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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:
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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ARTICLE 1
INTERPRETATION Section 1.1
Definitions In this
Agreement, unless otherwise provided, the following terms shall
have the following meanings:
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1.1.1
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" Adjustment Date " has the meaning set out in
Section 5.4;
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1.1.2
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" 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;
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1.1.3
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" Agreement " means this asset purchase agreement,
together with any amendments to or replacements of or substitutions
for this asset purchase agreement;
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1.1.4
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" Applicable Law " means
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1.1.4.1
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any applicable domestic or foreign law including any statute,
subordinate legislation or treaty, and
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1.1.4.2
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any applicable guideline, directive, rule, standard,
requirement, policy, order, judgment, injunction, award or decree
of a Governmental Authority having the force of law;
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1.1.5
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" 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;
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1.1.6
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" Assumed Liabilities " has the meaning set out in
Section 2.7;
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1.1.7
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" 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
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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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;
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1.1.8
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" BLP25 " means BLP25 as defined in the License
Agreement;
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1.1.9
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" Business Day " means a day other than a Saturday,
Sunday or statutory holiday in Alberta, Canada or Ontario,
Canada;
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1.1.10
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" Claim " means any claim, demand, assessment, action,
suit, proceeding, investigation, cause of action, notice of action,
litigation, judgement, order or decree;
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1.1.11
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" 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;
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1.1.12
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" Closing Date " means the 18th day of December, 2008 or
such other date as EMD/Merck and Oncothyreon may agree upon in
writing;
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1.1.13
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" 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;
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1.1.14
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" 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;
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1.1.15
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" Disclosed Personal Information " has the meaning set
forth in Section 5.3;
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1.1.16
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" Disclosure Schedule " means schedule set out as
Schedule N to this Agreement;
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1.1.17
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" Environmental Law " means any Applicable Law relating
to the environment including those pertaining to
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1.1.17.1
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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
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1.1.17.2
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the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, handling and the like of Hazardous
Substances, including those pertaining to occupational health and
safety;
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1.1.18
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" Excluded Assets " means those items described in
Schedule O to this Agreement;
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1.1.19
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" Excluded Liabilities " has the meaning set out in
Section 2.8;
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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1.1.20
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" Governmental Authority " means any domestic or foreign
legislative, executive, judicial or administrative body or person
having jurisdiction in the relevant circumstances;
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1.1.21
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" 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;
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1.1.22
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" Indemnified Party " means a Party to this Agreement who
is seeking indemnification pursuant to Article 4 of this
Agreement;
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1.1.23
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" Indemnifying Party " means a Party to this Agreement
from whom the Indemnified Party is seeking indemnification pursuant
to Article 4 of this Agreement;
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1.1.24
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" Inventory Assets " means all of Oncothyreon’s
right, title and interest in those inventory assets specified in
Schedule A to this Agreement;
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1.1.25
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" Key Employees " means those employees listed and
identified as such in Schedule H;
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1.1.26
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" Lease " means that certain lease agreement made as of
the 18th day of December, 2008 between Edmonton Economic
Development Corporation and Oncothyreon Canada;
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1.1.27
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" 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;
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1.1.28
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" 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;
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1.1.29
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" 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
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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received by the Indemnified Party, and (iii) any indirect,
special or consequential damages or loss of profits;
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1.1.30
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" 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;
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1.1.31
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" 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;
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1.1.32
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" 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;
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1.1.33
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" 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;
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1.1.34
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" Party " means a party to this Agreement and "
Parties " means all of them;
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1.1.35
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" Personal Information " has the meaning set forth in
Section 5.3;
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1.1.36
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" Premises " means the premises that are the subject of
the Lease;
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1.1.37
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" Privacy Laws " has the meaning set forth in
Section 5.3;
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1.1.38
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" Purchase Price " has the meaning set forth in
Section 2.1;
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1.1.39
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" 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;
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1.1.40
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" 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;
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1.1.41
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" Specifications " means, with respect to the Inventory
Assets, the specifications in relation thereto set forth in
Schedule P hereto; and
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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1.1.42
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" 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.
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Section 1.2 Interpretation
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In this Agreement:
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1.2.1
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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;
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1.2.2
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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;
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1.2.3
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words importing the singular shall include the plural and vice
versa and words importing a particular gender shall include all
genders;
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1.2.4
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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;
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1.2.5
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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;
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1.2.6
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all monetary amounts are expressed in United States
currency;
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1.2.7
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where a term is defined in this Agreement, a derivative of that
term shall have a corresponding meaning unless the context
otherwise requires; and
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1.2.8
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the term "actual knowledge of Oncothyreon" shall refer to the
actual knowledge of Robert Kirkman, Ed Taylor and Gary
Christianson.
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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:
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WITH THE COMMISSION
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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
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Subject to the terms and conditions hereinafter set forth,
Oncothyreon hereby agrees to:
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2.1.1
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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
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2.1.2
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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;
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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.
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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:
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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2.3.1
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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
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2.3.2
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U.S.$1,979,154.61 to Biomira Management from Merck for the
Inventory Assets
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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 "):
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2.7.1
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those obligations and liabilities set forth in Schedule F;
and
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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2.7.2
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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.
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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
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Except as specifically set forth in Section 3.1 and 3.4 of
this Agreement:
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2.10.1
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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
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2.10.2
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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.
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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:
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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
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| |
|
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+
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|
DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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18
| |
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$11,000,000 (less any portion of the $1,500,000 paid by
Oncothyreon to EMD or Merck in respect of other claims
hereunder);
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4.3.3
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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);
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4.3.4
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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:
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4.3.4.1
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any net tax benefit to the Indemnified Party; or
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4.3.4.2
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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;
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4.3.5
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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
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4.3.6
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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.
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Section 4.4 Claim for
Indemnity
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4.4.1
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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
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+
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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19
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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.
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4.4.2
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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.
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+
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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20
ARTICLE 5
COVENANTS Section 5.1 Covenants of
Oncothyreon
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5.1.1
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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:
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5.1.1.1
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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;
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5.1.1.2
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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;
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5.1.1.3
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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;
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5.1.1.4
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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);
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5.1.1.5
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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;
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5.1.1.6
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to maintain the Books and Records in the usual and ordinary
course,
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+
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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21
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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;
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5.1.1.7
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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;
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5.1.1.8
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on the Closing Date, Oncothyreon shall deliver or cause to be
delivered to EMD:
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5.1.1.8.1
|
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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;
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5.1.1.8.2
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a favourable opinion of Oncothyreon’s counsel
substantially in the form set out in Schedule L;
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5.1.1.8.3
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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
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5.1.1.8.4
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the following documents:
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a)
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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;
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b)
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a certified copy of the resolutions of the shareholders of
Oncothyreon Canada and Biomira Management approving the sale of all
or substantially all assets;
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c)
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the transition services agreement between Oncothyreon Canada and
EMD;
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d)
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the License Agreement;
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+
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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22
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e)
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written consent for the assignment of the following
agreements:
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i)
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the Manufacturing Contracts; and
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ii)
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the Lease;
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f)
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assignment agreements in respect of:
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i)
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the Manufacturing Contracts;
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ii)
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the Lease;
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iii)
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the equipment lease, dated January 26, 2006, between Dell
Financial Services Canada and Biomira Inc.; and
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iv)
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the technology lease, dated September 20, 2007, between
Compugen Finance Inc. and Biomira Inc.; and
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g)
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the general conveyance between Oncothyreon, EMD and Merck.
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5.1.1.9
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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
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5.1.1.10
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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.
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Section 5.2 Covenants of EMD and
Merck
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5.2.1
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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:
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5.2.1.1
|
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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;
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5.2.1.2
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on the Closing Date, EMD and Merck shall pay the Purchase Price
to
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+
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
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23
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Oncothyreon in accordance with Section 2.3 hereof; and
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5.2.1.3
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on the Closing Date, EMD shall deliver or cause to be delivered
to Oncothyreon
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5.2.1.3.1
|
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the following documents:
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a)
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an employment agreement, in the form set out in Schedule J,
entered into by each of the Key Employees;
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b)
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the transition services agreement between Oncothyreon Canada and
EMD;
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c)
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assignment agreements in respect of:
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i)
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the Manufacturing Contracts;
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ii)
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the Lease;
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iii)
|
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the equipment lease, dated January 26, 2006, between Dell
Financial Services Canada and Biomira Inc.; and
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iv)
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the technology lease, dated September 20, 2007, between
Compugen Finance Inc. and Biomira Inc.; and
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d)
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the general conveyance between Oncothyreon, EMD and Merck..
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5.2.1.4
|
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on the Closing Date, Merck shall deliver or cause to be
delivered to Oncothyreon
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5.2.1.4.1
|
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the following documents:
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a)
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the License Agreement; and
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b)
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the general conveyance between Oncothyreon, EMD and Merck.
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Section 5.3 Compliance with Privacy
Laws
|
|
5.3.1
|
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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 ").
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5.3.2
|
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Neither EMD nor Merck shall use the Disclosed Personal
Information for any
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+
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY
WITH THE COMMISSION
|
24
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purposes other than those related to the performance of this
Agreement and the completion of the transactions contemplated by
this Agreement.
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5.3.3
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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.
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5.3.4
|
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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.
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5.3.5
|
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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.
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5.3.6
|
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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.
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5.3.7
|
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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.
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+
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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:
|
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6.1.1
|
|
induce or endeavour to induce any person to leave his or her
employment with EMD; or
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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:
|
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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
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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.
| |
|
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+
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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;
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|
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;
|
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7.2.3
|
|
no action or proceeding will be pending or threatened by any
person to enjoin, restrict or prohibit:
|
|
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(i)
|
|
the sale and purchase of the Assets contemplated hereby; or
|
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|
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|
|
(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;
|
|
|
|
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|
|
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
|
|
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|
|
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;
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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
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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;
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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;
|
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|
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;
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7.5.4
|
|
by written agreement of Oncothyreon and EMD; or
|
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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
| |
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+
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|
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
|
| |
|
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|
+
|
|
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:
|
|
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|
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|
|
BIOMIRA MANAGEMENT, INC.
|
|
EMD SERONO CANADA INC.
|
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|
|
|
|
|
|
|
|
By:
|
|
/s/ Robert L. Kirkman, M.D.
|
|
By:
|
|
/s/ Deborah Brown
|
|
|
|
|
|
|
|
|
|
Title:
|
|
President & CEO
|
|
Title:
|
|
Managing Director
|
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|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
By:
|
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|
|
By:
|
|
/s/ William Hilson
|
|
|
|
|
|
|
|
|
|
Title:
|
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|
|
Title:
|
|
Finance Director
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|