EXHIBIT 2.2
ADCON ASSET PURCHASE AND
INTELLECTUAL PROPERTY
ASSIGNMENT AGREEMENT
By and Between
▇▇▇▇▇▇ MEDICAL TECHNOLOGY, INC.
as Buyer,
and
GLIATECH INC.
as Seller
Dated as of December 23, 2002
ADCON ASSET PURCHASE AND INTELLECTUAL PROPERTY
ASSIGNMENT AGREEMENT
THIS ADCON Asset Purchase and Intellectual Property Assignment Agreement,
dated as of December 23, 2002 (This "AGREEMENT"), is made by and between ▇▇▇▇▇▇
MEDICAL TECHNOLOGY, INC., a Delaware corporation ("BUYER"), and GLIATECH INC., a
Delaware corporation ("SELLER").
RECITALS:
A. Seller utilizes certain assets, intellectual property and rights
to intellectual property in connection with its ADCON Program (as defined in
ARTICLE 1 below).
B. Seller filed a petition for relief under the United States
Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the "BANKRUPTCY CODE"), in the
United States Bankruptcy Court for the Northern District of Ohio, Eastern
Division (the "BANKRUPTCY COURT"), on May 9, 2002, and is operating its
business, including the ADCON Program, as debtor in possession in Case No.
02-15045.
C. Seller desires to sell and assign to Buyer, and Buyer desires to
purchase from Seller, certain assets, intellectual property and rights to
intellectual property in connection with its ADCON Program, upon the terms set
forth in this Agreement.
D. Concurrently with the transaction contemplated by this Agreement,
Seller intends to sell and assign to a third-party (the "ADCON SOLUTION BUYER")
certain assets in connection with Seller's ADCON SOLUTION program, which ADCON
SOLUTION program is part of the ADCON Program.
E. It is a condition to the obligations of Seller to close the
transaction contemplated by this Agreement that (i) Buyer agree to license
certain intellectual property and rights to intellectual property purchased by
Buyer under this Agreement back to Seller contemporaneously with the closing,
subject to the terms of a license agreement materially identical to the form
attached hereto as EXHIBIT A (the "ADCON SOLUTION LICENSE AGREEMENT"), and (ii)
the ADCON SOLUTION License Agreement be freely assignable to the ADCON SOLUTION
Buyer, subject to the terms of the ADCON SOLUTION License Agreement.
NOW, THEREFORE, in consideration of the mutual promises and subject
to the terms and conditions set forth herein, the parties hereto hereby agree as
follows:
ARTICLE 1. DEFINITIONS
The following terms when used in this Agreement shall have the following
respective meanings:
"ACQUIRED INTELLECTUAL PROPERTY" means, subject to the ADCON
SOLUTION License Agreement:
(i) all Patents and Patent Rights, and all copyright registrations
and applications for copyright registrations, trademark
registrations and applications for trademark
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registrations and their associated goodwill that are owned or
Controlled by Seller and that relate to the ADCON Program or are
required for Buyer to make, use, sell, offer for sale, import,
distribute, copy, display publicly and create derivative works of
the ADCON Assets, and for any product constituting, embodying,
incorporating or made using the Acquired Intellectual Property, and
including, without limitation, those items specifically listed on
SCHEDULE 1.1 hereof, and extensions, divisions, reissuances and
foreign equivalents of any of the foregoing and rights therein; and
(ii) all Inventions for which a Patent has not been obtained or
applied, unregistered trademarks and their associated goodwill,
service marks and their associated goodwill, trade dress,
unregistered copyrights, Know-How, software, technical and product
development data, product surveys, designs, technology, trade
secrets, test procedures, unpatented manufacturing methods and
processes, formulas, compositions and other confidential information
and intellectual and similar intangible property rights that are
owned or Controlled by Seller and that relate to the ADCON Program
or are required for Buyer to make, use, sell, offer for sale,
import, distribute, copy, display publicly and create derivative
works of the ADCON Assets, and for any product constituting,
embodying, incorporating or made using the Acquired Intellectual
Property.
"ADCON ASSET DELIVERY DATE" shall have the meaning set forth in
SECTION 2.2(b)(iii).
"ADCON ASSETS" shall mean all tangible assets (including, without
limitation, the assets specifically listed on SCHEDULE 1.2 hereof) used by
Seller in the ADCON Program or in the development or practice of the ADCON
Program, including, without limitation, all equipment, inventory, work in
process, raw materials, FDA Documentation, Records, Know-How and any biological
and chemical samples of the foregoing (including, without limitation, (i) any
replicates, progeny or derivatives thereof, and any mixtures or combinations of
any of the foregoing with any other materials and (ii)(A) any work or research
(or the results thereof) relating to the ADCON Program, (B) any inventions,
processes or formulae relating to the ADCON Program and (C) all papers and
records of every kind relating to any invention, process or formula or Patent
which is part of the ADCON Program), excluding the ADCON SOLUTION Assets.
"ADCON PROGRAM" shall mean methods, products, preparations,
compositions, materials and substances used to assist in wound healing and/or to
inhibit scarring, fibrosis, bone growth, cell invasion, neurite outgrowth and
adhesions relating to the subject matter disclosed and/or claimed in the
Patents.
"ADCON SOLUTION ASSETS" shall mean those assets specifically listed
on SCHEDULE 1.3 hereof and shall not include any trademarks whatsoever.
"ADCON SOLUTION BUYER" shall have the meaning set forth in the
Recitals.
"ADCON SOLUTION LICENSE AGREEMENT" shall have the meaning set forth
in the Recitals.
"AFFILIATE" shall mean, with respect to any Person, any other Person
that directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
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"AGREEMENT" shall have the meaning set forth in the preamble, as the
same may be amended from time to time.
"ASSIGNED CONTRACTS" shall mean all agreements, contracts and leases
of the Seller set forth on SCHEDULE 3.1.
"ASSUMED LIABILITIES" shall have the meaning set forth in SECTION
3.1.
"BANKRUPTCY CODE" shall have the meaning set forth in the Recitals.
"BANKRUPTCY COURT" shall have the meaning set forth in the Recitals.
"BUSINESS DAY" shall mean any day except a Saturday, a Sunday or any
other day on which commercial banks are required or authorized to close in New
York, New York.
"BUYER" shall have the meaning set forth in the preamble.
"BUYER'S ▇▇▇▇▇▇▇ MONEY DEPOSIT" shall have the meaning set forth in
SECTION 2.2(b)(i).
"CASH CONSIDERATION" shall have the meaning set forth in SECTION
2.2(a).
"CLOSING" shall have the meaning set forth in SECTION 2.1.
"CLOSING DATE" shall have the meaning set forth in SECTION 2.3.
"CONFIDENTIALITY AGREEMENT" shall have the meaning set forth in
SECTION 6.1(a).
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" shall have meanings correlative
thereto.
"DAMAGES" shall have the meaning set forth in SECTION 6.2(b).
"DEFICIENCY" shall have the meaning set forth in SECTION 2.2(c)(vi).
"DISTRIBUTOR" shall mean any Person that acquires Products from
Buyer or any Affiliate of Buyer for distribution.
"ENCUMBRANCE" shall mean any mortgage, pledge, hypothecation,
assessment, lien (statutory or otherwise), security interest, defect in title,
covenant, claim, restriction, right, option, equities, conditional sale, charge,
encumbrance or other burdens or conflicting interests of any kind or nature.
"ESCROW AGENT" shall mean National City Bank as escrow agent under
the Escrow Agreement.
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"ESCROW AGREEMENT" shall mean that certain Escrow Agreement dated as
of December 10, 2002, among the parties hereto and Escrow Agent and attached
hereto as EXHIBIT B.
"EXISTING EMPLOYEES" shall have the meaning set forth in SECTION
6.1(a).
"FDA DOCUMENTATION" shall mean, with respect to the ADCON Assets,
all filings and supporting documents submitted to the FDA relating to such ADCON
Assets, and all data contained therein or incorporated therein by reference,
including, without limitation, any INDs, BLAs, Master Files, investigator's
brochures, correspondence to and from the FDA, written summaries of any oral
discussions with the FDA, including without limitation minutes from
teleconferences and meetings with the FDA, registrations and licenses,
regulatory drug lists, advertising and labeling (including promotional labeling)
documents, adverse event files, complaint files and manufacturing records.
"FINAL ORDER "shall mean an order or judgment of a court, the
implementation or operation or effect of which has not been stayed and as to
which order or judgment (or any revision, modification or amendment thereof
reasonably acceptable to Buyer) the time to appeal or seek review or rehearing
or writ of certiorari has expired and as to which no appeal or petition for
review or rehearing or writ of certiorari has been taken.
"INFRINGEMENT ROYALTY" shall have the meaning set forth in SECTION
2.2(c)(iii).
"INFRINGEMENT ROYALTY DEDUCTION" shall have the meaning set forth in
SECTION 2.2(c)(iii).
"INTEREST PAYMENT" shall have the meaning set forth in SECTION
2.2(c)(vi).
"INVENTION" shall mean all discoveries, improvements, compositions
of matter, methods, processes and other inventions (whether patentable or not)
conceived, reduced to practice or otherwise made or derived by Seller in the
ADCON Program, any replicates, progeny or derivatives thereof, and any mixtures
or combinations of any of the foregoing with any other materials.
"Key ADCON EMPLOYEES" shall have the meaning set forth in SECTION
6.1(b).
"KNOW-HOW" shall mean information and biological materials relating
to the ADCON Assets or the Acquired Intellectual Property, including, without
limitation, all inventions, improvements, practices, formulas, trade secrets,
techniques, methods, procedures, knowledge, know-how, skill, experience,
results, test data (including, without limitation, pharmacological,
toxicological and clinical test data), analytical and quality control data and
any marketing, pricing, distribution, cost, sales, manufacturing, patent or data
descriptions, whether or not patentable.
"LICENSE AGREEMENTS" shall mean any existing or future distribution,
co-promotion, manufacturing, marketing, partnering or license agreements entered
into by Buyer relating to the Products, the ADCON Assets and/or the Acquired
Intellectual Property pursuant to which Buyer or any Affiliate of Buyer grants a
license in the ADCON Assets and/or the Acquired Intellectual Property other than
the ADCON SOLUTION License Agreement.
"LICENSEES" shall mean, collectively, the licensees under the
License Agreements; each a "LICENSEE".
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"NET SALES" shall mean, for any period of determination, the
aggregate sales revenues of Products and Reformulated Products during such
period in finished packaged form as invoiced by Buyer to end-users of the
Products and Reformulated Products (or, solely with respect to sales of Products
and Reformulated Products to purchasers outside of the United States effected by
Distributors, the aggregate sales revenues of Products and Reformulated Products
in finished packaged form as invoiced by Seller to such Distributors) less only
the following:
(i) customary cash, trade discounts and rebates actually granted or
paid;
(ii) allowances and adjustments actually credited for Products and
Reformulated Products that are spoiled, damaged, outdated, obsolete,
returned or otherwise recalled;
(iii) freight, postage, shipping and insurance charges included in
the invoice;
(iv) taxes, duties or other governmental charges included in the
invoice;
(v) commissions actually paid to third party sales agents in the
ordinary course of Buyer's business; and
(vi) with respect to Reformulated Products that incorporate, contain
or combine a Product with one or more other components, an amount
equal to the aggregate sales revenues of such Reformulated Products
during such period in finished packaged form as invoiced to
customers or Distributors, as the case may be, multiplied by the
Revenue Adjustment Factor;
PROVIDED, HOWEVER, that solely with respect to License Agreements, Net Sales
shall mean, for any period of determination, the aggregate sales revenues of
Products and Reformulated Products during the applicable period in finished
packaged form as invoiced by the Licensees less the amounts set forth in clauses
(i) - (vi) above.
"PATENT" shall mean (i) any valid and enforceable U.S. letters
patent, patent application or provisional patent application, including, without
limitation, any extension, registration, confirmation, reissue, continuation,
division, continuation-in-part, re-examination, supplementary protection
certificate or renewal thereof, (ii) any certificates of invention for U.S.
letters patent and (iii) any foreign equivalents of (i) or (ii).
"PATENT ENFORCEMENT COSTS" shall have the meaning set forth in
SECTION 2.2(c)(iv).
"PATENT RIGHTS" shall mean any and all rights in and to: (i) all
Patents worldwide claiming or disclosing any Invention within the ADCON Program;
(ii) all divisions, continuations, continuations-in-part, patents of addition,
substitutions or the like relating to the foregoing, together with all
registrations, reissues, reexaminations or extensions of any kind with respect
to any of the foregoing patents.
"PERIOD" shall have the meaning set forth in SECTION 2.2(c)(v).
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"PERSON" shall mean a natural person, company, corporation, general
partnership, limited partnership, limited liability company, limited liability
partnership, joint venture, trust, land trust, business trust, or other
organization, regardless of whether it is a legal entity, or a government or a
political subdivision, agency, or instrumentality of a government.
"PRODUCTS" shall mean any preparations, compositions, materials and
substances sold as stand-alone products in accordance with the ADCON Program
(other than preparations, compositions, materials and substances developed,
produced or commercialized pursuant to the ADCON Solution License Agreement).
"PURCHASE PRICE" shall have the meaning set forth in SECTION 2.2(a).
"RECORDS" shall mean all research notebooks, books, files,
documents, literature, technical data, operating records and other business
and/or scientific information relating to the ADCON Assets and the Acquired
Intellectual Property which has been reduced to writing by Seller or exists in
tangible form (including, without limitation, all material research notebooks,
books, files, documents, literature, technical data, operating records and other
business and/or scientific information relating to the ADCON Assets and the
Acquired Intellectual Property in the form of electronic media) and is in the
possession of Seller, including, without limitation, the publications, meeting
abstracts and presentations set forth in SCHEDULE 1.1 and all supporting
documentation thereof.
"REAFFIRMATION AGREEMENTS" shall have the meaning set forth in
SECTION 6.1(b).
"REFORMULATED PRODUCTS" shall mean (i) a subsequent version of a
Product that represents an improvement, enhancement, refinement or modification
of an existing Product and (ii) a product that incorporates, contains or
combines a Product with any other component or components.
"REVENUE ADJUSTMENT FACTOR" shall mean, with respect to any
Reformulated Product, a fraction (i) the numerator of which is the total invoice
price of any other components of such Reformulated Product, if sold separately,
and (ii) the denominator of which is the sum of (a) the invoice price of the
related Product, if sold separately, and (b) the total invoice price of any
other components of such Reformulated Product, if sold separately. If the
Product and the other component or components of the Reformulated Product are
not sold separately, then the parties hereto will discuss and mutually agree on
the appropriate values of the Product and the other component or components of
the Reformulated Product for the purpose of determining the Revenue Adjustment
Factor.
"ROYALTIES" shall have the meaning set forth in SECTION 2.2(c).
"ROYALTY EXPIRATION DATE" shall have the meaning set forth in
Section 2.2(c)(i).
"ROYALTY STATEMENT" shall have the meaning set forth in SECTION
2.2(c)(v).
"SALE ORDER" shall have the meaning set forth in SECTION 6.4(a).
"SALE ORDER DATE" shall have the meaning set forth in SECTION
9.1(b).
"SELLER" shall have the meaning set forth in the preamble.
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ARTICLE 2. SALE AND ASSIGNMENT OF ASSETS
2.1 Sale and Assignment Upon Closing. Upon the terms and subject to
the conditions of this Agreement, and pursuant to Sections 363(b), 363(f) and
365(a), (b) and (f) of the Bankruptcy Code, on the Closing Date (as defined
below), Seller shall irrevocably transfer, sell and assign to Buyer, and Buyer
shall purchase and acquire from Seller, all of Seller's right, title and
interest in and to (a) the ADCON Assets, (b) the Acquired Intellectual Property
and (c) except as otherwise provided in this Agreement, and following assumption
by Seller, the Assigned Contracts, in each case free and clear of all
Encumbrances (the "CLOSING"); provided, however, that (i) Buyer shall have the
right, at its sole option, at any time prior to the entry of the Sale Order, to
delete any agreement, contract or lease from the list of Assigned Contracts, and
(ii) Seller shall be responsible for the payment of, and shall pay in a timely
manner (or escrow an amount satisfactory to the Bankruptcy Court to approve the
assumption of the Assigned Contracts), any and all cure amounts under the
Assigned Contracts.
2.2 Purchase Price and Payment.
(a) Purchase Price. As consideration for the ADCON Assets, the
Acquired Intellectual Property and the Assigned Contracts, and in addition to
the Assumed Liabilities, Buyer shall pay to Seller the following: (i) Eight
Million Four Hundred Thousand Dollars ($8,400,000) in cash by wire transfer of
immediately available funds (the "CASH CONSIDERATION"); and (ii) the Royalties
(as hereinafter defined). The Cash Consideration and the Royalties shall be
referred to hereinafter collectively as the "PURCHASE PRICE."
(b) Payment of Cash Consideration. The Cash Consideration shall be
payable by Buyer as follows:
(i) Buyer has deposited Eight Hundred Forty Thousand Dollars
($840,000) of the Cash Consideration in escrow with the Escrow Agent
pursuant to the Escrow Agreement which will be distributed in
accordance with the Escrow Agreement ("BUYER'S ▇▇▇▇▇▇▇ MONEY
DEPOSIT");
(ii) At the Closing, Buyer shall pay Three Million Three
Hundred Sixty Thousand Dollars ($3,360,000) of the Cash
Consideration to Seller; and
(iii) On the ADCON Asset Delivery Date (as defined herein),
Buyer shall pay the remaining Four Million Two Hundred Thousand
Dollars ($4,200,000) of the Cash Consideration to Seller. For
purposes of this Agreement, the term "ADCON ASSET DELIVERY DATE"
shall mean the date on which Seller shall have delivered to Buyer
physical possession of all ADCON Assets in the possession of Seller.
(c) Payment of Royalties. Buyer shall pay to Seller a five percent
(5%) royalty on worldwide Net Sales of Products and Reformulated Products
(collectively, the "ROYALTIES") in accordance with the following provisions:
(i) Buyer shall have no further obligation to pay Royalties
under this Agreement upon the earlier to occur of the following
dates (the "ROYALTY EXPIRATION DATE"): (A) the date on which Buyer
has paid Seller total Royalties of Thirty Million Dollars
($30,000,000) less any and all Damages (as hereinafter defined) and
Patent Enforcement Costs (as hereinafter defined); and (B) the date
on which all United States Patents comprising the
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Acquired Intellectual Property have expired. In no event shall the
total Royalties paid under this Agreement exceed Thirty Million
Dollars ($30,000,000) less any and all Damages and Patent
Enforcement Costs.
(ii) Prior to the Royalty Expiration Date, with respect to Net
Sales of Products or Reformulated Products in countries in which no
Patent comprising the Acquired Intellectual Property exists or an
existing Patent comprising the Acquired Intellectual Property has
expired, Royalties shall be paid to Seller only until such time as a
preparation, composition, material or substance is sold commercially
by a third party in such country that would have infringed the
Patent Rights comprising the Acquired Intellectual Property if
Seller had obtained such Patent in such country or such existing
Patent had not expired in such country.
(iii) In the event Buyer is required to pay royalties to a
third party for patent infringement due to manufacture, use or sale
of the Products or Reformulated Products (an "INFRINGEMENT
ROYALTY"), then fifty percent (50%) of the Infringement Royalty
(an "INFRINGEMENT ROYALTY DEDUCTION") shall be deducted from the
Royalties to be paid under this SECTION 2.2(c); provided, however,
that, for any Period, the aggregate of all Infringement Royalty
Deductions shall not exceed fifty percent (50%) of the Royalties
otherwise payable to Seller for such Period.
(iv) In the event Buyer enforces a Patent against a
third-party infringer whose infringing activity commenced on or
before the Closing Date, all costs of enforcement (the "PATENT
ENFORCEMENT COSTS"), including, without limitation, reasonable
attorneys' fees, shall be deducted from the Royalties to be paid
under this SECTION 2.2(c). In the event Buyer enforces a Patent
against a third-party infringer whose infringing activity commenced
after the Closing Date, all Patent Enforcement Costs, including,
without limitation, attorneys' fees, shall be the responsibility of
Buyer and shall not be deducted from the Royalties.
(v) Within forty-five (45) days after the end of each fiscal
quarter of Buyer commencing on the date that is the beginning of the
first fiscal quarter of Buyer that begins after the Closing Date,
Buyer shall prepare and deliver to Seller a statement (the "ROYALTY
STATEMENT") showing a calculation of Net Sales of Products and
Reformulated Products during the preceding fiscal quarter (each
such quarterly period covered by a Royalty Statement is hereinafter
referred to as a "PERIOD"). The Royalty Statement shall be
accompanied by a report setting forth the amount of the Royalties
due to Seller for the applicable Period, calculated in accordance
with this SECTION 2.2(c).
(vi) Buyer shall pay the Royalties due to Seller within
forty-five (45) days after the end of each fiscal quarter. Buyer
shall keep all books and records related to the Royalties and the
Net Sales of Products and Reformulated Products for at least two (2)
years after the end of the applicable Period. Royalties shall be
paid in the form of a check payable to Seller or its designee.
Seller shall have the right, at its own expense and not more than
once per calendar year, to have independent certified public
accountants retained by it examine the books and records of Buyer
relating to the sales of the Products and Reformulated Products in
order to verify the Royalties payable hereunder over the two (2)
year period preceding such examination. Such examination shall be at
the principal place of business of Buyer and shall take place during
the normal business hours of Buyer, and upon reasonable advance
written notice to Buyer. If Seller or its accountants reasonably
determine that any such Royalty
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Statement is incorrect to the detriment of Seller, Buyer shall pay
Seller within seven (7) calendar days of the conclusion of such
examination the entire amount of the Deficiency (as defined herein)
plus the Interest Payment (as defined herein) and, in the event that
the Deficiency is greater than ten percent (10%), Buyer shall pay
the costs of such examination. In the event that an overpayment is
found, Seller shall remit such overpayment to Buyer within seven (7)
calendar days of the conclusion of such examination. A "DEFICIENCY"
shall mean the amount by which the correct Royalty for any
applicable Royalty Statement as determined by Seller or its
independent certified public accountants exceeds the Royalty
indicated on the original applicable Royalty Statement. The
"INTEREST PAYMENT" for any applicable Royalty Statement shall equal
the interest on any Deficiency, (i) calculated by using the "prime
rate" as published by The Wall Street Journal on the date the
correct payment was supposed to be made plus two percent (2%) per
annum, and (ii) accruing from the date the correct payment was
supposed to be made until the date the payment is actually made.
2.3 Closing. The Closing will occur as soon as practicable after Seller
provides written notice to Buyer that all of the conditions set forth in ARTICLE
8 hereof have been satisfied or duly waived (the "CLOSING DATE"), but in no
event later than three Business Days thereafter. The Closing shall take place at
the offices of McDonald, Hopkins, ▇▇▇▇▇ & ▇▇▇▇▇ Co., L.P.A., 2100 Bank One
Center, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇.
ARTICLE 3. LIABILITIES
3.1 Assumption of Liabilities. Upon the terms and subject to the
conditions of this Agreement, on the Closing Date, Buyer shall assume from and
after the Closing, only the following obligations and liabilities of Seller (the
"ASSUMED LIABILITIES"):
(a) obligations and liabilities incurred or accruing under the
Assigned Contracts incurred or accruing from and after the Closing; and
(b) obligations and liabilities arising out of Buyer's ownership,
possession, use, sale or other disposition of the ADCON Assets and Acquired
Intellectual Property from and after the Closing.
3.2 No Other Liabilities. Except for the Assumed Liabilities, Buyer shall
not be responsible or liable to Seller or any other Person for any obligation or
liability of Seller of any nature, whenever or wherever incurred, accruing or
arising, and whether based in contract, tort, strict liability or otherwise.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
4.1 Power and Authority; No Conflicts.
(a) Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with authority to enter
into this Agreement and to make the assignments made herein.
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(b) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action on the part of Seller.
(c) The execution and delivery of this Agreement by Seller and the
performance of Seller's obligations under this Agreement do not and will not (i)
conflict with its charter documents or (ii) result in a breach of or default
under any agreements, contracts or other arrangements to which it is a party,
except for any such breach or default (including, without limitation, those
described in SCHEDULE 4.1(c)) that would not result in the imposition of any
liability or obligation on Buyer after the Closing Date and that would not have
a material adverse effect on the ADCON Program as conducted by Buyer after the
Closing Date.
4.2 ADCON Assets and Acquired Intellectual Property.
(a) SCHEDULE 1.1 sets forth a complete and correct list (with an
indication of the record owner and identifying number, as applicable) of all
patents and pending patent applications, of all copyrights and pending
applications for copyright registration, and of all registered trademarks and
pending applications for trademark registration (and all applications for, or
extensions or reissuances of, any of the foregoing) that are owned by Seller and
that are used in connection with the ADCON Assets as of the date hereof.
(b) SCHEDULE 1.2 sets forth a complete and correct list (with an
indication of the record owner and identifying number, as applicable) of the
ADCON Assets (excluding the Acquired Intellectual Property) that are owned by
Seller and that are used in connection with the Acquired Intellectual Property
as of the date hereof.
(c) Except as listed or described on SCHEDULE 4.2:
(i) Seller owns the entire right, title and interest in and to
the Acquired Intellectual Property and the ADCON Assets free and
clear of any Encumbrance, and has the exclusive right to use the
Acquired Intellectual Property and the ADCON Assets;
(ii) Seller has not previously granted and will not grant any
rights or licenses that are inconsistent with the rights and
licenses granted to Buyer herein;
(iii) Seller has received no notice that its use of the
Acquired Intellectual Property or ADCON Assets infringes or has
infringed any patent, trademark, service ▇▇▇▇, or trade name or
copyright or design right or that it has through such use
misappropriated or improperly used or disclosed any trade secret or
know-how of any other Person;
(iv) All maintenance fees, annuities and other payments which
are due from or Controlled by Seller or any Affiliate of Seller on
or before the Closing for any of the Acquired Intellectual Property,
including, without limitation, for all patents, patent applications,
trademark registrations, service ▇▇▇▇ registrations, copyright
registrations and any applications for, or extensions or reissuances
of, any of the preceding, have been met or paid;
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(v) There is no prior art that has been identified to Seller
or any Affiliate of Seller as invalidating prior art with respect to
any patent listed on SCHEDULE 1.1.
(vi) There are no Persons other than Seller who have made or
asserted a claim of ownership, inventorship, license, or material
interest in the Acquired Intellectual Property or the ADCON Assets;
(vii) There are no claims or demands of any Person pertaining
to, or any proceedings that challenge the exclusive rights of Seller
in respect of, any of the Acquired Intellectual Property or the
ADCON Assets; and
(viii) There are no royalties, honoraria, fees or other
payments payable to any Person by reason of the ownership, use,
license, sublicense, sale or disposition of the Acquired
Intellectual Property or the ADCON Assets.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
(a) Buyer is duly organized and validly existing and in good
standing as a corporation under the laws of the State of Delaware.
(b) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action on the part of Buyer.
(c) The performance of Buyer's obligations under this Agreement does
not conflict with its charter documents or result in a breach of or default
under any agreements, contracts or other arrangements to which it is a party.
(d) Buyer will not enter into any agreements, contracts or
arrangements that would be materially inconsistent with its obligations under
this Agreement.
ARTICLE 6. COVENANTS
6.1 Employee Agreements.
(a) Employee Confidentiality Agreements. Without limiting the
generality of SECTION 2.1 hereof, at the Closing, Seller shall assign and
transfer to Buyer, to the extent permitted by applicable law, all of Seller's
interests in and rights under all Employee Confidentiality Agreements between
Seller and its current and former employees (the "CONFIDENTIALITY AGREEMENTS")
and the Reaffirmation Agreements (as defined in subsection (b) below). As soon
as practicable after the date of this Agreement, Seller shall use its
commercially reasonable efforts to cause all employees of Seller who are
employed by Seller as of the date hereof (the "EXISTING EMPLOYEES") to consent
in writing to the foregoing assignment and transfer by Seller of the
Confidentiality Agreements and Reaffirmation Agreements to Buyer. As soon as
practicable after the date of this Agreement, Seller shall use its best efforts
to cause all the Existing Employees to execute and deliver to Seller the letter
in the form attached as Exhibit A to their Confidentiality Agreements with
respect to the ADCON Assets and the Acquired Intellectual Property.
12
(b) Reaffirmation Agreements with Key ADCON Program Employees. As
soon as practicable after the date of this Agreement, Seller shall use its best
efforts to cause ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ Ma and Hungnan Lo
(collectively, the "KEY ADCON EMPLOYEES") to reaffirm their obligations under
their respective Confidentiality Agreements (the "REAFFIRMATION AGREEMENTS"),
whether by way of a separate agreement or a new Confidentiality Agreement. The
Reaffirmation Agreements shall be satisfactory in form and substance to Seller
and Buyer, and shall include an agreement by each Key ADCON Employee that all
the obligations set forth in his original Confidentiality Agreement shall
supersede and preempt any similar obligations contained in his employment
agreement or severance agreement, as the case may be, with Seller.
(c) Enforcement of Confidentiality Agreements and Reaffirmation
Agreements. Following the Closing and until such time as Seller or Seller's
estate no longer exists, Seller shall, to the extent requested by Buyer, use its
commercially reasonable efforts to enforce, for the benefit of Buyer, Seller's
rights under the Confidentiality Agreements and the Reaffirmation Agreements;
provided, however, that (i) Buyer shall reimburse Seller or Seller's estate (as
the case may be) for all out-of-pocket costs and expenses incurred by Seller or
Seller's estate and approved in advance by Buyer in performing their obligations
under this SECTION 6.1(c), (ii) Buyer shall have the right to approve in advance
any legal counsel to be engaged by Seller or Seller's estate to perform their
obligations under this SECTION 6.1(c), (iii) Seller shall consult and cooperate
with Buyer in the enforcement of their rights under the Confidentiality
Agreements and the Reaffirmation Agreements, and (iv) Buyer shall have the
right, at its sole expense, to participate in any action, proceeding, or other
activity relating to the enforcement of such rights.
6.2 Survival of Representations and Warranties; Limitation on Remedy.
(a) The representations and warranties of Seller and Buyer contained
in this Agreement shall survive the Closing for the maximum period permitted by
applicable law. The liabilities of Seller and Buyer under their respective
representations and warranties shall expire at the end of the applicable
survival period; provided, however, that the liability of a party for the
inaccuracy or breach of a representation or warranty shall not expire at the end
of the applicable survival period if the other party notifies such party thereof
before the end of such survival period.
(b) Subject to Buyer's right to decline to close this transaction
pursuant to SECTION 8.2(a) and to terminate this Agreement pursuant to ARTICLE
9, Buyer acknowledges and agrees that its sole remedy for any inaccuracy or
breach of the representations and warranties of Seller contained in this
Agreement (including, without limitation, the representations and warranties set
forth in ARTICLE 4 of this Agreement) is to deduct any Damages (as hereinafter
defined) from the Royalties to be paid to Seller under SECTION 2.2(c). For
purposes of this SECTION 6.2(b), the term "DAMAGES" shall mean (i)(A) any and
all damages awarded to Buyer as a result of one or more inaccuracies or breaches
of the representations and warranties of Seller contained in this Agreement
pursuant to a Final Order of the Bankruptcy Court or (B) any and all amounts
agreed to be paid by Seller to Buyer in settlement or compromise of any and all
claims by Buyer of one or more inaccuracies or breaches of the representations
and warranties of Seller contained in this Agreement, and (ii) any and all
related legal and other expenses (including, without limitation, reasonable
attorneys' fees) incurred by Buyer in asserting any such claim and in pursuing
any such legal proceeding. Except as set forth in this SECTION 6.2(b), neither
Seller nor its officers, directors or representatives shall have any liability
to Buyer for breach of the representations and warranties of Seller contained in
this Agreement.
13
6.3 Administrative Support. From the date hereof until one hundred eighty
(180) days following the Closing (or such shorter period following the Closing
until Seller no longer has any employees), Seller shall in good faith provide
Buyer with reasonable research and development support and know-how related to
the Acquired Intellectual Property, ADCON Assets and Assigned Contracts,
including the reasonable services of the officers and employees of Seller for
the completion of due diligence and technology transfer of the Acquired
Intellectual Property, ADCON Assets and Assigned Contracts. Buyer acknowledges
that Seller shall not be obligated to retain the services of any officers or
employees and there can be no assurance regarding the availability of any
officers or employees of Seller following the Closing.
6.4 Approval of this Agreement.
(a) Within five (5) Business Days from the date of this Agreement,
Seller shall file a motion and supporting papers (including a proposed Sale
Order) in a form reasonably satisfactory to Buyer seeking approval of this
Agreement and entry of the Sale Order. For purposes of this Agreement, "SALE
ORDER" means an order of the Bankruptcy Court in a form reasonably satisfactory
to Buyer (A) approving (i) the sale, assignment and transfer of the Acquired
Intellectual Property, the ADCON Assets and, following assumption by Seller, the
Assigned Contracts to Buyer, in each case free and clear of all Encumbrances,
and (ii) the ADCON SOLUTION License Agreement, (B) determining the cure amounts
associated with the Assigned Contracts and directing the payment thereof (or the
escrow of any amount satisfactory to the Bankruptcy Court to approve the
assumption of the Assigned Contracts), (C) approving the assumption of the
Assumed Liabilities by Buyer, (D) providing, among other things, that the
Assigned Contracts will be transferred to, and remain in full force and effect
for the benefit of, Buyer notwithstanding any provision of such Assigned
Contracts (including those described in Sections 365(b)(2), (e) and (f) of the
Bankruptcy Code) that prohibits such assignment or transfer, and (E) finding
that Buyer has acted in good faith in connection with this transaction. Buyer
agrees to pursue the Closing of this transaction in good faith.
(b) Seller shall give appropriate notice, including such notice as
the Bankruptcy Court shall direct, and such notice as Buyer shall reasonably
direct, and provide appropriate opportunity for hearing, to all parties entitled
thereto, of all motions, orders, hearings, or other proceedings relating to this
Agreement or the transactions contemplated hereby.
6.5 Limited Post-Closing Use of "ADCON" Name. Buyer hereby grants to
Seller a limited right to use the name "ADCON" and derivatives thereof solely in
connection with, and to the extent necessary to complete, ongoing clinical
trials, pre-clinical studies (including, without limitation, Food and Drug
Administration preliminary market approval studies), research activities and
United States and international regulatory submissions and correspondence
related to Seller's ADCON SOLUTION program.
6.6 Limited Right to Use Copies of Books and Records. Seller is subject to
certain litigation, investigations and proceedings being conducted by or before
the Food and Drug Administration, the Securities and Exchange Commission, the
Department of Justice and other courts and tribunals (the "Litigation and
Governmental Matters"). After the Closing, and subject to the prior written
approval of Buyer, Seller shall have the limited right to retain copies of
certain books and records relating to the ADCON Program included in the ADCON
Assets that are necessary for Seller to respond to the Litigation and
Governmental Matters. Seller shall use the books and records solely to respond
to the Litigation and Governmental Matters, and shall hold the books and records
in strict
14
confidence in accordance with the provisions of a nondisclosure agreement to be
entered into by Seller with Buyer that is satisfactory in form and substance to
Buyer and Seller. Upon the conclusion of Seller's involvement in the Litigation
and Governmental Matters, Seller shall promptly deliver to Buyer the books and
records, all copies thereof, and all other materials containing any information
obtained from the books and records, in whatever medium they may be maintained
or stored.
ARTICLE 7. DISCLAIMER OF WARRANTY
EXCEPT AS PROVIDED IN SECTION 4.2 AND THE SALE ORDER, NOTWITHSTANDING
ANYTHING ELSE HEREIN OR IN ANY OTHER AGREEMENT BETWEEN THE PARTIES, THE RIGHTS
TO THE ACQUIRED INTELLECTUAL PROPERTY, THE ADCON ASSETS AND THE ASSIGNED
CONTRACTS ARE BEING ASSIGNED AND TRANSFERRED "AS IS," AND BOTH SELLER AND BUYER
DISCLAIM TO THE OTHER ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE ACQUIRED INTELLECTUAL PROPERTY, THE ADCON ASSETS OR THE ASSIGNED
CONTRACTS. NOTWITHSTANDING ANYTHING HEREIN OR IN ANY OTHER AGREEMENT BETWEEN THE
PARTIES, REGARDLESS OF THE TYPE OF CLAIM, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER OR THE OTHER'S RESPECTIVE AFFILIATES FOR ANY INCIDENTAL, SPECIAL,
EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF ITS OR ITS
RESPECTIVE AFFILIATES' USE OF THE ACQUIRED INTELLECTUAL PROPERTY, THE ADCON
ASSETS OR THE ASSIGNED CONTRACTS, EVEN IF INFORMED THAT THEY MAY OCCUR.
ARTICLE 8. CONDITIONS PRECEDENT TO THE CLOSING
8.l Conditions to Seller's Obligations. The obligations of Seller
hereunder required to be performed on the Closing Date with respect to Buyer
shall be subject, at Seller's election, to the satisfaction or waiver (which
waiver, if so requested by Buyer, shall be made in writing), at or prior to the
Closing, of the following conditions:
(a) The representations and warranties of Buyer contained in this
Agreement shall be true and correct in all material respects on the date hereof
and as of the Closing Date.
(b) Buyer shall have performed in all material respects all
obligations and agreements, and complied in all material respects with all
covenants, contained in this Agreement, to be performed and complied with by
Buyer at or prior to the Closing Date.
(c) Buyer shall have delivered to Seller a certificate, executed by
Buyer or on its behalf by a duly authorized representative, dated as of the
Closing Date, certifying that each of the conditions specified in this SECTION
8.1 has been satisfied with respect to Buyer.
(d) Seller shall have received the payment of the portions of the
Cash Consideration required by SECTION 2.2.
(e) Buyer shall have delivered to Seller the ADCON SOLUTION License
Agreement, executed by Buyer or on its behalf by a duly authorized
representative, dated as of the Closing Date, in form and substance materially
identical to that set forth on EXHIBIT A.
15
8.2 Conditions to Buyer's Obligations. The obligations of Buyer hereunder
required to be performed on the Closing Date with respect to Seller shall be
subject, at Buyer's election, to the satisfaction or waiver (which waiver, if so
requested by Seller, shall be made in writing), at or prior to the Closing, of
the following conditions:
(a) The representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects on the date hereof
and as of the Closing Date.
(b) Seller shall have performed in all material respects all
obligations and agreements, and complied in all material respects with all
covenants, contained in this Agreement, to be performed and complied with by
Seller at or prior to the Closing Date.
(c) Seller shall have delivered to Buyer a certificate, executed by
Seller or on its behalf by a duly authorized representative, dated as of the
Closing Date, certifying, that each of the conditions specified in this SECTION
8.2 has been satisfied with respect to Seller.
(d) Buyer shall have received such instruments of conveyance and
transfer necessary to sell, transfer, assign and deliver and vest in Buyer title
to and possession of the ADCON Assets, the Acquired Intellectual Property and
the Assigned Contracts free and clear of all Encumbrances, such instruments to
be in form and substance reasonably acceptable to Buyer.
(e) Seller shall have taken all action required to have been taken
to permit assumption and assignment of the Assigned Contracts to Buyer under
Sections 365(b) and (f) of the Bankruptcy Code, including, without limitation,
the payment of any cure amounts under the Assigned Contracts (or the escrow of
any amount satisfactory to the Bankruptcy Court to approve the assumption of the
Assigned Contracts).
(f) Seller shall deliver or cause to be delivered, to Buyer (unless
previously delivered), a copy of the Sale Order, in a form reasonably
satisfactory to Buyer, certified by the clerk of the Bankruptcy Court.
(g) There shall not have been any amendment by Seller of SCHEDULES
3.1 and 4.1(c) to this Agreement pursuant to SECTION 10.3 that, in Buyer's sole,
good-faith judgment, represents a material adverse change in the disclosures
made by Seller prior to the execution and delivery hereof, which condition shall
be deemed waived by Buyer unless Buyer gives written notice of the failure of
such condition within seven (7) Business Days after receipt of all such
amendments.
8.3 Mutual Conditions. The obligations of Seller and Buyer hereunder
required to be performed on the Closing Date shall be subject to the
satisfaction or waiver by the parties (which waiver, if so requested by a party,
shall be made in writing), at or prior to the Closing, of the following
conditions:
(a) All material approvals and clearances of governmental
authorities and all required third-party consents shall have been obtained and
shall be in full force and effect.
(b) There shall be no order by any court or other governmental
authority issuing an injunction or other restraining order preventing the
consummation of the transactions contemplated by this Agreement on the terms
contemplated hereby.
16
(c) The Bankruptcy Court shall have entered the Sale Order, which shall
have become a Final Order.
ARTICLE 9. TERMINATION
9.1 This Agreement may be terminated or abandoned at any time prior to the
Closing Date as follows:
(a) By written agreement of Buyer and Seller.
(b) By Buyer within five days after the Sale Order Date (as defined
below) if the Bankruptcy Court has not signed the Sale Order on or prior to the
70th day following the date of this Agreement (the "SALE ORDER DATE"), provided
that the failure of the Bankruptcy Court to sign the Sale Order on or before the
Sale Order Date shall not have resulted from a breach of this Agreement by Buyer
or a failure by Buyer to use its reasonable best efforts to assist and cooperate
with Seller in obtaining such signed Sale Order.
(c) By Buyer if the bankruptcy case of Seller is (i) converted from
a case under Chapter 11 of the Bankruptcy Code to a case under Chapter 7 of the
Bankruptcy Code or (ii) dismissed.
(d) By Buyer or Seller if the other party shall have materially
breached any of its representations, warranties, covenants or agreements
contained in this Agreement (including, without limitation, Buyer's failure to
pay the Purchase Price in accordance with the terms of the Agreement), which
breach would result in the failure to satisfy one or more of the conditions set
forth in ARTICLE 8, and such breach shall be incapable of being cured or, if
capable of being cured, shall not have been cured with 15 days after written
notice thereof shall have been received by the breaching party.
(e) By Buyer or Seller if the Closing shall not have occurred by
April 30, 2003, or such later date, if any, upon which Buyer and Seller may
agree in writing, unless the absence of such occurrence shall be due to the
delay or failure of the party seeking to terminate this Agreement to perform in
all material respects each of its obligations under this Agreement required to
be performed by it at or prior to the Closing.
9.2 Administration of Buyer's ▇▇▇▇▇▇▇ Money Deposit. Upon a termination of
this Agreement pursuant to this ARTICLE 9, Buyer's ▇▇▇▇▇▇▇ Money Deposit shall
be delivered to Buyer (or Seller, as the case may be) in accordance with the
terms of the Escrow Agreement.
ARTICLE 10. MISCELLANEOUS
10.1 Further Assurances. From and after the Closing Date, each party to
this Agreement shall, without expense to the other party, furnish to the other
party such further information, execute and deliver to the other party such
other documents and instruments (including, without limitation, such other
instruments of conveyance and transfer so as more effectively to sell, transfer
and assign and deliver and vest in Buyer title to and possession of the ADCON
Assets, the Acquired Intellectual Property and the Assigned Contracts as
provided in this Agreement) and do such other acts and things, all as the other
party may reasonably request from time to time for the purpose of consummating
the transactions contemplated by this Agreement. In addition, Seller agrees to
cooperate in good faith with Buyer in collecting any and all ADCON Assets that
are not in the physical possession of Seller as of
17
the ADCON Asset Delivery Date. The parties further shall cooperate and make
available to each other, as reasonably requested, all information, records or
documents necessary to prepare or review any tax returns, financial statements,
reports or any calculation required pursuant to this Agreement.
10.2 Specific Performance. Each party to this Agreement acknowledges and
agrees that, in the event of any breach of this Agreement, the other party would
be irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the nonbreaching party, in addition to
any other remedy to which it may be entitled in law or equity, shall be entitled
to equitable relief, including injunction and specific performance, in the event
of any breach or threatened breach of any of the provisions of this Agreement.
The party alleged to be in breach of this Agreement further agrees to waive or
cause to be waived any requirement for the security or posting of any bond in
connection with such remedy.
10.3 Waivers and Amendments. This Agreement may be amended or modified
only by an instrument in writing, which. makes specific reference to this
Agreement and which has been duly executed by Seller and Buyer; provided,
however, that (a) Seller shall amend SCHEDULES 3.1 and 4.1(c) hereto within
seven (7) Business Days after the date of this Agreement, and (b) Buyer may
amend SCHEDULE 3.1 hereto at any time prior to entry of the Sale Order as
contemplated in SECTION 2.1 hereof. Any provisions of this Agreement may be
waived only by an instrument in writing, which makes specific reference to this
Agreement and which has been duly executed by the party against whom the waiver
is to be effective. No waiver (express or implied) by either party of any
default or breach of this Agreement shall constitute a waiver of any other or
subsequent default or breach. No failure or delay by either party in exercising
any right, power, or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single partial exercise thereof preclude any other or
further exercise thereof, or the exercise of any other right, power, or
privilege. The rights and remedies provided in this Agreement shall be
cumulative and not exclusive of any rights or remedies provided by law.
10.4 Notices.
(a) Any notice or other documentation which is required under the
terms of this Agreement to be given by Buyer to Seller shall be in writing and
shall be delivered by first class mail, postage prepaid, or by facsimile
transmission, by overnight courier, or otherwise delivered by hand, to Seller
at:
Gliatech Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ Co., L.P.A.
2100 Bank One Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
18
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Seller may change the address or facsimile numbers to which notices
to it are to be transmitted, delivered or mailed hereunder by notice to Buyer.
(b) Any notice or other documentation which is required under the
terms of this Agreement to be given by Seller to Buyer shall be in writing and
shall be delivered by first class mail, postage prepaid, or by facsimile
transmission, by overnight courier, or otherwise, delivered by hand, to Buyer
at:
▇▇▇▇▇▇ Medical Technology, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Vice President and
General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Buyer may change the address or facsimile numbers to which notices
to it are to be transmitted, delivered or mailed hereunder by notice to Seller.
(c) Notices delivered personally shall be effective at the time
delivered by hand, notices sent by mail shall be effective two Business Days
after mailing, notices sent by facsimile transmission shall be effective when
receipt is acknowledged and notices sent by courier guaranteeing next day
delivery shall be effective on the next Business Day after timely delivery to
the courier.
10.5 Choice of Law. This Agreement shall be governed by and construed and
interpreted in accordance with the internal, substantive laws of the State of
Ohio, or, where applicable, with U.S. federal law as interpreted by federal
courts seated in the State of Ohio, without regard to the conflicts of law
principles thereof. The parties hereby agree that, without limitation of any
party's right to appeal any order of the Bankruptcy Court, (i) the Bankruptcy
Court shall retain exclusive jurisdiction to enforce the terms of this Agreement
and to decide any claims or disputes which may arise or result from, or be
connected with this Agreement, any breach or default hereunder, or the
transactions contemplated herein, and (ii) any and all claims, actions, causes
of action, suits and proceedings relating to the foregoing shall be filed and
maintained only in the Bankruptcy Court, and the parties hereby consent and
submit to the jurisdiction of the Bankruptcy Court.
19
10.6 Severability. If any term or provision of this Agreement is found to
be, or becomes at any time or for any reason, invalid or unenforceable, the
remaining provisions of this Agreement shall be enforceable to the fullest
extent possible under applicable law. Any term or provision of this Agreement
that is unenforceable or invalid in any situation in any jurisdiction shall not
affect the validity or enforceability of the offending term or provision in any
other situation or in any other jurisdiction.
10.7 Entire Agreement. The provisions of this Agreement and the Escrow
Agreement contain the entire agreement between the parties relating to the sale,
assignment and transfer by Seller of the Acquired Intellectual Property, ADCON
Assets and Assigned Contracts to Buyer, and supersede all prior understandings,
agreements or representations with respect to the subject matter hereof by or
among the parties, written or oral, to the extent that they relate in any way to
the subject matter hereof or thereof
10.8 Relationship. This Agreement shall not constitute any party as the
agent, partner, joint venturer, or legal representative of the other party for
any purpose whatsoever. Neither party is granted any express or implied right or
authority to assume or to create any obligation or responsibility on behalf of
or in the name of any other party or to bind the same in any manner whatsoever.
10.9 Assignments. Neither party may assign, transfer or otherwise dispose
of its interest in or any of its rights or obligations under this Agreement
without the prior written consent of the other party. Notwithstanding the
foregoing, (i) Buyer may assign, transfer, or otherwise dispose of its interest
in and rights and obligations under this Agreement to any direct or indirect,
wholly-owned subsidiary of Buyer, provided that Buyer and such
subsidiary-assignee shall be jointly and severally liable for all obligations of
Buyer under this Agreement; (ii) Buyer or any such subsidiary may assign,
transfer, or otherwise dispose of its interest in and rights and obligations
under this Agreement as security to any bank or other financial institution
providing financing or refinancing to Buyer or such subsidiary, provided that
any and all documents and instruments that Seller is requested to execute and
deliver in connection with such assignment shall be reasonably satisfactory in
form and substance to Seller; and (iii) Seller may assign, transfer or otherwise
dispose of its interest in and rights and obligations under this Agreement to a
liquidating trust, reorganized Seller estate, or other similar entity created
for the purposes of winding down Seller's business and distributing its assets
to its creditors and/or shareholders. Any permitted assignee shall consent in
writing to be bound by and perform all of the terms and conditions of this
Agreement.
10.10 Headings and Recitals. The section headings and recitals contained
in this Agreement are inserted for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
10.11 Counterparts. This Agreement may be executed concurrently in two or
more counterparts, each of which shall be considered an original, and all of
which together shall form one and the same instrument.
20
[Signature page to ADCON Asset Purchase Intellectual
Property Assignment Agreement.]
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
BUYER:
▇▇▇▇▇▇ MEDICAL TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
Title: General Counsel and Secretary
SELLER:
GLIATECH INC.
By: ____________________________________
Name:
Title:
[Signature page to ADCON Asset Purchase Intellectual
Property Assignment Agreement.]
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
BUYER:
▇▇▇▇▇▇ MEDICAL TECHNOLOGY, INC.
By: ____________________________________
Name:
Title:
SELLER:
GLIATECH INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President