BILL OF SALE AND ASSIGNMENT AGREEMENT

 

Exhibit 10.4

 

▇▇▇▇ OF SALE AND ASSIGNMENT AGREEMENT

 

THIS BILL OF SALE AND ASSIGNMENT AGREEMENT (this “Agreement”), dated May 28, 2024 is entered into by and among Pulmatrix, Inc., a Delaware corporation (the “Seller”), and MannKind Corporation, a Delaware corporation (“Purchaser”). Seller and Purchaser are sometimes referred to collectively herein as the “Parties” and each individually a “Party.”

 

RECITALS:

 

WHEREAS, Seller has agreed to sell and Purchaser has agreed to purchase from Seller, Seller’s Premises (as defined below) and the Lab Assets (as defined below);

 

WHEREAS, ▇▇▇▇▇▇ has agreed to assign, and ▇▇▇▇▇▇▇▇▇ has agreed to assume from Seller, the Lab Contracts (as defined below) on the terms and conditions of this Agreement;

 

WHEREAS, in connection with the sale of the Lab Assets and the Assignment of the Lab Contracts, Seller and Purchaser have agreed to execute and deliver this Agreement; and

 

WHEREAS, simultaneously with the entry of this Agreement, the Parties have entered into that certain Intellectual Property Cross-License Agreement; (ii) Amendment to Lease and Consent to Assignment of Lease relating to that certain Lease Agreement dated as of January 7, 2022 (the “Lease”) pursuant to which Seller leases certain premises consisting of approximately 19,603 rentable square feet (the “Premises”) on the first floor of the building located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ; (iii) Assignment and Assumption of Lease; and (iv) the Master Service Agreement, each of which will become effective as of the closing of this transaction on July 8, 2024 (the “Effective Date”).

 

NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy and legal sufficiency of which are expressly confessed and acknowledged, and intending to be legally bound hereby, the Parties agree as follows:

 

AGREEMENTS:

 

1. Sale of Lab Assets and Assignment of Lab Contracts. Effective upon the Effective Date, for and in consideration of the Parties simultaneously entering into that certain: (i) Intellectual Property Cross-License Agreement; (ii) Amendment to Lease and Consent to Assignment of Lease; (iii) Assignment and Assumption of Lease; and (iv) the Master Service Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller hereby: (A) grants, bargains, sells, transfers, and conveys to Purchaser, and Purchaser hereby purchases, acquires and accepts from Seller, on an “AS IS, WHERE IS” basis and without any representation or warranty on the part of Seller of any kind, including without limitation, as to fitness, merchantability or otherwise, all right, title and interest of Seller as of the Effective Date in and to the assets as set forth on Exhibit A, including all manufacturer’s warranties, rights, or claims against third parties relating to such assets (collectively, the “Lab Assets”), free and clear of all liens or encumbrances of any kind, including security interests and (B) sell, convey, transfer and assign to Purchaser all of the contracts as set forth on Exhibit B (the “Lab Contracts”), free and clear of all liens and encumbrances of any kind, including security interests effective as of the Effective Date. Prior to the Effective Date, Seller shall provide to Purchaser a UCC-3 termination statement and other evidence of the release of all security interests, liens or other encumbrances on the Lease, Lab Assets or Lab Contracts.

 

 

2. Assumption of Liabilities. Effective as of the Effective Date (a) Purchaser hereby accepts the assignment of the Lab Contracts and assumes and agrees to perform all of Seller’s obligations under the Lab Contracts arising from and after the Effective Date provided that, to the extent a request for payment covers provision of services or supply of goods during a period starting prior to the Effective Date and ending on or after the Effective Date, (i) in the case of provision of services, such Liabilities shall be allocated between Purchaser and Seller on a pro rata basis based on the number of days when the service was performed before or after the Effective Date or (ii) in the case of supply of goods, such Liabilities shall be allocated to the party receiving the goods; provided further, that such Liabilities shall exclude any (x) Liabilities resulting from any breach of or non-compliance with any such Lab Contract by Seller or any of its Affiliates or (y) Seller tax Liabilities (the “Assumed Liabilities”). If the vendor under the Lab Contract does not pro rate the amounts payable under the Lab Contract between the parties, the party who pays the invoice shall invoice the other party for its pro rata share of such invoice, which will be payable within 30 days. For purposes of this Agreement, “Liability” or “Liabilities” means, with respect to any Person, any debt, liability or obligation of any kind (whether known or unknown, direct or indirect, contingent, accrued, due or to become due, secured or unsecured, matured or otherwise), including accounts payable, trade payables, royalties payable, accrued bonuses and commissions, accrued vacation and any other form of leave, termination payment obligations, employee expense obligations.

 

3. Nonassignable Assets. Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to assign or transfer any Lab Contracts to Purchaser (i) which by its terms or by requirement of law is not assignable or transferable without a consent or is cancellable by a third party in the event of an assignment or transfer and (ii) for which such consent has not been obtained or such requirement of law has not been satisfied as of the Effective Date, unless and until such consent shall have been obtained or such requirement of law satisfied (as applicable) (such Lab Contracts, the “Nonassignable Contract”). Both parties shall as promptly as practicable use their respective reasonable best efforts to obtain any consent that may be required and satisfy any requirement of law necessary to the assignment or transfer of a Nonassignable Contract to Purchaser; provided that neither Purchaser nor Seller shall be obligated to make any payments to any such third parties in order to obtain any such consent. Until a consent to assignment of a Nonassignable Contract is obtained, Seller shall use reasonable best efforts to provide Purchaser the use of or economic benefits of the Nonassignable Contract.

 

4. Excluded Liabilities. The Parties acknowledge and agree that Purchaser will not, and in no event will Purchaser assume, be required to pay, perform, or discharge any Liabilities other than the Assumed Liabilities, and that, as between the Parties, Seller shall remain responsible for all Excluded Liabilities. For purposes of this Agreement, “Excluded Liabilities” means all Liabilities of Seller and its Affiliates not expressly included in the definition of Assumed Liabilities, including:

 

(a) any Liabilities arising from Seller’s ownership or use of the Lab Assets or Lab or the conduct of its business at or prior to Effective Date;

 

(b) any Liabilities arising out of Seller’s business, including any assets other than the Lab Assets or Lab Contracts or Seller’s ongoing operations, including those arising after the Effective Date;

 

(c) all federal, state, municipal, local, foreign and other taxes of Seller or its Affiliates, or for which the Seller or any of its Affiliates is or are liable (including as a transferee or successor, pursuant to Treasury Regulations Section 1.1502-6, by contract or otherwise), for any taxable period (including any Tax of Seller or any of its Affiliates that becomes a Liability of Purchaser under transferee or successor liability or otherwise by operation of contract or law);

 

(d) all Liabilities incurred under any Lab Contract (i) whereby provision of services or supply of goods arose on or prior to Effective Date or (ii) resulting from any breach of or non-compliance with any such Lab Contract by Seller or any of its Affiliates at or prior to Effective Date;

 

 

(e) all Liabilities arising from Seller’s lease occupancy of the Premises at or prior to the Effective Date or arising under the Lease on or prior to the Effective Date;

 

(f) all accounts payable or other trade payables due or owed by Seller or any of its Affiliates to any third party;

 

(g) any Liabilities relating to or in any way arising out of any present and past employees, officers, directors, temporary employees, independent contractors or consultants of Seller or its Affiliates or who have provided services to Seller or its Affiliates and/or the employment or service (and any termination thereof) of any such person, including any Liability relating to: (i) payroll or any accrued wages, salaries or fees; (ii) any employee benefit plan and any contract or insurance policy or other funding medium with respect thereto; (iii) workers’ compensation for injuries and (iv) any obligations or Liability arising from Seller or its Affiliates’ failure to comply with applicable law;

 

(h) any Liabilities related to the provision of notice or payment in lieu of notice and any applicable penalties under the WARN Act and any comparable state or local Law for which the initial provision of notice occurs on or prior to the Effective Date, including any required due to the sale of the Premises;

 

(i) all Liabilities relating to, resulting from, or arising out of or in connection with a failure to comply with any applicable bulk sale or bulk transfer laws with respect to the sale and purchase of the Lab Assets and Lab Contracts pursuant to this Agreement; and

 

(j) any Liabilities arising from Seller or its Affiliates’ non-compliance with applicable law.

 

5. Indemnification. Seller shall indemnify and hold harmless Purchaser, Purchaser’s affiliates, and their respective officers, directors, managers, employees, agents, successors, and permitted assigns (collectively, the “Purchaser Indemnified Parties”) against and in respect of any Losses suffered or incurred by any Purchaser Indemnified Party resulting from or arising out of any Excluded Liabilities. “Losses” means any actual debts, demands, damages, losses, expenses, costs, settlement payments, judgments, fines or penalties, including reasonable attorneys’ fees and taxes.

 

6. Payment of Transfer Taxes and Fees. Effective upon the Effective Date, Purchaser hereby assumes and agrees to be responsible for: (i) the preparation, completion and filing of any and all documents related to the transfer of the Lab Assets from Seller to Purchaser and (ii) performance or discharge, when payment or performance is due or required, of all transfer, documentary, sales, use, stamp, registration and other such taxes and fees incurred in connection with the transfer of the Lab Assets from Seller to Purchaser. Title to all Lab Assets is conveyed by delivery of the Lab Assets at the Premises.

 

7. General Provisions.

 

(a) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the Laws of the State of Delaware without regard to the conflicts of laws provisions thereof.

 

(b) Waiver of Trial by Jury. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

 

(c) Further Assurances. From time to time following the Effective Date, Seller and Purchaser shall, and shall cause their respective affiliates to, execute, acknowledge and deliver all such further conveyances, notices, licensure and permit filings, assumptions, releases and acquaintances and such other instruments, and shall take such further actions, as may be reasonably necessary or appropriate to assure fully to Purchaser and its successors or assigns, all of the properties, rights, titles, interests, estates, remedies, powers and privileges intended to be conveyed to Purchaser under this Agreement, and to otherwise make effective the transactions contemplated hereby and thereby.

 

(d) Amendments. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and duly executed by ▇▇▇▇▇▇▇▇▇ and Seller.

 

(e) Non-Waiver. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

(f) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

 

(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. Seller may not assign this Agreement or any of their rights, interests or obligations hereunder without the prior written consent of the Purchaser.

 

(h) Rights of Third Parties. This Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.

 

(i) Entire Agreement. This Agreement (together with the Exhibits hereto) between Seller and Purchaser, supersede all prior discussions and agreements between the Parties with respect to the subject matter hereof and thereof, and contain the sole and entire agreement between the Parties with respect to the subject matter hereof and thereof, and there are no agreements, understandings, representations or warranties between the Parties other than those set forth herein or therein. No oral statements or prior written material not specifically incorporated in this Agreement shall be of any force and effect. The Parties represent and acknowledge that in executing this Agreement, the Parties did not rely, and have not relied, on any communications, promises, statements, inducements, or representation(s), oral or written, by any other Party, except as expressly contained in this Agreement.

 

(j) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any facsimile or other electronic copies hereof or signature hereon shall, for all purposes, be deemed originals.

 

[Signatures appear on the following page]

 

 

IN WITNESS WHEREOF, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ have duly executed and delivered this Agreement to be effective as of the Effective Date.

 

SELLER:
PULMATRIX, INC.
By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name:	▇▇▇▇▇▇▇ ▇▇▇▇
Title:	Chief Executive Officer

 

PURCHASER:
MANNKIND CORPORATION
By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:	Chief Executive Officer

 

 

EXHIBIT A

(LAB ASSETS)

 

 

 

 

EXHIBIT B

 

Cobalt JV 2020 LLC		Lease Agreement between Cobalt Propco 2020, LLC and Pulmatrix, Inc. dated January 7, 2022.
Reliable Building Solutions, Inc.		Janitorial Cleaning Specifications contract between Reliable Building Solutions and Pulmatrix, Inc. dated July 19, 2023.
Airgas Inc		Product Sale Agreement between Airgas USA, LLC and Pulmatrix, Inc. dated March 16, 2023.
TA Instruments		Service Agreement between TA Instruments - Waters L.L.C. and Pulmatrix, Inc. dated April 25, 2023.
TA Instruments		Service Agreement between TA Instruments - Waters L.L.C. and Pulmatrix, Inc. dated December 13, 2022.
Brinkmann Instruments / Metrohm		Service Agreement between Metrohm USA, Inc. and Pulmatrix, Inc. dated April 6, 2023.
Bostonbean Coffee Co Inc		Equipment Rental and Supplies Agreement between BonstonBean Coffee Company and Pulmatrix, Inc. dated April 6, 2023.
Bostonbean Coffee Co Inc		Equipment Rental and Supplies Agreement between BonstonBean Coffee Company and Pulmatrix, Inc. dated April 24, 2023.
American Alarm & Communications, Inc.		Professional Services Agreement between American Alarm and Communications, Inc. and Pulmatrix, Inc. dated July 19, 2023.
Vestis (f/k/a Aramark)		Service Agreement between Aramark Uniform Services and Pulmatrix, Inc. dated June 8, 2020.
Macquarie Equipment Capital Inc		Lease Agreement between Macquarie Equipment Capital Inc. and Pulmatrix, Inc. dated August 1, 2023.
Boston Document Systems		Customer Service Maintenance Agreement between Boston Document Systems, Inc. and Pulmatrix, Inc. dated June 15, 2023.
Comcast (Internet)		Business Internet Service Order Agreement between Comcast Cable Communications Management, LLC and Pulmatrix, Inc. dated June 1, 2023.
Comcast Business (Telephone)		Business VoiceEdge Service Order Agreement between Comcast Cable Communications Management, LLC and Pulmatrix, Inc. dated June 1, 2023.