Back to top

ASSET PURCHASE AGREEMENT

Asset Purchase Agreement

ASSET PURCHASE AGREEMENT | Document Parties: ONCOTHYREON INC. | BIOMIRA MANAGEMENT, INC | EMD SERONO CANADA INC | ONCOTHYREON CANADA INC | ONCOTHYREON INC You are currently viewing:
This Asset Purchase Agreement involves

ONCOTHYREON INC. | BIOMIRA MANAGEMENT, INC | EMD SERONO CANADA INC | ONCOTHYREON CANADA INC | ONCOTHYREON INC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: ASSET PURCHASE AGREEMENT
Date: 3/30/2009
Industry: Biotechnology and Drugs     Sector: Healthcare

50 of the Top 250 law firms use our Products every day

Exhibit 10.45 ASSET PURCHASE AGREEMENT This Agreement is dated as of the 18th day of December, 2008. AMONG: ONCOTHYREON CANADA INC. , a Canadian corporation with offices located at Edmonton, Alberta (" Oncothyreon Canada ") AND: BIOMIRA MANAGEMENT, INC. , a Delaware corporation with offices located at Seattle, Washington (" Biomira Management ") AND: ONCOTHYREON INC. , a Delaware corporation with offices located at Seattle, Washington (" Oncothyreon Parent ") (Oncothyreon Canada, Biomira Management and Oncothyreon Parent hereinafter collectively referred to as " Oncothyreon ") AND: MERCK KGaA , a German corporation with offices located at Darmstadt, Germany (" Merck ") AND: EMD SERONO CANADA INC. , an Ontario corporation with offices located at 2695 North Sheridan Way, Suite 200, Mississauga, Ontario (" EMD "), an affiliate of Merck       WHEREAS Merck and Biomira Management will be entering into an amended and restated license agreement pursuant to which Biomira Management will license to Merck, inter alia , certain manufacturing rights in relation to the manufacture of BLP25;       AND WHEREAS Oncothyreon Canada and Biomira Management have agreed to sell certain assets related to the manufacture of BLP25 to EMD and Merck and EMD and Merck have agreed to purchase such assets from Oncothyreon Canada and Biomira Management, all upon the terms and subject to the conditions set forth in this Agreement;       AND WHEREAS EMD and Oncothyreon Canada have agreed on certain matters in respect of certain employees of Oncothyreon Canada;       NOW THEREFORE in consideration of the representations, warranties, covenants and agreements set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties hereto, the parties hereto covenant and agree as follows:  

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

2 ARTICLE 1
INTERPRETATION
Section 1.1 Definitions      In this Agreement, unless otherwise provided, the following terms shall have the following meanings:

 

 

1.1.1

 

" Adjustment Date " has the meaning set out in Section 5.4;

 

     

 

1.1.2

 

" Affiliate " means any business entity that directly or indirectly controls, is controlled by, or is under common control with either party to this Agreement. A business entity shall be deemed to "control" another business entity if it owns, directly or indirectly, more than fifty (50%) percent of the outstanding voting securities, capital stock, or other comparable equity or ownership interest of such business entity. If the laws of the jurisdiction in which such business entity operates prohibit ownership by a party of more than fifty percent (50%), control shall be deemed to exist at the maximum level of ownership allowed by such jurisdiction;

 

     

 

1.1.3

 

" Agreement " means this asset purchase agreement, together with any amendments to or replacements of or substitutions for this asset purchase agreement;

 

     

 

1.1.4

 

" Applicable Law " means



 

1.1.4.1

 

any applicable domestic or foreign law including any statute, subordinate legislation or treaty, and

 

     

 

1.1.4.2

 

any applicable guideline, directive, rule, standard, requirement, policy, order, judgment, injunction, award or decree of a Governmental Authority having the force of law;

 

1.1.5

 

" Assets " means all of Oncothyreon’s right, title and interest in and to all of the assets that Oncothyreon uses to carry on the Purchased Business as of December18, 2008 (or in the six months prior to December18, 2008, has used to carry on the Purchased Business subject to ordinary course of business changes, sales, replacements, alterations, disposals, usage, breakage, and the like, during such period) including, without limiting the generality of the foregoing: (i) the Lease; (ii) the Leased Premises Assets; (iii) the Manufacturing Contracts; (iv) the Inventory Assets; and (v) the Other Assets but excluding for greater certainty the Excluded Assets;

 

     

 

1.1.6

 

" Assumed Liabilities " has the meaning set out in Section 2.7;

 

     

 

1.1.7

 

" Books and Records " means: the books, records and accounts of the Purchased Business and includes, without limitation, all material documents, data, information and correspondence (including general correspondence in writing or

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

3

 

 

 

 

electronic form) in the possession or control of Oncothyreon and to the extent not originals, means true and complete copies of such instruments, whether on paper or in electronic format;

 

     

 

1.1.8

 

" BLP25 " means BLP25 as defined in the License Agreement;

 

     

 

1.1.9

 

" Business Day " means a day other than a Saturday, Sunday or statutory holiday in Alberta, Canada or Ontario, Canada;

 

     

 

1.1.10

 

" Claim " means any claim, demand, assessment, action, suit, proceeding, investigation, cause of action, notice of action, litigation, judgement, order or decree;

 

     

 

1.1.11

 

" Closing " means the completion of the purchase and sale of the Assets and the assumption by EMD and Merck of the Assumed Liabilities and the Transferred Employees as contemplated by this Agreement on the Closing Date;

 

     

 

1.1.12

 

" Closing Date " means the 18th day of December, 2008 or such other date as EMD/Merck and Oncothyreon may agree upon in writing;

 

     

 

1.1.13

 

" Closing Time " means 11:00 a.m. (Edmonton time) on the Closing Date, or such other time as may be agreed to by EMD/Merck and Oncothyreon in writing;

 

     

 

1.1.14

 

" Confidential Information " is any and all information of a confidential nature concerning Oncothyreon, EMD/Merck, the respective business and affairs of Oncothyreon and EMD/Merck and the Purchased Business received in connection with this Agreement and the prior relationships or collaborations between Oncothyreon and EMD/Merck;

 

     

 

1.1.15

 

" Disclosed Personal Information " has the meaning set forth in Section 5.3;

 

     

 

1.1.16

 

" Disclosure Schedule " means schedule set out as Schedule N to this Agreement;

 

     

 

1.1.17

 

" Environmental Law " means any Applicable Law relating to the environment including those pertaining to



 

1.1.17.1

 

reporting, licensing, permitting, investigating, remediating and cleaning up in connection with any presence or Release, or the threat of the same, of Hazardous Substances, and

 

     

 

1.1.17.2

 

the manufacture, processing, distribution, use, treatment, storage, disposal, transport, handling and the like of Hazardous Substances, including those pertaining to occupational health and safety;

 

1.1.18

 

" Excluded Assets " means those items described in Schedule O to this Agreement;

 

     

 

1.1.19

 

" Excluded Liabilities " has the meaning set out in Section 2.8;

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

4

 

 

1.1.20

 

" Governmental Authority " means any domestic or foreign legislative, executive, judicial or administrative body or person having jurisdiction in the relevant circumstances;

 

     

 

1.1.21

 

" Hazardous Substance " means any substance or material that is prohibited, controlled or regulated by any Governmental Authority pursuant to Environmental Laws including pollutants, contaminants, dangerous goods or substances, toxic or hazardous substances or materials, wastes (including solid non-hazardous wastes and subject wastes), petroleum and its derivatives and by-products and other hydrocarbons, all as defined in or pursuant to any Environmental Law;

 

     

 

1.1.22

 

" Indemnified Party " means a Party to this Agreement who is seeking indemnification pursuant to Article 4 of this Agreement;

 

     

 

1.1.23

 

" Indemnifying Party " means a Party to this Agreement from whom the Indemnified Party is seeking indemnification pursuant to Article 4 of this Agreement;

 

     

 

1.1.24

 

" Inventory Assets " means all of Oncothyreon’s right, title and interest in those inventory assets specified in Schedule A to this Agreement;

 

     

 

1.1.25

 

" Key Employees " means those employees listed and identified as such in Schedule H;

 

     

 

1.1.26

 

" Lease " means that certain lease agreement made as of the 18th day of December, 2008 between Edmonton Economic Development Corporation and Oncothyreon Canada;

 

     

 

1.1.27

 

" Leased Premises Asset s" means all of Oncothyreon’s right, title and interest in those leased premises assets specified in Schedule B to this Agreement;

 

     

 

1.1.28

 

" License Agreement " means that certain amended and restated license agreement dated December 18, 2008 and made between Merck and Biomira Management, together with any amendments to or replacements of or substitutes for such amended and restated license agreement;

 

     

 

1.1.29

 

" Losses " means any and all claims, liabilities, obligations, losses, costs, expenses (including reasonable legal, accounting and similar expenses), fines, taxes, levies, deficiencies, assessments, charges, penalties, damages, settlements and judgments (the amount of which to be determined on an after tax basis, after taking full account of any tax benefit but after taking full account of the tax consequences of an indemnity payment in respect of a Loss), provided, however, that the term "Losses" shall exclude (i) any losses covered under any third party insurance policy, if any, to the extent that the proceeds from insurance are actually received by the Indemnified Party, (ii) the amount of any recovery, settlement or payment by or against another person, other than the Indemnified Party, who may be liable in whole or in part for any such loss, to the extent that such amounts are actually



 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

5

 

     
     


 

 

 

received by the Indemnified Party, and (iii) any indirect, special or consequential damages or loss of profits;

 

     

 

1.1.30

 

" Manufacturing Contracts " means all of Oncothyreon’s right, title and interest in those contracts related to the development, manufacture, testing and release of BLP25 set forth in Schedule C to this Agreement;

 

     

 

1.1.31

 

" Material Adverse Effect " means, when used in connection with the Purchased Business, any change, event, violation, inaccuracy, circumstance or effect that is or could reasonably be expected to be materially adverse to the business, assets, liabilities, financial condition, results of operations of the Purchased Business;

 

     

 

1.1.32

 

" Notice of Claim " means a written notice from an Indemnified Party to an Indemnifying Party of any event, omission or occurrence which the Indemnified Party has determined will or could give rise to Losses which are indemnifiable under this Agreement;

 

     

 

1.1.33

 

" Other Assets " means, when used in connection with the Purchased Business, all of Oncothyreon’s right, title and interest in the assets listed in Schedule D to this Agreement;

 

     

 

1.1.34

 

" Party " means a party to this Agreement and " Parties " means all of them;

 

     

 

1.1.35

 

" Personal Information " has the meaning set forth in Section 5.3;

 

     

 

1.1.36

 

" Premises " means the premises that are the subject of the Lease;

 

     

 

1.1.37

 

" Privacy Laws " has the meaning set forth in Section 5.3;

 

     

 

1.1.38

 

" Purchase Price " has the meaning set forth in Section 2.1;

 

     

 

1.1.39

 

" Purchased Business " means, solely in relation to BLP25, all activities at present and generally during the six (6) month period preceding the Closing Date carried on by Oncothyreon on a global basis specifically related to the business of developing or optimizing manufacturing processes, developing or optimizing drug substances, drug products and drug product presentations, developing or optimizing analytical test methods, manufacturing, testing, releasing and supplying BLP25;

 

     

 

1.1.40

 

" Release " means any release or discharge of any Hazardous Substance including any discharge, spray, injection, inoculation, abandonment, deposit, spillage, leakage, seepage, pouring, emission, emptying, throwing, dumping, placing, exhausting, escape, leach, migration, dispersal, dispensing or disposal;

 

     

 

1.1.41

 

" Specifications " means, with respect to the Inventory Assets, the specifications in relation thereto set forth in Schedule P hereto; and

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

6

 

 

1.1.42

 

" Transferred Employees " means those employees of Oncothyreon employed in connection with the Purchased Business whose names are set forth in Schedule E to this Agreement.



Section 1.2 Interpretation

 

In this Agreement:

 

     

 

1.2.1

 

the inclusion of headings and a table of contents are for convenience of reference only and are not to be considered or taken into account in construing the provisions of this Agreement or to in any way qualify, modify or explain the effect of any such provisions;

 

     

 

1.2.2

 

unless the context otherwise requires, references to an Article, Section, Subsection, paragraph or Schedule, by number, letter or otherwise refer to the article, section, subsection, paragraph or schedule, as the case may be, bearing that designation in this Agreement;

 

     

 

1.2.3

 

words importing the singular shall include the plural and vice versa and words importing a particular gender shall include all genders;

 

     

 

1.2.4

 

wherever the words "include", "includes" or "including" are used, they shall be deemed to be followed by the words "without limitation" and the words following "include", "includes" or "including" shall not be considered to set forth an exhaustive list;

 

     

 

1.2.5

 

the words "hereof", "herein", "hereto", "hereinafter", "hereunder", "herby" and similar expressions shall be construed as referring to this Agreement in its entirety and not to any particular section or portion of it;

 

     

 

1.2.6

 

all monetary amounts are expressed in United States currency;

 

     

 

1.2.7

 

where a term is defined in this Agreement, a derivative of that term shall have a corresponding meaning unless the context otherwise requires; and

 

     

 

1.2.8

 

the term "actual knowledge of Oncothyreon" shall refer to the actual knowledge of Robert Kirkman, Ed Taylor and Gary Christianson.

Section 1.3 Business Days      If, pursuant to this Agreement, a notice must be given or an action taken within a specified period or on or before a specified date and such period ends on, or such date falls on a day that is not a Business Day, such notice may be given or such action may be taken on the next succeeding day which is a Business Day. Section 1.4 Schedules      The following Schedules are attached hereto and form a part of this Agreement:  

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

7 Schedule A — Inventory Assets
Schedule B — Leased Premises Assets
Schedule C — Manufacturing Contracts
Schedule D — Other Assets
Schedule E — Transferred Employees
Schedule F — Assumed Liabilities
Schedule G — Allocation of Purchase Price
Schedule H — Key Employees
Schedule I — Form of Non-Competition Agreement
Schedule J — Form of Employment Agreement — Key Employees
Schedule K — Form of Employment Agreement — Non-Key Employees
Schedule L — Legal Opinions — Oncothyreon’s Counsel
Schedule M — Form of Press Release
Schedule N — Disclosure Schedule
Schedule O — Excluded Assets
Schedule P — Specifications Wherever any term or condition, express or implied, of such Schedules conflicts or is at variance with any term or condition in the body of this Agreement, such term or condition in the body of this Agreement shall prevail. ARTICLE 2
AGREEMENT OF PURCHASE AND SALE
Section 2.1 Agreement of Purchase and Sale of Assets

 

 

Subject to the terms and conditions hereinafter set forth, Oncothyreon hereby agrees to:

 

     

 

2.1.1

 

sell, assign, transfer and convey its entire right, title and interest in the Assets (other than the Inventory Assets) to EMD and EMD agrees to purchase Oncothyreon’s right, title and interest in the Assets (other than the Inventory Assets) from Oncothyreon; and

 

     

 

2.1.2

 

sell, assign, transfer and convey its entire right, title and interest in the Inventory Assets to Merck and Merck agrees to purchase Oncothyreon’s right, title and interest in the Inventory Assets from Oncothyreon;

 

     

 

for the aggregate purchase price of U.S. $2,526,752.03 (the " Purchase Price "), subject to adjustment as provided in Section 2.5, which Purchase Price shall be payable by EMD and Merck to Oncothyreon in accordance with Section 2.3.



Section 2.2 Closing Time      The purchase and sale of the Assets shall be effective as of the Closing Time. Section 2.3 Payment of Purchase Price      The Purchase Price shall be paid as follows:  

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

8

 

 

2.3.1

 

U.S.$547,597.42 to Oncothyreon Canada from EMD for the Leased Premises Assets, the Lease, the Manufacturing Contracts and the Other Assets; and

 

     

 

2.3.2

 

U.S.$1,979,154.61 to Biomira Management from Merck for the Inventory Assets



     The Purchase Price shall be paid in full by EMD and Merck to Oncothyreon Canada and Biomira Management as set forth above at Closing by way of wire transfer of immediately available funds to a bank designated by them or by such other means as Oncothyreon Canada and Biomira Management may designate in writing. Section 2.4 Allocation of Purchase Price      The Purchase Price shall be allocated among the Assets in the manner described in Schedule G to this Agreement. Section 2.5 Adjustment      The Purchase Price has been determined in part on the basis that the Inventory Assets have a value of U.S.$1,979,154.61 as of the date hereof. The Inventory Assets located at the facilities of Oncothyreon Canada in Edmonton, Alberta will be confirmed as at the close of business on the Business Day before the Closing Date by a physical count supervised jointly by representatives of Oncothyreon and EMD/Merck. The Inventory Assets located at Baxter Pharmaceutical Solutions LLC (" Baxter ") in Bloomington, Indiana, will be confirmed as at the close of business on the Business Day before the Closing Date by Biomira Management. If the value of the Inventory Assets is less than the portion of the Purchase Price allocated to such Assets in Schedule G hereto, the portion of the Purchase Price payable to Biomira Management shall be decreased by the difference. If the value of the Inventory Assets exceeds the portion of the Purchase Price allocated to such Assets in Schedule G hereto, the portion of the Purchase Price payable to Biomira Management shall be increased by the difference. Section 2.6 Goods and Services Tax and Sales Tax      Where tax is otherwise required to be collected by Oncothyreon pursuant to Part IX of the Excise Tax Act (Canada), Oncothyreon and EMD agree that they will make a joint election pursuant to subsection 167(1) of the Excise Tax Act (Canada) in prescribed form, if applicable. If the election is not available to Oncothyreon and EMD for any reason, Oncothyreon shall invoice EMD for the Goods and Services Tax associated with the transfer of the Assets and EMD shall pay the Goods and Services Tax to Oncothyreon, as well as any interest or penalties for which Oncothyreon is liable as a result of having made the election hereunder. Without duplication, EMD agrees to pay any other applicable transfer, value added and/or sales taxes payable upon Closing or upon registration of title to the Assets, as applicable. Section 2.7 Assumed Liabilities      Subject to Closing, EMD and Merck agree to assume, pay, discharge, perform and fulfill on and after the Closing Time the following obligations and liabilities of Oncothyreon with respect to the Assets and the Transferred Employees (collectively, the " Assumed Liabilities "):

 

2.7.1

 

those obligations and liabilities set forth in Schedule F; and

 

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

9

 

 

2.7.2

 

all obligations required to be performed after the Closing Time pursuant to the Manufacturing Contracts and the Lease, provided that EMD and Merck shall not assume any obligations that arise after the Closing Time but relate to liabilities occurring prior to the Closing Time.



Section 2.8 Excluded Liabilities      Except as set forth in Section 2.7 or otherwise specifically set forth in this Agreement, EMD does not and will not assume or otherwise become liable in any way for any obligations and liabilities of Oncothyreon whatsoever that may be or become payable by Oncothyreon in relation to the Assets and/or the Transferred Employees arising before the Closing Time, including but not limited to any taxes resulting from or arising as a consequence of the sale of the Assets by Oncothyreon to EMD (" Excluded Liabilities "). Section 2.9 Transferred Employees      EMD covenants and agrees to offer employment to each of the Transferred Employees, immediately following the Closing Time, on the terms and pursuant to the offer letters provided by EMD to Oncothyreon Canada under cover of EMD’s letter of December 18, 2008. EMD agrees to recognize the length of service accrued by each Transferred Employee with Oncothyreon for statutory purposes only. Oncothyreon shall be responsible for paying to each of the Transferred Employees all unpaid wages, salaries, bonuses, holiday pay, vacation pay, termination pay, severance pay, change of control payments and any retention payments arising from the Transferred Employees’ employment with Oncothyreon and the cessation of employment with Oncothyreon. Section 2.10 As Is

 

Except as specifically set forth in Section 3.1 and 3.4 of this Agreement:

 

     

 

2.10.1

 

EMD and Merck acknowledge and agree that all of the Assets are being sold by Oncothyreon to EMD and Merck, as the case may be, under this Agreement on an "as is where is" basis; and

 

     

 

2.10.2

 

Oncothyreon makes no representation or warranty, whether express or implied, with respect to the Assets and/or the Transferred Employees including, without limitation, any representation as to fitness for a particular purpose or merchantable quality.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties — Oncothyreon      Oncothyreon (jointly and severally) represents and warrants to EMD/Merck that, except as set out in the Disclosure Schedule:

 

3.1.1

 

Oncothyreon Canada has been duly incorporated and organized and is a validly subsisting corporation under the laws of Canada;

 

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

10

 

 


 

3.1.2

 

Biomira Management has been duly incorporated and organized and is a validly subsisting corporation under the laws of Delaware;

 

     

 

3.1.3

 

Oncothyreon Parent has been duly incorporated and organized and is a validly subsisting corporation under the laws of Delaware;

 

     

 

3.1.4

 

Oncothyreon has all requisite power and authority to enter into and perform all of its obligations under this Agreement;

 

     

 

3.1.5

 

the execution, delivery and performance by Oncothyreon of this Agreement has been duly and validly authorized by all necessary action of Oncothyreon;

 

     

 

3.1.6

 

this Agreement is a valid and binding obligation of Oncothyreon enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws affecting creditor’s rights generally and the discretionary nature of certain remedies (including specific performance and injunctive relief);

 

     

 

3.1.7

 

the execution and delivery of this Agreement by Oncothyreon and the consummation by Oncothyreon of the transactions contemplated by this Agreement have been duly and validly authorized and will not violate, nor be in conflict with, in either case in a material adverse manner:

 

3.1.7.1

 

any of the articles, by-laws or charter documents of Oncothyreon;

 

     

 

3.1.7.2

 

any provisions of any agreement or instrument to which Oncothyreon is a party or by which it is bound; or

 

     

 

3.1.7.3

 

any law applicable to Oncothyreon or the Assets;

 

3.1.8

 

there are no liens for taxes upon the Assets, except for statutory liens for current taxes not yet due;

 

     

 

3.1.9

 

Oncothyreon Canada is a GST registrant and has a subsisting GST registration number of 106795784RT0001;

 

     

 

3.1.10

 

Oncothyreon Canada is not a non-resident of Canada within the meaning of the Income Tax Act (Canada);

 

     

 

3.1.11

 

Oncothyreon has not incurred any obligation or liability, contingent or otherwise, for brokers’ or finders’ fees in respect of the transactions contemplated by this Agreement for which EMD shall have any obligation or liability;

 

     

 

3.1.12

 

the Assets are all of the material assets used in carrying on of the Purchased Business;

 

     

 

3.1.13

 

no portion of the Purchased Business is being conducted by anyone other than Oncothyreon;

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

11

 

 

3.1.14

 

subject to the provisions thereof, Oncothyreon is the legal and beneficial owner of the Assets, with good and marketable title thereto free and clear of all mortgages, charges, liens, pledges, claims, security interests and other encumbrances of whatsoever nature, and Oncothyreon has good right, power and authority to sell and assign the Assets to EMD in the manner provided in this Agreement;

 

     

 

3.1.15

 

Oncothyreon is not in material default, nor has it received any written notice of material default, under any agreements relating to the Assets or any of them and Oncothyreon has no actual knowledge of any substantial physical damage to or alteration in or to the Assets, or any of them, which would materially adversely affect the Assets;

 

     

 

3.1.16

 

the Inventory Assets will meet the Specifications upon the release thereof as contemplated in Section 3.4.2;

 

     

 

3.1.17

 

Oncothyreon is not a party to any material contract or commitment relating to the Purchased Business outside the usual and ordinary course of the Purchased Business;

 

     

 

3.1.18

 

the Lease and the Manufacturing Contracts are in full force and effect and Oncothyreon is not in breach or default in any material respect under the Lease and/or any of the Manufacturing Contracts;

 

     

 

3.1.19

 

Oncothyreon is not a party to or bound by any guarantee, indemnification, surety or similar obligation pertaining to the Purchased Business;

 

     

 

3.1.20

 

except for the Lease, Oncothyreon is not a party to any lease or agreement in the nature of a lease for real property, whether as lessor or lessee pertaining to the Purchased Business;

 

     

 

3.1.21

 

none of Oncothyreon or any of its subsidiaries has any agreement, option or commitments to acquire any securities of any corporation or to acquire or lease any real property or material assets to be used in or in connection with the Purchased Business other than, in the latter case, those assets that are to be used in the usual and ordinary course of business of the Purchased Business;

 

     

 

3.1.22

 

there are no material claims, proceedings, actions, lawsuits, administrative proceedings or governmental investigations to the actual knowledge of Oncothyreon in existence or contemplated or threatened against or with respect to Oncothyreon or the Assets which could result in impairment or loss of the Assets or which might otherwise materially adversely affect the Assets;

 

     

 

3.1.23

 

Oncothyreon has not received any written notice of violation or alleged violation of:



 

3.1.23.1

 

the provisions of any of its contracts; or

 

     

 

3.1.23.2

 

any Applicable Laws;

 

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

12

 

 

 

 

which, in either case, could materially adversely effect the Assets;



 

3.1.24

 

the operation of the Assets is in compliance with all Applicable Laws;

 

     

 

3.1.25

 

all material consents, licenses, permits and approvals required for the operation of the Assets have been obtained and are in good standing in all material respects;

 

     

 

3.1.26

 

other than this Agreement, there is no agreement, option or other right or privilege outstanding in favour of any person for the purchase from Oncothyreon of any or all of the Assets;

 

     

 

3.1.27

 

the Books and Records have been maintained in the usual and ordinary course, consistent with past practice and all material transactions relating to the Purchased Business have been accurately recorded in such Books and Records and, other than in the ordinary course of business, such Books and Records have not been altered nor has any information been destroyed;

 

     

 

3.1.28

 

other than where the contrary would not materially and adversely impact title to, or the value of, the Assets or would not create any liability or obligation of EMD following the Closing Time:

 

3.1.28.1

 

Oncothyreon has not received any written notice of any non-compliance with any Environmental Law;

 

     

 

3.1.28.2

 

Oncothyreon has not received any order or directive which relates to environmental matters and which requires any work, repairs, construction or capital expenditure;

 

     

 

3.1.28.3

 

Oncothyreon has not received any demand or notice with respect to the breach of any Environmental Law applicable to Oncothyreon or the Purchased Business;

 

     

 

3.1.28.4

 

to the actual knowledge of Oncothyreon, there are no claims, investigations or inquiries pending or threatened against Oncothyreon based on non-compliance with any Environmental Law;

 

     

 

3.1.28.5

 

Oncothyreon has not received any claim, complaint, notice, letter of violation, inquiry or request for information involving any matter which remains unresolved as of the date hereof with respect to any alleged violation of any Environmental Law or regarding potential liability under any Environmental Law; and

 

     

 

3.1.28.6

 

there are no sites, locations or operations at which Oncothyreon is currently undertaking, or has completed, any removal, remedial or response action relating to any disposal or Release of environmental contaminants, as required by Environmental Laws; `

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

13

 

 

3.1.29

 

there are no environmental permits used in or required to carry on the Purchased Business in its usual or ordinary course;

 

     

 

3.1.30

 

Oncothyreon has not used the Leased Premises Assets or any facilities pertaining to the Purchased Business, or permitted them to be used, to generate, manufacture, refine, treat, transport, store, handle, dispose, transfer, produce or process Hazardous Substances except in compliance in all material respects with all Environmental Laws;

 

     

 

3.1.31

 

Oncothyreon has provided EMD with copies of all analyses and monitoring data for soil, groundwater and surface water and all reports pertaining to any environmental assessments or audits relating to the Purchased Business that were obtained by, or are in the possession or control of, Oncothyreon;

 

     

 

3.1.32

 

Oncothyreon does not have any outstanding bonds, debentures, mortgages, notes or other indebtedness and is not subject to any agreement to create any bonds, debentures, mortgages, notes or other indebtedness, including guarantees, indemnifications or like obligations and liabilities, relating to the Assets except for operating and other costs relating to the Assets which are or will be incurred in the ordinary course of Oncothyreon’s business;

 

     

 

3.1.33

 

Oncothyreon is not a party to or bound by any contract or commitment to pay any management fee pertaining to the Purchased Business;

 

     

 

3.1.34

 

Oncothyreon does not have any written employment contract relating to the Purchased Business with any person whomsoever;

 

     

 

3.1.35

 

there are no consultants engaged by Oncothyreon or any of its Affiliates in connection with the Purchased Business;

 

     

 

3.1.36

 

since June 30, 2008, there have been no changes in the terms and conditions of employment of any employees of the Purchased Business, including their salaries, remuneration or any other payments to them, and there have been no changes in any remuneration payable or benefits provided to any officer, director, consultant or independent contractor of the Purchased Business and Oncothyreon has not agreed or otherwise become committed to change any of the foregoing since that date;

 

     

 

3.1.37

 

there are no benefit plans, programs, agreements or arrangements (whether written or unwritten) maintained, contributed to, or provided by Oncothyreon or any Affiliate thereof for the benefit of any of its employees, former employees or independent contractors of Oncothyreon employed or retained in connection with the Purchased Business or their respective dependants or beneficiaries (the " Benefit Plans ") including all bonus, deferred compensation, incentive compensation, share purchase, share option, stock appreciation, phantom stock, savings, profit sharing, severance or termination pay, health or other medical, life, disability or other insurance (whether insured or self-insured), supplementary unemployment benefit, pension, retirement and supplementary retirement plans,



 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

14

 

     

 

 

programs, agreements and arrangements except for any statutory plans to which Oncothyreon is obliged to contribute or comply, or plans administered pursuant to applicable federal, provincial or state health, worker’s compensation and employment insurance legislation;

 

   

3.1.38

 

Oncothyreon has and is employing all Transferred Employees in compliance with all applicable material taxation, health, labour and employment laws, rules, regulations, notices and orders;

 

   

3.1.39

 

there is no lien against the Assets as a result of Workers’ Compensation legislation and, to the actual knowledge of Oncothyreon, Oncothyreon has complied in all material respects with the requirements of the Workers’ Compensation Act (Alberta) and the Employment Standards Act (Alberta);

 

   

3.1.40

 

Oncothyreon is not a party to any collective bargaining agreement or other agreement with a trade union or other employees’ association;

 

   

3.1.41

 

to the actual knowledge of Oncothyreon, none of the Transferred Employees have executed or are otherwise bound by a non-competition agreement which would restrict their ability to be employed by EMD in connection with the Purchased Business; and

 

   

3.1.42

 

none of the Assets disposed of by Oncothyreon pursuant to this Agreement are taxable Canadian property for purposes of the Income Tax Act (Canada).



Section 3.2 Representations and Warranties — EMD and Merck      EMD and Merck (jointly and severally) represent and warrant to Oncothyreon that:

 

3.2.1

 

EMD has been duly incorporated and organized and is a validly subsisting corporation under the laws of Ontario;

 

     

 

3.2.2

 

Merck has been duly incorporated and organized and is a validly subsisting corporation under the laws of Germany;

 

     

 

3.2.3

 

EMD has all requisite power and authority to enter into and perform all of its obligations under this Agreement;

 

     

 

3.2.4

 

Merck has all requisite power and authority to enter into and perform all of its obligations under this Agreement;

 

     

 

3.2.5

 

the execution, delivery and performance by EMD and Merck of this Agreement has been duly and validly authorized by all necessary action of EMD and Merck and this Agreement is a valid and binding obligation of EMD and Merck enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws affecting creditor’s rights generally and the discretionary nature of certain remedies (including specific performance and injunctive relief);

 

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

15

 

 

3.2.6

 

the execution and delivery of this Agreement by EMD and Merck and the consummation by EMD and Merck of the transactions contemplated by this Agreement have been duly and validly authorized and will not violate, nor be in conflict with, in either case in a material adverse manner:



 

3.2.6.1

 

any of the articles, by-laws or charter documents of EMD or Merck, as the case may be;

 

     

 

3.2.6.2

 

any provisions of any agreement or instrument to which EMD and/or Merck is a party or by which it is bound; or

 

     

 

3.2.6.3

 

any law applicable to EMD and/or Merck or the Assets;

 

3.2.7

 

EMD is a GST registrant and has a subsisting GST registration number of 12397 5260 RT; and

 

     

 

3.2.8

 

neither EMD nor Merck has incurred any obligation or liability, contingent or otherwise, for brokers’ or finders’ fees in respect of the transactions contemplated by this Agreement for which Oncothyreon shall have any obligation or liability.

Section 3.3 Survival      The representations and warranties set forth in Sections 3.1 and 3.2 hereof shall be deemed to have been made again on the Closing Date and

 

3.3.1

 

the representations and warranties set forth in Sections 3.1.5 and 3.1.16 shall continue in full force and effect following the Closing Date; and

 

     

 

3.3.2

 

all other representations and warranties shall continue in full force and effect until the expiration of a period of one (1) year from the Closing Date.

Section 3.4 Inventory Asset Specifications

 

3.4.1

 

Notwithstanding any other provision to the contrary in this Agreement, the sole liability of Oncothyreon in relation to the Inventory Assets (including, without limitation, the representation and warranty in Section 3.1.16 of this Agreement) shall be to refund to Merck the amount paid by Merck pursuant to this Agreement and / or the Amended and Restated Supply Agreement (2006) (less any amount paid by Oncothyreon to Baxter Pharmaceutical Solutions LLC) in respect of any Inventory Assets which, after complying with Section 3.4.2, are found not to conform with the Specifications.

 

     

 

3.4.2

 

The Parties agree, notwithstanding any provision to the contrary in this Agreement or any other agreement, that Merck shall be responsible for properly releasing the Inventory Assets and shall diligently pursue all such actions (including without limitation under the Manufacturing Contracts) that are necessary and/or desirable to permit the Inventory Assets to be released in a timely manner in accordance with the applicable Specifications. The Parties shall cooperate in such regard. If, after complying with its obligations above, Merck

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

16

 

     

 

 

alleges that any of such Inventory Assets are not capable of being released in accordance with the applicable Specifications, Merck shall send to Oncothyreon a written notice to such effect and the reasons therefor. If Oncothyreon disagrees with Merck’s assertion that such Inventory Assets are not capable of being released in accordance with the applicable Specifications, quality representatives of Oncothyreon and Merck shall negotiate in good faith to assess the matter. In the event that the quality representatives of Oncothyreon and Merck are unable to agree on whether the Inventory Assets in question are capable of being released in accordance with the applicable Specifications, then an independent laboratory or quality assurance consultant, mutually agreed upon in writing by the Parties, shall assess the matter and analyse samples of the alleged non-conforming Inventory Assets to determine whether such Inventory Assets are capable of being released in accordance with the applicable Specifications. The Parties shall be bound by the analysis of such laboratory or consultant. The costs incurred in connection with retaining any laboratory or quality assurance consultant shall be borne by Merck if the Inventory Assets in question are found to be capable of being released in accordance with the applicable Specifications and by Oncothyreon if the Inventory Assets in question are found not to be capable of being released in accordance with the applicable Specifications.



ARTICLE 4
INDEMNIFICATION
Section 4.1 Oncothyreon Indemnification      Subject to the limitations set forth in Sections 3.4 and 4.3, Oncothyreon (jointly and severally) agrees to indemnify EMD and Merck against and hold EMD and Merck harmless from any and all Losses which EMD and Merck may suffer or incur as a result of, in respect of or arising out of:

 

4.1.1

 

a breach of the representations and warranties of Oncothyreon under this Agreement;

 

     

 

4.1.2

 

a breach of any covenant or agreement of Oncothyreon contained in this Agreement;

 

     

 

4.1.3

 

subject to EMD and Merck complying with their obligations under this Agreement in relation to the Transferred Employees, any liability relating to the employment in connection with the Purchased Business by Oncothyreon of any employees of Oncothyreon other than Transferred Employees who accept job offers with EMD and/or Merck; and

 

     

 

4.1.4

 

any Excluded Liabilities.

Notwithstanding any other provision herein, the liability of Oncothyreon and the indemnity granted by Oncothyreon to EMD and Merck pursuant to Section 4.1.1 shall only apply if written notice of such claim hereunder together with reasonable particulars is provided to Oncothyreon within one (1) year following the Closing Date, provided that such time limitation shall not apply  

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

17

 

in respect of a breach of the representation or warranty contained in Sections 3.1.5 and 3.1.16 or a breach of the representations, warranties, covenants or agreements of Oncothyreon that is based upon fraud. The liability of Oncothyreon and the indemnity granted by Oncothyreon to EMD and Merck pursuant to Sections 4.1.2, 4.1.3 and 4.1.4 shall survive the Closing Date and continue in full force indefinitely.



Section 4.2 EMD and Merck Indemnification EMD and Merck, jointly and severally, agree to indemnify Oncothyreon against and hold Oncothyreon harmless from any and all Losses which Oncothyreon may suffer or incur as a result of, in respect of or arising out of:

 

4.2.1

 

a breach of the representations and warranties of EMD and/or Merck under this Agreement;

 

     

 

4.2.2

 

a breach of any covenant or agreement of EMD and/or Merck contained in this Agreement; and

 

     

 

4.2.3

 

any Assumed Liabilities.

Notwithstanding any other provision in this Agreement, the liabilities of EMD and Merck and the indemnities granted by EMD and Merck to Oncothyreon pursuant to Section 4.2.1 shall only apply if written notice of such claim hereunder together with reasonable particulars is provided to EMD and Merck within one (1) year following the Closing Date, provided that such time limitation shall not apply in respect of a breach of the representations, warranties, covenants or agreements of EMD that is based upon fraud. The liabilities of EMD and Merck and the indemnities granted by EMD and Merck to Oncothyreon pursuant to Sections 4.2.2 and 4.2.3 shall survive the Closing Date and continue in full force indefinitely. Section 4.3 Limitations on Liabilities and Indemnities      Notwithstanding anything to the contrary set out in this Agreement:

 

4.3.1

 

other than claims under Section 3.4 hereof or claims in respect of Section 3.1.5 hereof, neither EMD nor Merck shall be entitled to recover any losses, damages or costs (including without limitation Losses) from Oncothyreon as a result of the indemnities set out in Section 4.1 hereof or otherwise under this Agreement until the aggregate amount of such losses, damages or costs equals or exceeds the sum of $50,000 ;

 

     

 

4.3.2

 

the sum of $1,500,000 (plus any amounts properly owing by Oncothyreon to Merck pursuant to Section 3.4 hereof) represents the maximum aggregate liability of Oncothyreon under this Agreement and as such the maximum aggregate amount of the losses, damages and costs (including without limitation Losses) that EMD and Merck are entitled to recover from Oncothyreon as a result of the indemnities set out in Section 4.1 hereof or otherwise under this Agreement other than claims made in relation to a breach of Section 3.1.5 in which case the maximum aggregate liability of Oncothyreon under this Agreement shall be

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

18

 

     

 

 

$11,000,000 (less any portion of the $1,500,000 paid by Oncothyreon to EMD or Merck in respect of other claims hereunder);

 

   

4.3.3

 

the Indemnifying Party and the Indemnified Party shall cooperate fully with each other with respect to third party claims, and shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available);

 

   

4.3.4

 

if the amount of any Loss incurred by any Indemnified Party at any time subsequent to the receipt of payment from the Indemnifying Party in respect of such Loss is reduced by:



 

4.3.4.1

 

any net tax benefit to the Indemnified Party; or

 

     

 

4.3.4.2

 

any recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against another person;

then, to the extent such reduction was not considered in determining the payment from the Indemnifying Party, the amount of such reduction shall promptly be repaid by the Indemnified Party to the Indemnifying Party. Upon making payment in full in respect of the Loss, the Indemnifying Party shall, to the extent of such payment, unless expressly prohibited pursuant to the written terms of any relevant insurance policy, be subrogated to all rights of the Indemnified Party against any third party in respect of such Loss and the Indemnified Party shall, at the request of the Indemnifying Party, assign all such rights to the Indemnifying Party on an "as is where is" basis;

 

4.3.5

 

no Party shall have the right to bring any proceedings against any other Party for a breach of any representation, warranty, covenant or agreement contained in this Agreement, except for a proceeding brought in accordance with the provisions of this Article 4; and

 

     

 

4.3.6

 

no Party shall have any liability to any other Party or any other person pursuant to this Agreement for any special, indirect or consequential damages, including but not limited to loss of profits, loss of business opportunities or loss of business investment.

Section 4.4 Claim for Indemnity

 

4.4.1

 

The Indemnified Party shall notify the Indemnifying Party by a Notice of Claim which shall be given promptly after the Indemnified Party becomes aware of its own claim or that of a third party. A Notice of Claim shall specify in reasonable detail the nature and any particulars of the event, omission or occurrence giving rise to a right of indemnification hereunder. With respect to any Notice of Claim, other than a third party claim, following receipt of Notice of Claim from the Indemnified Party, the Indemnifying Party shall have thirty (30) days to make such investigation of the Claim as is considered necessary or desirable. For the

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

19

 

 

 

 

purpose of such investigation, the Indemnified Party shall make available to the Indemnifying Party the information relied upon by the Indemnified Party to substantiate the Claim, together with all such other information as the Indemnifying Party may reasonably request. If both Parties agree at or prior to the expiration of such thirty (30) day period (or any mutually agreed upon extension thereof) to the validity and amount of such Claim, the Indemnifying Party shall immediately pay to the Indemnified Party the full agreed upon amount of the Claim, failing which the matter shall be determined by a court of competent jurisdiction.

 

     

 

4.4.2

 

The Indemnified Party shall diligently and vigorously defend and contest each third party claim, demand, suit, action or proceeding which may become or does become the subject of a Notice of Claim, and, in any event, shall do so in the same manner as it would defend and contest a matter for which it was not indemnified. With respect to any third party claim, demand, suit, action or proceeding which is the subject of a Notice of Claim, the Indemnifying Party shall, in good faith and at its own expense, be entitled to defend, contest or otherwise protect against any such claim, demand, suit, action or proceeding with legal counsel of its own selection, unless otherwise agreed in writing at the Indemnifying Party’s option with the Indemnified Party. The Indemnified Party shall have the right to participate, at its own expense, in the defence thereof through counsel of its own choice and shall assert any and all cross claims or counterclaims it may have. So long as the Indemnifying Party is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnified Party shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records reasonably available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnifying Party. In the event that the Indemnifying Party fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action or proceeding, the Indemnified Party (i) shall have the right to defend, contest and assert cross claims or counterclaims, or otherwise protect against, the same; and (ii) may make any compromise or settlement thereof, provided that the Indemnified Party shall not settle or dispose of any such matter without the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld.



 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

20 ARTICLE 5
COVENANTS
Section 5.1 Covenants of Oncothyreon

 

5.1.1

 

Except as otherwise contemplated by the Agreement or consented to in writing by EMD, from the date of this Agreement until Closing, Oncothyreon covenants and agrees with EMD as follows:

 

5.1.1.1

 

to carry on the Purchased Business in the usual and ordinary course, consistent with past practice, provided that all acts and proceedings involving a commitment in excess of $25,000 or for more than three months duration will be subject to the prior approval of EMD, which approval will not be unreasonably withheld;

 

     

 

5.1.1.2

 

to use all reasonable commercial efforts to preserve intact the Assets and the Purchased Business, organization and goodwill, to keep available the employees of the Purchased Business as a group and to maintain satisfactory relationships with suppliers and others with whom the Purchased Business has business relationships;

 

     

 

5.1.1.3

 

to use all reasonable commercial efforts to cause its current insurance policies with respect to the Purchased Business not to be cancelled or terminated or any other coverage thereunder to lapse, unless simultaneously with such terminations, cancellation or lapse, replacement policies underwritten by insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies, and where possible, for substantially similar premiums, are in full force and effect;

 

     

 

5.1.1.4

 

with their December 31, 2008 pay packages, Oncothyreon Canada shall pay to the Transferred Employees all unpaid wages, bonuses, salaries, holiday pay, vacation pay, termination pay, severance pay, change of control payments and retention payments due up to such date (with EMD to reimburse Oncothyreon Canada for such payments relating to the period from the Closing Time to December 31, 2008 as per the transition services agreement with respect thereto entered into between EMD and Oncothyreon Canada);

 

     

 

5.1.1.5

 

to promptly advise EMD in writing of the occurrence of any Material Adverse Effect in respect of the Purchased Business or of any facts that come to their attention which would cause any of Oncothyreon’s representations and warranties herein contained to be untrue in any respect;

 

     

 

5.1.1.6

 

to maintain the Books and Records in the usual and ordinary course,

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

21

 

 

 

 

consistent with past practice, to record all transactions on a basis consistent with that practice and to transfer to EMD on the Closing Date such Books and Records that are onsite at the Premises in their full and complete form to EMD;

 

     

 

5.1.1.7

 

on or before the Closing Date, Oncothyreon shall take or cause to be taken all necessary action (including all necessary corporate action) to authorize performance of all covenants to be performed by Oncothyreon pursuant to this Agreement including, but not restricted to, the transfer of the Assets to EMD;

 

     

 

5.1.1.8

 

on the Closing Date, Oncothyreon shall deliver or cause to be delivered to EMD:



 

5.1.1.8.1

 

a certificate or other instrument of Oncothyreon or of officers of Oncothyreon as EMD or EMD’s counsel may reasonably think necessary in order to establish that the obligations and covenants contained in this Agreement to have been performed or complied with by Oncothyreon at or prior to the Closing Time have been performed or complied with and that the representations and warranties of Oncothyreon herein given are true and correct at the Closing Time;

 

     

 

5.1.1.8.2

 

a favourable opinion of Oncothyreon’s counsel substantially in the form set out in Schedule L;

 

     

 

5.1.1.8.3

 

evidence of continuing insurance for any obligations or liabilities arising before the Closing Date but for which a claim has only been submitted following the Closing Date; and

 

     

 

5.1.1.8.4

 

the following documents:

 

a)

 

a certified copy of the resolutions of the directors of each of Oncothyreon Canada, Biomira Management and Oncothyreon Parent approving the execution of this Agreement and matters related thereto;

 

     

 

b)

 

a certified copy of the resolutions of the shareholders of Oncothyreon Canada and Biomira Management approving the sale of all or substantially all assets;

 

     

 

c)

 

the transition services agreement between Oncothyreon Canada and EMD;

 

     

 

d)

 

the License Agreement;

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

22

 

 

e)

 

written consent for the assignment of the following agreements:



 

i)

 

the Manufacturing Contracts; and

 

     

 

ii)

 

the Lease;

 

f)

 

assignment agreements in respect of:

 

i)

 

the Manufacturing Contracts;

 

     

 

ii)

 

the Lease;

 

     

 

iii)

 

the equipment lease, dated January 26, 2006, between Dell Financial Services Canada and Biomira Inc.; and

 

     

 

iv)

 

the technology lease, dated September 20, 2007, between Compugen Finance Inc. and Biomira Inc.; and

 

g)

 

the general conveyance between Oncothyreon, EMD and Merck.

 

5.1.1.9

 

on the Closing Date, Oncothyreon shall deliver to EMD sole and exclusive physical possession of all keys, lock combinations, safe combinations, computer passwords, properties, assets, books, records, documents and other items applicable to the Assets and the Purchased Business; and

 

     

 

5.1.1.10

 

Biomira Management will have delivered to Corixa Corporation (d/b/a GlaxoSmithKline Biologicals N.A.) a Firm Forecast, pursuant to the supply agreement dated October 20, 2004, as amended, of its requirements for Licensed Adjuvant in each of the eight calendar quarters for the period beginning on April 1, 2009 and ending on March 31, 2011.

Section 5.2 Covenants of EMD and Merck

 

5.2.1

 

Except as otherwise contemplated by this Agreement or consented to in writing by Oncothyreon, from the date of this Agreement until Closing, EMD and Merck covenant and agree with Oncothyreon as follows:

 

5.2.1.1

 

on or before the Closing Date, EMD and Merck shall take all corporate action necessary to ratify the execution of this Agreement and to authorize the performance of all covenants to be performed by EMD and Merck pursuant to this Agreement;

 

     

 

5.2.1.2

 

on the Closing Date, EMD and Merck shall pay the Purchase Price to

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

23

 

 

 

 

Oncothyreon in accordance with Section 2.3 hereof; and

 

     

 

5.2.1.3

 

on the Closing Date, EMD shall deliver or cause to be delivered to Oncothyreon



 

5.2.1.3.1

 

the following documents:

 

a)

 

an employment agreement, in the form set out in Schedule J, entered into by each of the Key Employees;

 

     

 

b)

 

the transition services agreement between Oncothyreon Canada and EMD;

 

     

 

c)

 

assignment agreements in respect of:

 

i)

 

the Manufacturing Contracts;

 

     

 

ii)

 

the Lease;

 

     

 

iii)

 

the equipment lease, dated January 26, 2006, between Dell Financial Services Canada and Biomira Inc.; and

 

     

 

iv)

 

the technology lease, dated September 20, 2007, between Compugen Finance Inc. and Biomira Inc.; and

 

d)

 

the general conveyance between Oncothyreon, EMD and Merck..

 

5.2.1.4

 

on the Closing Date, Merck shall deliver or cause to be delivered to Oncothyreon

 

5.2.1.4.1

 

the following documents:

 

a)

 

the License Agreement; and

 

     

 

b)

 

the general conveyance between Oncothyreon, EMD and Merck.

Section 5.3 Compliance with Privacy Laws

 

5.3.1

 

EMD and Merck acknowledge and agree that EMD and Merck must comply at all times with Privacy Laws which govern the collection, use and disclosure of Personal Information disclosed to EMD and/or Merck pursuant to or in connection with this Agreement (the " Disclosed Personal Information ").

 

     

 

5.3.2

 

Neither EMD nor Merck shall use the Disclosed Personal Information for any

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

24

 

 

 

 

purposes other than those related to the performance of this Agreement and the completion of the transactions contemplated by this Agreement.

 

     

 

5.3.3

 

Each of the Parties acknowledges and confirms that the disclosure of Personal Information is necessary for the purposes of determining if the Parties shall proceed with the purchase and sale transaction contemplated in this Agreement and that the disclosure of Personal Information relates solely to the carrying on of the business which is the subject of this Agreement, or the completion of the purchase and sale transaction contemplated in this Agreement.

 

     

 

5.3.4

 

EMD and Merck shall at all times keep strictly confidential all Disclosed Personal Information provided to it, and shall instruct those employees responsible for processing such Disclosed Personal Information to protect the confidentiality of that information in a manner consistent with EMD’s and Merck’s obligations hereunder. EMD and Merck shall ensure that access to the Disclosed Personal Information shall be restricted to those employees or service providers of EMD and Merck who have a bona fide need to access that information in order to fulfill their obligations in the course of their employment or in providing services to EMD and/or Merck.

 

     

 

5.3.5

 

The Parties shall fully cooperate with one another, with the individuals to whom the Personal Information relates, and any government authority charged with enforcement of Privacy Laws, in responding to inquiries, complaints, requests for access, and claims in respect of Disclosed Personal Information.

 

     

 

5.3.6

 

EMD and Merck undertake, after the Closing Date, to utilize the Disclosed Personal Information only for those purposes for which the Disclosed Personal Information was initially collected from or in respect of the applicable employees or other persons.

 

     

 

5.3.7

 

If Closing does not occur, on the request of Oncothyreon, EMD and Merck shall forthwith, other than as required by law, cease all use of the Disclosed Personal Information acquired by EMD and/or Merck in connection with this Agreement and will return to Oncothyreon or, at Oncothyreon’s request, destroy in a secure manner, the Disclosed Personal Information (and any copies thereof) and provide Oncothyreon with a certificate of a senior officer of EMD confirming such destruction.



For the purposes of this Section 5.3, "Privacy Laws" shall mean any and all Applicable Laws relating to privacy and the collection, use and disclosure of Personal Information in all applicable jurisdictions, including the Personal Information Protection and Electronic Documents Act (Canada) and/or any comparable provincial law, including without limitation, the Personal Information Protection Act (Alberta) and "Personal Information" shall mean any personal information about an identifiable individual but does not include an individual’s business contact information.  

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

25 Section 5.4 Apportionment      The Parties agree that rent expenses, property taxes, utility charges, and the like, will be apportioned at the Closing in an equitable manner as of the close of business of the day immediately preceding the Closing Date (the " Adjustment Date ") so that the income and expense items with respect to the period up to and including the Adjustment Date will be for Oncothyreon’s account and the income and expense items with respect to the period after the Adjustment Date will be for EMD’s account. For purposes of this Section 5.4, the term "equitable manner" will mean that Oncothyreon will be allocated such items based on a fraction, the numerator of which is the number of days in the applicable period ending on the Adjustment Date and the denominator of which is the total number of days in such period, and EMD will be allocated the remainder. ARTICLE 6
NON-SOLICITATION AND NON-COMPETITION
Section 6.1 Non-Solicitation      Subject to Section 6.3, Oncothyreon will not, in any manner whatsoever, without the prior consent of EMD, at any time during a period of two years from the Closing Date, directly or indirectly:

 

 

6.1.1

 

induce or endeavour to induce any person to leave his or her employment with EMD; or

 

     

 

6.1.2

 

employ or attempt to employ or assist any person to employ any person employed by EMD.



Section 6.2 Non-Solicitation — EMD      Subject to Section 6.3, EMD will not, in any manner whatsoever, without the prior consent of Oncothyreon, at any time during a period of two years from the Closing Date, directly or indirectly:

 

6.2.1

 

induce or endeavour to induce any person employed by Oncothyreon, other than Transferred Employees, to leave his or her employment with Oncothyreon; or

 

     

 

6.2.2

 

employ or attempt to employ or assist any person to employ any person employed by Oncothyreon, other than Transferred Employees.

Section 6.3 Proviso      For purposes of Section 6.1 and Section 6.2, solicitation and/or inducement shall not include solicitation or inducement of any persons who are solicited or induced by advertising in periodicals or newspapers of general circulation, or by an employee search firm acting on Oncothyreon’s or EMD’s behalf, so long as Oncothyreon or EMD, as the case may be, did not direct or encourage such firm to solicit such person. Further, Sections 6.1 and 6.2 shall not apply to the hiring of any person who responds to such solicitations or inducements.  

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

26 ARTICLE 7
CLOSING, CONDITIONS AND TERMINATION
Section 7.1 Closing      The sale and purchase of the Assets will be completed at the Closing Time at the offices of Fraser Milner Casgrain LLP, 2900 Manulife Place, 10180 — 101 Street, Edmonton, Alberta. Section 7.2 Conditions for the Benefit of EMD      The sale by Oncothyreon and the purchase by EMD of the Assets is subject to the following conditions, which are for the exclusive benefit of EMD and which are to be performed or complied with at or prior to the Closing Time:

 

 

7.2.1

 

the representations and warranties of Oncothyreon set forth in Section 3.1 will be true and correct in all material respects at the Closing Time with the same force and effect as if made at and as of such time;

 

     

 

7.2.2

 

Oncothyreon will have performed or complied with all of the obligations and covenants in this Agreement to be performed or complied with by Oncothyreon at or prior to the Closing Time;

 

     

 

7.2.3

 

no action or proceeding will be pending or threatened by any person to enjoin, restrict or prohibit:



 

(i)

 

the sale and purchase of the Assets contemplated hereby; or

 

     

 

(ii)

 

the right of EMD to conduct the Purchased Business;

 

7.2.4

 

non-competition agreements shall have been entered into between the Key Employees and EMD, substantially in the form set out in Schedule I;

 

     

 

7.2.5

 

employment agreements shall have been entered into between each of the Key Employees and EMD, substantially in the form set out in Schedule J;

 

     

 

7.2.6

 

Biomira Management will have entered into the License Agreement;

 

     

 

7.2.7

 

no Material Adverse Effect will have occurred in relation to the Purchased Business from the date hereof to the Closing Time; and

 

     

 

7.2.8

 

all necessary steps and proceedings will have been taken to permit the Assets to be duly and regularly transferred to and registered in the name of EMD (or as directed by EMD) including obtaining the consents to the assignments of any contracts or other commitments as set forth in the Disclosure Schedule.

Section 7.3 Conditions for the Benefit of Oncothyreon      The sale by Oncothyreon and the purchase by EMD/Merck of the Assets is subject to the following conditions, which are for the exclusive benefit of Oncothyreon and which are to be performed or complied with at or prior to the Closing Time:  

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

27

 

 

7.3.1

 

the representations and warranties of EMD and Merck set forth in Section 3.2 will be true and correct in all material respects at the Closing Time with the same force and effect as if made at and as of such time;

 

     

 

7.3.2

 

EMD and Merck will have performed or complied with all of the obligations and covenants in this Agreement to be performed or complied with by EMD and Merck prior to the Closing Time; and

 

     

 

7.3.3

 

Merck will have entered into the License Agreement.



Section 7.4 Waiver of Condition      Merck, in the case of a condition set out in Section 7.2, and Oncothyreon, in the case of a condition set out in Section 7.3, will have the exclusive right to waive the performance or compliance of such condition in whole or in part and on such terms as may be agreed upon without prejudice to any of its rights in the event of non-performance of or non-compliance with any other condition in whole or in part. Any such waiver will not constitute a waiver of any other conditions in favour of the waiving party. Section 7.5 Termination      This Agreement may be terminated, by written notice:

 

7.5.1

 

by Oncothyreon or EMD if a material breach of any representation, warranty, covenant, obligation or other provision of this Agreement has been committed by the other party and such breach has not been waived or cured within 30 days following the date on which the non-breaching party notifies the other party of such breach;

 

     

 

7.5.2

 

by EMD if any condition in Section 7.2 has not been satisfied as of the Closing Time and EMD has not waived such condition on or before the Closing Date;

 

     

 

7.5.3

 

by Oncothyreon if any condition in Section 7.3 has not been satisfied as of the Closing Time and Oncothyreon has not waived such condition on or before the Closing Date;

 

     

 

7.5.4

 

by written agreement of Oncothyreon and EMD; or

 

     

 

7.5.5

 

by Oncothyreon or EMD if the Closing has not occurred by January 30, 2009.

ARTICLE 8
MISCELLANEOUS
Section 8.1 Treatment of Excluded Assets      The Parties agree that the Excluded Assets may be removed from the Premises by Oncothyreon following the date of this Agreement until February 28, 2009. Following the Closing Time, Oncothyreon may not enter into the Premises to remove the Excluded Assets, or for any other reason, without the prior consent of EMD, such consent not to be unreasonably withheld, and upon forty-eight (48) hours prior notice. The Parties agree that the Excluded  

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

28 Assets are the property of Oncothyreon, shall be removed from the Premises no later than February 28, 2009 by Oncothyreon and that EMD and Merck shall have no responsibility for, or liability for, any damage that may occur to the Excluded Assets provided that EMD and Merck exercise the same care with respect to storage of the Excluded Assets as they would in relation to storage of their own assets of similar type. For greater certainty, Oncothyreon agrees to maintain insurance coverage over the Excluded Assets for so long as they are situated on the Premises and shall, subject to EMD and Merck exercising the standard of care referred to above in relation to the Excluded Assets, be responsible for any damage to any of the Assets of EMD or Merck as a result of the storage at the Premises or movement by Oncothyreon of the Excluded Assets from the Premises. Section 8.2 Further Acts      Each of the Parties hereto shall execute and deliver any further documents and do all acts and things as the requesting Party may reasonably require to carry out the true intent and meaning of this Agreement, including, without limiting the generality of the foregoing, assisting another Party with the discharging of no longer applicable security registrations. Notwithstanding the generality of the foregoing, Oncothyreon agrees to preserve intact and maintain any and all Books and Records not physically transferred at the Closing Time to EMD/Merck for a period of no less than two (2) years following the Closing Time and to provide originals and/or true copies of any such Books and Records to Merck as soon as reasonably practicable following a written request of the same. Section 8.3 Parties of Interest      This Agreement shall enure to the benefit of and be binding upon the Parties hereto, their permitted assigns and successors. Section 8.4 Entire Agreement      This Agreement and the License Agreement constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior negotiations, proposals and agreements, whether oral or written, with respect to the subject matter hereof. Section 8.5 Notices      Any notice required to be given under the terms hereof may be given by a Party hereto by delivering or telecopying such notice to the Party to which it is to be given at the address or telecopy number below or at such other existing municipal address or telecopy number as that Party may provide in writing to the other Party in lieu thereof in accordance with this Section 6.4:

 

 

8.5.1

 

In the case of Oncothyreon:



 

 

 

Biomira Management, Inc.
2601 Fourth Avenue, Suite 500
Seattle WA 98121
United States of America
Attention: President
Facsimile: (206) 801-2101

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

29

 

 

8.5.2

 

In the case of EMD:



 

 

 

2695 North Sheridan Way
Suite 200
Mississauga, Ontario
L5K 2N6
Attention: President
Facsimile: (905) 919-0299

 

8.5.3

 

In the case of Merck:

 

 

 

Merck KGaA
Frankfurter Strasse 250
D-64293 Darmstadt
Germany
Attention: Merck Serono Legal Department
Facsimile: +49-6151-72-2373

Any such notice shall be deemed to have been received by a Party hereto immediately upon delivery or telecopy transmission of such notice to such Party at its address or telecopy number in such notice. Section 8.6 Waiver      Failure by any Party hereto to insist in any one or more instances upon the strict performance of any one of the covenants contained herein shall not be construed as a waiver or relinquishment of such covenant. No waiver by any Party hereto of any such covenant shall be deemed to have been made unless expressed in writing and signed by the waiving Party. Section 8.7 Severability      Any provision hereof which is prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Section 8.8 Amendments      No term or provision hereof may be amended, discharged or terminated, except by an instrument in writing signed by the Parties hereto. Section 8.9 Public Announcements and Regulatory Filings Oncothyreon, EMD and Merck agree that a press release, substantially in the form of press release attached as Schedule M, shall be issued by each of Oncothyreon and EMD/Merck to announce the execution of this Agreement. With respect to any other press releases or public statements related to the subject matter of this Agreement, except with respect to subject matter already in the public domain or as required by law,  

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

30 Oncothyreon and EMD/Merck shall each provide the other party with a copy of the proposed press release or public statement for review and approval, such approval not be unreasonably withheld. With respect to the filing of this Agreement with the U.S. Securities and Exchange Commission and any similar regulatory authorities, as may be required by Applicable Law, Oncothyreon shall provide EMD/Merck with a copy of the proposed filing version of this Agreement for review and comment. Section 8.10 Confidentiality Oncothyreon, EMD and Merck agree not to (directly or indirectly) disclose, allow access to, transmit or transfer any of the other Party’s Confidential Information to a third party without the prior written consent of the other Party hereto or unless such disclosure is required by Applicable Law or an applicable regulatory authority. This obligation of confidentiality shall remain in force for a period of ten (10) years from the Closing Date. The Parties further recognize that, as contemplated in Section 8.1, there will be certain assets and proprietary information of Oncothyreon and its Affiliates at the Premises for a period of time following the Closing and EMD and Merck covenant and agree not to use, in any manner, any such assets or information and to strictly maintain the confidentiality thereof. Section 8.11 Assignment      Oncothyreon shall not be entitled to assign this Agreement or any of its interests or entitlements under the Agreement without the prior written consent of EMD. EMD shall be entitled to assign this Agreement and any of its interests or entitlements under this Agreement to any one or more of its Affiliates. Section 8.12 Time of Essence      Time shall be of the essence of this Agreement. Section 8.13 Governing Law      This Agreement shall be governed by and construed in accordance with the laws of the province of Alberta and the federal laws of Canada applicable therein and the Parties attorn to the exclusive jurisdiction of the courts of the Province of Alberta. Section 8.14 Survival      The covenants and agreements set out in Articles 3,4 and 6 and Sections 8.1, 8.2, 8.4, 8.5, 8.9 and 8.10 hereof shall survive the Closing Date. Section 8.15 Counterparts      This Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original and shall have the same force and effect as an original but such counterparts together shall constitute but one and the same instrument. Section 8.16 Faxed Copies      A faxed copy or telecopy of this Agreement shall have the same force and effect as an originally executed copy of this Agreement.  

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION






 

31 ARTICLE 9
EXECUTION
This Agreement is agreed to and accepted by:

 

 

 

 

 

 

 

 

BIOMIRA MANAGEMENT, INC.

 

EMD SERONO CANADA INC.

 

 

 

 

 

 

 

By:

 

/s/ Robert L. Kirkman, M.D.

 

By:

 

/s/ Deborah Brown

 

 

 

 

 

 

 

Title:

 

President & CEO

 

Title:

 

Managing Director

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

By:

 

/s/ William Hilson

 

 

 

 

 

 

 

Title:

 

 

 

Title:

 

Finance Director

 

 

 

 

 

 

 

 

           

MERCK KGAA

 

ONCOTHYREON CANADA INC.

 

 

 

 

 

 

 

By:

 

/s/ Andreas Stickler

 

By:

 

/s/ Robert L. Kirkman, M.D.

 

 

 

 

 

 

 

Title:

 

Head of M&A

 

Title:

 

President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

By:

 

 

 

 

 

 

 

 

 

Title:

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ONCOTHYREON INC.

 

 

 

 

 

 

 

 

 

 

 

By:

 

/s/ Robert L. Kirkman, M.D.

 

 

 

 

 

 

 

 

 

 

 

Title:

 

President & CEO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

Title:

 

 

 

 

 

 

 

 

 

 

 

 

 



 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION




 

  Schedule A
Inventory Assets
[+]  

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION






 

  Schedule B
Leased Premises Assets
See Schedule D  

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION






 

  Schedule C
Manufacturing Contracts
1. Adjuvant Supply Agreement, dated October 20, 2004, as amended, between Corixa Corporation (d/b/a GlaxoSmithKline Biologicals N.A.) and Biomira International Inc. (assigned to Biomira Management Inc. on December 7, 2007) 2. Product Development and Clinical Supply Agreement, dated September 10, 1999, as amended, between Baxter Pharmaceutical Solutions LLC and Biomira USA, Inc.  

 

     

+

 

DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION






 

Schedule D
Other Assets
Oncothyreon Canada Inc
Asset Listing by Department
As of September 30, 2008

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dept

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Book

 

 

 

Serial

 

Model

 

 

 

 

Code

 

Number

 

Description

 

Purch Date

 

Purch Price

 

Value

 

Manufacturer

 

Number

 

Number

 

AFE #

 

Location

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2050

 

 

 

1127

 

 

3com linkswitch 1000 100b-fx d

 

29-May-97

 

 

5,200.00

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2050

 

 

 

1128

 

 

3com superstack II switch 300

 

29-May-97

 

 

7,799.00

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2050

 

 

 

1129

 

 

3com superstack II switch 1000

 

29-May-97

 

 

14,739.00

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2050

 

 

 

1193

 

 

IBM PC server

 

7-Jul-98

 

 

16,000.00

 

 

 

0.00

 

 

 

 

 

23P5206

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2050

 

 

 

1269

 

 

Proxima projector

 

28-Feb-00

 

 

6,008.00

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

00-2-010

 

 

 

 

 

 

2050

 

 

 

1283

 

 

Xerox N3225, HP laserjet 4050T

 

15-May-00

 

 

11,422.00

 

 

 

0.00

 

 

 

 

HPUSBB 012481

 

 

 

 

 

 

00-2-017

 

 

 

 

 

 

2050

 

 

 

1319

 

 

Computer (former lease)

 

8-Jul-01

 

 

34,571.76

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

01-2-004

 

 

SRVRM

 

2050

 

 

 

1324

 

 

Buyout of Lease

 

31-Aug-01

 

 

41,175.65

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

01-2-012

 

 

 

 

 

 

2050

 

 

 

1332

 

 

Computer Lease — reclass to

 

30-Nov-01

 

 

154,962.20

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2050

 

 

 

1403

 

 

Scanner, Fujitsu

 

30-Sep-03

 

 

12,000.00

 

 

 

0.00

 

 

Fujitsu

 

 

504441

 

 

FI-4750C

 

 

03-4-019

 

 

IS

 

2050

 

 

 

1409

 

 

Hewlett-Packard Comp (BUSA)

 

20-Dec-04

 

 

69,166.22

 

 

 

0.00

 

 

Hewlett Packard

 

 

 

 

 

 

 

 

 

 

100123

 

 

 

 

 

 

2050

 

 

 

1417

 

 

Dell Financial Computer Lease

 

13-Jul-05

 

 

139,732.38

 

 

 

0.00

 

 

Dell/HP

 

 

 

 

 

 

 

 

 

 

2/5/1932

 

 

 

 

 

 

2050

 

 

 

1434

 

 

Citrix WANScalers 8500

 

19-Jun-07

 

 

8,550.91

 

 

 

5,225.49

 

 

Compugen

 

ORB-7500-1

 

NETCIR7500

 

 

2/7/1951

 

 

 

 

 

 

2050

 

 

 

1435

 

 

Leased HP Computer servers

 

28-Sep-07

 

 

163,524.70

 

 

 

104,474.15

 

 

Compugen

 

 

 

 

 

HP Servers (SAN)

 

 

2/7/1952

 

 

 

 

 

 

2050

 

 

 

1441

 

 

HP 4050 TN Printer

 

1-Aug-00

 

 

2,247.42

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2050

 

 

 

1452

 

 

Dell Computers BuyOutEndofTerm

 

8-Jul-08

 

 

25,105.00

 

 

 

23,012.92

 

 

Dell/HP

 

 

 

 

 

 

 

 

 

 

2/8/2005

 

 

Edmonton

 

2050

 

 

 

1459

 

 

MPSM6110 IMPRNTR/STMPS/SDDL F6

 

30-Sep-08

 

 

5,625.12

 

 

 

5,468.87

 

 

 

 

 

100E5487

 

 

MPSM6110

 

 

 

 

 

 

 

 

 

2060

 

 

 

1440

 

 

Xerox Workcentre 7665

 

7-Nov-07

 

 

31,500.00

 

 

 

25,725.00

 

 

Xerox

 

VDR548760

 

WC 7665

 

 

8/7/1958

 

 

 

 

 

 

2060

 

 

 

1449

 

 

Xerox Workcentre 4150XF

 

26-May-08

 

 

4,299.00

 

 

 

3,109.12

 

 

Xerox

 

 

L99041198

 

 

4150XF

 

 

 

 

 

 

 

 

 

2060

 

 

 

1450

 

 

Walk-in Cooler

 

3-Jun-08

 

 

17,848.00

 

 

 

17,489.75

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edmonton, AB

 

2060

 

 

 

1458

 

 

Xerox Workcentre 4150S

 

30-Sep-08

 

 

4,299.00

 

 

 

4,227.35

 

 

Xerox

 

 

L99358267

 

 

WC4150S

 

 

 

 

 

 

 

 

 

2070

 

 

 

1

 

 

van

 

1-Jan-92

 

 

3,500.00

 

 

 

0.00

 

 

Dodge

 

VIN 2B7GB13TSHK278889

 

RAM150

 

 

 

 

 

 

 

 

 

2070

 

 

 

160

 

 

Biomira Sign & Plaque

 

15-Jun-92

 

 

8,121.50

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2070

 

 

 

177

 

 

Biomira North Renovations

 

29-Jun-92

 

 

18,227.00

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2070

 

 

 

270

 

 

Electrical & Add-on Furniture

 

20-Aug-92

 

 

8,370.50

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2070

 

 

 

298

 

 

Forma Model 6097 Glassware Ste

 

8-Sep-92

 

 

8,933.80

 

 

 

0.00

 

 

Forma

 

 

51354-375

 

 

6097

 

 

 

 

 

 

B204

 

 

2070

 

 

 

299

 

 

Fury Glassware Dryer Model 609

 

8-Sep-92

 

 

9,000.00

 

 

 

0.00

 

 

Forma

 

 

51354-376

 

 

6097

 

 

 

 

 

 

F113

 

 

2070

 

 

 

403

 

 

Low Temperature Calibration Un

 

16-Nov-92

 

 

6,610.00

 

 

 

0.00

 

 

TECHNE

 

 

31728/1

 

 

DB45M

 

 

 

 

 

Metrology

 

2070

 

 

 

404

 

 

High Temperature Calibration U

 

16-Nov-92

 

 

7,400.00

 

 

 

0.00

 

 

TECHNE

 

 

30913/1

 

 

DB1200M

 

 

 

 

 

Metrology

 

2070

 

 

 

453

 

 

Vivarium Cage & Bottle Washer

 

28-Jan-93

 

 

36,000.00

 

 

 

0.00

 

 

Better Built

 

 

6855

 

 

550

 

 

 

 

 

VIVARIUM

 

2070

 

 

 

479

 

 

Waste Storage Building

 

22-Feb-93

 

 

10,263.00

 

 

 

0.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2070

 

 

 

495

 

 

Renovati


SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Close this window