUIPMENT AND OTHER PERSONAL PROPERTY. There are
no
charges, pledges or any other liens on any of the Technical
Equipment and Other
Personal Property and Asset Seller 1 represents and warrants that
it is the sole
owner of all Technical Equipment and Other Personal Property, where
applicable.
Asset Seller 1 further represents and warrants that all Technical
Equipment and
Other Personal Property are in good working condition, subject to
usual wear and
tear, and have been properly maintained and revised in due time so
that they can
be effectively used for their intended purposes as stated in this
Agreement.
5A.10 REAL PROPERTY. Asset Seller 2 is the legal and beneficial
owner
of the Real Property and Asset Seller 1 has exclusive occupation of
the Real
Property. There are no
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circumstances which would entitle any third party to exercise any
powers or
rights of entry or to take possession which may restrict in any way
whatsoever
the ownership and/or continued possession, use and/or enjoyment of
the Real
Property, except for the Permitted Encumbrances.
Subject to filing of the real estate register applications by
Asset
Buyer upon Closing, there are, upon Closing, no Encumbrances other
than the
Permitted Encumbrances in respect of the Real Property. There is no
dispute,
claim, action, demand or complaint which is outstanding or
threatened in respect
of the Real Property or any part thereof.
The current use of the Real Property is a lawful use under all
relevant
municipal, cantonal and federal planning and administrative
legislation and
Asset Sellers are not aware of any outstanding orders, notices or
other
requirements of any authority which may adversely affect the
existing and future
use of the Real Property.
No development, alterations, extensions or other improvements have
been
carried out in relation to any par
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