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ASSET PURCHASE AGREEMENT

Asset Purchase Agreement

ASSET  PURCHASE AGREEMENT | Document Parties: XENOVA GROUP PLC | KS AVICENNA INC You are currently viewing:
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XENOVA GROUP PLC | KS AVICENNA INC

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Title: ASSET PURCHASE AGREEMENT
Date: 5/27/2005
Industry: Biotechnology and Drugs     Sector: Healthcare

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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. REDACTED PORTIONS OF THIS EXHIBIT ARE MARKED BY AN [_]. Exhibit 4.32 ------------------------ ASSET PURCHASE AGREEMENT ------------------------ TABLE OF CONTENTS

ARTICLE 1 INTERPRETATION.................................................................................1 1.1 Defined Terms.....................................................................,.............1 1.2 Best of Knowledge...............................................................................5 1.3 Schedules.......................................................................................5 1.4 Currency........................................................................................5 1.5 Choice of Law and Attornment....................................................................5 1.6 Interpretation Not Affected by Headings or Party Drafting.......................................5 1.7 Number and Gender...............................................................................5 1.8 Time of Essence.................................................................................6 ARTICLE 2 PURCHASE AND SALE..............................................................................6 2.1 Purchased Assets................................................................................6 2.2 Assumption of Obligations.......................................................................6 2.3 Purchase Price..................................................................................6 2.4 Payment of Purchase Price.......................................................................6 2.5 Set-Off.........................................................................................7 2.6 Allocation of Purchase Price....................................................................7 2.7 Payment of Taxes................................................................................7 2.8 GST Election....................................................................................7 2.9 Property Taxes..................................................................................8 2.10 Obligations and Liabilities Not Assumed.........................................................8 ARTICLE 3 REPRESENTATIONS AND WARRANTIES.................................................................8 3.1 Representations and Warranties by Vendor........................................................8 3.2 Representations and Warranties by Purchaser....................................................15 ARTICLE 4 SURVIVAL AND LIMITATIONS OF REPRESENTATIONS AND WARRANTIES..............................................................................................17 4.1 Survival of Warranties by Vendor...............................................................17 4.2 Survival of Warranties by Purchaser............................................................17 4.3 Limitations on Warranty Claims.................................................................17 ARTICLE 5 COVENANTS.....................................................................................18 5.1 Covenants by Vendor............................................................................18 5.2 Covenants by Purchaser.........................................................................19 5.3 Cooperation on Tax Matters.....................................................................19 ARTICLE 6 CONDITIONS....................................................................................20 6.1 Conditions to Obligations of Purchaser.........................................................20 6.2 Waiver or Termination by Purchaser.............................................................21 6.3 Conditions to Obligations of Vendor............................................................21 6.4 Waiver or Termination by Vendor................................................................22 ARTICLE 7 CLOSING.......................................................................................23 7.1 Closing Arrangements...........................................................................23 7.2 Documents to be Delivered......................................................................23 7.3 Possession and Risk............................................................................23 7.4 Post-Completion Administration.................................................................23 7.5 Preservation of Documents......................................................................24 ARTICLE 8 RIGHT OF FIRST REFUSAL........................................................................24 8.1 Right of First Refusal.........................................................................24 8.2 Survival.......................................................................................25 8.3 Assignment.....................................................................................26 ARTICLE 9 GENERAL PROVISIONS............................................................................26 9.1 Confidential Information.......................................................................26 9.2 Further Assurances.............................................................................26 9.3 Remedies Cumulative.....................................,......................................26 9.4 Notices........................................................................................26 9.5 Counterparts...................................................................................27 9.6 Expenses of Parties............................................................................27 9.7 Brokerage and Finder's Fees....................................................................28 9.8 Announcements..................................................................................28 9.9 Assignment.....................................................................................28 9.10 Successors and Assigns.........................................................................28 9.11 Entire Agreement...............................................................................28 9.12 Waiver.........................................................................................28 9.13 Amendments.....................................................................................29

SCHEDULES --------- Schedule A - Purchased Assets Schedule B - Allocation of Purchase Price Schedule C - List of Employees and Consultants Schedule D - Manufacturing Supply Agreement Schedule E - Promissory Notes Schedule F - Security Agreement Schedule G - Vendor's Bring Down Certificate Schedule H - Purchaser's Bring Down Certificate Schedule I - Employment Offer Letter ASSET PURCHASE AGREEMENT THIS AGREEMENT dated the 1st day of September, 2004, AMONG: KS AVICENNA INC., a corporation amalgamated under the laws of the Province of Alberta (the "VENDOR") -and - QSV BIOLOGICS LTD., a corporation incorporated under the laws of the Province of Alberta (the "PURCHASER") WHEREAS the Vendor wishes to sell, and the Purchaser wishes to purchase the Purchased Assets upon the terms and subject to the conditions hereinafter contained; NOW THEREFORE in consideration of the premises and the mutual agreements and covenants herein contained, the Parties hereto hereby covenant and agree as follows: ARTICLE 1 INTERPRETATION 1.1 DEFINED TERMS In this Agreement and in the schedules hereto, unless there is something in the subject matter or context inconsistent therewith, the following terms and expressions will have the following meanings: (a) "AFFILIATE" of any person means any corporation which, directly or indirectly, is controlled by, controls or is under direct or indirect common control with such person; (b) "APPLICABLE LAW" means the applicable provisions of any law, by-law, statute, regulation, rule, ordinance, policy, order, information letter, general bulletin, guideline criteria or directive enacted or issued by any governmental or regulatory body or other duly constituted public authority (whether legislative, administrative or executive) having jurisdiction over the Vendor or the Assets, and includes, without limitation, the applicable provisions of any permit, licence, approval or other governmental or regulatory authorization issued to the Vendor in respect of the Assets or any of them; (c) "ASSUMED CONTRACTS" means the contracts described in Exhibit 3 to Schedule A; (d) "ASSUMED LIABILITIES" means all obligations and liabilities accruing after the close of business on the day before the Closing Date under the Assumed Contracts; (e) "BALANCE SHEET" means the balance sheet of the Vendor as at the Balance Sheet Date; -2- (f) "BALANCE SHEET DATE" means December 31, 2003; (g) "BUSINESS" means the business of providing fermentation-based research and biopharmaceutical development and production services and manufacturing of biologies carried on by the Vendor, and includes all goodwill associated with such Business; (h) "BUSINESS DAY" means any day other than a day which is a Saturday, a Sunday or a statutory holiday in Alberta; (i) "CLOSING DATE" means September 1, 2004, or such other date as the Vendor and Purchaser may agree upon; (j) "CLOSING TIME" means 12:01 a.m. in Edmonton, Alberta on the Closing Date or such other time on the Closing Date as the Vendor and the Purchaser may agree upon; (k) "DEFERRED PURCHASE PRICE AMOUNT" means the sum of $2,000,000; (1) "ENVIRONMENTAL LAWS" means any Applicable Law relating to protection of the environment, persons or the public welfare from actual or potential exposure (or the effects of exposure) to any actual or potential release, discharge, spill or emission (whether past or present) of, or regarding the manufacture, processing, production, gathering, transportation, handling, use, treatment, storage or disposal of, any chemical raw material, pollutant, contaminant or toxic, corrosive or hazardous substance or waste; (m) "FACILITY" means the freehold property and interests therein described in Exhibit 1 to Schedule A, including the freehold property and interests therein described in Exhibit 1 to Schedule A, including all rights of way, licences or rights of occupation or easements used in the operation of the Business in connection with such freehold property, and all plant, buildings, structures, erections, improvements, appurtenances and fixtures situate on or forming part of such property; (n) "GOVERNMENTAL AUTHORITY" means any domestic or foreign legislative, executive, judicial or administrative body or person having or purporting to have jurisdiction in the relevant circumstances; (o) "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; (p) "INTELLECTUAL PROPERTY" means unpatented technical and other information which is not in the public domain including customer lists, process knowledge, ideas, concepts, inventions, discoveries, data, formulae, specifications and information relating to materials; (q) "INTERIM PERIOD" means the period, if any, from and including the date of this Agreement to and including the Closing Date; -3- (r) "LEASEHOLD PROPERTY" means the Research Centre Lease including all rights, licenses or rights of occupation or ancillary rights arising thereunder; (s) "MANUFACTURING SUPPLY AGREEMENT" means a Manufacturing Supply Agreement in the form attached hereto as Schedule D; (t) "MATERIAL" means, with respect to any fact, circumstance, term, asset, agreement, contract, obligation, liability, financial position, financial transaction, covenant, sale, disposition, expenditure, event, change, compliance, breach, violation, default, action, occurrence or effect (collectively, for the purposes of this definition, a "fact") in relation to the Vendor, the Purchased Assets, the Business or the Purchased Assets, a fact which is material to the Vendor, Assets or Business, as applicable, taken as a whole, having regard to the size of the value of the Assets and stage of development of the Business; (u) "PARTIES" means the Vendor and the Purchaser and "Party" means any one of them; (v) "PERMITTED ENCUMBRANCES" means; (i) the terms and conditions of the Assumed Contracts; (ii) easements, rights of way, servitudes and similar rights in land, including rights of way and servitudes for highways and other roads, railways, sewers, drains, gas and oil pipelines, gas and water mains, electric light, power, telephone, telegraph or cable television conduits, poles, wires and cables and any rights of expropriation, access or use, or any similar rights conferred or reserved by or in any statute of Canada or Alberta; (iii) the right reserved to or vested in any government or other public authority by the terms of the Research Centre Lease, or by any statutory provision to terminate such lease, or to require annual or other periodic payments as a condition of the continuance thereof; (iv) the reservations, limitations, provisos and conditions in any original grant from the Crown of any of the Purchased Assets or interests therein, and statutory exceptions to title; (v) the provisions of governing municipal by-laws, including those relating to zoning; (w) "PERSON" means and includes any individual, corporation, partnership, firm, joint venture, syndicate, association, trust, government, governmental agency or board or commission or authority, and any other form of entity or organization; (x) "PURCHASE PRICE" means the sum of $7,000,000, which is the amount payable by the Purchaser to the Vendor for all of the Purchased Assets, as provided herein; (y) "PURCHASED ASSETS" means the assets owned by the Vendor and utilized in the conduct of the Business as set forth in Schedule A and, for greater certainty, includes: (i) the Facility; -4- (ii) the Leasehold Property; (iii) the Assumed Contracts; (iv) the facility, process, computer and office equipment, materials and supplies described in Exhibit 4 to Schedule A; (v) the regulatory and documentation systems, including, but not limited to, all equipment, facility, environmental, cGMP, validation, utility and personnel files and records and all information and equipment required to access the said records and files, all as more particularly described in Exhibit 5 to Schedule A; (vi) the Intellectual Property described in Exhibit 6 to Schedule A; (vii) inventoried raw materials and spare parts, including, but not limited to, certain chromatographic resins, membrane filters, assay reagents, analytical HPLC columns, all as described in Exhibit 7 to Schedule A, and those spare parts for utilities, process and analytical equipment described in Exhibit 7 to Schedule A; (viii) all paperwork necessary to perform Installation Qualification, Operational Qualification and Performance Qualification on utilities, lab equipment, HVAC systems and other equipment or assets ordered or otherwise acquired by the Vendor, including but not limited to, purchase specifications, purchase orders and vendor contact information described in Exhibit 8 to Schedule A; (ix) 150L fermenter in the process of being acquired and installed by the Vendor described in Exhibit 9 to Schedule A; and (x) all other property, records, equipment, supplies or other items described in Exhibit 10 to Schedule A; but for greater certainty "Purchased Assets" does not include the Xenova IP; (z) "RESEARCH CENTRE LEASE" means the lease in the Research Centre 1 described in Exhibit 2 to Schedule A; (aa) "TRANSMID FACILITY" shall have the meaning set forth for the term in the Manufacturing Supply Agreement; (bb) "WARRANTY CLAIM" means a claim made by either the Purchaser or the Vendor based on or with respect to damages, losses, liabilities or expenses incurred by such party arising out of or relating to the inaccuracy or non-performance or non-fulfilment or breach of any representation or warranty made by the other party contained in this Agreement or contained in any document or certificate given in order to carry out the transactions contemplated hereby; and (cc) "XENOVA IP" means the "XENOVA IP" as defined in the Manufacturing Supply Agreement. -5- 1.2 BEST OF KNOWLEDGE Any reference herein to "the best of the knowledge" of the Vendor or the Purchaser will mean the actual knowledge of the current directors and senior officers of the Vendor or the Purchaser, as applicable, and the knowledge which they would have had if they had conducted a reasonably diligent inquiry into the relevant subject matter. 1.3 SCHEDULES The schedules attached to this Agreement are incorporated into this Agreement by reference and are deemed to be part hereof. 1.4 CURRENCY Unless otherwise indicated, all dollar amounts referred to in this Agreement are in lawful money of Canada. 1.5 CHOICE OF LAW AND ATTORNMENT This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein. The Parties agree that the courts of the Province of Alberta will have jurisdiction to determine all disputes and claims arising between the Parties. 1.6 INTERPRETATION NOT AFFECTED BY HEADINGS OR PARTY DRAFTING The division of this Agreement into articles, sections, paragraphs, subparagraphs and clauses and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms "this Agreement", "hereof ", "herein", "hereunder" and similar expressions refer to this Agreement and the schedules hereto and not to any particular article, section, paragraph, subparagraph, clause or other portion hereof and include any agreement or instrument supplementary or ancillary hereto. Each party hereto acknowledges that it and its legal counsel have reviewed and participated in settling the terms of this Agreement, and the Parties hereby agree that any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the interpretation of this Agreement 1.7 NUMBER AND GENDER In this Agreement, unless there is something in the subject matter or context inconsistent therewith: (a) words in the singular number include the plural and such words shall be construed as if the plural had been used; (b) words in the plural include the singular and such words shall be construed as if the singular had been used; and (c) words importing the use of any gender shall include all genders where the context or party referred to so requires, and the rest of the sentence shall be construed as if the necessary grammatical and terminological changes had been made. -6- 1.8 TIME OF ESSENCE Time shall be of the essence hereof. ARTICLE 2 PURCHASE AND SALE 2.1 PURCHASED ASSETS On the terms and subject to the fulfillment of the conditions hereof, the Vendor hereby agrees to sell, transfer and assign to the Purchaser, and the Purchaser hereby agrees to purchase and accept from the Vendor the Purchased Assets. 2.2 ASSUMPTION OF OBLIGATIONS Other than the Assumed Liabilities, the Purchaser is not assuming any debt or obligations of the Vendor. In respect of the Assumed Liabilities, the Purchaser shall, without requirement of any further documentation or acknowledgement, assume full and several responsibility and liability for the due payment and satisfaction of all obligations arising under the Assumed Contracts from and after the Closing Time and shall indemnify and save harmless the Vendor and its successors and assigns against and from any and all liability, loss, costs, claims or damages of any nature (including, without limitation, indirect, consequential and special damages, and legal costs on a solicitor/client basis) suffered or incurred by the Vendor or any of its successors or assigns in respect of any such obligations. The Vendor shall, without requirement of any further documentation or acknowledgement, assume full and several responsibility and liability for the due payment and satisfaction of all obligations arising under the Assumed Contracts prior to the Closing Time. The Vendor shall indemnify and save harmless the Purchaser and its successors and assigns against and from any and all liability, loss, costs, claims or damages of any nature (including, without limitation, indirect, consequential and special damages, and legal costs on a solicitor/client basis) suffered or incurred by the Purchaser or any of its successors or assigns in respect of any such obligations; 2.3 PURCHASE PRICE It is the intention of the Parties hereto that the purchase price payable for the Purchased Assets shall be an amount equal to the fair market value thereof. For the purposes hereof, it is agreed by the Parties that the price payable by the Purchaser to the Vendor for the Purchased Assets, exclusive of any applicable goods and services tax, will be the sum of $7,000,000. 2.4 PAYMENT OF PURCHASE PRICE The Purchase Price will be paid as follows: (a) Concurrently with the execution of this Agreement, the Purchaser will pay to the Purchaser's solicitor in trust, by certified cheque or bank draft, the sum of $5,000,000, representing the Purchase Price less the Deferred Purchase Price Amount (the "INITIAL PAYMENT"). (b) If the purchase and sale of the Purchased Assets is completed at the Closing Time, the Initial Payment will be delivered in trust, by certified cheque, bank draft or solicitor's trust cheque, to the Vendor's solicitor and applied toward satisfaction of the Purchase Price. -7- (c) On September 1, 2005, the Purchaser will pay to the Vendor, by certified cheque or bank draft, $1,000,000 of the Deferred Purchase Price Amount. (d) On March 1, 2006, the Purchaser will pay to the Vendor, by certified cheque or bank draft, the remaining $1,000,000 of the Deferred Purchase Price Amount. (e) The Deferred Purchase Price Amount shall be evidenced by two promissory notes of the Purchaser in the form attached hereto as Schedule E and the payment thereof will be secured by the Purchaser granting to the Vendor a security interest in the Purchased Assets pursuant to a security agreement to be delivered to the Vendor by the Purchaser at the Closing Time in the form attached hereto as Schedule F. 2.5 SET-OFF The Purchaser shall be entitled, from time to time prior to March 1, 2006, on notice in writing to the Vendor, to deduct from the final payment of the Deferred Purchase Price payable pursuant to section 2.4(d), amounts due and payable to the Vendor under the Manufacturing Supply Agreement in the circumstances specified in sections 6.8 and 20.3 of the Manufacturing Supply Agreement. 2.6 ALLOCATION OF PURCHASE PRICE The Purchase Price shall be allocated among the Purchased Assets in the manner set out in Schedule B attached hereto. The Vendor and the Purchaser hereby agree that the amounts so attributed to the Purchased Assets are the respective fair market values thereof. The Vendor and the Purchaser must each complete all tax returns, designations and elections in a manner consistent with the such allocation and otherwise follow such allocation for all tax purposes on and subsequent to the Closing Date and not take any position inconsistent with such allocation. If such allocation is disputed by any taxation or other governmental authority, the party receiving notice of such dispute will promptly notify the other party and the parties will use their reasonable best efforts to sustain the allocation. The parties will share information and cooperate to the extent reasonably necessary to permit the transactions contemplated by this Agreement to be properly, timely and consistently reported. 2.7 PAYMENT OF TAXES The Purchaser shall be liable for and shall pay all applicable federal goods and services taxes, excise taxes and all other taxes (other than income taxes of the Vendor), duties and other like charges properly payable upon and in connection with the conveyance and transfer of the Purchased Assets to the Purchaser. The Purchaser will prepare and file any affidavits or returns required in connection with the foregoing at its own cost and expense. To the extent that any such taxes are required to be paid by or are imposed upon the Vendor, the Purchaser will reimburse, or will cause to be reimbursed, to the Vendor such taxes within five Business Days of payment of such taxes by the Vendor. All amounts payable by the Purchaser to the Vendor hereunder do not include such taxes. The Vendor will do and cause to be done such things as are reasonably requested to enable the Purchaser to comply with such obligation in an efficient manner. 2.8 GST ELECTION The Vendor and the Purchaser will, on or before the Closing Time, jointly execute an election as permitted by Section 167(1) of the Excise Tax Act (Canada) in the prescribed form and containing the prescribed information to have subsection 167(1.1) of the Excise Tax Act apply to the sale and -8- purchase of the Assets hereunder, to the extent applicable, so that no tax is payable in respect of such sale and purchase under Part IX of the Excise Tax Act The Purchaser will file such election with the Ministry of National Revenue within the time prescribed by the Excise Tax Act. The Purchaser will provide the Vendor with such supporting documentation as the Vendor may reasonably request in order to confirm that such election has been made and properly filed. The Purchaser will indemnify the Vendor and the directors, officers, employees and agents of the Vendor for any losses, damages, expenses, liabilities, claims and demands of whatever nature incurred by them directly or indirectly as a result of the Vendor not collecting or remitting any tax under Part IX of the Excise Tax Act (Canada) in respect of the sale of the Purchased Assets, or pertaining to any failure of the Purchaser to file such election within the prescribed time or any failure in acceptance by applicable governmental authorities of that election. The Purchaser appoints the Vendor as the trustee for the Vendor's directors, officers, employees and agents of the covenant of the Purchaser with respect to such persons and the Vendor accepts such appointment, 2.9 PROPERTY TAXES All real property taxes imposed on or with respect to the Purchased Assets for the tax year that includes the Closing Date will be prorated between the Vendor and the Purchaser as of the Closing Date. The Vendor will be liable for the portion of such taxes based on the number of days in the year occurring prior to the Closing Date, and the Purchaser will be liable for the portion of such taxes based on the number of days in the year occurring on and after the Closing Date. For any year in which an apportionment is required, the Purchaser will file all required tax returns incident to these taxes assessed for the year in which the Closing Date occurs that are not paid by the Vendor as of the Closing Date. 2.10 OBLIGATIONS AND LIABILITIES NOT ASSUMED Except as expressly provided in this Agreement, the Purchaser does not assume and will not be liable for any obligations or liabilities of the Vendor whatsoever including any taxes under the Income Tax Act (Canada) or any other taxes whatsoever that may be or become payable by the Vendor including any income or corporation taxes resulting from or arising as a consequence of the sale by the Vendor to the Purchaser of the Purchased Assets hereunder. ARTICLE 3 REPRESENTATIONS AND WARRANTIES 3.1 REPRESENTATIONS AND WARRANTIES BY VENDOR The Vendor represents and warrants to the Purchaser as follows, and confirms that the Purchaser is relying upon the accuracy of each of such representations and warranties in connection with the purchase of the Purchased Assets and the completion of the other transactions hereunder: (a) Corporate Authority and Binding Obligation ------------------------------------------ The Vendor has good right, full corporate power and absolute authority to enter into this Agreement and to sell, assign and transfer the Purchased Assets to the Purchaser in the manner contemplated herein and to perform all of the Vendor's obligations under this Agreement. The Vendor and its shareholders and board of directors, have taken all necessary or desirable actions, steps and corporate and other proceedings to approve or authorize, validly and effectively, the entering into, and the execution, delivery and performance of, this Agreement and the sale and transfer of the Purchased Assets by the Vendor to the Purchaser. This Agreement is a legal, valid and binding obligation of the Vendor, -9- enforceable against it in accordance with its terms subject to (i) bankruptcy, insolvency, moratorium, reorganization and other laws relating to or affecting the enforcement of creditors' rights generally, and (ii) the fact that equitable remedies, including the remedies of specific performance and injunction, may only be granted in the discretion of a court. (b) Financial --------- (i) To the best of the knowledge of the Vendor, (A) the books and records of the Vendor relating to the Business are true and correct and present fairly and disclose in all material respects the financial position of the Business (B) all material financial transactions of the Vendor relating to the Business have been accurately recorded in such books and records and (C) to the extent possible, such books and records have been prepared in accordance with generally accepted accounting principles consistently applied; in each case, consistent with a business of comparable asset size and financial position. (ii) To the best of the knowledge of the Vendor, the annual financial statements of the Vendor, consisting of the Balance Sheet and statements of income, retained earnings and changes in financial position for the period ended on the Balance Sheet Date, together with the review engagement report of PricewaterhouseCoopers LLC, chartered accountants, thereon and the notes thereto (collectively, the "FINANCIAL STATEMENTS"), a copy of which was provided to or otherwise made available to the Purchaser: A. are in accordance with the books and accounts of the Vendor as at the Balance Sheet Date; B. are true and correct and present fairly the financial position of the Vendor as at the Balance Sheet Date; C. have been prepared in accordance with generally accepted accounting principles consistently applied; and D. present fairly all of the assets and liabilities of the Vendor as at the Balance Sheet Date including all contingent liabilities of the Vendor as at the Balance Sheet Date. in each case, consistent with a business of comparable asset size and stage of development. (c) Solvency -------- The Vendor has not: (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors; (iii) suffered the appointment of a receiver to take possession of any of its assets; (iv) suffered the attachment or other judicial seizure of all, or substantially all, of its assets; (v) admitted in writing its inability to pay its debt as they come due; or (vi) made an offer of settlement, extension or composition to its creditors generally. -10- (d) Litigation; Investigations -------------------------- To the best of the knowledge of the Vendor, there is no claim, action, proceeding or investigation pending or threatened against or relating to the Vendor or affecting any of the Purchased Assets before any court or Governmental Authority or regulatory authority or body, nor to the Vendor's knowledge is there any basis for such claim, action, proceeding or investigation. Neither the Vendor nor any of its assets and properties, is subject to any material outstanding judgment, order, writ, injunction or decree. (e) Environmental Matters --------------------- (i) To the best of the knowledge of the Vendor (A) the Business, as carried on by the Vendor, and the Assets are in compliance in all material respects with all Environmental Laws and (B) there are no facts known after due inquiry by the Vendor that could give rise to a notice of non-compliance in any material respect with any Environmental Law. (ii) To the best of the knowledge of the Vendor, the Vendor has not used any of the facilities pertaining to the 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. (iii) To the best of the knowledge of the Vendor, there are no PCB's, asbestos, urea formaldehyde foam insulation or radioactive materials located on the Facility or the Leasehold Property. (iv) To the best of the knowledge of the Vendor, there has been no material spill or leakage of any Hazardous Substance (including, without limitation, active pharmaceutical ingredients or transferrin) on the Facility or Leasehold Property


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