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Exhibit 2.1
---------------------------------
ASSET PURCHASE AGREEMENT
---------------------------------
BY AND BETWEEN
ANTIGENICS INC., A MASSACHUSETTS CORPORATION AND
A
WHOLLY-OWNED SUBSIDIARY OF ANTIGENICS INC., A DELAWARE
CORPORATION
AND
PP MANUFACTURING CORPORATION, A DELAWARE CORPORATION, AND
VIRBAC S.A., A FRENCH CORPORATION
DECEMBER 10, 2003
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SECTION 1
-SALE AND
PURCHASE OF
ASSETS................................................................2
1.1 Sale of
Assets.................................................................................2
1.2 Method of
Conveyance...........................................................................2
1.3 Assumption
of
Liabilities......................................................................2
1.4
Price..........................................................................................3
1.5 Allocation
of
Price............................................................................5
1.6
Closing........................................................................................5
SECTION 2
-REPRESENTATIONS AND WARRANTIES OF
SELLER...................................................7
2.1
Organization...................................................................................7
2.2 Authority;
Approval
Enforceability.............................................................7
2.3 No
Violation...................................................................................7
2.4 Title to
Assets;
Liens.........................................................................7
2.5 Condition
of Tangible Assets
..................................................................8
2.6 reserved.
.....................................................................................8
2.7
Permits........................................................................................8
2.8
Litigation.....................................................................................8
2.9
Environmental
Matters..........................................................................8
2.10
Brokers' and Finders'
Fees.....................................................................9
2.11
Employment Agreements and Employee
Plans.......................................................9
2.12
No Other Representations and
Warranties.......................................................10
SECTION 3
-REPRESENTATIONS AND WARRANTIES OF BUYER
..................................................11
3.1
Organization..................................................................................11
3.2
Authority.....................................................................................11
3.3 No
Violation..................................................................................11
3.4 Brokers'
and Finders'
Fees....................................................................11
3.5
Guarantee.....................................................................................12
3.6
Investigation.................................................................................12
SECTION 4
-COVENANTS AND
AGREEMENTS..................................................................12
4.1 Corporate
Examinations and
Investigations.....................................................12
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4.2
Expenses......................................................................................12
4.3
Authorization from
Others.....................................................................12
4.4 Related
Agreements............................................................................13
4.5 Purchase
of Inventories, Raw Materials, and Other Office
Assets...............................13
4.6 Key
Employees;
Employment.....................................................................14
4.7
Non-Transferable
Permits......................................................................15
4.8 Access to
Records and
Files...................................................................15
4.9 Further
Assurances............................................................................16
4.10
Seller Assistance; Pre-Closing
Access.........................................................16
4.11
Reorganization of Equipment for the Benefit of
Seller.........................................17
SECTION 5
-CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO
CLOSE..................................17
5.1
Representations and Warranties
True...........................................................17
5.2
Litigation....................................................................................17
5.3 Deliveries
of
Seller..........................................................................17
5.4 Rights to
be Secured With Respect to Third
Parties............................................17
5.5 Necessary
Permits.............................................................................17
5.6 Legal
Opinion.................................................................................17
5.7
Employees.....................................................................................18
5.8 Phase I
Site Assessment
Report................................................................18
SECTION 6
-CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER TO
CLOSE.................................18
6.1
Representations and Warranties
True...........................................................18
6.2
Litigation....................................................................................18
6.3 Deliveries
of
Buyer...........................................................................18
6.4
Employees.....................................................................................18
6.5 Rights
With Respect to Third
Parties..........................................................18
6.6 Purchase
of Inventories, Raw Materials, and Other Office Assets
..............................19
SECTION 7
-INDEMNIFICATION...........................................................................19
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7.1 By
Seller.....................................................................................19
7.2 By
Buyer......................................................................................19
7.3
Threshold.....................................................................................19
7.4 Minimum
Claim.................................................................................20
7.5 Maximum
Liability; Limitation on
Liability....................................................20
7.6 Claims
Period.................................................................................20
7.7
Indemnification
Procedures....................................................................20
7.8 Third
Party
Recoveries........................................................................21
7.9
Legislation...................................................................................21
7.10
Contingent
Liabilities........................................................................21
7.11
No Third Party
Beneficiaries..................................................................21
7.12
Exclusive
Remedy..............................................................................21
7.13 Liabilities Under
Prior
Agreements............................................................21
SECTION 8
-TERMINATION OF
AGREEMENT..................................................................23
8.1
Termination...................................................................................23
8.2 Effect of
Termination.........................................................................23
SECTION 9
-MISCELLANEOUS.............................................................................23
9.1
Confidentiality...............................................................................23
9.2 Uniform
Commercial Code And United Nations Convention
Warranties..............................24
9.3 Public
Announcements..........................................................................24
9.4
Notices.......................................................................................24
9.5 Entire
Agreement; Prior
Agreements............................................................25
9.6 Waivers
and Amendments; Non-Contractual Remedies; Preservation of
Remedies....................25
9.7 Governing
Law; Dispute
Resolution.............................................................26
9.8 Governing
Language............................................................................26
9.9
Enforceability in Jurisdictions;
Consent......................................................26
9.10
Survival......................................................................................26
9.11
Binding Effect; No
Assignment.................................................................27
9.12
Variations in
Pronouns........................................................................27
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9.13
Counterparts..................................................................................27
9.14
Severability..................................................................................27
9.15
Knowledge.....................................................................................27
9.16
Appendices;
Schedules.........................................................................28*
9.17
Headings......................................................................................28
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*APPENDICES AND SCHEDULES HAVE BEEN
OMITTED. THE REGISTRANT WILL FURNISH
SUPPLEMENTALLY TO THE COMMISSION
UPON REQUEST.
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is dated as of
December 10, 2003 (the "Effective Date"),
by and between ANTIGENICS INC., a
Massachusetts corporation and a
wholly-owned subsidiary of ANTIGENICS INC., a
Delaware corporation, having its offices at
3 Forbes Road, Lexington, MA 02421
U.S.A. ("SELLER") and PP MANUFACTURING
CORPORATION, a Delaware corporation that
will have offices located on or after the
Closing at 175 Crossing Boulevard,
Framingham, Massachusetts, 01702-5404
("SUB") and VIRBAC S.A., a French
corporation having its offices at 1 ere
Avenue-2065 m L.I.D.-06516 CARROS FRANCE
("PARENT," and together with SUB,
"BUYER").
WITNESSETH
WHEREAS, SELLER and PARENT are parties to (i) that certain
Agreement
dated June 13, 1983 by and between Virbac
Laboratories S.A. and Cambridge
Bioscience Corporation (as amended by
Amendment dated December 20, 1988, by
Amendment Agreement dated May 23, 1989, by
Agreement and Amendment dated
December 3, 1990, by Amendment Agreement
dated April 21, 1993, and by Option
Agreement dated September 30, 1993),
pursuant to which PARENT obtained a
perpetual, royalty-free, fully paid-up,
exclusive license to market and have
customers use a vaccine protective against
feline leukemia virus ("FeLV")
developed by the parties thereunder (the
"Vaccine"), (ii) that certain Supply
Agreement dated May 24, 1989 by and between
Cambridge Bioscience Corporation and
Virbac, Inc. (as amended by Amendment No. 1
dated December 21, 1990 and by
Amendment No. 2 dated April 21, 1993)
relating to the supply of the Vaccine for
the North American market, and (iii) that
certain Letter Agreement dated
November 4, 2003 (and any successor
agreement) by and between PARENT and SELLER
relating to the supply of P45 (as
hereinafter defined) for the ex-North American
market (collectively, the "Prior
Agreements");
WHEREAS, SELLER and PARENT have agreed to terminate the Prior
Agreements and the agreements set forth on
Appendix A (the "Other Prior
Agreements") pursuant to this Agreement
upon the Closing (as hereinafter
defined);
WHEREAS, SELLER desires to sell to SUB, and SUB desires to
purchase
from SELLER, certain equipment and other
tangible assets listed on Schedule
1.1.1 hereto and utilized in the
manufacture of (i) the antigen described in
Appendix B to this Agreement ("P45") and
(ii) a veterinary grade extract of
Quillaja Saponaria bark as more
specifically described on Appendix C to this
Agreement ("QA-21 Adjuvant");
WHEREAS, pursuant to that certain Patent Purchase Agreement (as
defined
in Section 1.6.1(f)), SELLER desires to
sell to PARENT, and PARENT desires to
purchase from SELLER, the intangible assets
set forth on Schedule 1.1.2 hereto;
WHEREAS, SELLER desires to license to SUB and SUB desires to obtain
a
license from SELLER under certain
intellectual property rights owned by or
licensed to SELLER for the manufacture,
use, sale, offer for sale or importation
world-wide of the P45, and QA-21 Adjuvant
for use in its own animal healthcare
vaccines formulated to contain or comprise
P45 (and/or
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other antigens) as one component and QA-21
Adjuvant as another component (the
"Licensed Assets"); and
WHEREAS, SELLER desires to grant SUB and SUB desires to obtain,
a
sublease to that portion of approximately
20,432 rentable square feet located in
part on the first and second floors of
SELLER's Framingham authorized
manufacturing site (Establishment License
no. 317) located at 175 Crossing
Boulevard, Framingham, Massachusetts,
01702-5404 which is currently being
occupied and utilized by SELLER for the
manufacture of P45 and QA-21 Adjuvant
(the "Manufacturing Site").
NOW THEREFORE, in consideration of the
foregoing and of the mutual covenants set
forth below, the parties hereby agree as
follows:
SECTION 1 -SALE AND PURCHASE OF ASSETS
1.1 Sale of
Assets. On the terms and subject to the conditions of
this Agreement, at the Closing (as defined
in Section 1.6 hereof):
1.1.1
SELLER shall sell, convey, assign, transfer and
deliver to SUB, and SUB shall purchase,
acquire and accept delivery from SELLER
the tangible properties and assets on
Schedule 1.1.1 (the "Tangible Assets").
For the avoidance of doubt, the Tangible
Assets shall specifically exclude any
and all intellectual property rights, and
any and all rights in or to the
compound referred to as QS-21 Adjuvant (as
defined in the attached Appendix C),
as well as any and all assets of SELLER not
specifically identified herein as
Tangible Assets (the "Excluded
Assets").
1.1.2
Pursuant to the Patent Purchase Agreement, SELLER
shall sell, convey, assign, transfer and
deliver to PARENT and PARENT shall
purchase, acquire and accept delivery of
from SELLER certain intangible assets
as more specifically described on Schedule
1.1.2 ("Intangible Assets").
1.2 Method of
Conveyance. The sale, transfer, conveyance,
assignment and delivery by SELLER of the
Tangible Assets to SUB in accordance
with Section 1.1 hereof shall be effected
on the Closing Date (as defined in
Section 1.6) by SELLER's execution and
delivery to SUB of one or more bills of
sale in the form and scope reasonably
satisfactory to SUB (the "Conveyance
Documents"). At the Closing, good, valid
and marketable title to the Tangible
Assets shall be transferred, conveyed,
assigned and delivered by SELLER to SUB
pursuant to the Conveyance Documents, free
and clear of any and all liens,
encumbrances, mortgages, security
interests, pledges, claims, equities and other
restrictions or charges of any kind or
nature whatsoever.
1.3 Assumption
of Liabilities. At the Closing, SUB shall assume
and agree to satisfy and discharge as the
same shall become due, the liabilities
and obligations of SELLER that are to be
performed after the Closing and
described on Schedule 1.3. The liabilities
to be assumed by SUB under this
Agreement are hereinafter sometimes
referred to as the "Assumed Liabilities."
Except as expressly set forth in this
Section 1.3 and Section 1.4.5, or as
described on
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Schedule 1.3, neither SUB nor PARENT shall
assume or be responsible at any time
for any liability, obligation, debt or
commitment of SELLER or any of its
Affiliates (as defined herein), whether
absolute or contingent, accrued or
unaccrued, asserted or unasserted, or
otherwise, including but not limited to
any liabilities, obligations, debts or
commitments of SELLER incident to,
arising out of or incurred with respect to,
this Agreement and the transactions
contemplated hereby including any and all
sales, income or other taxes arising
out of the transactions contemplated
hereby. "Affiliate" means any entity
directly or indirectly controlling,
controlled by or under common control with
SUB, PARENT or SELLER, with "control"
meaning the possession, direct or
indirect, of the power to direct or cause
the direction of the management and
policies of the entity, whether through the
ownership of voting securities, by
contract or otherwise. Without limiting the
generality of the foregoing, SELLER
expressly acknowledges and agrees that
SELLER shall retain, and that neither SUB
nor PARENT shall assume or otherwise be
obligated to pay, perform, defend or
discharge, with respect to liabilities
incurred prior to the Closing Date (a)
any liability of SELLER for taxes (other
than taxes referenced in Section
1.4.5), whether measured by income or
otherwise, (b) any liability of SELLER in
connection with the violation of the terms
of any SELLER Employee Plan, (c) any
liability of SELLER under any federal,
state or local law, rule, regulation,
ordinance, program, permit, license or
other legal requirement relating to
health, safety, hazardous materials and
environmental matters applicable to the
Manufacturing Site (excluding any such
liability that arises as a result of
SUB's or PARENT's actions, or, where an
action is required to be taken by law,
rule or regulation, SUB's or PARENT's
inaction, including the failure to comply
with any European rules or regulations
related to manufacturing practices), or
(d) any liability or obligation of SELLER
relating to any default taking place
before the Closing Date under any of the
Assumed Liabilities to the extent such
default solely created the liability or
obligation.
1.4 Price. In
consideration for the sale of the Tangible Assets
pursuant to this Agreement, the sale of the
Intangible Assets pursuant to the
Patent Purchase Agreement, and the
licensing of the Licensed Assets pursuant to
the License Agreement (as defined in
Section 1.6.1(d)), SUB and/or PARENT shall
deliver to SELLER an aggregate amount (the
"Price") of fourteen million two
hundred and fifty thousand US dollars
($14,250,000). Payments shall be made as
follows:
1.4.1 The
parties acknowledge and agree that PARENT has
already paid SELLER one million US dollars
($1,000,000) (which amount shall be
credited toward the purchase price for the
Intangible Assets pursuant to the
Patent Purchase Agreement), of which (i)
two-hundred fifty thousand US dollars
($250,000) shall be refundable only in the
event SELLER fails to obtain any
consents necessary from the lessor of the
Manufacturing Site in order to execute
the Sublease Agreement (as defined in
Section 1.6.1(e) hereof), and (ii) the
remaining seven hundred fifty thousand US
dollars ($750,000) shall be refundable
only in the event either SUB or PARENT
terminates this Agreement pursuant to
Section 8.1(ii) hereof, or SELLER
terminates this Agreement pursuant to Section
8.1(i) due to a failure of SELLER to obtain
all consents as contemplated in
Section 6.5.
1.4.2
Upon
execution of this Agreement, PARENT shall
deliver to SELLER one million US dollars
($1,000,000) (which amount shall be
credited toward the purchase price for the
Intangible Assets pursuant to the
Patent Purchase Agreement), which shall be
refundable only in the event either
SUB or PARENT terminates this Agreement
pursuant to Section 8.1(ii)
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hereof, or SELLER terminates this Agreement
pursuant to Section 8.1(i) due to a
failure of SELLER to obtain all consents as
contemplated in Section 6.5. PARENT
shall make such payment by delivering to
SELLER the aforementioned amount by
official bank check or wire transfer (to an
account specified by SELLER in
writing), in next day funds.
1.4.3
At the
Closing,
(a) PARENT
shall deliver to SELLER two million
US dollars ($2,000,000) (which amount shall
be credited toward the purchase
price for the Intangible Assets pursuant to
the Patent Purchase Agreement).
(b) SUB shall
deliver to SELLER six million US
dollars ($6,000,000).
(c) SUB shall
deliver to SELLER payment for
SELLER's inventories and raw materials in
the amounts set forth in the
applicable invoice(s) as set forth in
Section 4.5.
(d) SUB shall
deliver to SELLER payment for the
Other Office Assets (as defined in Section
4.5.5 of this Agreement) in the
amounts to be mutually agreed upon in
writing by SELLER and SUB.
(e) All
payments to SELLER as described in this
Section 1.4.3 shall be made by official
bank check or wire transfer (to an
account specified by SELLER in writing), in
next day funds.
1.4.4
After the Closing, upon the production by SUB of at
least three (3) industrial batches of P45
for a total quantity of 100 grams, in
conformance with the "Release Criteria" for
P45 as set forth in Appendix B, and
a total of 10 grams of QA-21 Adjuvant (the
"Initial Batches"), provided that SUB
shall attempt in good faith to manufacture
the Initial Batches within six (6)
months after the Closing Date, SUB shall
deliver to SELLER four million two
hundred fifty thousand US dollars
($4,250,000). In the event SUB fails to
manufacture the Initial Batches and fails
to attempt in good faith to do so as
required hereunder, such payment shall
become immediately due and payable upon
the sixth (6th) month anniversary of the
Closing Date. In the event SUB fails to
manufacture the Initial Batches and has
attempted in good faith to do so, such
payment shall become immediately due and
payable upon the eighth (8th) month
anniversary of the Closing Date. SUB shall
make any such payment set forth in
this Section 1.4.4 by delivering to SELLER
the aforementioned amount by official
bank check or wire transfer (to an account
specified by SELLER in writing), in
next day funds. PARENT shall provide SUB
with all necessary assistance in
furtherance of SUB performing its
manufacturing obligations as set forth in this
Section 1.4.4.
1.4.5 In
the event either SUB or PARENT is required to
withhold any taxes from any of the payments
to be made pursuant to this
Agreement or the Related Agreements
pursuant to applicable tax laws, then the
amount of such payments shall be increased
as necessary so that the net amount
actually received by SELLER will equal the
full amount SELLER would have
received had no such withholding been
required.
1.4.6
BUYER and SELLER acknowledge and agree that none of
the consideration paid by either SUB or
PARENT as set forth hereunder shall
constitute
4
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consideration for the sublease of the
Manufacturing Site premises pursuant to
the Sublease Agreement.
1.5 Allocation
of Price. The Price will be allocated among the
Tangible Assets, Intangible Assets and
Licensed Assets in accordance with
Schedule 1.5 attached hereto. Subject to
the requirements of Section 1060 of the
Internal Revenue Code and the Treasury
regulations thereunder (and any similar
provision of state, local or foreign law,
as appropriate), all tax returns and
reports filed by BUYER and SELLER
(including, but not limited to Internal
Revenue Service Form 8594) will be prepared
consistently with such allocation
and BUYER and SELLER shall use their
reasonable best efforts to sustain such
allocation in any subsequent tax audit or
tax dispute.
1.6 Closing.
The closing of the sale and purchase of the Tangible
Assets pursuant hereto and the Intangible
Assets pursuant to the Patent Purchase
Agreement and the other transactions
contemplated hereby (the "Closing"), shall
take place at a time, on a date and at a
place to be mutually agreed to by BUYER
and SELLER in writing or, failing such
agreement, on the second business day
after the satisfaction or waiver (by the
party entitled to grant such waiver) of
the conditions set forth in Sections 5 and
6 hereof; provided, however, that if
on March 1, 2004, (i) the conditions set
forth in Section 5 have not been met or
waived, then BUYER shall be entitled to
postpone the Closing, by notice to
SELLER, until up to five (5) business days
after such condition shall have been
met or waived, or (ii) the conditions set
forth in Section 6 have not been met
or waived, then SELLER shall be entitled to
postpone the Closing, by notice to
BUYER, until up to five (5) business days
after such condition shall have been
met or waived; provided, further, that in
no event shall the Closing be
postponed past May 1, 2004 unless BUYER and
SELLER shall have agreed in writing
to such postponement, or at such other
place or such other time or date as BUYER
and SELLER agree in writing. The date of
such Closing is referred to herein as
the "Closing Date."
1.6.1
Deliveries of SELLER. At or prior to the Closing,
SELLER shall deliver to BUYER:
(a) the
Conveyance Documents,
(b) a
certificate executed by an authorized
officer of SELLER, on behalf of SELLER, to
the effect that the matters set forth
in Section 5.1 are true and correct and the
conditions set forth therein have
been satisfied as of the Closing Date;
(c) a
certificate executed by the secretary of
SELLER, dated as of the Closing Date,
certifying that all requisite corporate
actions of SELLER to authorize the
execution and delivery of this Agreement and
the other documents and instruments to be
executed and delivered pursuant to
this Agreement, and the consummation by
SELLER of the transactions contemplated
by this Agreement, have been taken;
(d) a license
agreement executed by SELLER
substantially in the form attached hereto
as Appendix D, pursuant to which SUB
obtains a perpetual, non-terminable,
royalty-free, right and license in and to
the Licensed Assets for use in the Field
(as defined therein) subject to the
provisions thereof (the "License
Agreement");
5
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(e) a sublease
agreement executed by SELLER
substantially in the form attached hereto
as Appendix E, pursuant to which SUB
subleases the Manufacturing Site (the
"Sublease Agreement");
(f) a patent
purchase agreement executed by
SELLER substantially in the form attached
hereto as Appendix F, pursuant to
which PARENT purchases the Intangible
Assets (the "Patent Purchase Agreement");
(g) a procedures manual(s)
containing all
reasonably necessary control and
manufacturing procedures related to and for the
manufacture of P45, QA-21 Adjuvant and the
Vaccine as contemplated by this
Agreement, the Patent Purchase Agreement,
and the License Agreement (the
"Manual"); and
(h) a Phase I
Site Assessment Report prepared
following the "Standard Practice for
Environmental Site Assessments: Phase I
Environmental Site Assessment Process, ASTM
E-1527-00" (the "Phase I Site
Assessment Report") to be conducted by a
consultant retained by SELLER, and
reasonably acceptable to BUYER, with each
of BUYER and SELLER bearing liability
of one-half the cost of such consultant's
services.
1.6.2
Deliveries of BUYER. At or prior to the Closing, BUYER shall
deliver to SELLER:
(a) that
portion of the Price required to be
paid at Closing pursuant to Section 1.4.3, and payments for the
inventories, raw materials, and Other Office Assets pursuant to
Sections 1.4.3 and 4.5;
(b) a
certificate executed by an authorized
officer of SUB, on behalf of SUB, to the effect that the matters
set
forth in Section 6.1 are true and correct and the conditions set
forth
therein have been satisfied as of the Closing Date;
(c) a
certificate executed by an authorized
officer of PARENT, on behalf of PARENT, to the effect that the
matters
set forth
in Section 6.1 are true and correct and the conditions set
forth therein have been satisfied as of the Closing Date;
(d) a
certificate executed by the secretary of
SUB, dated as of the Closing Date, certifying that all
requisite
corporate actions of SUB to authorize the execution and delivery
of
this Agreement and the other documents and instruments to be
executed
and delivered pursuant to this Agreement, and the consummation by
SUB
of the transactions contemplated by this Agreement, have been
taken;
(e) a
certificate executed by an authorized
officer of PARENT, dated as of the Closing Date, certifying that
all
requisite
corporate actions of PARENT to authorize the execution and
delivery of this Agreement and the other documents and instruments
to
be executed and delivered pursuant to this Agreement, and the
consummation by PARENT of the transactions contemplated by this
Agreement, have been taken;
6
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(f) an
agreement for assumption of the Assumed
Liabilities by SUB containing provisions that are usual and
customary
for assuming the liabilities involved, executed by SUB;
(g) the
License Agreement, executed by SUB;
(h) the
Sublease Agreement, executed by SUB;
(i) the Patent
Purchase Agreement executed by
PARENT; and
(j) a supply
agreement executed by PARENT and
SUB substantially in the form attached hereto as Appendix G,
pursuant
to which
PARENT and SUB agree to supply SELLER with QS-21 Adjuvant on
the terms set forth therein (the "Supply Agreement").
SECTION 2 -REPRESENTATIONS AND WARRANTIES OF SELLER
SELLER, represents and warrants to BUYER as follows:
2.1
Organization. SELLER is a corporation duly organized, validly
existing and in good standing under the
laws of the Commonwealth of
Massachusetts.
2.2 Authority;
Approval Enforceability. SELLER has all requisite
corporate power and authority to enter into
this Agreement and to consummate the
transactions contemplated hereby. The
execution and delivery of this Agreement
and the consummation of the transactions
contemplated hereby, have been duly
authorized by all necessary corporate
action on the part of SELLER. This
Agreement has been duly executed and
delivered by SELLER. Assuming due
authorization, execution and delivery by
BUYER, this Agreement constitutes, and
when delivered at the Closing the
Conveyance Documents and Related Agreements
and any conveyance documents thereunder
will constitute, the legal, valid and
binding obligations of SELLER, enforceable
in accordance with their terms,
subject to bankruptcy, insolvency,
fraudulent transfer, reorganization,
moratorium and similar laws of general
applicability relating to or affecting
creditors' rights and to general principles
of equity.
2.3 No
Violation. To SELLER's knowledge, neither the execution and
delivery of this Agreement, nor the
performance by SELLER of its obligations
hereunder, nor the consummation of the
transactions contemplated hereby or
thereby, will (i) violate any statute or
law or any judgment, decree, order,
regulation or rule of any court or
governmental authority to which SELLER is
bound; or (ii) violate, conflict with,
result in a breach of or constitute a
default under, any agreement set forth on
Schedule 2.3 ("Material Agreements"),
where such violation, conflict, breach or
default would have a material adverse
impact on the Tangible Assets. To SELLER's
knowledge, the Material Agreements
are the only material agreements to which
the Tangible Assets are bound or
subject.
2.4 Title to
Assets; Liens. SELLER owns good, valid and marketable
title to all of the Tangible Assets, free
and clear of any and all liens,
encumbrances, mortgages, security
interests, pledges, claims, equities and other
restrictions or charges of any kind or
nature whatsoever. Upon delivery of and
payment for the Tangible Assets as herein
provided, SUB will
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acquire good, valid and marketable title to
all of the Tangible Assets, free and
clear of any and all liens, encumbrances,
mortgages, security interests,
pledges, claims, equities and other
restrictions or charges of any kind or
nature whatsoever.
2.5 Condition
of Tangible Assets. Except for normal wear and tear
or as otherwise set forth on Schedule 2.5,
the Tangible Assets are in
substantially the same condition as on
September 30, 2003.
2.6
reserved.
2.7 Permits.
Set forth on Schedule 2.7 are all of the material
licenses, permits, franchises, orders,
registrations, authorizations,
documentations or approvals of any federal,
state, local or foreign governmental
or regulatory body relating to the Tangible
Assets and the use of the
Manufacturing Site for the manufacture of
P45, QA-21 Adjuvant and the Vaccine
(collectively, "Permits") of SELLER. All
such Permits are in full force and
effect and, except for those Permits
identified in Schedule 2.7 as
"Non-Transferable Permits," such Permits
will be transferred to SUB at or prior
to Closing. Prior to the Closing, and for a
reasonable time thereafter, SELLER
shall cooperate with SUB, at SUB's sole
cost and expense, to assist SUB in
obtaining Permits substantially similar to
the Non-Transferable Permits that are
reasonably necessary for SUB to use the
Tangible Assets and Manufacturing Site
for the manufacture of P45, QA-21 Adjuvant
and the Vaccine as of the Closing
Date.
2.8
Litigation. Except as otherwise set forth in Schedule 2.8, to
the knowledge of SELLER as of the Effective
Date, there are no claims, actions,
suits, investigations or proceedings
(regardless of whether formal or informal)
against SELLER pending or threatened in any
court or before or by any
governmental authority, or before any
arbitrator, relating to and that would
have a material adverse effect (whether
covered by insurance or not) on the
Tangible Assets, and to the knowledge of
SELLER as of the Effective Date, there
is no basis for any such claim, action,
suit, investigation or proceeding.
2.9
Environmental Matters. Except as set forth on Schedule 2.9 or
where the existence of an item would not
have a material adverse effect on the
Manufacturing Site, the Tangible Assets or
the operations of SUB at the
Manufacturing Site as were previously
conducted by SELLER at the Manufacturing
Site prior to the Effective Date, to the
knowledge of SELLER as of the Effective
Date or as of the date of receipt of the
Phase I Site Assessment Report with
respect to items first disclosed thereunder
to SUB or PARENT, (i) there are no
pending or threatened allegations, claims,
liabilities, investigations,
litigation, administrative proceedings,
judgments, decrees or orders
(collectively "Environmental Claims")
relating to any alleged violation of
Environmental Laws (as defined below)
asserted against SELLER or relating to the
Manufacturing Site; (ii) SELLER has
obtained all permits under applicable
Environmental Laws necessary for the
operation of the Tangible Assets and
Manufacturing Site and related activities;
all such permits are in good standing
and SELLER is in compliance with all terms
and conditions of these permits;
(iii) all operations or activities upon, or
any use of or occupancy of the
Manufacturing Site, or any portion thereof,
by SELLER, and any agent, contractor
or employee of SELLER, are now and have
been in all respects in compliance with
all applicable Environmental Laws; (iv)
SELLER has not caused or permitted the
use, generation, reclamation,
transportation, treatment, storage or disposal of
any Hazardous Material (as defined below)
in
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violation of applicable Environmental Laws
or in a manner that could require any
removal or remedial action at, on, in or
about the Manufacturing Site or at any
other site; (v) SELLER has not assumed the
liability of any person for any
Environmental Claims; (vi) no work, repair,
remedy, construction or capital
expenditure is required by any applicable
Environmental Laws for the continued
lawful use of the Tangible Assets or
Manufacturing Site and (vii) SELLER has
kept the Tangible Assets and the
Manufacturing Site free of any lien imposed
pursuant to any Environmental Laws. The
term "Environmental Laws" shall mean all
federal, state and local laws, statutes and
ordinances relating to pollution or
the regulation and protection of human
health or the environment, including
without limitation those relating to
emissions, discharges, releases or
threatened releases of Hazardous Material
or the use or production of biological
agents or otherwise relating to the
manufacture, processing, use, treatment,
storage, disposal, transportation or
cleanup of Hazardous Material. The term
"Hazardous Material" shall mean (a) oil or
other petroleum products; (b)
"hazardous substances" as defined by the
Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C.
ss.ss. 9601 et seq.; (c) "hazardous
wastes" as defined by the Resource
Conservation and Recovery Act, 42 U.S.C.
ss.ss. 6901 et seq.; (d) "toxic substances"
as defined by the Toxic Substances
Control Act, 15 U.S.C. ss.ss. 2601 et seq.;
(e) "hazardous materials" as defined
by the Hazardous Materials Transportation
Act, 49 U.S.C. ss. 1802; (f)
radioactive materials, including those
subject to the Atomic Energy Act, 42
U.S.C. ss.ss. 2011 et seq. and (g) any
other pollutant, chemical or substance
that is regulated under Environmental
Laws.
2.10
Brokers' and Finders' Fees. SELLER has not incurred, nor will
it incur, directly or indirectly, any
liability for brokerage or finders' fees
or agents' commissions or any similar
charges in connection with this Agreement
or the Related Agreements, or the
transactions contemplated hereby or thereby.
2.11
Employment Agreements and Employee Plans. With respect to the
Business Employees (as defined herein), to
the knowledge of SELLER, SELLER (i)
has at all times been in substantial
compliance with all applicable legal
requirements with respect to (a)
employment, employment practices, employment
verification (including, but not limited
to, verification required under the
Immigration Reform and Control Act of 1986,
as amended), and (b) terms and
conditions of employment and wages,
overtime pay, and hours, withholding and
workers' compensation; and (ii) has not
illegally discriminated with regard to
employment on the basis of age, color,
national origin, race, religion, sex,
handicap, or on the basis of any other
legally prohibited category or
classification. With respect to any
"Employee Plan" (as defined herein) that
SELLER maintains, participates under or is
required to contribute to (i) each
Pension Plan (as defined herein) that is
intended to be qualified under Section
401(a) of the Internal Revenue Code has
received a favorable determination
letter or opinion letter, as applicable,
from the IRS with respect to its
qualified status and with respect to the
tax-exempt status of the trust of any
such Pension Plan under Section 501(a) of
the Internal Revenue Code or SELLER
has adopted a prototype plan the sponsor of
which is not the SELLER, and there
is no matter pending (other than
determination letter filings) with respect to
any Employee Plan before the IRS, the
Department of Labor, the Securities and
Exchange Commission, the Pension Benefit
Guaranty Corporation or any other
federal or provincial government agency;
(ii) each Employee Plan, the
administrator and fiduciaries of each
Employee Plan, and SELLER have complied in
all material respects with the applicable
requirements of ERISA (as defined
herein) (including, but not limited to, the
fiduciary responsibilities imposed
by Part 4 of Title I, Subtitle B of ERISA),
the
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<PAGE>
Internal Revenue Code and any other
applicable rules and regulations governing
each Employee Plan, except where the
failure to do so would not be reasonably
expected to have a material adverse effect
on the Employee Plan, the
administrator and fiduciaries of the
Employee Plan , or SELLER; and (iii) each
Employee Plan has at all times been
administered in all material respects in
compliance with its terms and i
