Exhibit 2.1
Execution Version
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
NOVO NORDISK A/S, AS
BUYER,
AND
NEOSE TECHNOLOGIES, INC., AS SELLER
dated as of September 17, 2008
TABLE OF
CONTENTS
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Page
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ARTICLE I DEFINITIONS; INTERPRETATION
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2
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Section 1.1
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Definitions
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2
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Section 1.2
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Interpretation
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11
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ARTICLE II PURCHASE AND SALE
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11
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Section 2.1
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Purchase and Sale of Assets; Purchase
Price
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11
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Section 2.2
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Purchased Assets; Excluded Assets
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12
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Section 2.3
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Assumed Liabilities; Excluded
Liabilities
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13
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Section 2.4
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Closing
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14
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Section 2.5
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Procedures for Certain Purchased Assets Not
Freely Transferable
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15
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Section 2.6
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Purchase Price Allocation
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15
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Section 2.7
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Books and Records
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16
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Section 2.8
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Privileges
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16
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF
SELLER
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17
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Section 3.1
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Organization, Standing and Power
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17
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Section 3.2
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Authority; Binding Agreements
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17
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Section 3.3
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Conflicts
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18
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Section 3.4
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Governmental Authorizations
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18
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Section 3.5
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Licenses and Permits
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18
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Section 3.6
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Proxy Statement
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19
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Section 3.7
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Good Title
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19
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Section 3.8
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SEC Filings
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19
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Section 3.9
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Financial Statements
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20
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Section 3.10
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No Undisclosed Material Liabilities
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20
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Section 3.11
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Absence of Changes
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20
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Section 3.12
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Intellectual Property
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20
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Section 3.13
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Contracts
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22
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Section 3.14
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Compliance with Applicable Law
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22
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Section 3.15
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Litigation
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22
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Section 3.16
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Insurance
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23
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Section 3.17
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Taxes
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23
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Section 3.18
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Brokers
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23
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Section 3.19
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Regulatory Matters
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23
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Section 3.20
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Environmental Matters
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24
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Section 3.21
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Employee Matters
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24
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Section 3.22
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Solvency
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25
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ARTICLE IV R EPRESENTATIONS AND WARRANTIES
OF BUYER
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25
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Section 4.1
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Organization, Standing and Power
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25
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Section 4.2
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Authority; Binding Agreements
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25
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Section 4.3
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Conflicts
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26
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Section 4.4
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Consents
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26
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Section 4.5
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Brokers
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26
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Section 4.6
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Litigation
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26
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Section 4.7
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Availability of Funds
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26
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ARTICLE V ADDITIONAL AGREEMENTS
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27
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Section 5.1
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Obligation to Consummate Transaction
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27
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Section 5.2
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Confidentiality
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27
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Section 5.3
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Access to Information
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27
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Section 5.4
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Preparation of Proxy Statement; Stockholders
Meeting
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28
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Section 5.5
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Standstill Agreement
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29
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Section 5.6
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Interim Operations
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30
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Section 5.7
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Acquisition Proposals
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32
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Section 5.8
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Certain Tax Matters
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34
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Section 5.9
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Public Announcements
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35
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Section 5.10
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Cooperation in Patent Transfer and
Assignment
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35
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Section 5.11
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Termination of the Collaboration
Agreements
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35
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Section 5.12
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Further Assurances
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36
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Section 5.13
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Notice of Certain Events
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36
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Section 5.14
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Insurance
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36
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ARTICLE VI CONDITIONS PRECEDENT
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37
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Section 6.1
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Conditions to Obligations of Buyer and
Seller
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37
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Section 6.2
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Conditions to Obligations of Buyer
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37
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Section 6.3
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Conditions to Obligations of Seller
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38
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Section 6.4
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Closing Deliverables
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39
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Section 6.5
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Frustration of Closing Conditions
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40
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Section 6.6
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Liquidation of Seller
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40
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ARTICLE VII SURVIVAL
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40
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Section 7.1
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Non-Survival of Representations, Warranties and
Agreements
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40
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ii
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ARTICLE VIII TERMINATION
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41
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Section 8.1
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Termination
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41
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Section 8.2
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Procedure and Effect of Termination
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42
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ARTICLE IX MISCELLANEOUS
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43
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Section 9.1
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Governing Law; Jurisdiction; Venue; Service Of
Process
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43
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Section 9.2
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Notices
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44
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Section 9.3
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Benefits of Agreement
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45
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Section 9.4
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Amendments and Waivers
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45
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Section 9.5
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Cumulative Rights
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45
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Section 9.6
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Expenses
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45
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Section 9.7
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Waiver of Jury Trial
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45
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Section 9.8
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Assignment
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45
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Section 9.9
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Enforceability; Severability
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46
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Section 9.10
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Entire Agreement
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46
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Section 9.11
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Counterparts
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46
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SCHEDULES TO ASSET PURCHASE AGREEMENT
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Schedule 1.1(a)
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Transferred Patent Rights
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Schedule 1.1(b)(i)
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Neose Retained Intellectual Property
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Schedule 1.1(b)(ii)
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Other Excluded Intellectual Property
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Schedule 1.1(c)
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Transferred Trademarks
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Schedule 2.2(a)(iv)
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Assumed Contracts
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Schedule 2.2(b)
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Transition Plan
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Schedule 2.8
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Privileged Documents and Opinions
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Schedule 3.1
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Affiliates
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Schedule 3.3(b)
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Conflicts
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Schedule 3.5
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Permits and Required Consents
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Schedule 3.7
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Certain Liens to Title
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Schedule 3.10
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Material Undisclosed Liabilities
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Schedule 3.11
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Changes
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Schedule 3.12(a)
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Registered Transferred Intellectual
Property
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Schedule 3.12(b)
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Covenants Not to Sue
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Schedule 3.12(c)
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Intellectual Property Litigation and
Infringement
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Schedule 3.12(d)
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License Grants
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Schedule 3.12(e)
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Certain Liens on Transferred Intellectual
Property
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Schedule 3.13(b)
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Transfer Restrictions
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Schedule 5.6
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Interim Operations
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Schedule 6.4(b)(i)
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Seller’s Wire Transfer
Instructions
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iii
EXHIBITS TO ASSET PURCHASE AGREEMENT
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Exhibit A
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Form of Bill of Sale and Assignment and
Assumption Agreement
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Exhibit B
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Form of BGX License Agreement
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Exhibit C
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Form of BGX Sublicense Agreement
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Exhibit D
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Form of Novo Assignment and Assumption
Agreement
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Exhibit E
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Form of Patent Cooperation
Agreement
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Exhibit F
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Form of Post-Closing Confidentiality
Agreement
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Exhibit G-1
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Form of Buyer Press Release
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Exhibit G-2
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Form of Seller Press Release
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iv
ASSET PURCHASE
AGREEMENT
This Asset Purchase Agreement (this
“ Agreement ”), dated as of September 17,
2008, is by and between Neose Technologies, Inc., a Delaware
corporation (“ Seller ”), and Novo Nordisk A/S,
a limited liability company organized under the laws of Denmark
(“ Buyer ”).
RECITALS
WHEREAS , Seller and Buyer are currently party to
(i) that certain Research, Development and License Agreement,
dated as of October 31, 2006, relating to recombinant
coagulation Factor VIIa, (ii) that certain Research,
Development and License Agreement, dated as of November 2,
2007, relating to recombinant coagulation Factor VIII, and
(iii) that certain Research, Development and License
Agreement, dated as of November 2, 2007, relating to
recombinant coagulation Factor IX (collectively, the “
Collaboration Agreements ”) pursuant to which Seller
and Buyer have collaborated in the discovery of long-acting next
generation recombinant coagulation compounds (the “
Collaboration ”);
WHEREAS , subject to the terms and conditions of this
Agreement, Seller desires to transfer to Buyer and Buyer desires to
acquire the Purchased Assets (as defined herein) including
substantially all of the assets used in or generated under or in
connection with the Collaboration Agreements;
WHEREAS , simultaneously with the sale of the Purchased
Assets, subject to approval by Seller’s stockholders, Seller
intends to sell substantially all of its remaining assets to
BioGeneriX AG (“ BGX ”) pursuant to an asset
purchase agreement between Seller and BGX (the “ BGX Asset
Purchase Agreement ”) and will enter into a license
agreement (the “ BGX License Agreement ”) and a
sublicense agreement (the “ BGX Sublicense Agreement
”) with BGX, pursuant to which Seller will exclusively
license or sublicense, as the case may be, certain of its rights in
the Transferred Intellectual Property (as hereinafter defined) to
BGX for use in the BGX Field of Use (as hereinafter
defined);
WHEREAS , at the closing of the asset sale transaction
contemplated hereby, Seller and Buyer shall terminate the
Collaboration Agreements and Seller intends to assign the BGX
License Agreement and the BGX Sublicense Agreement to Buyer, and
Buyer shall assume all of Seller’s rights, duties and
obligations thereunder; and
WHEREAS , after closing of the sale, Seller intends to
dissolve and distribute its remaining assets to its
stockholders;
NOW, THEREFORE,
in consideration of the mutual
benefits to be derived from this Agreement and of the
representations, warranties, conditions, agreements and promises
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1.
Definitions . The capitalized terms used in this
Agreement have the respective meanings ascribed to them as
follows:
“ Acquisition Proposal
” means any bona fide written proposal (other than the asset
sale and related transactions contemplated by the BGX Asset
Purchase Agreement), made by a party to acquire beneficial
ownership (as defined under Rule 13(d) promulgated under
the Exchange Act) of all or a material portion of the assets of, or
any material equity interest in, Seller pursuant to a merger,
consolidation or other business combination, sale of shares of
capital stock, sale of assets, licensing transaction, tender or
exchange offer or similar transaction involving Seller, including
any single or multi-step transaction or series of related
transactions that is structured to permit such party to acquire
beneficial ownership of any material portion of the assets of, or
any material equity interest in, Seller. For purposes of the
definition of Acquisition Proposal, a material portion of the
assets of, or material equity interest in, Seller means greater
than 20% of the assets of, or equity interest in,
Seller.
“ Act ” means the
United States Federal Food, Drug and Cosmetic Act and the rules,
regulations, guidelines, guidances and requirements promulgated
thereunder, as may be in effect from time to time.
“ Action ” means
any claim, action, suit, arbitration, inquiry, audit, proceeding or
investigation by or before or otherwise involving, any arbitrator
or Governmental Authority.
“ Affiliate ”
means, with respect to any Person, any other Person directly or
indirectly Controlling or Controlled by, or under direct or
indirect common Control with, such first Person. For the
purposes of this Agreement, none of The Novo Nordisk Foundation,
Novo A/S or Novozymes A/S shall be deemed Affiliates of Buyer or
any of its Affiliates.
“ Agreement ” has
the meaning set forth in the preamble hereof.
“ Applicable Law
” means the applicable laws, rules, regulations, including
any guidelines, or other requirements of any Governmental
Authorities, that may be in effect from time to time.
“ Applicable Period
” has the meaning set forth in
Section 5.7(b).
“ Apportioned
Obligations ” has the meaning set forth in
Section 5.8(b).
“ Assumed Contracts
” has the meaning set forth in
Section 2.2(a)(iv).
“ Assumed Liabilities
” has the meaning set forth in Section 2.3.
“ BGX ” has the
meaning set forth in the recitals.
“ BGX Asset Purchase
Agreement ” has the meaning set forth in the
recitals.
2
“ BGX Field of Use
” means the discovery, research, development,
commercialization or other Exploitation of any peptide or protein
in any field, use, product, method or application utilizing any
Intellectual Property under the BGX Transferred Assets or the
Purchased Assets, other than in any case in the Novo Field of
Use.
“ BGX License Agreement
” has the meaning set forth in the recitals.
“ BGX Licensed Intellectual
Property ” means the Intellectual Property licensed to
BGX pursuant to the BGX License Agreement and the BGX Sublicense
Agreement.
“ BGX Sublicense
Agreement ” has the meaning set forth in the
recitals.
“ BGX Transferred
Assets ” has the meaning set forth in
Section 2.2(c)(i).
“ Books and Records
” means, to the extent related to the Purchased Assets, all
books, records, files (including data files) and documents
(including research and development records, annuity payment
reports, correspondence and, to the extent not originals, true,
accurate and complete copies of all files and memoranda relating to
the filing, prosecution, issuance, maintenance, enforcement or
defense of any Transferred Intellectual Property, including file
wrappers, ribboned and sealed letters patents, written third party
correspondence, records and documents related to the Seller
Collaboration Activities, including laboratory notebooks,
procedures, tests, dosage information, criteria for patient
selection, safety and efficacy and study protocols, investigators
brochures and all pharmacovigilence and other safety records) in
all forms, including electronic, in which they are stored or
maintained, and all data and information included or referenced
therein, in each case that are owned or Controlled by
Seller.
“ Business ”
means the business conducted by Seller involving the research and
development of therapeutic proteins and licensing of its
Intellectual Property and activities incidental thereto.
“ Business Day”
means any day excluding Saturdays, Sundays and any day that is a
legal holiday under the laws of the United States or Copenhagen,
Denmark or that is a day on which banking institutions located in
New York, New York or Copenhagen, Denmark are authorized or
required by Applicable Law or other governmental action to
close.
“ Buyer ” has the
meaning set forth in the preamble hereof.
“ Buyer’s
Knowledge ” (and similar phrases) means the knowledge of
any executive officer or director of Buyer, and the knowledge any
such Person would have had if he had performed his services and
duties in the ordinary course of business on behalf of Buyer in a
reasonably diligent manner.
“ Change in
Recommendation ” has the meaning set forth in
Section 5.7(c).
“ Closing ” has
the meaning set forth in Section 2.4.
“ Closing Date ”
has the meaning set forth in Section 2.4.
3
“ Code ” means
the Internal Revenue Code of 1986.
“ Collaboration ”
has the meaning set forth in the recitals.
“ Collaboration
Agreements ” has the meaning set forth in the
recitals.
“ Consent ”
means, with respect to a Contract, any consent or approval of any
Person other than either party to this Agreement that, in
accordance with the terms of such Contract, is required to be
obtained for the assignment thereof to Buyer.
“ Contracts ”
means contracts, commitments, arrangements, agreements, leases,
subleases, licenses, sublicenses, purchase orders for the sale or
purchase of goods or services and any other understandings, in each
case whether oral or written.
“ Control ”
including its various tenses and derivatives (such as “
Controlled ” and “ Controlling ”)
means (a) for purposes of the definition of Affiliate, a
Person that (i) owns or controls, directly or indirectly, or
has the ability to direct or cause the direction or control of,
more than 50% of the voting equity of the other Person, or
(ii) has the ability to direct, cause the direction of, or
control the actions of such other Person, whether through direct or
indirect ownership of voting equity, by Contract or otherwise and
(b) when used with respect to any item of Intellectual
Property, possession of the right, whether directly or indirectly,
and whether by ownership, license or otherwise, to assign or grant
a license, sublicense or other right to or under such Intellectual
Property.
“ Copyrights ”
means all copyrights and database rights under the laws of the
United States or any other country (whether or not the underlying
works of authorship have been published), all registrations and
recordings thereof, all copyrightable works of authorship (whether
or not published), and all applications for copyrights under the
laws of the United States or any other country, including
registrations, recordings and applications in the United States
Copyright Office or in any similar office or agency of the United
States, any State thereof or any other country or any political
subdivision thereof.
“ Dollars ” or
“ $ ” means United States dollars.
“ Employee ”
means an individual who is currently providing services to Seller
in respect of the Purchased Assets as an employee or consultant of
Seller.
“ Employee Benefit Plan
” means (i) each written employment, severance,
change-in-control, retention, equity incentive, compensation or
similar plan, program, agreement or arrangement covering one or
more Employees of Seller; and (ii) each pension or other
employee benefit plan of Seller.
“ End Date ” has
the meaning set forth in Section 8.1(b).
“ Environmental Laws
” means any and all applicable laws (including common law),
statutes, treaties, judicial decisions, regulations, rules,
judgments, orders, decrees, writs, awards, injunctions, permits or
governmental restrictions of any Governmental Authority, or any
written agreement with any Governmental Authority, relating to the
protection of the
4
environment or natural resources, pollution or
contaminants, hazardous wastes or any toxic, radioactive,
ignitable, corrosive, reactive or otherwise hazardous substance,
waste or material.
“ ERISA ” means
the Employee Retirement Income Security Act of 1974.
“ ERISA Affiliate
” has the meaning set forth in
Section 3.21(b).
“ Exchange Act ”
has the meaning set forth in Section 3.6.
“ Excluded Assets
” has the meaning set forth in
Section 2.2(c).
“ Excluded Intellectual
Property ” means all right, title and interest of Seller
in and to Intellectual Property, relating exclusively to the
Exploitation of (i) non-GlycoPEGylated glycolipids or
oligosaccharides, in each case not attached to a peptide or
protein, including the Patent Rights set forth on Schedule
1.1(b)(i) , and (ii) the Patent Rights set forth on
Schedule 1.1(b)(ii) .
“ Excluded Liabilities
” has the meaning set forth in
Section 2.3(b).
“ Existing Confidentiality
Agreement ” means the Confidentiality and Non-Disclosure
Agreement, dated as of March 18, 2008, by and between Buyer
and Seller.
“ Exploit ” or
“ Exploitation ” means to make, have made,
import, use, sell, offer for sale, or otherwise dispose of,
including all discovery, research, development, registration,
modification, enhancement, improvement, Manufacture, storage,
formulation, optimization, importation, exportation,
transportation, distribution, promotion and marketing activities
related thereto.
“ FDA ” means the
United States Food and Drug Administration, or any successor agency
thereto.
“ G-CSF ” means
any and all forms of granulocyte-colony stimulating factor,
including full length G-CSF, truncated G-CSF, fusion proteins,
fragments, derivatives, analogs, mutants, splice variants, and
conjugates with other molecular entities such as proteins,
peptides, organic or inorganic substances.
“ Governmental
Authority ” means any supra-national, federal, state,
local or foreign government, legislature, governmental or
administrative agency, department, commission, bureau, board,
instrumentality, self-regulatory association or authority
(including stock exchanges), court or other authority or tribunal
of competent jurisdiction (including any arbitration or other
alternative dispute forum), or any other governmental authority or
instrumentality anywhere in the world.
“ Hazardous Substances
” means any pollutant, contaminant, waste or chemical or any
toxic, radioactive, ignitable, corrosive, reactive or otherwise
hazardous substance, waste or material, or words of similar
meaning, or any substance, waste or material having any constituent
elements displaying any of the foregoing characteristics,
including, without limitation, petroleum, petroleum products,
petroleum hydrocarbons, petroleum by-products, crude oil,
and
5
any components, fractions or derivatives
thereof, methyl tertiary butyl ether, ammonia, asbestos, urea,
formaldehyde and polychlorinated biphenyls, and any substance,
waste or material which is regulated as hazardous by any applicable
Environmental Law.
“ Intellectual Property
” means all intellectual property rights, whether registered
or unregistered, including (a) Patent Rights,
(b) Trademarks, (c) Know-How, (d) all completed or
pending registrations, renewals or applications for registration or
renewal of any of the foregoing, (e) copies and tangible
embodiments of any of the foregoing (in whatever form or media) and
(f) other tangible and intangible information or
material.
“ Inventory ” has
the meaning set forth in Section 2.2(a)(iii).
“ Know-How ”
means any and all formulae, procedures, processes, methods,
designs, know-how, trade secrets and other proprietary information,
discoveries, licenses, software and source code, programs,
prototypes, designs, techniques, ideas, concepts, data, engineering
and Manufacturing information, electronic control circuits,
specifications, diagrams, drawings, schematics, blueprints and
parts lists and other proprietary information, rights and works of
authorship, whether or not reduced to writing.
“ Lien ” means
any lien (statutory or otherwise), security interest, pledge,
hypothecation, mortgage, assessment, lease, claim, levy, license,
defect in title, charge, or any other third party right, license or
property interest of any kind, or any conditional sale or other
title retention agreement, right of first option, right of first
refusal or similar restriction, any covenant not to sue, or any
restriction on use, transfer, receipt of income or exercise of any
other attribute of ownership or any agreement to give any of the
foregoing in the future or similar encumbrance of any kind or
nature whatsoever.
“ Magnolia ” has
the meaning set forth in Section 2.2(c)(ix).
“ Manufacture ”
and “ Manufacturing ” means, with respect to a
product or compound, the manufacturing, processing, formulating,
packaging, labeling, holding and quality control testing of such
product or compound.
“ Material Adverse
Effect ” means any event, state of facts, circumstance,
development, change or effect that, individually or in the
aggregate with all other events, states of facts, circumstances,
developments, changes or effects, (a) is materially adverse to
the business, assets, liabilities, operations, condition (financial
or otherwise), or results of operations of Seller, taken as a
whole, (b) is materially adverse to the Purchased Assets, or
(c) materially impacts, materially delays or prevents the
consummation of the transactions contemplated hereby, other than,
in the case of (a) or (c), any event, state of facts,
circumstance, development, change or effect resulting from
(i) changes in general economic market conditions,
(ii) general changes or developments in the industries in
which Seller operates; (iii) changes in the price or trading
volume of Seller’s common stock (provided that the underlying
changes, events, occurrences, state of facts or developments that
caused or contributed to any such change may otherwise be taken
into consideration in determining whether a Material Adverse Effect
has occurred), (iv) changes in U.S. GAAP, (v) that can be
directly attributed to the announcement or performance of this
Agreement and the transactions contemplated hereby, including
compliance
6
with the covenants set forth herein, or any
action taken or omitted to be taken by Seller at the written
request or with the prior written consent of Buyer, (vi) any
failure by Seller to meet revenue or earnings projections, in and
of itself (provided that the underlying changes, events,
occurrences, states of facts or developments that caused or
contributed to such failure to meet published revenue or earnings
projections may otherwise be taken into consideration in
determining whether a Material Adverse Effect has occurred);
(vii) acts of war or terrorism or natural disasters, except,
in the case of the foregoing clauses (i), (ii), (iii) and
(vii) to the extent such changes or developments referred to
therein have a disproportionate impact on Seller relative to other
industry participants or would prevent or materially impair or
materially delay the ability of Seller to perform its obligations
under this Agreement or to consummate the transactions contemplated
hereby.
“ Mutual Release
Agreement ” means the mutual release agreement to be
entered into as of the Closing Date by and between Buyer and
BGX.
“ Notice of Termination
” has the meaning set forth in
Section 8.2(a).
“ Novo Field of Use
” means the discovery, research, development,
commercialization or other Exploitation of any compound or product
developed utilizing any Intellectual Property under the BGX
Transferred Assets or the Purchased Assets, for the use in the
prevention or treatment of acquired or hereditary hemorrhagic
disorders as defined in WHO, ICD-10, Chapter III, D65 through D69,
but does not include any compound or product comprising, derived
from, or containing G-CSF or any erythropoietin.
“ NRC License Agreement
” means the License Agreement with the National Research
Council of Canada, dated May 26, 2000 and amended
June 15, 2005.
“ Order ” means
any writ, judgment, decree, injunction or similar order, including
consent orders, of any Governmental Authority (in each such case
whether preliminary or final).
“ Patent Rights ”
means individually and collectively any and all patents and/or
patent applications and provisional applications, all inventions
disclosed therein, and any and all continuations,
continuations-in-part, continued prosecution applications,
divisions, renewals, patents of addition, reissues, confirmations,
registrations, revalidations, revisions and re-examinations
thereof, utility models, petty patents, design registrations and
any all patents issuing therefrom and any and all foreign
counterparts thereof and extensions of any of the foregoing,
including under the United States Patent Term Restoration Act, and
Supplementary Protection Certificates (SPCs) according to Counsel
Regulation (EEC) No. 1768/92 and similar extensions for other
patents under any Applicable Laws.
“ Permits ” has
the meaning set forth in Section 3.5.
“ Permitted Liens
” means (a) Liens for Taxes not yet due and payable and
(b) statutory worker’s, carrier’s,
mechanic’s, materialmen’s, and similar Liens arising in
the ordinary course of business and consistent with past practice
and that are not delinquent.
“ Person ” means
a human being, labor organization, partnership, firm, enterprise,
association, joint venture, corporation, limited liability company,
cooperative, legal
7
representative, foundation, society, political
party, estate, trust, trustee, trustee in bankruptcy, receiver or
any other organization or entity whatsoever, including any
Governmental Authority.
“ Post-Closing
Confidentiality Agreement ” has the meaning set forth in
Section 5.2.
“ Post-Closing Tax
Period ” has the meaning set forth in
Section 5.8(b).
“ Pre-Closing Tax
Period ” means (a) any Tax period ending on or
before the Closing Date and (b) with respect to a Tax period
that commences on or before the Closing Date but ends thereafter,
the portion of such period up to and including the Closing
Date.
“ Proxy Statement
” has the meaning set forth in Section 3.4.
“ Purchase Price
” has the meaning set forth in
Section 2.1(a)(i).
“ Purchase Price
Allocation ” has the meaning set forth in
Section 2.6(a).
“ Purchased Assets
” has the meaning set forth in
Section 2.2(a).
“ Reagents ”
means the enzymes and sugar nucleotides that are
(i) Manufactured for the Collaboration or (ii) solely
related to the use of the Transferred Intellectual Property within
the Novo Field of Use, in each case to be transferred to Buyer in
accordance with the Transition Plan.
“ Recommendation
” has the meaning set forth in
Section 3.2(a).
“ Related Documents
” means, other than this Agreement, all agreements,
certificates and documents signed and delivered by either party in
connection with this Agreement, exclusive of the BGX Asset Purchase
Agreement and any related or ancillary documents
thereto.
“ Required Consents
” has the meaning set forth in Section 3.5.
“ Required License
Agreements ” shall mean (i) the Exclusive License
Agreement for Method of Producing Secretable Glycosyltransferases
and Golgi Processing Enzymes and Production of Soluble Recombinant
Beta-Galactoside Alpha-2,3 Sialyltransferase between The Regents of
the University of California and Cytel Corporation, dated
February 25, 1999, as amended March 23, 1999 to
substitute Seller for Cytel, as amended December 8, 2003, as
amended January 24, 2005, as amended March 23, 2005,
(ii) the License Agreement between New England Biolabs Inc.
and Seller, dated March 10, 2004, as amended March 10,
2005 and (iii) the Amended and Restated License Agreement,
with effective date August 1, 2003, by and between Seller and
The Regents of the University of Michigan.
“ Required Licensors
” shall mean The Regents of the University of California, New
England Biolabs Inc. and The Regents of the University of
Michigan.
“ Required Stockholder
Vote ” has the meaning set forth in
Section 3.2(b).
8
“ SEC ” means the
United States Securities and Exchange Commission.
“ Securities Act
” has the meaning set forth in Section 3.6.
“ Seller ” has
the meaning set forth in the preamble hereof.
“ Seller Collaboration
Activities ” means those tests, studies and other
activities conducted by or on behalf of Seller under or in
connection with or related to the Collaboration
Agreements.
“ Seller Commission
Filings ” has the meaning set forth in
Section 3.8.
“ Seller Financials
” has the meaning set forth in Section 3.9.
“ Seller License
Agreement ” has the meaning set forth in
Section 6.4(a)(ii).
“ Seller’s Financial
Advisor ” means RBC Capital Markets
Corporation.
“ Seller’s
Knowledge ” (and similar phrases) means the actual
knowledge of any executive officer or director of Seller, Dori
Mansur Ratka, Deputy General Counsel of Seller, or Rachel
Rondinelli, Senior Director of Intellectual Property of Seller,
after making due inquiry of the Employees having primary
responsibility for such matter, and the knowledge any executive
officer or director of Seller, Dori Mansur Ratka or Rachel
Rondinelli would have had if he or she had performed his or her
services and duties in the ordinary course of business on behalf of
Seller in a reasonably diligent manner.
“ Seller Stockholders
Meeting ” has the meaning set forth in
Section 5.4(c).
“ Subsidiary ”
means, with respect to any Person, any other Person of which at
least a majority of the securities or ownership interests having by
their terms ordinary voting power to elect a majority of the board
of directors or other persons performing similar functions is
directly or indirectly owned or controlled by such Person and/or by
one or more of its Subsidiaries.
“ Superior Acquisition
Proposal” means any unsolicited Acquisition Proposal made
by a third party for consideration to Seller’s stockholders
or Board of Directors providing for the payment or exchange of cash
and/or securities for all of the shares of Seller’s capital
stock then outstanding or all or substantially all the assets of
Seller (other than the asset sale and related transactions
contemplated by the BGX Asset Purchase Agreement), which the Board
of Directors of Seller, acting in its good faith judgment in
accordance with Section 5.7(h), determines (a) is
superior to Seller’s stockholders from a financial point of
view to the transactions contemplated by this Agreement and the
Related Documents, (b) is reasonably likely to be consummated
on its terms, taking into account all legal, financial, regulatory
and other aspects of the proposal and (c) if providing for the
payment of cash to Seller or its stockholders, is supported by
fully-committed financing, subject to customary
conditions.
“ Supply Agreement
” means the Supply Agreement, dated July 12, 2007, by
and between Buyer and Seller.
9
“ Tail Policy ”
has the meaning set forth in Section 5.14.
“ Tax ” or
“ Taxes ” means any and all taxes, assessments,
levies, tariffs, duties or other charges or impositions in the
nature of a tax (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect
thereto) imposed by any Governmental Authority, including income,
estimated income, gross receipts, profits, business, license,
occupation, franchise, capital stock, real or personal property,
sales, use, transfer, value added, employment or unemployment,
social security, disability, alternative or add-on minimum,
customs, excise, stamp, environmental, commercial rent or
withholding taxes, and shall include any liability for Taxes of any
other Person under Applicable Law by contract or
otherwise.
“ Tax Return ”
means any return, declaration, report, claim for refund,
information return or statement relating to Taxes, including any
schedule or attachment thereto, filed or maintained, or required to
be filed or maintained, in connection with the calculation,
determination, assessment or collection of any Tax and shall
include any amended returns.
“ Trademark ”
means (a) any word, name, symbol, color, designation or device
or any combination thereof, including any trademark, trade dress,
brand mark, trade name, domain name, brand name, logo or business
symbol; (b) all registrations and applications for any of the
foregoing; (c) all goodwill associated with any of the
foregoing; and (d) all rights and priorities connected with
the foregoing afforded under Applicable Law.
“ Transfer Date ”
means with respect to an Assumed Contract requiring a Consent, the
date such Consent is obtained and such Assumed Contract is duly
assigned to Buyer.
“ Transferred
Copyrights ” means all Copyrights Controlled by Seller as
of the Closing Date which relate to any Transferred Patent Rights,
the Collaboration or the Novo Field of Use.
“ Transferred Intellectual
Property ” means the (a) Transferred Patent Rights,
(b) Transferred Know-How, (c) Transferred Trademarks,
(d) Transferred Copyrights, and (e) Transferred Reagent
Intellectual Property.
“ Transferred Know-How
” means all Know-How Controlled by Seller as of the Closing
Date which relates to any of the Transferred Patent Rights, the
Novo Field of Use or the Collaboration.
“ Transferred Patent
Rights ” means (i) all Patent Rights Controlled by
Seller that relate to the Collaboration or the Novo Field of Use
including those Patent Rights listed on Schedule 1.1(a) ;
and (ii) all Patent Rights Controlled by Seller which, due to
the requirement to maintain common ownership of patents or patent
applications linked by a valid terminal disclaimer under the laws
of the United States or under the laws now in effect or hereinafter
enacted in any jurisdiction, are required to be owned by the same
Person as any Patent Rights set forth in clause (i).
“ Transferred Reagent
Intellectual Property ” means all Intellectual Property
Controlled by Seller in the Novo Field of Use that covers the
Reagents.
10
“ Transferred
Trademarks ” means all Trademarks Controlled by Seller
that relate to the Collaboration or the Novo Field of Use listed on
Schedule 1.1(c) .
“ Transfer Taxes
” has the meaning set forth in
Section 5.8(a).
“ Transition Plan
” has the meaning set forth in
Section 2.2(b).
“ U.S. GAAP ” has
the meaning set forth in Section 3.9.
Section 1.2.
Interpretation .
(a)
Descriptive headings are for convenience only and shall not control
or affect the meaning or construction of any provision of this
Agreement.
(b)
Except as otherwise expressly provided in this Agreement or as the
context otherwise requires, the following rules of
interpretation apply to this Agreement: (i) the singular
includes the plural and the plural includes the singular;
(ii) “or” and “any” are not exclusive
and the words “include” and “including,”
and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words
“without limitation;” (iii) a reference to any
Contract includes amendments, modifications and supplements made
from time to time in accordance with the terms thereof, provided
that with respect to any Contract listed on any Schedule, all such
amendments, modifications or supplements must also be listed in the
appropriate Schedule; (iv) a reference to an Applicable Law
includes any amendment or modification to such Applicable Law;
(v) a reference to a Person includes its successors, heirs and
permitted assigns; (vi) a reference to one gender shall
include any other gender; (vii) a reference in this Agreement
to an Article, Section, Exhibit or Schedule is to the
referenced Article, Section, Exhibit or Schedule of this
Agreement; (viii) “hereunder,”
“hereof,” and words of similar import shall be deemed
references to this Agreement as a whole and not to any particular
Article, Section or other provision; and
(ix) “commercially reasonable efforts” of a party
to this Agreement shall be construed as the efforts that a prudent
Person in such party’s industry, desirous of achieving a
result, would use in similar circumstances to achieve that result
as expeditiously as possible.
(c)
The parties hereto agree that they have been represented by counsel
during the negotiation, drafting, preparation and execution of this
Agreement and, therefore, waive the application of any Applicable
Law or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party
drafting such agreement or document.
ARTICLE II
PURCHASE AND SALE
Section 2.1.
Purchase and Sale of Assets; Purchase Price.
(a)
Pursuant to the terms and subject to the conditions of this
Agreement, at the Closing, Seller shall sell, convey, deliver,
transfer and assign to Buyer, free and clear of all Liens (other
than Permitted Liens), and Buyer shall purchase, take delivery of
and acquire from Seller, all of Seller’s right, title and
interest in, to and under all of the Purchased Assets.
In
11
consideration of the sale,
conveyance, delivery, transfer, and assignment of the Purchased
Assets to Buyer and Seller’s other covenants and obligations
hereunder, at the Closing and pursuant to the terms and subject to
the conditions hereof, Buyer shall:
(i)
pay Seller an amount equal to $21,000,000.00 (the “
Purchase Price ”); and
(ii)
assume the Assumed Liabilities.
(b)
Buyer shall deliver the Purchase Price, by wire transfer of
immediately available funds to the account set forth on Schedule
6.4(b)(i) .
Section 2.2.
Purchased Assets; Excluded Assets.
(a)
The term “ Purchased Assets ” means all of
Seller’s right, title and interest in and to all properties
and assets (tangible or intangible) used in or generated under or
in connection with the Collaboration Agreements, other than the
Excluded Assets (as set forth in Section 2.2(c)), including
the following:
(i)
the Transferred Intellectual Property;
(ii)
all tangible embodiments of the Transferred Intellectual Property,
such as Books and Records, including original files of any
Transferred Patent Rights, and copies of any information relating
to any Tax imposed on the Transferred Intellectual
Property;
(iii)
all right, title and interest in and to all inventory of any
Reagents in Seller’s possession or control as of the Closing
Date (collectively, the “ Inventory
”);
(iv)
all rights in, under and to the Contracts set forth in Schedule
2.2(a)(iv) (collectively, the “ Assumed
Contracts ”), including all rights to receive goods and
services purchased pursuant to such Contracts, Contracts by which
Seller Controls any Transferred Intellectual Property, and rights
to assert claims and take other actions in respect of breaches or
other violations of the foregoing; and
(v)
all claims, counterclaims, credits, causes of action, rights of
recovery, and rights of indemnification or setoff against third
parties, insurance benefits and other claims exclusively or
primarily relating to the Seller Collaboration Activities, any
Purchased Assets or the Assumed Liabilities and all other
intangible property rights that relate to the Seller Collaboration
Activities, any Purchased Assets or the Assumed
Liabilities.
(b)
Transition Plan . Buyer, Seller and BGX shall
cooperate in the transfer of the tangible embodiments of the
Transferred Intellectual Property and Books and Records included in
the Purchased Assets that are to be delivered to Buyer at Closing
in accordance with Section 2.2 and the written transition plan
as set forth on Schedule 2.2(b) (as the same may be
amended from time to time prior to the Closing Date by written
agreement of Seller and Buyer, the “ Transition Plan
”). The Transition Plan, as amended through the Closing
Date, sets forth the
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full and complete delivery
requirements of Seller with respect to the Purchased Assets
hereunder. Any copying fees and expenses relating to the
Purchased Assets incurred in connection with the Transition Plan or
the implementation thereof shall be borne by Seller and any
transportation or shipping fees relating to the Purchased Assets
shall be borne by Buyer. In accordance with the Transition
Plan, Seller will cooperate with any reasonable arrangements agreed
upon by Buyer and BGX with respect to ensuring access following the
Closing to Books and Records embodied in electronic databases or
other formats that cannot reasonably be divided or
copied.
(c)
Notwithstanding Section 2.2(a), Buyer shall not acquire from
Seller pursuant to this Agreement any of the following assets of
Seller (the “ Excluded Assets ”):
(i)
all assets to be transferred to BGX pursuant to the BGX Asset
Purchase Agreement (the “ BGX Transferred Assets
”);
(ii)
all cash, cash equivalents, investments, securities and bank or
other deposit accounts of Seller;
(iii)
any refunds, claims for refunds or rights to receive refunds from
any Governmental Authority with respect to Taxes paid or to be paid
by Seller;
(iv)
all tangible assets and properties including equipment, supplies,
raw materials, accessories, tooling, tools, fixtures and furniture,
wherever located, other than the Inventory and the Books and
Records;
(v)
other than the copies of any Tax records described in
Section 2.2(a)(ii), any records (including accounting records)
related to Taxes paid or payable by Seller and all financial and
Tax records that form part of the general ledger of
Seller;
(vi)
all insurance benefits, including rights and proceeds, arising from
or relating to the Excluded Assets or the Excluded
Liabilities;
(vii)
Seller’s certificate of incorporation, bylaws, minute books,
stock records and corporate seal;
(viii)
any Contract that is not an Assumed Contract;
(ix)
any right relating to Magnolia Nutritionals LLC (“
Magnolia ”)
(x)
any right, title or interest to the Excluded Intellectual Property;
and
(xi)
any of the rights of Seller under this Agreement and the Related
Documents.
Section 2.3.
Assumed Liabilities; Excluded Liabilities.
(a)
Assumed Liabilities . Pursuant to the terms and
subject to the conditions of this Agreement, at the Closing, Seller
shall sell, convey, transfer and assign to Buyer, and Buyer shall
assume from Seller, the Assumed Liabilities. “
Assumed Liabilities ” means (i)
13
performance obligations
arising under the Assumed Contracts accruing with respect to the
period commencing, as applicable, after the Closing Date or the
Transfer Date (if Consent to assignment thereof is required) (other
than liabilities or obligations attributable to any failure by
Seller to comply with the terms thereof); or (ii) all other
liabilities related to the Purchased Assets to the extent incurred
after the Closing Date. Notwithstanding any other provision of this
Agreement, Buyer does not assume and has no responsibility for any
liabilities or obligations of Seller other than the Assumed
Liabilities specifically identified in this
Section 2.3(a).
(b)
Excluded Liabilities . Notwithstanding any provision
in this Agreement or any other writing to the contrary, neither
Buyer nor any of its Affiliates is assuming any liability or
obligation of Seller (or any predecessor of Seller or any prior
owner of all or part of its businesses or assets) of whatever
nature, whether presently in existence or arising hereafter, other
than the Assumed Liabilities. All such liabilities and
obligations shall be retained by and remain obligations and
liabilities of Seller (all such liabilities and obligations not
being assumed being herein referred to as the “ Excluded
Liabilities ”). Notwithstanding any provision in
this Agreement or any other writing to the contrary and without
limiting the generality of the term “Excluded
Liabilities”, the Excluded Liabilities shall
include:
(i)
all liabilities and obligations of Seller, or any member of any
consolidated, affiliated, combined or unitary group of which Seller
is or has been a member for Taxes; provided that Transfer Taxes
incurred in connection with the transactions contemplated by this
Agreement and Apportioned Obligations shall be paid in the manner
set forth in Section 5.8(b) and
(c) hereof;
(ii)
all liabilities and obligations relating to employee benefits or
compensation arrangements in relation to Seller or the Business,
whether relating or attributable to, or arising during, the period
before or after Closing, including all liabilities or obligations
under any employee benefit agreements, retention, severance or
other plans or other arrangements, whether or not under Employee
Benefit Plans;
(iii)
all liabilities and obligations arising from any Action relating to
Seller, the Business or the Purchased Assets pending before any
arbitrator or Governmental Authority;
(iv)
all liabilities and obligations relating to or arising from any
presently or formerly owned, operated or leased asset, property or
business of Seller that is not a Purchased Asset, whether relating
or attributable to, or arising during, the period before or after
Closing; and
(v)
all liabilities and obligations relating or attributable to, or
arising during, the operation of the Business and any owned, leased
or operated Purchased Asset prior to Closing, including in relation
to any contract (including any Assumed Contract), agreement, lease,
license, commitment, sales or purchase order or other instrument or
in relation to Magnolia.
Section 2.4.
Closing . Pursuant to the terms and subject to the
conditions of this Agreement, the closing of the transactions
contemplated by this Agreement (the “ Closing ”)
shall
14
take place at the offices of
Morgan Lewis & Bockius LLP, 502 Carnegie Center,
Princeton, NJ 08540, at 10:00 a.m. local time within five
(5) Business Days following the satisfaction or waiver of all
of the conditions or obligations set forth in Article VI, or
such other time and place as Buyer and Seller may agree to in
writing (such date, the “ Closing Date
”).
Section 2.5.
Procedures for Certain Purchased Assets Not Freely
Transferable . Notwithstanding anything to the contrary
contained in this Agreement, this Agreement shall not constitute an
agreement to assign any Purchased Asset or any claim or right or
any benefit arising thereunder or resulting therefrom if such
assignment, without the consent of a third party thereto, would
constitute a breach or other contravention of such Purchased Asset
or in any way adversely affect the rights of Buyer or Seller
thereunder. Seller and Buyer will use their commercially
reasonable efforts (but without any payment of money by Seller or
Buyer) to obtain the consent of any third parties to any such
Purchased Asset or any claim or right or any benefit arising
thereunder for the assignment thereof to Buyer as Buyer may
request. If such consent is not obtained, or if an attempted
assignment thereof would be ineffective or would adversely affect
the rights of Seller thereunder so that Buyer would not in fact
receive all such rights, Seller and Buyer will cooperate in a
mutually agreeable arrangement under which Buyer would obtain the
benefits and assume the obligations thereunder in accordance with
this Agreement, including sub-contracting, sub-licensing, or
sub-leasing to Buyer, or under which Seller would enforce for the
benefit of Buyer, with Buyer assuming Seller’s obligations,
any and all rights of Seller against a third party thereto, so long
as such arrangement does not limit the liquidation contemplated by
Section 6.6. Seller will promptly pay to Buyer when
received all monies received by Seller under any Purchased Asset or
any claim or right or any benefit arising thereunder, except to the
extent the same represents an Excluded Asset. In such event,
Seller and Buyer shall, to the extent the benefits therefrom and
obligations thereunder have not been provided by alternate
arrangements satisfactory to Buyer and Seller, negotiate in good
faith an adjustment in the consideration paid by Buyer for the
Purchased Assets.
Section 2.6.
Purchase Price Allocation .
(a)
Prior to the Closing Date, Buyer shall provide to Seller copies of
IRS Form 8594 and any required exhibits (the “
Purchase Price Allocation ”) setting forth
Buyer’s proposed allocation of the Purchase Price (including
the Assumed Liabilities, to the extent properly taken into account
under Section 1060 of the Code) in accordance with
Section 1060 of the Code. Within 20 days after the
receipt of the Purchase Price Allocation, Seller shall propose to
Buyer any changes to the Purchase Price Allocation or shall be
deemed to have indicated its concurrence therewith. Buyer and
Seller shall endeavor in good faith to resolve any differences with
respect to the Purchase Price Allocation within 20 days after
Buyer’s receipt of notice of objection from
Seller.
(b)
If Seller objects to the Purchase Price Allocation within the
period provided in Section 2.6(a) and Buyer and Seller
are unable to resolve any differences that, in the aggregate, are
material in relation to the Purchase Price, then any remaining
disputed matters shall be finally and conclusively determined by an
independent accounting firm of recognized national standing
selected by Buyer and Seller, which firm shall not be the regular
auditing firm of Buyer or Seller. Promptly, but not later
than 20 days after its acceptance of its appointment, such
accounting firm shall determine (based solely on presentations by
Buyer and Seller and not
15
by independent review) only
those matters in dispute and shall render a written report as to
the disputed matters and the resulting allocation of the Purchase
Price and the Assumed Liabilities, which report shall be conclusive
and binding upon the parties. Buyer and Seller shall, subject
to the requirements of Applicable Law, file all Tax Returns and
reports consistent with the allocation provided in the Purchase
Price Allocation as determined by such accounting firm. The
fees and expenses of such accounting firm shall be shared equally
by Buyer and Seller.
(c)
Seller and Buyer agree to act in accordance with the Purchase Price
Allocation in any Tax Return, including any forms or reports
required to be filed pursuant to Section 1060 of the Code or
any provisions of any comparable Applicable Law, unless there has
been a final “determination,” as defined in
Section 1313(a) of the Code, in which the allocation is
modified. Buyer and Seller shall cooperate in the preparation
of such Tax Returns and file such forms as may be required by
Applicable Law. Neither Buyer nor Seller shall take a
position inconsistent therewith upon examination of any Tax Return,
in any refund claim, or in any litigation or investigation, without
the prior written consent of the other party, except as required by
Applicable Law. In the event that the Purchase Price
Allocation is disputed by any Governmental Authority, the party
receiving notice of the dispute shall promptly notify the other
party hereto in writing of such notice and resolution of the
dispute.
Section 2.7.
Books and Records . Subject to the Post-Closing
Confidentiality Agreement and the Transition Plan, Buyer agrees and
acknowledges that Seller may retain photocopies or other
duplications of any and all Books and Records for Tax, regulatory,
accounting, or other legitimate business purposes.
Section 2.8.
Privileges . Buyer acknowledges that the Purchased
Assets include certain attorney work product protections,
attorney-client privileges and similar legal protections and
privileges with which Seller may be entitled in connection with the
Purchased Assets or Assumed Liabilities, including the freedom to
operate opinions listed on Schedule 2.8 . Accordingly,
Seller is not waiving, and shall not be deemed to have waived or
diminished, any of its attorney work product protections,
attorney-client privileges or similar protections or privileges
with respect to the items listed on Schedule 2.8 , to the
extent allowed by Applicable Law, as a result of the disclosure of
information to Buyer and its representatives in connection with
this Agreement and the transactions contemplated by this
Agreement. Seller and Buyer (i) share a common legal and
commercial interest in all of the information and communications
that may subject to such protections and privileges, (ii) are
or may become joint defendants in Actions to which such protections
and privileges may relate and (iii) intend that such
protections and privileges remain intact should either party become
subject to any actual or threatened Actions to which such
information or communications relate. Seller agrees that it
shall have no right or power after the Closing Date to waive any
such protection or privilege included in any of the Purchased
Assets and Seller shall take all actions reasonably requested by
Buyer, at the expense of Buyer, in order to permit Buyer, at its
sole discretion, to preserve or waive any such protection or
privilege.
16
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to
Buyer that each statement contained in this Article III is
true and correct as of the date hereof and as of the Closing Date,
with each such representation and warranty subject to the
disclosure Schedules of Seller referenced in such representation or
warranty.
Section 3.1.
Organization, Standing and Power . Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power and authority and all material governmental
licenses, authorizations, permits, consents and approvals required
to own, lease and operate its properties and to carry on its
business as now being conducted. Seller is duly qualified to
do business and is in good standing in each jurisdiction in which
such qualification is necessary because of the property owned,
leased or operated by it or because of the nature of its business
as now being conducted, except where any failure, individually or
in the aggregate, to be so qualified or in good standing does not
or could not reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule 3.1 , Seller
has no, and since January 1, 2002 has not had, any
Subsidiaries or Affiliates. Magnolia has no rights to, under
or in connection with the Purchased Assets.
Section 3.2.
Authority; Binding Agreements .
(a)
The Board of Directors of Seller, at a meeting thereof duly called
and held, has duly adopted resolutions by the requisite majority
vote approving this Agreement, the Related Documents and the
transactions contemplated hereby and thereby determining that the
terms and conditions of this Agreement, the Related Documents and
the transactions contemplated hereby and thereby are in the best
interests of Seller and its stockholders, and recommending that
Seller’s stockholders authorize the transactions contemplated
by this Agreement and the Related Documents (the “
Recommendation ”). The foregoing resolutions of
the Board of Directors of Seller have not been modified,
supplemented or rescinded and remain in full force and effect as of
the date hereof. The Board of Directors of Seller has
received an opinion of Seller’s Financial Advisor to the
effect that, as of the date of such opinion, the terms and
conditions of the transactions contemplated by this Agreement and
the Related Documents are fair, from a financial point of view, to
Seller. The foregoing opinion has not been modified,
supplemented or rescinded prior to the date of this
Agreement.
(b)
No stockholder or other equityholder approval is required on behalf
of Seller for the execution, delivery or performance of this
Agreement, the Related Documents or any of the transactions
contemplated hereby or thereby, other than the affirmative vote of
the holders of a majority of the outstanding shares of
Seller’s common stock (the “ Required Stockholder
Vote ”). Subject to obtaining the Required
Stockholder Vote, the execution and delivery by Seller of this
Agreement and the Related Documents to which it is or will become a
party and the consummation of the transactions contemplated hereby
and thereby have been duly and validly authorized by all necessary
action on the part of Seller. Seller has all requisite
corporate power and authority to enter into this Agreement and the
Related Documents to which it is or will become a party and,
subject to obtaining the Required Stockholder Vote, to
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consummate the transactions
contemplated hereby and thereby, and this Agreement and such
Related Documents have been, or upon execution and delivery thereof
will be, duly executed and delivered by Seller. This
Agreement and the Related Documents to which Seller is or will
become a party are, or upon execution and delivery by Seller
thereof will be, the valid and binding obligations of Seller,
enforceable against Seller in accordance with their respective
terms, except to the extent that enforceability is limited by
bankruptcy, insolvency or similar laws affecting creditors’
rights and remedies by equitable principles.
Section 3.3.
Conflicts . The execution, delivery and performance by
Seller of this Agreement and the Related Documents to which it is
or will become a party and the consummation of the transactions
contemplated hereby and thereby do not and will not:
(a)
conflict with or result in a breach of the certificate of
incorporation, bylaws or other constitutive or organizational
documents of Seller;
(b)
conflict with, result in a default or give rise to any right of
termination, cancellation, modification or acceleration under any
material note, bond, lease, mortgage, indenture, Contract or other
instrument or obligation to which Seller is a party, or by which
Seller, the Collaboration or any of the Purchased Assets may be
bound or affected, except as set forth on Schedule 3.3(b)
;
(c)
assuming the Required Stockholder Vote is obtained and the filings
referred to in Section 5.4 are made, conflict with or violate
in any material respect any Applicable Law with respect to Seller,
the Business or any of the Purchased Assets; or
(d)
result in the creation or imposition of any Lien (other than
Permitted Liens) upon any Purchased Asset.
Section 3.4.
Governmental Authorizations . No consent, approval or
authorization of, or registration, declaration or other similar
action in respect of, or filing with, any Governmental Authority is
required to be obtained or made by or with respect to Seller in
connection with the execution, delivery and performance of this
Agreement, the Related Documents or the consummation of the
transactions contemplated hereby and thereby, other than (i) a
proxy statement related to the Seller Stockholders Meeting
(together with any amendments thereof or supplements thereto, the
“ Proxy Statement ”), (ii) compliance with
the rules of The Nasdaq Stock Market Inc., (iii) any
notices, applications, authorizations or licenses required under
Directive 2001/83/EC, Regulation (EC) No. 726/2004, each as
amended, and relevant national implementations thereof and
(iv) those that may be required solely by reason of
Buyer’s (as opposed to any other third party’s)
participation in the transactions contemplated by this Agreement
and the Related Documents.
Section 3.5.
Licenses and Permits . Schedule 3.5(a)
correctly describes each license, franchise, permit,
certificate, approval or other similar authorization affecting, or
relating to Seller, the Business or the Purchased Assets (the
“ Permits ”), including environmental Permits,
together with the name of the Governmental Authority issuing such
Permit. The Permits are valid and in full force and
effect. Seller is not in default, and no condition exists
that with notice or lapse of time or both would constitute a
default, under the Permits. Schedule 3.5(b) sets
forth
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each Permit which requires a
consent or other action by any Person as a result of the execution,
delivery and performance of this Agreement, except such consents or
actions as would not, individually or in the
