ASSET PURCHASE AGREEMENT

Exhibit 2.2

 

ASSET PURCHASE AGREEMENT

 

BY AND BETWEEN

 

XCYTE THERAPIES, INC.

 

As Seller

 

AND

 

INVITROGEN CORPORATION

 

As Buyer

 

Dated as of December 14, 2005

TABLE OF CONTENTS

 

BUSINESS DISCLOSURE LETTER

 

 

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ASSET PURCHASE AGREEMENT

 

This ASSET PURCHASE AGREEMENT (this “ Agreement ”) entered into as of December 14, 2005 by and between Invitrogen Corporation, a Delaware corporation (the “ Buyer ”) and Xcyte Therapies, Inc., a Delaware corporation (“ Seller ”). Buyer and Seller are referred to individually as a “ Party ” and collectively herein as the “ Parties .”

 

RECITALS

 

A. Seller is in the business of using its “Xcellerate Process” (as hereinafter defined) to activate, expand and manufacture T lymphocytes and of using and selling such T lymphocytes (the “ Business ”).

 

B. Seller desires to sell, transfer and assign to Buyer, and Buyer desires to purchase from Seller, the Transferred Assets (as hereinafter defined), and Buyer is willing to assume the Assumed Liabilities (as hereinafter defined), in each case as more fully described and upon the terms and subject to the conditions set forth herein.

 

NOW, THEREFORE, in consideration of the representations, warranties and covenants herein contained, the Parties agree as follows:

 

ARTICLE I

DEFINITIONS

 

1.1 “ Acquisition ” shall have the meaning ascribed to such term in Section 6.3(e).

 

1.2 “ Affiliate ” of any Person means any Person that as of the date of this agreement, or at any point in the future, controls, is controlled by, or is under common control with such Person, but only so long as such control exists. As used herein, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person through ownership of fifty percent (50%) or more of the voting securities of the entity entitled to elect directors (or equivalent interest in the case of an entity that is not a corporation).

 

1.3 “ Agreement ” shall have the meaning ascribed to such term in the Preamble.

 

1.4 “ Ancillary Agreements ” means the Revenue Sharing Agreement, the Assumption Agreement, the Transition Agreement, and the General Assignment and Bill of Sale.

 

1.5 “ Asset Acquisition Statement ” shall have the meaning set forth in Section 2.8 .

 

1.6 “ Assumed Liabilities ” shall have the meaning ascribed to such term in Section 2.4 .

1.7 “ Assumption Agreement ” shall mean the agreement set forth in Exhibit C.

 

1.8 “ Business day ” means a day that is not a Saturday, a Sunday or a statutory or civic holiday in the State of California or any other day on which banking institutions are not required to be open in the State of California.

 

1.9 “ Business Disclosure Letter ” shall have the meaning ascribed to such term in Article III .

 

1.10 “ Buyer ” shall have the meaning ascribed to such term in the Preamble.

 

1.11 “ Buyer Certificate ” shall have the meaning ascribed to such term in Section 6.3(c) .

 

1.12 “ Buyer Closing Deliverables ” shall have the meaning ascribed to such term in Section 2.8 .

 

1.13 “ Buyer Material Adverse Effect ” shall have the meaning ascribed to such term in Section 4.3 .

 

1.14 “ Buyer Representatives ” shall have the meaning ascribed to such term in Section 4.6 .

 

1.15 “ Buyer Tax Returns ” shall have the meaning ascribed to such term in Section  5.5(b).

 

1.16 “ Claim ” shall have the meaning ascribed to such term in Section 7.3(a) .

 

1.17 “ Closing ” shall have the meaning ascribed to such term in Section 2.6 .

 

1.18 “ Closing Date ” shall have the meaning ascribed to such term in Section 2.6 .

 

1.19 “ Code ” means the Internal Revenue Code of 1986, as amended.

 

1.20 “Copyrights” shall have the meaning ascribed to such term in the definition of “Intellectual Property.”

 

1.21 “ Disputed Claim ” shall have the meaning ascribed to such term in Section  9.10 .

 

1.22 “Effect” shall have the meaning ascribed to such term in the definition of “Material Adverse Effect on the Transferred Assets.”

 

1.23 “ Encumbrance ” means any material lien, encumbrance, mortgage, pledge, easement or other similar restriction affecting the Transferred Assets, other than Permitted Encumbrances.

 

1.24 “ End Date ” shall have the meaning ascribed to such term in Section 7.1 .

 

1.25 “ Excluded Assets ” shall have the meaning ascribed to such term in Section 2.3 .

 

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1.26 “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

 

1.27 “Existing Patents” shall have the meaning ascribed to such term in the definition of “Transferred Patents.”

 

1.28 “ Governmental Entity ” shall have the meaning ascribed to such term in Section 3.3 .

 

1.29 “ Hart-Scott-Rodino Act ” shall have the meaning ascribed to such term in Section 3.3 .

 

1.30 “ Indemnified Party ” shall have the meaning ascribed to such term in Section 7.2(a).

 

1.31 “ Indemnifying Party ” shall have the meaning ascribed to such term in Section 7.5(a).

 

1.32 “ Intellectual Property ” means any and all of the following: (i) patents, utility models, certificates of invention, patents of addition or substitution, and other governmental grants for the protection of inventions anywhere in the world, including any reissue, renewal, re-examination, or extension thereof, and all applications for any of the foregoing, including any international, regional, national, provisional, divisional, continuation, continuation in part, continued prosecution, and petty patent applications (collectively, “ Patents ”); (ii) all trade secrets and confidential information (“ Trade Secrets ”); (iii) all copyrights, copyright registrations and applications therefor (collectively, “ Copyrights ”); (iv) all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor and all goodwill associated therewith throughout the world (“ Trademarks ”); and (v) any other intellectual property or proprietary right anywhere in the world.

 

1.33 “ Knowledge of Seller ” means the actual knowledge as of the Closing Date of the individuals listed on Section 1.33 of the Business Disclosure Letter.

 

1.34 “ Legal Proceeding ” shall have the meaning ascribed to such term in Section 3.7 .

 

1.35 “ Law ” means any national, federal, state, provincial or local law, statute, ordinance, rule, regulation, code, order, judgment, injunction or decree of any Governmental Entity.

 

1.36 “ Licensed Know-How ” means all Technology, Trade Secrets, and Copyrights, to the extent owned by a party to a Material Business Agreement or Transferred Agreement, other than Seller, and that are in Seller’s possession and licensed to Seller under a Transferred Agreement.

 

1.37 “ Loss ” or “ Losses ” shall have the meaning ascribed to such term in Section 7.2(a) .

 

1.38 “ Material Adverse Effect on the Transferred Assets ” means any change or effect (such item, an “ Effect ”) that is materially adverse to the Transferred Assets, taken as a whole (after taking into account insurance recoveries in respect thereof); provided , however , that in no event shall any of the following be taken into account in determining whether there has been or will be a Material Adverse Effect on the Transferred Assets: (A) any Effect that is the result of general market or political factors or economic factors affecting the economy as a whole, (B) any Effect that

 

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is the result of factors generally affecting the industry or specific markets in or for which the Transferred Assets are used, (C) any Effect that is the result of an outbreak or escalation of hostilities involving the United States, the declaration by the United States of a national emergency or war, or the occurrence of any acts of terrorism, or (D) any Effect arising out of or resulting from actions contemplated by the Parties in connection with this Agreement or any Ancillary Agreement or that is attributable to the announcement or performance of this Agreement or any Ancillary Agreement or the transactions contemplated by this Agreement (including a loss of customers or employees) or any Ancillary Agreement.

 

1.39 “ Material Business Agreements ” shall have the meaning ascribed to such term in Section 3.6(a) .

 

1.40 “ Non-Assignable Asset ” shall have the meaning set forth in Section 2.11 .

 

1.41 “ Notice of Claim ” shall have the meaning ascribed to such term in Section 7.4(a) .

 

1.42 “ Objection ” shall have the meaning ascribed to such term in Section 7.4(a) .

 

1.43 “ Ordinary Course of Business ” means the ordinary course of Seller’s business, consistent with past practice.

 

1.44 “ Party ” and “ Parties ” shall have the meaning ascribed to such term in the Preamble.

 

1.45 “Patents shall have the meaning ascribed to such term in the definition of “Intellectual Property.”

 

1.46 “ Permitted Encumbrances ” means any (i) purchase money liens to the extent the underlying obligation is an Assumed Liability, (ii) any licenses set forth in the Material Business Agreements and Transferred Agreements, and all terms and conditions of the Material Business Agreements and Transferred Agreements, and all other rights, licenses, restrictions and covenants granted or agreed upon by Seller in the Ordinary Course of Business under confidentiality agreements and material transfer agreements identified to Buyer prior to the date of signing this Agreement (e.g. in the spreadsheets listing Buyer’s agreements), (iii) any liens, encumbrances, mortgages, pledges, easements, and similar restrictions or imperfection in title and encroachments that do not materially impair the use or value of the respective underlying asset, (iv) liens, encumbrances, mortgages, pledges, easements, and similar restrictions that do not materially interfere with the use or operation of the property subject thereto or that result from Buyer’s activities pursuant to the Transition Agreement, and (v) any liens, encumbrances, mortgages, pledges, easements, and similar restrictions set forth on Section 1.46 of the Business Disclosure Letter.

 

1.47 “ Person ” means any individual, corporation, partnership, firm, association, joint venture, joint stock company, trust, unincorporated organization or other entity, including any Governmental Entity.

 

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1.48 “ Post-Closing Period ” means any taxable period, or portion of a period, that begins after the Closing Date.

 

1.49 “ Pre-Closing Period ” means any taxable period or portion of a period that begins on or before the Closing Date and ends on the Closing Date.

 

1.50 “ Purchase Price ” shall have the meaning ascribed to such term in Section 2.1 .

 

1.51 “ Raw Materials and Inventory ” means the raw materials, work in process and finished products owned by Seller and identified in Section 1.51 of the Business Disclosure Letter.

 

1.52 “ Revenue Sharing Agreement ” means the agreement set forth in Exhibit A of this Agreement.

 

1.53 “ Rules ” shall have the meaning ascribed to such term in Section 7.8 .

 

1.54 “ Seller ” shall have the meaning ascribed to such term in the Preamble.

 

1.55 “ Seller Certificate ” shall have the meaning ascribed to such term in Section 6.2(c) .

 

1.56 “ Seller Closing Deliverables ” shall have the meaning ascribed to such term in Section 2.7 .

 

1.57 “ Seller Marks ” shall mean all Trademarks owned by Seller and listed in Section 1.57 of the Business Disclosure Letter, including all goodwill that has inured to Seller prior to the Closing Date with respect to such Trademarks.

 

1.58 “ Seller Representatives ” shall have the meaning ascribed to such term in Section 4.6 .

 

1.59 “ Seller Tax Returns ” shall have the meaning ascribed to such term in Section 5.5(a) .

 

1.60 “ Stockholder Approval ” shall have the meaning ascribed to such term in Section 6.1(c) .

 

1.61 “ Tax Returns ” means all reports, returns, declarations, statements or other information supplied to a taxing authority in connection with Taxes.

 

1.62 “ Taxes ” means all taxes, including income, gross receipts, ad valorem, value-added, excise, real property, personal property, sales, use, transfer, withholding, employment, unemployment, insurance, social security, business license, business organization, environmental, workers compensation, profits, license, lease, service, service use, severance, stamp, occupation, windfall profits, customs, duties, franchise and other taxes imposed by the United States of America or any state, local or foreign government, or any agency thereof, or other political subdivision of the United States or any such government, and any interest, penalties, assessments or additions to tax resulting from, attributable to or incurred in connection with any tax or any contest or dispute thereof, and including any liability for the Taxes of another Person.

 

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1.63 “ Technology ” means any and all technology, and technical and other information, and tangible embodiments thereof, including trade secrets, know-how, research, processes, formulations, techniques, diagnostics, models, concepts, ideas, knowledge, developments, samples, methods, invention and other disclosures, recipes, specifications, materials, instructions, compositions, designs, results, assays, systems, descriptions, analyses, opinions, works of authorship, plans, procedures, manuals, depictions, inventions, discoveries, methods, data, reports, customer lists, marketing and market information, sales information, projections, and any other written, printed or electronically stored information and materials of any nature whatsoever.

 

1.64 “ Termination Date ” shall have the meaning ascribed to such term in Section 8.1(d) .

 

1.65 “Trade Secret” shall have the meaning ascribed to such term in the definition of “Intellectual Property.”

 

1.66 “Trademarks” shall have the meaning ascribed to such term in the definition of “Intellectual Property.”

 

1.67 “ Transaction Materials ” shall have the meaning ascribed to such term in Section 5.6 .

 

1.68 “ Transferred Agreements ” means the agreements listed in Section 1.68 of the Business Disclosure Letter.

 

1.69 “Transferred Assets” shall have the meaning ascribed to such term in Section 2.2.

 

1.70 “ Transferred Equipment ” means the items of equipment listed in Section 1.70 of the Business Disclosure Letter.

 

1.71 “ Transferred Intellectual Property ” means the Transferred Patents, the Transferred Know-How, and the Seller Marks.

 

1.72 “ Transferred Know-How ” means any Trade Secret rights to the extent embodied in the documents listed in Section 1.72 of the Business Disclosure Letter and owned by Xcyte, excluding all Licensed Know-How.

 

1.73 “ Transferred Patents ” means (i) the Patents identified in Section 1.73 of the Business Disclosure Letter (the “ Existing Patents ”); (ii) any Patents issuing on any patent applications included in the Existing Patents, (iii) any and all counterpart United States, international and foreign patents and patent applications of the Existing Patents; and (v) all reissues, re-examinations, divisionals, renewals, extensions, continuations and continuations-in-part of any Existing Patents.

 

1.74 “ Transition Agreement ” shall mean the Agreement set forth in Exhibit D.

 

1.75 “ Trigger Condition ” shall have the meaning set forth in Section 1.75 of the Business Disclosure Letter.

 

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1.76 “ Trigger Exclusion ” shall have the meaning set forth in Section 1.76 of the Business Disclosure Letter.

 

1.77 “ Xcellerate Process ” means the process described in Section 1.77 of the Business Disclosure Letter, or any update, modification, enhancement, derivative, expansion, or variation of such process.

 

ARTICLE II

THE TRANSACTION

 

2.1 The Transaction . On the Closing Date and effective as of the Closing, upon the terms and subject to the conditions of this Agreement, Seller shall sell, convey, assign, transfer and make available to Buyer, and Buyer shall purchase, acquire and obtain from Seller, all of Seller’s right, title and interest in and to the Transferred Assets, in exchange for (x) a cash payment from Buyer to Seller in the amount of five million U.S. dollars ($5,000,000) (the “ Purchase Price ”), and (y) the assumption by Buyer of the Assumed Liabilities. Except as provided below, the Purchase Price is non-refundable, is not subject to any right of set-off or adjustment, and is non-creditable against any other amounts owed to Seller. The Seller agrees to refund up to $1,000,000 of the Purchase Price to the Buyer, but only if and to the extent that the Trigger Condition has occurred; provided that in all cases no amount shall be refundable or refunded if a Trigger Exclusion has occurred. In the event that Buyer enters into any agreement of the type described in paragraph (iii) of Section 1.75 of the Business Disclosure Letter after receiving a refund from Seller, Buyer shall promptly return to Seller (or its successor or assign) the refund that was provided to Buyer. If the Trigger Condition occurs, and no Trigger Exclusion occurs, then the refund to Buyer shall be made only to the extent that Buyer establishes that it has lost sales as a result of the Trigger Condition that Buyer would have made, but was unable to make, as a result of the Trigger Condition.

 

2.2 Transferred Assets . For purposes of this Agreement, the term “ Transferred Assets ” means the assets, properties and rights set forth or described in paragraphs (a) through (e) below (in each case excluding the Excluded Assets and subject in each case to the terms and conditions of the Material Business Agreements and Transferred Agreements):

 

(a) the Transferred Intellectual Property;

 

(b) the Transferred Agreements, and all rights of Seller pursuant to the Transferred Agreements;

 

(c) the Raw Materials and Inventory;

 

(d) The clinical data generated by Seller that is owned by, and in the possession of Seller in the form in which it exists, as of the Closing Date in the course of clinical trials pursuant to the IND(s) identified in Schedule 2.2(d); and

 

(e) the Transferred Equipment.

 

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For clarity, all documents, materials and information shall be delivered in the form in which it exists at Seller, Seller shall not be required to re-format or organize any documentation, materials, or information and shall not be considered in breach of any terms of this Agreement as a result of the format of any documentation, materials, or information.

 

2.3 Excluded Assets . Notwithstanding anything in Section 2.2 to the contrary, it is hereby expressly acknowledged and agreed that the Transferred Assets shall not include, and Seller is not selling, conveying, assigning, transferring or delivering to Buyer, and Buyer is not purchasing, acquiring or accepting from Seller, any of the rights, properties or assets set forth or described in paragraphs (a) through (h) below (the rights, properties and assets excluded by this Section 2.3 from the Transferred Assets being referred to herein as the “ Excluded Assets ”):

 

(a) all cash, cash equivalents, negotiable instruments, receivables, loans and other amounts owed to Seller, bank deposits, securities, and similar items of Seller;

 

(b) all rights to and under insurance policies of Seller, including rights of proceeds thereunder;

 

(c) all (i) confidential personnel records pertaining to any employee; (ii) all records prepared in connection with the sale of the Transferred Assets; (iii) other books and records that Seller is required by Law to retain or that Seller determines are necessary or advisable to retain under applicable Law; (iv) all financial books, records, reports, filings and information; and (v) any information management system of Seller;

 

(d) any claim, right or interest of Seller in or to any refund, rebate, abatement or other recovery for Taxes, together with any interest due thereon or penalty rebate arising therefrom, the basis of which arises or accrues in any Pre-Closing Period;

 

(e) all right, title, and interest in and to any Licensed Know-How, and other Intellectual Property licensed to Seller under any of the Material Business Agreements and Transferred Agreements or other agreement to which Seller is a party, except those rights that may be granted to Buyer under the Transferred Agreements when the Transferred Agreements are transferred to Buyer in accordance with this Agreement.

 

(f) all right, title, and interest in and to any Intellectual Property and Technology invented, created, developed, or acquired by Seller (or its successors or assigns) after the Closing Date and all right, title and interest in and to the Patents identified in Section 2.3 of the Business Disclosure Letter;

 

(g) all right, title and interest to and under the assets set forth on Section 2.3(g) of the Business Disclosure Letter; and

 

(h) any other right, title, interest, asset, property (whether real, tangible, or intangible), or other subject matter, material, and document, that is not expressly identified in this Agreement as a Transferred Asset.

 

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2.4 Assumed Liabilities . On the Closing Date, Buyer shall execute and deliver to Seller the Assumption Agreement, pursuant to which Buyer shall accept, assume and agree to pay, perform and otherwise discharge the liabilities, responsibilities and obligations of Seller pursuant to and under the Assumed Liabilities. For purposes of this Agreement, the term “ Assumed Liabilities ” means all liabilities, responsibilities and obligations as set forth or described in paragraphs (a) through (f) below:

 

(a) all liabilities, obligations, and responsibilities under or in connection with the Material Business Agreements and Transferred Agreements, in each case to the extent arising during the Post-Closing Period;

 

(b) all liabilities, obligations, and responsibilities arising from or relating to the Transferred Assets, or the ownership, possession, use or operation thereof, including those based upon any exploitation of the Transferred Assets, the Licensed Know-How, or other Intellectual Property licensed under any of the Material Business Agreements or Transferred Agreements, to the extent arising during the Post-Closing Period;

 

(c) the Permitted Encumbrances;

 

(d) all liabilities, obligations, and responsibilities associated with filing, prosecuting, maintaining, and preserving the Transferred Intellectual Property, the Licensed Know-How, and other Intellectual Property and Technology licensed under any of the Material Business Agreements or Transferred Agreements;

 

(e) all liabilities, obligations, and responsibilities concerning any of the Raw Materials and Inventory or the Transferred Equipment, including for maintaining, preserving and protecting such Raw Materials and Inventory and Transferred Equipment; and

 

(f) all liabilities, obligations and responsibilities set forth on Section 2.4 of the Business Disclosure Letter.

 

2.5 Excluded Liabilities . Except for the obligations, responsibilities, and liabilities expressly identified in Section 2.4 of the Business Disclosure Letter as “Pre-Closing Liability,” the Buyer shall not assume any other liabilities of the Seller relating to the Transferred Assets to the extent arising during the Pre-Closing Period, including any such liability to the extent arising during the Pre-Closing Period to the extent the liability is covered by Seller’s existing insurance policies in effect on the date of the Closing (the “ Excluded Liabilities ”).

 

2.6 The Closing . The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at the Seller’s offices at 1124 Columbia Street, Suite 130, Seattle, Washington, on such mutually agreeable date as soon as practicable (and in any event not later than three business days) after the satisfaction or waiver of all conditions set forth in Article VI hereof (other than those conditions that, by their terms, are not capable of being satisfied or waived until the Closing) (the “ Closing Date ”).

 

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2.7 Deliveries by Seller . At the Closing, Seller will deliver or cause to be delivered to Buyer the following (the “ Seller Closing Deliverables ”):

 

(a) a duly executed counterpart of the Revenue Sharing Agreement in the form attached hereto as Exhibit A ;

 

(b) a duly executed counterpart of the General Assignment and Bill of Sale in the form attached hereto as Exhibit B ;

 

(c) a duly executed counterpart of the Assumption Agreement in the form attached hereto as Exhibit C ;

 

(d) the Seller Certificate;

 

(e) a certificate of Seller’s non foreign status that complies with the requirements of Section 1445 of the Code, and the Treasury Regulations promulgated thereunder; and

 

(f) all other documents, instruments and writings required to be delivered by Seller at or prior to the Closing Date pursuant to this Agreement.

 

2.8 Deliveries by Buyer . At the Closing, Buyer will deliver or cause to be delivered to Seller the following (the “ Buyer Closing Deliverables ”):

 

(a) the Purchase Price by wire transfer in immediately available funds to an account designated by Seller;

 

(b) a duly executed counterpart of the Revenue Sharing Agreement in the form attached hereto as Exhibit A ;

 

(c) a duly executed counterpart of the General Assignment and Bill of Sale in the form attached hereto as Exhibit B ;

 

(d) a duly executed counterpart of the Assumption Agreement in the form attached hereto as Exhibit C ;

 

(e) the Buyer Certificate; and

 

(f) all other documents, instruments and writings required to be delivered by Buyer at or prior to the Closing Date pursuant to this Agreement and all other documents, instruments, declarations, affidavits and writings reasonably requested by Seller that are reasonably necessary for Buyer to assume the Assumed Liabilities.

 

2.9 Allocation of Purchase Price . Seller and Buyer recognize their mutual obligations pursuant to Section 1060 of the Code to timely file IRS Form 8594 (the “ Asset Acquisition Statement ”) with their respective federal income tax returns. Accordingly, Seller and Buyer shall, no later than ninety (90) days after the Closing Date, prepare an allocation of the Purchase Price

 

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among the Transferred Assets consistent with the provisions of Section 1060 of the Code and the Treasury Regulations thereunder. If Seller and Buyer agree on a Purchase Price allocation, then such allocation shall be conclusive and binding, Seller and Buyer shall use such allocation for all Tax purposes, and neither Seller nor Buyer shall take a Tax position which is inconsistent with such Purchase Price allocation.

 

2.10 Further Assurances . On and after the Closing, upon the reasonable request of a Party, the other Party shall use its commercially reasonable efforts to prepare, execute and deliver such other and further agreements, instruments, and certificates as may be reasonably necessary or appropriate in order to effectuate the purposes and intent of this Agreement and to consummate the transactions contemplated hereby. In this regard, Seller and Buyer shall, and shall cause their respective affiliates to, use its commercially reasonable efforts to execute, acknowledge and deliver all such further conveyances, notices, assumptions, releases and acquittances and such other instruments as may be reasonably necessary or appropriate to transfer and deliver to Buyer and its affiliates and their successors and assigns, all of the rights, titles, and interests intended to be conveyed to Buyer under this Agreement, and to assure the assumption by Buyer from Seller and its affiliates and their successors and assigns of the liabilities, obligations, and responsibilities intended to be assumed by Buyer under this Agreement, and to otherwise make effective the transactions contemplated hereby (including returning to Seller any asset not contemplated by this Agreement to be a Transferred Asset, which asset was delivered to Buyer). Seller acknowledges that such actions may include, without limitation, executing after the Closing Date instruments, conveyances, declarations, oaths, and the like, for Intellectual Property the benefit of which is being transferred to Buyer pursuant to this Agreement. Such actions may also include making available to Buyer, for up to one year following the Closing Date at Buyer’s expense, at Seller’s facilities or such other location specified by Seller, business records related to the Transferred Assets that existed prior to the Closing Date and that have been retained by Seller. Buyer agrees, however, that Buyer shall be solely responsible for, and shall pay, the costs and expenses of all filing, prosecution, and maintenance of the Transferred Intellectual Property and other Intellectual Property licensed under the Transferred Agreements.

 

2.11 Non-Assignable Assets .

 

(a) Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to assign any Transferred Agreement, other agreement, asset, property or right, including any certificate, approval, authorization or other right, that is contemplated as being a Transferred Asset, which by its terms or by Law is nonassignable without the consent of a third party or a Governmental Entity or is cancelable by a third party in the event of an assignment (each a “ Non-Assignable Asset ” and collectively, the “ Non-Assignable Assets ”) unless and until such consent shall have been obtained.

 

(b) Seller shall use commercially reasonable efforts to obtain such consents; however, Seller shall not be required to pay any fee or make any payment to any third party from whom Seller is seeking to obtain any such consent. Buyer understands and agrees that the

 

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procurement of any such consent is not a condition to Buyer’s obligation to effect the Closing, except that those consents expressly identified in Article 6 below shall be a condition of Closing to the extent set forth in Article 6.

 

(c) Buyer and Seller shall use their respective commercially reasonable efforts to obtain, or to cause to be obtained, any consent, substitution, approval, or amendment required to novate all obligations under any and all Transferred Agreements and all other obligations, responsibilities and liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of Seller, its affiliates, and their successors, and assigns in connection with the Material Business Agreements, Transferred Agreements and Assumed Liabilities so that, in any such case, Buyer and its affiliates shall, effective as of the Closing, be solely responsible for the liabilities, responsibilities and obligations in and underlying the Assumed Liabilities, Transferred Agreements and Material Business Agreements.

 

(d) To the extent permitted by applicable Law, in the event that written consents to the assignment thereof cannot be obtained prior to the Closing, Seller shall use commercially reasonable efforts to hold such Non-Assignable Assets, as of and from the Closing Date, in trust for Buyer and the covenants, responsibilities, obligations costs and expenses thereunder shall be performed by Buyer in Seller’s name, at Buyer’s cost and expense, and all benefits and obligations existing thereunder shall be for Buyer’s account. Seller shall take or cause to be taken at Buyer’s expense such actions in its name or otherwise as Buyer may reasonably request so as to provide Buyer with the benefits of the Non-Assignable Assets and to effect collection of money or other consideration that becomes due and payable under the Non-Assignable Assets, and Seller shall promptly pay over to Buyer all money or other consideration received by it in respect of all Non-Assignable Assets.

 

(e) As of and from the Closing Date, Seller on behalf of itself and its Affiliates authorizes Buyer, to the extent permitted by applicable Law and the terms of the Non-Assignable Assets, at Buyer’s expense, to perform, and Buyer shall perform, all obligations and responsibilities and receive all benefits of Seller or its Affiliates under the Non-Assignable Assets.

 

(f) Notwithstanding anything in this Agreement to the contrary, unless and until any written consent or approval with respect to any Non-Assignable Asset is obtained, such Non-Assignable Asset shall not constitute a Transferred Asset for any purpose under this Agreement, and the failure of any such written consent or approval to be obtained or the failure of any such Non-Assignable Asset to constitute a Transferred Asset or any circumstances resulting therefrom shall not constitute a Material Adverse Effect on the Transferred Assets or a breach by Seller of any representation, warranty, covenant or agreement contained in this Agreement or any Ancillary Agreement; provided that this Section 2.11(f) is not intended to prevent those consents that are expressly identified in Article 6 from being a condition of Closing to the extent set forth in Article 6.

 

(g) Following the Closing, Buyer and Seller shall use their respective commercially reasonable efforts to obtain, or to cause to be obtained, (i) any remaining consents necessary to assign to Buyer any Non-Assignable Assets, and (ii) any remaining consent,

 

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substitution, approval, or amendment required to novate all Assumed Liabilities underlying such Non-Assignable Assets, and to obtain in writing the unconditional release of Seller, its affiliates, and their successors and assigns so that, in any such case, Buyer and its affiliates shall be solely responsible for all Assumed Liabilities.

 

2.12 Bulk Sales Law . Buyer hereby waives compliance by Seller with the requirements and provisions of any “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Transferred Assets to Buyer.

 

2.13 Taxes . Buyer shall pay all applicable sales, use, transfer, and similar Taxes and all documentary, recording and filing fees that may be imposed, assessed or payable by reason of the operation or as a result of this Agreement (“ Transfer Taxes ”).

 

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER

 

Seller hereby represents and warrants to Buyer as of the date hereof, except as set forth in the Business Disclosure Letter provided by Seller to Buyer on the date hereof (the “ Business Disclosure Letter ”) (as to which Buyer acknowledges and agrees that any matter disclosed pursuant to a section, subsection, paragraph or subparagraph of the Business Disclosure Letter shall be deemed disclosed for all other purposes of the Business Disclosure Letter and the other sections, subsections, paragraphs and subparagraphs of the Business Disclosure Letter), the following:

 

3.1 Organization . Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

 

3.2 Authorization of Transaction . Seller has all requisite corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements and to perform its obligations hereunder and thereunder. The execution and delivery by Seller of this Agreement and the Ancillary Agreements and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of Seller. This Agreement and the Ancillary Agreements have been, or prior to Closing will be, duly and validly executed and delivered by Seller and (assuming due authorization, execution and delivery by Buyer) constitute valid and binding obligations of Seller, enforceable against Seller in accordance with their terms, subject to bankruptcy, insolvency and similar laws affecting the rights of creditors generally and subject to rules of Law governing specific performance, injunctive relief and other equitable remedies.

 

3.3 Noncontravention . Except for the filings, permits, authorizations, consents and approvals that may be required under, and other applicable requirements of, the Exchange Act, and subject to compliance with the applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ Hart-Scott-Rodino Act ”), and any foreign antitrust filing requirements, and subject to obtaining the Stockholder Approval, neither the execution and delivery by Seller of this Agreement or the Revenue Sharing Agreement, nor the consummation by

 

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Seller of the transactions contemplated hereby or thereby, will (a) conflict with or violate any provision of the certificate of incorporation or bylaws of Seller, (b) require on the part of Seller any filing with, or any permit, authorization, consent or approval of, any court, arbitrational tribunal, administrative agency or commission or other governmental or regulatory authority or agency (a “ Governmental Entity ”), other than any filing, permit, authorization, consent or approval which if not made or obtained would not be reasonably expected to have a Material Adverse Effect on the Transferred Assets, (c) to the Knowledge of Seller conflict with, result in a breach of, constitute a default under, result in the acceleration of any obligations under, create in any party the right to terminate, modify any provision or cancel, or require any notice, consent or waiver under, any Material Business Agreement listed in Section 3.6 of the Business Disclosure Letter, except in each such case, as required or contemplated by the terms of the Material Business Agreements or Transferred Agreements, or as would not reasonably be expected to have a Material Adverse Effect on the Transferred Assets, (d) to the Knowledge of Seller result in the imposition of any Encumbrance upon any of the Transferred Assets, or (e) violate any order, writ, injunction, decree, statute, rule or regulation applicable to any of the Transferred Assets, other than any violation that would not reasonably be expected to have a Material Adverse Effect on the Transferred Assets.

 

3.4 Tangible Assets . ALL TRANSFERRED EQUIPMENT, RAW MATERIALS AND INVENTORY, AND OTHER TANGIBLE PERSONAL PROPERTY INCLUDED IN THE TRANSFERRED ASSETS IS TRANSFERRED TO BUYER ON A “WHERE IS” AND, AS TO CONDITION, “AS IS” BASIS, EXCEPT THAT SELLER TRANSFERS TO BUYER ALL APPLICABLE THIRD-PARTY WARRANTY OR GUARANTY RIGHTS PROVIDED TO SELLER BY THE SUPPLIER OF SUCH TRANSFERRED EQUIPMENT, RAW MATERIALS AND INVENTORY OR OTHER TANGIBLE PERSONAL PROPERTY TO THE EXTENT IN EFFECT AND TRANSFERABLE BY SELLER IN ACCORDANCE WITH THIS AGREEMENT UNDER THEIR TERMS. SELLER SHALL HAVE NO LIABILITY OR RESPONSIBILITY AS A RESULT OF ANY SUCH TRANSFER, OR ANY FAILURE OF