EXHIBIT 2.1
Portions of this Exhibit have been redacted and are the subject of a
confidential treatment request filed with the Secretary of the Securities and
Exchange Commission.
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ASSET PURCHASE AGREEMENT REGARDING THE
P93/01 PROGRAM AND ASSETS AND
CONTRACTS RELATED THERETO
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Preamble.................................................... 4
Section 1 Definitions....................................... 5
Section 2 Sale and Purchase of 93/01 Program................ 8
Section 2A No Transfer of Employees......................... 10
Section 3 License-Back, Research Services................... 11
Section 3A license to PBD patents........................... 12
Section 4 Continuation of P93/01 Program.................... 12
Section 5 Prices and Payments............................... 13
Section 6 Warranties........................................ 15
Section 7 Remedies.......................................... 18
Section 8 Patent Management................................. 19
Section 9 Confidentiality................................... 21
Section 10 Condition Precedent.............................. 23
Section 11 Commercial Effect................................ 23
Section 11A Costs and Transfer Taxes........................ 25
Section 12 Notices.......................................... 25
Section 13 Miscellaneous.................................... 27
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ASSET PURCHASE AGREEMENT
by and among
Probiodrug AG, Halle
with its seat in Halle and registered with the commercial register of the local
court of Halle-Saalkreis under folio no. HRB 13719
(hereinafter referred to as "PBD"),
and
Prosidion Limited
a company registered in England and Wales under registered number 4600121 with
its registered offices at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇
(hereinafter referred to as "PROSIDION")
(PBD and Prosidion are hereinafter collectively referred to as
the "PARTIES", and each of them as a "PARTY");
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PREAMBLE
P 1. PBD is a drug development company engaged in the research and development
of drug candidates for various targets and various indications, including
for metabolic diseases.
P 2. Prosidion is actively engaged in the research and development of small
molecule drugs, particularly in the field of metabolic diseases, and has
considerable knowledge and experience in this field.
P 3. PBD intends to sell certain assets relating to the P93/01 Program, the
P93/01 Patents, the GIP Patents and the Medical Use Patents to a purchaser
that intends to actively progress the P93/01 Program with the goal of
developing and commercialising drugs containing the P93/01 Compounds (or
improvements, enhancements, derivatives or substitutes thereof) and
maximising the value of the P93/01 Program on a worldwide basis.
P 4. PBD desires to remain entitled to use the assets and rights transferred to
the purchaser with respect to non-metabolic diseases on the basis of an
exclusive back-license to be granted to PBD by the purchaser, except for
those P93/01 Compounds transferred.
P 5. Prosidion, after having had access to a data room and CD-ROMs relating to
the Sold Patents, desires to purchase the assets described and to progress
and commercialise the P93/01 Program as described above and to grant the
back-license to PBD upon the terms and conditions set forth below.
P 6. PBD and Prosidion further intend to enter into a research agreement to
fund collaborative research.
NOW, THEREFORE, the Parties agree as follows:
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SECTION 1
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the following
meaning:
"AFFILIATES" shall mean affiliated companies within the meaning of Section 15 of
the German Stock Corporation Act (Aktiengesetz).
"AGREEMENT" shall mean this asset purchase agreement including its Annexes, with
the exception of the Research Agreement attached as Annex "Research
Agreement".
"ASSETS" shall have the meaning as set forth in Section 2.1.
"ACQUISITION PROPOSAL" shall have the meaning assigned to such term in Section
11.4.
"BACK-LICENSE" shall have the meaning as set forth in Section 3.1.
"CLOSING DATE" shall mean the date at which all Conditions Precedent according
to Section 10.1 of this Agreement have been fulfilled or waived in
accordance with Section 10.2.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in Sections 9.1 and
9.2.
"CONTRACTS" shall mean the agreements and contracts sold to Prosidion hereunder
as defined in Section 2.2.
"▇▇ ▇▇ ASSAY DOCUMENTATION" shall mean the documentation described in Annex
"▇▇ ▇▇ Assay Documentation".
"▇▇ ▇▇ LICENSE AGREEMENTS" shall mean the license agreements concluded by PBD
with third parties and listed in Annex "▇▇ ▇▇ License Agreements".
"EFFECTIVE DATE" shall mean the date on which the last of the parties to this
Agreement signs the Agreement.
"FDA" shall mean the United States Food and Drug Administration or any successor
entity thereof.
"FERRING AGREEMENT" means the non-exclusive license agreement dated September
20, 2002 between PBD and Ferring B.V..
"FIELD OF USE" shall mean the use of any (i) ▇▇ ▇▇ inhibitor, (ii) GIP agonist
and/or (iii) GIP antagonist, alone or in combination with other drugs for
the treatment of all metabolic diseases, including but not limited to
diabetes and obesity.
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"GIP DERIVATIVES" means any and all derivatives listed in Annex "GIP
Derivatives".
"GIP PATENTS" shall mean the patents listed in Annex "GIP Patent" including all
rights to the inventions underlying these patents vis-a-vis the inventors,
except the non-transferable personal rights of the inventors to the
inventions (Erfinderpersonlichkeitsrecht).
"INITIAL CONSIDERATION" shall have the meaning assigned to such term in Section
5.1.
"LIABILITY BASKET" shall have the meaning assigned to such term in Section 7.4.
"LIABILITY CAP" shall have the meaning assigned to such term in Section 7.4.
"MEDICAL USE PATENTS" shall mean the Patents set forth in Annex "Medical Use
Patents" including all rights to the inventions underlying these patents
vis-a-vis the inventors, except the non-transferable personal rights of
the inventors to the inventions (Erfinderpersonlichkeitsrecht).
"MERCK AGREEMENT" shall mean the agreement dated 31 October 2000 between PBD and
Merck & Co., Inc.
"MILESTONE PAYMENTS" shall have the meaning assigned to such term in Section
5.2.
"NOVARTIS AGREEMENT" shall mean the non-exclusive license agreement dated 11 May
2004 between PBD and Novartis Pharma AG
"NDA" shall mean a New Drug Application filed with the FDA for marketing
authorization of any drug product or any equivalent application filed with
any corresponding regulatory authority in any other country of the world.
"P93/01 COMPOUNDS" shall mean any and all compounds listed in Annex "P93/01
Compounds"
"P93/01 LEAD COMPOUND" shall mean the compound specifically identified as such
Lead Compound in the Annex "P93/01 Compounds".
"P93/01 PATENTS" shall mean the Patents set forth in Annex "P93/01 Patents" .
including all rights to the inventions underlying these patents vis-a-vis
the inventors, except the non-transferable personal rights of the
inventors to the inventions (Erfinderpersonlichkeitsrecht)
"P93/01 PRODUCT" shall mean any preparations in final form for end use or
consumption which contain, as pharmaceutically active ingredient, one or
more of the P93/01 Compounds.
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"P93/01 PROGRAM" shall mean the development program relating to the P93/01
Compounds, including all know-how, data and manufacturing information
relating thereto as currently existing at PBD or further developed by
Prosidion and/or its Affiliates, licensees or assignees in the future.
"PATENT" shall mean any patent (including any utility model) or patent
application (including any utility model application), or any continuation
applications, divisional applications or continuation-in-part applications
relating to such patents or patent applications and any patent
applications or patents corresponding to or claiming priority from such
patent applications anywhere in the world and any extensions of the
exclusivity granted in connection with such patents, including but not
limited to, extensions granted under the US Drug Price Competition and
Patent Term Restoration ▇▇▇ ▇▇▇▇ and the EC Supplementary Protection
Certificate Regulation (Council Regulation (EEC No 1768/92)) and any
legislation amending, replacing or implementing the foregoing.
"PBD CONFIRMATION" shall mean a letter sent to Prosidion by PBD confirming (i)
the fulfilment of all Conditions Precedent or waiver of any thereof, (ii)
that PBD restates such representations and warranties within the meaning
of Section 6 which shall be restated at the Closing Date as set out in
Section 6 and (iii) whether or not any of the ▇▇ ▇▇ License Agreements
have been terminatedin the form set forth in Annex 5.1.
"PBD PATENT" shall mean such Patents owned by PBD at the signing date of this
Agreement, except the P93/01 Patents, the GIP Patent and the Medical Use
Patents listed in Annex "PBD Patents".
"PHASE III CLINICAL STUDY" shall mean a clinical study designed to demonstrate
the safety and efficacy of a P93/01 Product in a patient population, as
prescribed by applicable FDA regulations or foreign equivalents thereof.
"REPORTS" shall have the meaning assigned to such term in Section 2.1.5.
"SERVICE CONTRACTS" shall mean the contracts and firm offers for services
concluded by PBD and listed in Annex "Service Contracts".
"SOLD PATENTS" shall mean the P93/01 Patents, the GIP Patents and the Medical
Use Patents.
"TRIAD AGREEMENT" shall mean the cross license agreement concluded by PBD and
Triad Pharmaceuticals, Inc. on April 4, 2002 between PBD and TRIAD
Pharmaceuticals, Inc..
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SECTION 2
SALE AND PURCHASE OF THE 93/01 PROGRAM, THE ASSETS AND THE CONTRACTS
2.1 SALE AND TRANSFER OF ASSETS. Effective upon payment of the Initial
Consideration and receipt by Prosidion of the PBD Confirmation, whichever
occurs later, and irrespective of whether the statement in the PBD
Confirmation that the Conditions Precedents are fulfilled or have been
waived is correct or not , PBD hereby sells and transfers to Prosidion the
following assets (the "ASSETS"):
2.1.1 the P93/01 Patents,
2.1.2 the Medical Use Patents,
2.1.3 the GIP Patents,
2.1.4 any and all inventory of all P93/01 Compounds and the GIP
Derivatives as listed in Annex 2.1.4/Inventory and the files listed
in Annex 2.1.4/Files, owned by PBD on the Closing Date and
developed, acquired or produced by PBD until the Closing Date.
2.1.5 the reports relating to the P93/01 Program and reports on any GIP
Derivative set forth in Annex 2.1.5 (the "REPORTS").
2.1.6 the ▇▇ ▇▇ Assay Documentation, and
2.1.7 any drug product relating to P93/01 Compounds in any pharmaceutical
form, including without limitation, tablets and active
pharmaceutical ingredient ("API"), as set forth in Annex 2.1.7.
Prosidion hereby accepts and agrees with the above sale and transfer. PBD
shall also be obligated to transfer any and all material assets, know how,
patents, clinical data and scientific information relating to the P93/01
Program which is not contained in the Annexes 2.1.4 to 2.1.7 or in the ▇▇
▇▇ Assay Documentation. Upon the Closing Date and the payment of the
Initial Consideration, PBD shall immediately send or have sent to
Prosidion the items described in Annexes 2.1.4 to 2.1.7 and the ▇▇ ▇▇
Assay Documentation.
2.2 SALE AND TRANSFER OF CONTRACTS. Effective upon payment of the Initial
Consideration and receipt by Prosidion of the PBD Confirmation, whichever
occurs later, and irrespective of whether the statement in the PBD
Confirmation that the Conditions Precedents are fulfilled or have been
waived is correct or not, PBD hereby sells and transfers to Prosidion the
following agreements (the "CONTRACTS"):
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2.2.1 the ▇▇ ▇▇ License Agreements, and
2.2.2 the Service Contracts.
The transfer of the Contracts shall be made in such a way that
Prosidion shall fully assume, and PBD shall be fully discharged
from, all rights, obligations and liabilities resulting from such
agreements (Vertragsubernahme mit befreiender Wirkung) which arise
on or after the Closing Date and relate to such period. Prosidion
hereby accepts the above sale and the above transfer.
2.3 CONSENT REQUIREMENTS FOR TRANSFER OF SERVICE CONTRACTS. As soon as
possible after the Effective Date the Parties will jointly endeavour,
using reasonable efforts, to obtain the consents from the respective other
parties to the Service Contracts required to transfer such agreements from
PBD to Prosidion in accordance with Section 2.2 above. To the extent that
the consents to the transfer of the Service Contracts cannot be obtained
prior to and after the Closing Date and to the extent permitted under the
Service Contracts, PBD will, in respect of the external relationship with
the other contract party (im Au(beta)enverhaltnis), remain the party to
the relevant agreement and the Parties will, for the purpose of their
internal relationship between the Parties (im Innenverhaltnis), behave and
treat each other as if the transfer had effectively taken place on the
Closing Date. This shall, in particular, include that (i) Prosidion shall
be entitled to all benefits and rights under the Service Contracts, (ii)
PBD will follow Prosidion's instructions regarding the exercise of any
rights under such agreement consistent with the terms of such agreement,
(iii) Prosidion shall indemnify PBD against any liability arising under
the Service Contracts, and (iv) PBD agrees to use the care of a prudent
businessman in holding such agreement.
2.4 ACCESS TO ▇▇ ▇▇ ASSAY DOCUMENTATION. Effective upon payment of the Initial
Consideration and receipt by Prosidion of the PBD Confirmation, whichever
occurs later, and irrespective of whether the statement in the PBD
Confirmation that the Conditions Precedents are fulfilled or have been
waived is correct or not, Prosidion grants to PBD reasonable access to the
▇▇ ▇▇ Assay Documentation relevant for any use outside the Field of Use.
Such access shall be granted to PBD on a non-exclusive basis. PBD shall
have the right to retain copies of the ▇▇ ▇▇ Assay Documentation and shall
be entitled to use such copies for any use outside the Field of Use.
2.5 REGISTRATION OF TRANSFER. If any right, title and/or interest to the
Assets and Contracts was not adequately or effectively transferred to
Prosidion under this Agreement, PBD undertakes to execute all legal
actions and all documents required to effectuate the transfer. Immediately
after the payment of the Initial
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Consideration by Prosidion, the Parties shall work together to effectuate
the registration of the transfer of the Sold Patents in the registers of
patents.
SECTION 2A
NO TRANSFER OF EMPLOYEES
SECTION 613A GERMAN CIVIL CODE. PBD intends to continue its research activities
after the Closing Date on a materially unchanged basis and will in particular
have a continuing need for its employees whom have been involved in the P93/01
Program or in the research relating to the Assets. The Parties assume that no
employment relationships existing at PBD will transfer to Prosidion in
connection with the sale of the P93/01 Program and the Assets to Prosidion under
this Agreement by operation of law pursuant to Section 613a of the German Civil
Code or any other applicable law. If, however, contrary to the assumption of the
Parties any employment relationships existing at PBD do transfer to Prosidion in
connection with the transfer of the P93/01 Program and the Assets to Prosidion
pursuant to Section 613a of the German Civil Code or any other applicable law,
the Parties shall have the following obligations:
If any employee claims the transfer of employment, each Party shall immediately
inform the other Party. No later than two weeks after (i) such employee has
claimed that his employment contract has been transferred, and (ii) PBD has
forwarded to Prosidion a copy of the complete personnel file (Personalakte),
whichever occurs later, Prosidion, shall deny any transfer of employment and,
for reasons of precaution, terminate the asserted employment contract between
the employee and Prosidion within the notice period stipulated in the employment
contract or by law and shall use its best efforts to terminate the asserted
employment agreements at conditions favourable to PBD. In respect of employees
other than those five (5) employees listed in Annex 2A, Prosidion shall obey any
and all lawful instructions given by PBD in respect of the respective employment
agreement, including, but not limited to, instructions to terminate the
employment agreement by giving notice or by entering into a severance agreement
or to dispute the alleged transfer of the employment agreement before the
competent courts. PBD shall use best efforts to support Prosidion in terminating
the asserted employment agreement.
PBD shall indemnify Prosidion from any and all costs arising in connection with,
or resulting from, the employment contract and/or any termination thereof, by
means of termination, settlement agreement or otherwise, including but not
limited to any obligation to pay wages, social insurance contributions, holiday
payments, benefits, severance payments (Abfindungen) and/or taxes vis-a-vis the
employee or any third party. In respect of those five (5) employees listed in
Annex 2A, the aforementioned indemnification is limited to the aggregate amount
of (i) the aggregate regular remuneration for those of such five employees
claiming a transfer of business until the end of the contractual
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notice period, and (ii) the aggregate amount of one month's wage per year of job
tenure of these employees.
SECTION 3
LICENSE-BACK, RESEARCH SERVICES
3.1 LICENSE-BACK. Effective upon the payment of the Initial Consideration and
receipt by Prosidion of the PBD Confirmation, whichever occurs later, and
irrespective of whether the statement in the PBD Confirmation that the
Conditions Precedents are fulfilled or have been waived is correct or not,
Prosidion grants to PBD an exclusive, world-wide, royalty-free, fully
paid-up, perpetual, transferable license, with the right to grant
sublicenses, to use any compound or derivative covered by the P93/01
Patents not being a P93/01 Compound, in any field of use outside the Field
of Use (the "BACK-LICENSE"). For avoidance of doubt, PBD shall not use any
P93/01 Compound for any purpose in any field of use whatsoever.
3.2 RESEARCH AGREEMENT. Effective upon payment of the Initial Consideration
and receipt by Prosidion of the PBD Confirmation, whichever occurs later,
and irrespective of whether the statement in the PBD Confirmation that the
Conditions Precedents are fulfilled or have been waived is correct or not,
the Parties enter into the Research Agreement attached to this Agreement
as Annex Research Agreement.
3.3 SEPARATE AGREEMENTS. For the avoidance of doubt, the Research Agreement
shall be regarded as separate from this Agreement insofar as any
termination, rescission or expiration of any of the Research Agreement
shall not result in, or entitle any party hereto to, any termination,
rescission or expiration of this Agreement. In the event of a valid
termination of the Research Agreement the Initial Consideration shall be
increased by ** less any amount already paid under the Research Agreement,
unless the Research Agreement has been terminated for cause (wichtiger
▇▇▇▇▇) or according to Section 10.3 of the Research Agreement by
Prosidion. In the event of any termination or rescission of this
Agreement, the Research Agreement shall terminate automatically upon the
effective date of the respective termination or rescission.
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** This portion has been redacted pursuant to a confidential treatment request.
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SECTION 3.A
LICENSE TO PBD PATENTS
3.A.1 LICENSE IN THE FIELD OF USE. Effective upon the payment of the Initial
Consideration and receipt by Prosidion of the PBD Confirmation, whichever
occurs later, and irrespective of whether the statement in the PBD
Confirmation that the Conditions Precedents are fulfilled or have been
waived is correct or not, PBD grants to Prosidion a non-exclusive,
worldwide, perpetual (auf ▇▇▇▇▇), transferable, sublicenseable, fully paid
up right to use the PBD Patents to the extent they may have an
applicability in the Field of Use only.
3.A.2 LICENSE OUTSIDE THE FIELD OF USE. Effective upon the payment of the
Initial Consideration and receipt by Prosidion of the PBD Confirmation,
whichever occurs later, and irrespective of whether the statement in the
PBD Confirmation that the Conditions Precedents are fulfilled or have been
waived is correct or not, PBD grants to Prosidion an exclusive, worldwide,
fully paid up, perpetual (auf ▇▇▇▇▇), transferable, sublicenseable right
to use any and all of the PBD Patents in any field of use outside the
Field of Use with regard to any use of the P93/01 Compounds and GIP
Derivatives only.
SECTION 4
CONTINUATION OF P93/01 PROGRAM
4.1 NO OBLIGATION TO PROGRESS P93/01 PROGRAM. Prosidion shall have no
obligation to progress the P93/01 Program.
4.2 SEMI-ANNUAL REPORT. Upon the end of June and December each year, Prosidion
shall provide PBD with a written summary report describing the status
achieved in the development of the P93/01 Compounds and any P93/01 Product
in that period, the development of the IP-status of the Sold Patents (such
as filing process, prosecution of infringements) and the commercialisation
of the Assets. Prosidion shall promptly inform PBD on the start of Phase
III Clinical Studies and on the filing of the first NDA relating to any
P93/01 Lead Compound. Prosidion's reporting obligations shall end on the
earlier of (i) Prosidion having informed PBD on the filing of the first
NDA of P93/01 Lead Compound or (ii) 1st January 2010.
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SECTION 5
PRICES AND PAYMENTS
5.1 INITIAL CONSIDERATION
The initial purchase price consideration to be paid by Prosidion to PBD
for the sale of the P93/01 Program, the Assets and the Contracts, and the
grant of the licenses according to Section 3A under this Agreement (the
"INITIAL CONSIDERATION") shall be US dollar thirty five million (USD
35,000,000). The Initial Consideration shall be due and payable within ten
(10) business days after the following preconditions have been met: (i)
the Closing Date, and (ii) receipt by Prosidion of the PBD Confirmation ,
whichever occurs later. Upon fulfilment of all Conditions Precedent, or,
as the case may be, waiver thereof, PBD shall send the PBD Confirmation to
Prosidion without undue delay.
5.2 MILESTONE PAYMENTS
In addition to the Initial Consideration, Prosidion shall make to PBD the
following milestone payments (collectively the "MILESTONE PAYMENTS"):
5.2.1 START OF PHASE III CLINICAL STUDIES. ** , which shall be due and
payable at the earlier of
(i) ten (10) business days after valid enrolment of the first
patient into the first Phase III Clinical Study relating to
any P93/01 Lead Compound (as listed in Annex "P93/01
Compounds"), or
(ii) 1 January 2007 (unless the development of the P93/01 Lead
Compound has been terminated due to safety and/or regulatory
issues and/or lack of statistically significant efficacy in
human clinical trials in which event no payment shall become
due).
5.2.2 FILING OF FIRST NDA. ** , which shall be due and payable at the
earlier of
(i) ten (10) business days of the filing of the first NDA relating
to any P93/01 Lead Compound (as listed in Annex "P93/01
Compounds"), or
(ii) 1 January 2010 (unless the development of the P93/01 Lead
Compound has been terminated due to safety and/or regulatory
issues and/or lack of statistically significant efficacy in
human clinical trials in which event no payment shall become
due),
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** This portion has been redacted pursuant to a confidential treatment request.
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irrespective of whether the relevant milestones have been
fulfilled by Prosidion or any of its Affiliates, licensees or
assignees (including any subsequent (sub-)licensees and
assignees). For the avoidance of doubt, each of the Milestone
Payments shall only be due once. They shall not be due each
time a Phase III Clinical Study begins or a NDA is filed for
any P93/01 Compound not being the P93/01 Lead Compound. The
aggregate amount payable under this Section 5.2 shall in no
event exceed ** . Prosidion shall inform PBD in writing
immediately if any of the above milestones have been
fulfilled.
5.3 GUARANTEE (BURGSCHAFT). On the Effective Date, Prosidion has
provided a guarantee (Burgschaft) by OSI Pharmaceuticals, Inc.
("OSI") as set out in Annex 5.3 securing PBD's claim under
Section 5.2 according to section 765 German Civil Code waiving
the benefit of discussion (Einrede der Vorausklage) (the "OSI
GUARANTEE"). The OSI Guarantee shall be governed by German law
and the competent courts of Frankfurt am Main, Germany, shall
have exclusive jurisdiction upon any disputes arising out of
or in connection with the OSI Guarantee, including disputes as
to the validity of the OSI Guarantee.
5.4 PAYMENTS. All payments due under this Agreement, shall be paid
by Prosidion to PBD free and clear of costs and charges in
immediately available funds by wire transfer to the following
bank account, unless indicated otherwise by PBD in writing:
**
5.5 PAYMENT CONFIRMATION. PBD shall confirm to Prosidion by
registered mail without undue delay in each case as soon as
PBD has received any payments due under this Agreement.
5.6 TAX. All payments due under this Agreement shall be increased
by any value added tax which may be levied upon such payments.
The Parties are jointly of the opinion that no German VAT is
applicable in accordance with Sec. 3a para. 4 No. 1 German VAT
Act and that the Reverse Charge System is applicable to any UK
VAT. If and to the extent it turns out that any VAT is payable
by PBD the Initial Consideration shall be increased
accordingly and become due and payable by Prosidion at the
date when the VAT owed by PBD becomes due and payable, but not
prior to the receipt of a corresponding invoice from PBD. In
such a case both Parties will consider - acting reasonably -
the possibility to assign any VAT refund claim of Prosidion to
PBD for offsetting it against PBD's VAT liability.
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** This portion has been redacted pursuant to a confidential treatment request.
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The Parties are jointly of the opinion that no withholding tax
(in particular no UK withholding tax) is levied on any payment
under this Agreement. Therefore all payments under this
Agreement are made without any deduction of withholding taxes.
If it turns out that the UK tax authorities intend to levy UK
withholding taxes on such payments Prosidion shall (i) notify
PBD without any delay, (ii) if so requested by PBD, and at
PBD's expense, appeal against any assessment to such
withholding tax within the statutory time limit, and take such
action (at PBD's expense) as is reasonably requested by PBD in
connection with such appeal. If an appeal against such a UK
withholding tax assessment is finally and unappealably
dismissed or - with the consent of PBD - not made or
withdrawn, PBD will be obliged to pay the finally assessed UK
withholding tax to the UK authorities and Prosidion will
provide any information and documentation to PBD reasonably
requested by PBD in order to support a claim by PBD for a
refund of such withholding tax.
SECTION 6
WARRANTIES
6.1 WARRANTIES. As of the Effective Date and,as far as explicitly
set forth below, as restated as at the Closing Date and
subject to the disclosure schedules within the meaning of
Section 7.6 (b), PBD makes the following representations and
warranties under this Agreement:
6.1.1 SOLD PATENTS AND UNDERLYING INVENTIONS. As of the
Effective Date and as restated as at the Closing Date,
PBD is the sole owner of, and has full right to
transfer, the Sold Patents and owns all rights to the
inventions underlying the Sold Patents vis-a-vis the
inventors, except for the non-transferable personal
rights of the inventors (Erfinderpersonlichkeitsrecht).
As of the Effective Date and as restated as at the
Closing Date, the Sold Patents are existing and
registered or, as the case may be, applied for
registration with the respective Patent- and Trademark
offices as set forth in Annexures "P93/01 Patents",
"Medical Use Patents" and "GIP Patent". As of the
Effective Date and as restated as at the Closing Date,
all patent applications which are a part of the Sold
Patents have been filed in accordance with the
applicable formal requirements (such as application
fees, etc.), and there are no outstanding fees due to
the United States Patent and Trademark Office because of
incorrect claiming of small entity status. As of the
Effective Date and as restated as at the Closing Date,
all patent applications which are a part of the Sold
Patents and are claiming one or several priorities have
been filed within the applicable period for claiming
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priority. As of the Effective Date and as restated as at
the Closing Date, none of the Sold Patents have lapsed
by reason of abandonment or non-payment of annuities or
other fees. As of the Effective Date and except as
indicated in Annex 7.6 to this Agreement, PBD is not
aware that the patentability or validity of the Sold
Patents have been contested or threatened to be
contested by any third party. As of the Effective Date
and as restated as at the Closing Date, no infringement
proceedings have been initiated against third parties on
the basis of the Sold Patents. As of the Effective Date
and as restated as at the Closing Date, none of the Sold
Patents is subject to any security agreement such as a
pledge agreement or a transfer by way of security.
6.1.2 NO LICENSES. As of the Effective Date and as restated as
at the Closing Date, no licenses have been granted to
any third party with respect to the Sold Patents, except
for the ▇▇ ▇▇ License Agreements.
6.1.3 CONTRACTS. As of the Effective Date and as restated as
at the Closing Date, the "Ferring Agreement", "Novartis
Agreement", "Merck Agreement" and "Triad Agreement" set
out the current versions of the respective ▇▇ ▇▇ License
Agreements. As of the Effective Date there are no
outstanding disputes due to PBD's breach of contract
under the Contracts. As of the Effective Date PBD has
not given or received any notice of ordinary or
extraordinary termination to or from any counterparty
and no such counterparty has threatened to terminate, in
particular, no party to the Contracts has threatened to
terminate or dispute any provision of any Contract as a
result of this Agreement. As of the Effective Date and
as restated as at the Closing Date, PBD has fully
performed any and all of its material obligations under
the ▇▇ ▇▇ License Agreements and the Service Contracts.
As of the Effective Date and as restated as at the
Closing Date, PBD has not assigned or otherwise
transferred to any third party any rights resulting from
the Contracts.
6.1.4 PROTECTION OF ASSETS. As of the Effective Date and as
restated as at the Closing Date, to PBD's best
knowledge, PBD has complied with all material aspects of
its operating procedures and has disclosed its secret
know-how the disclosure of which could materially
adversely affect the Assets only under confidentiality
agreements customary in the industry.
6.1.5 DISCLOSURE. As of the Effective Date and as restated as
at the Closing Date, PBD has not retained any
information and data known to PBD and not publicly
available relating to the Assets used or licensed to or
by PBD which materially adversely affects the Assets; in
particular,
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PBD has not retained any information which under normal
industry standards would prevent the P93/01 Program from
being further developed.
6.1.6 INSOLVENCY. As of the Effective Date and as restated as
at the Closing Date, PBD is not unable to meet its due
obligations (zahlungsunfahig) within the meaning of
Section 17 of the German Insolvency Code, over indebted
(uberschuldet) within the meaning of Section 19 of the
German Insolvency Code or in default under any contract
or agreement, which default would affect the
consummation of this Agreement, and no insolvency
proceedings within the meaning of Section 13 of the
German Insolvency Code relative to PBD is pending or is
threatened against PBD.
6.1.7 NO INFRINGEMENT. To PBD's knowledge, the use of the
P93/01 Compounds does not infringe or misappropriate any
third party intellectual property or other rights. It is
understood that PBD has not undertaken formal searches,
studies or valuations with respect to the freedom to use
the P93/01 Compounds.
6.1.8 AUTHORITY. As of the Effective Date and as restated as
at the Closing Date, PBD has the full power and
authority to enter into this Agreement and perform its
obligations hereunder without the consent of any third
party and without breach of any agreements with or
obligations to any third party.
6.1.9 NO CONFLICTING AGREEMENTS. As of the Effective Date and
as restated as at the Closing Date, PBD has not entered
and will not enter into any agreement with or
obligations to a third party inconsistent, incompatible,
or conflicting with its obligations under this
Agreement.
6.1.10 INFORMATION. As of the Effective Date and as restated
as at the Closing Date, the information provided by PBD
and related to the Assets and the Contracts is not
willfully materially incorrect. The PBD Confirmation,
when issued, is correct with respect to the termination
of the ▇▇ ▇▇ License Agreements and the representations
and warranties.
6.2 FORM OF WARRANTIES. The above representations and warranties shall
constitute independent promises of guarantee (selbststandige
Garantieversprechen) in accordance with Section 311 para. 1 of the
German Civil Code (Burgerliches Gesetzbuch), it being understood
that the warranties shall not constitute a quality guarantee
concerning the object of the purchase within the meaning
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of Section 444 of the German Civil Code (Garantie fur die
Beschaffenheit der Sache).
6.3 NO FURTHER WARRANTIES. Except for the representations and warranties
set forth above, PBD does not make any guarantee, warranty or
representation whatsoever with respect to the rights and assets
transferred hereunder and, in particular, makes no warranty that any
pending patent application will issue or that, if it does issue or
has issued, the resulting patent will be valid and enforceable or
that it will provide any market exclusivity or product protection or
that the manufacture, sale or use of any compound sold hereunder
shall be free from infringement of any third party rights.
SECTION 7
REMEDIES
7.1 RESTITUTION IN KIND. If and to the extent any of the representations
and warranties set forth in Section 6 above is incomplete or
incorrect, PBD shall put Prosidion within a period of two (2) months
of written notice by Prosidion of such breach in such position as
Prosidion would have been in had the warranty given by the PBD been
complete and correct (restitution in kind; Naturalrestitution).
7.2 DAMAGES. If restitution in kind as contemplated in Section 7.1 above
is impossible, or insufficient to fully compensate Prosidion, PBD
shall pay monetary damages (Schadenersatz in Geld) to Prosidion.
Furthermore, if and to the extent that PBD fails to provide
restitution in kind within the period set forth in Section 7.1,
Prosidion shall, in its discretion, in whole or in part and in lieu
of its right to demand restitution in kind, have the right to demand
that PBD shall pay monetary damages to Prosidion in such amount as
would be necessary to effect the restitution in kind.
7.3 EXCLUSION OF FURTHER REMEDIES. The Parties agree that the above
rights and remedies supersede and replace any statutory buyer's
rights, warranties or guarantees under applicable law and shall be
the exclusive remedies available to Prosidion. Any claims resulting
from statutory buyer's rights, warranties or guarantees are herewith
excluded to the extent permitted by law.
7.4 DE MINIMIS, CAP. No liability shall arise for PBD under above
representations and warranties if the aggregate amount of liability
does not exceed Euro one hundred thousand (EUR 100,000) (hereinafter
referred to as the "LIABILITY
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BASKET"; Freigrenze). In case the aggregate amount of liability
exceeds the Liability Basket, PBD shall be liable for the full
amount (including the Liability Basket). The aggregate liability of
PBD under the above representations and warranties shall not exceed
Euro five million (EUR 5,000,000) (hereinafter referred to as the
"LIABILITY CAP"). The Liability Basket and the Liability Cap shall
not apply to liability arising from incomplete or incorrect
representations and warranties stated by PBD fraudulently, willfully
or grossly negligently.
7.6 EXCLUSION OF CLAIMS. PBD shall not be liable for, and Prosidion
shall not be entitled to bring, any damage claims under or in
connection with this Agreement if and to the extent:
(a) the payment or settlement of any item giving rise to the claim
results in a tax or other benefit to Prosidion, or the breach
of a representation and warranty results from, or its
consequences are aggravated by, the passing of any change in
any applicable laws or the interpretation thereof after the
Closing Date,
(b) the respective matter is listed in Annex 7.6 to this Agreement
or has otherwise been expressly disclosed to Prosidion in
writing or as CD-Rom prior to the signing of this Agreement.
Section 254 of the German Civil Code shall apply.
7.7 TIME LIMITS. All liability claims of Prosidion shall be time-barred
** after the Closing Date, except for claims of Prosidion arising
from fraud, willful or misconduct or gross negligence of PBD, which
shall become time-barred in accordance with the statutory rules.
SECTION 8
PATENT MANAGEMENT
8.1 PATENT DOCUMENTATION, REGISTRATION OF TRANSFER. PBD shall provide
Prosidion, at the Closing Date, with the original copies of all
correspondence with patent offices or similar governmental
organisations as well as copies of all other relevant documentation
and correspondence within PBD or between PBD and patent attorneys or
other representatives or other consultants relating to the Sold
Patents, and in particular of any information and correspondence
relevant for the defence, maintenance and prosecution of the Sold
Patents.
----------
** This portion has been redacted pursuant to a confidential treatment request.
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Prosidion shall be responsible for, and shall bear all costs
associated with the registration of the transfer of ownership
relating to the Sold Patents pursuant to Section 2.1 above with the
relevant patent offices and other governmental organisations (the
"PATENT DOCUMENTATION"). PBD shall provide Prosidion, at Prosidion's
expense, with all necessary assistance with such registration, and
the Parties shall execute appropriate short form confirmatory
assignments or other appropriate documents for the purposes of such
registration.
8.2 MAINTENANCE OF PATENTS. If Prosidion decides not to further maintain
any Sold Patent, it shall timely notify PBD of such decision. Within
45 (forty five) days from receipt of this notification by Prosidion,
PBD may request that Prosidion further maintains any such Sold
Patent, at PBD's costs, or transfers it to PBD at PBD's costs.
Prosidion shall have discretion as to whether it maintains or
transfers such patent to PBD. In the event that Prosidion decides to
further maintain this patent, Prosidion shall make all necessary
filings to prosecute, maintain and defend the Sold Patents, and PBD
shall be responsible for and pay all requisite fees, and take all
such steps, at PBD's expense, as Prosidion may reasonably require to
assist Prosidion in prosecuting, maintaining and defending the Sold
Patents. PBD shall prepay to Prosidion all costs and expenses
required for the prosecution, maintenance and defence of any Sold
Patent as stipulated in this Section 8.2. Should PBD fail to request
maintenance of any Sold Patent within the 45 day period Prosidion
may abandon such Sold Patent.
8.3 ENFORCEMENT OF PATENTS AGAINST THIRD PARTIES. If either Party
becomes aware of any infringement or possible infringement of any of
the P93/01 Patents by any third party (which has not received a
licence from either Party in accordance with the provisions of this
Agreement), that Party shall fully notify the other as soon as
practicable after it becomes aware of the (alleged) infringement.
8.4 CO-OPERATION. PBD shall provide all reasonable co-operation,
assistance and access to officers, directors, employees and
consultants, or inventors to Prosidion in order to ensure the
transfer of the Assets and Contracts to Prosidion and thereafter in
order to prosecute and defend the Sold Patents. In particular, PBD
shall make available to Prosidion any documents, including relevant
extracts from laboratory notebooks, reasonably necessary for
prosecution and defence of the Sold Patents and shall make
reasonable efforts to cause such officers, directors, employees,
consultants, and/or inventors to sign all documents necessary to
effectuate the registration of the transfer of the Assets.
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SECTION 9
CONFIDENTIALITY
9.1 CONFIDENTIAL INFORMATION OF PROSIDION. For a term of five (5) years
as from the date hereof and subject to Section 9.6, the following
information shall be regarded as "Confidential Information" of
Prosidion under this Agreement:
(i) The terms and conditions of this Agreement, as well as all
information obtained by PBD with respect to the business of
Prosidion in connection with the negotiation and execution of
this Agreement, provided that PBD shall be entitled to submit
the Agreement to the public authorities having granted
subsidies to PBD.
(ii) all information that relates to the P93/01 Program, the Assets
and the Contracts, except for the ▇▇ ▇▇ Assay Documentation.
9.2 CONFIDENTIAL INFORMATION OF PBD. For the term of five (5) years as
from the date hereof and subject to Section 9.6, the following
information shall be regarded as "Confidential Information" of PBD.
The terms and conditions of this Agreement, as well as all
information obtained by Prosidion with respect to the business of
PBD in connection with the negotiation and execution of this
Agreement.
9.3 CONFIDENTIALITY OBLIGATION. Neither Party shall use or disclose any
Confidential Information of the other Party without the prior
written consent of the other Party, and shall not pass such
information on to any third parties or use it for any purpose other
than provided for in this Agreement (the "CONFIDENTIALITY
OBLIGATION").
9.4 CONTRACTUAL DAMAGES. The Parties acknowledge that any violation of
the Confidentiality Obligation may trigger substantial damages.
Therefore, the Parties agree that for each violation of the
Confidentiality Obligation stipulated in this Section 9, the
violating Party shall pay adequate lump-sum damages in the range
between ten thousand US Dollar (US$ 10,000.00) and one million US
Dollar (US$ 1,000,000.00). The contractual damages shall be proposed
by the Party that has not violated the Confidentiality Obligation
and shall be submitted for review of the competent court as set
forth in Section 13.2 if the Parties fail to agree on the amount.
9.5 DISCLOSURE TO EMPLOYEES, CONSULTANTS AND CONTRACTORS. Both Parties
shall limit disclosure of any Confidential Information of the other
Party to those employees, consultants and contractors who need to
have access to it for the
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purpose for which it was provided, provided that the respective
employee, consultant and contractor is bound by a corresponding
confidentiality obligation.
9.6 EXCEPTIONS. "Confidential Information" shall not include and the
above obligations to maintain confidentiality shall not apply to
information which
(i) is publicly known at the time of disclosure;
(ii) after such disclosure, becomes publicly know otherwise than
through a breach of this Confidentiality Obligation;
(iii) can be proved to have reached the hand of the receiving Party
other than by being communicated by the disclosing Party
including being known to the receiving Party prior to
disclosure, or having been developed by or for the receiving
Party wholly independently of the disclosing Party or having
been obtained from a third party without restriction on
disclosure; or
(iv) is required to be disclosed by law, regulation or order of a
competent authority (including any regulatory or governmental
body or securities exchange).
9.7 PRESS STATEMENT. The Parties agree to issue the press release
substantially in the form attached hereto as Annex 9.7 upon the
signing of this Agreement. After the issuance, Prosidion, OSI (and
its affiliates) and PBD shall, at any time, have the right to use,
distribute and publish this press release, or parts thereof in any
other format and in/via all means, including the Internet and email.
During the period prior to the Closing Date and thereafter each
Party shall obtain the other Party's consent before issuing any
further press release or otherwise making any other public
announcement with respect to this Agreement, and shall not, except
as may be required by U.S. securities Laws, UK securities Laws or
the German securities Trading Act (WpHG), or any other applicable
Law, or by obligations under any listing agreement with a stock
exchange, issue any such further press release or make any further
public announcement prior to obtaining such consent, which consent
shall not unreasonably withheld or delayed.
9.8 PUBLICATIONS. With effect from the Closing Date, PBD shall not
without the prior written consent of Prosidion submit for
publication, publish or cause to be published or disclose to any
third party any publication, manuscript, abstract or other public
disclosure relating to the P93/01 Program, the Assets and/or the
Contracts.
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SECTION 10
CONDITION PRECEDENT
10.1 CONDITIONS PRECEDENT. Except for Sections 2.3 1st sentence, 9, 10,
11.3, 11.4, 11.5, 11A, 12, and 13 of this Agreement which shall
become effective upon the Effective Date, all terms and conditions
of this Agreement shall only become effective, if and when the
following conditions precedent (the "CONDITIONS PRECEDENT") have
occurred:
10.1.1 The shareholders of PBD have validly approved this Agreement
with a majority of 75% of the votes cast (abgegebene Stimmen)
and the nominal capital stock represented (vertretenes
Grundkapital).
10.1.2 **
10.2 OBLIGATIONS WITH RESPECT TO THE CONDITIONS PRECEDENT. Both parties
shall use best efforts to fulfil the Conditions Precedents without
any undue delay. Either Party shall inform the other Party by
registered mail without undue delay in each case as soon as any
Condition Precedent has been satisfied ("CONDITION PRECEDENT
NOTIFICATION"). Each Condition Precedent Notification shall include
certified copies (beglaubigte Kopien) of all documents necessary to
prove that the respective Condition Precedent has been fulfilled.
The Parties may waive any Condition Precedent by mutual agreement in
writing.
10.3 TERMINATION. Either Party may rescind (zurucktreten) this Agreement
at any time if any of the Conditions Precedent is not fulfilled
within ** after the date of the signing of this Agreement and waiver
thereof is not agreed between the Parties in accordance with Section
10.2. In addition, each of the Parties shall be entitled to rescind
(zurucktreten) this Agreement if ** .
SECTION 11
COMMERCIAL EFFECT AND COVENANTS
11.1 ALLOCATION OF BENEFITS AND EXPENSES. Irrespective of the Closing
Date of this Agreement, all claims of third parties against PBD
relating to the Assets or
----------
** This portion has been redacted pursuant to a confidential treatment request.
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Contracts which are due or relate to the period prior to the Closing
Date shall remain with PBD. Any claims of third parties against PBD
relating to the Assets or Contracts which are due on or or relate to
the period after the Closing Date shall hereby be assumed by
Prosidion. Sentences 1 and 2 shall apply mutatis mutandis to all
costs and fees for the prosecution, maintenance, defence and
enforcement of the Sold Patents.
11.2 TREATMENT OF PAYMENTS ON ACCOUNTS PAYABLE. If any Party at any time
settles or has settled a claim of a third party relating to the
Assets or Contracts or pays or has paid any cost associated with the
Sold Patents that would have to be settled by the respective other
Party pursuant to Section 11.1 above, such other Party shall
reimburse the Party having settled such account payable or cost
without undue delay upon written request by the first Party, but in
no event prior to the Closing Date.
11.3 MAINTENANCE OF ASSETS AND CONTRACTS UNTIL PAYMENT OF INITIAL
CONSIDERATION. PBD undertakes that, from the Effective Date through
the payment of the Initial Consideration, or termination of this
Agreement pursuant to Section 10.3, it will not undertake any action
or omit to take any action which could materially change the Assets
and/or the Contracts without prior consent of Prosidion. In
particular, PBD shall (i) not dispose of the Sold Patents nor agree
to any encumbrances in respect of the Sold Patents, nor shall PBD
grant to any third party a right to use any of the Sold Patents,
(ii) further maintain and prosecute the Sold Patents in close
cooperation with and according to the reasonable directions of
Prosidion, provided Prosidion bears the costs for measures taken in
accordance with the instructions of Prosidion; (iii) not initiate
any new clinical studies with regard to the Assets and/or the
Contracts; and (iv) not submit for publication, publish or cause to
be published or disclose to any third party any publication,
manuscript, abstract or other public disclosure relating to the
P93/01 Program, the Assets and/or the Contracts without the prior
consent of Prosidion (such consent not to be unreasonably withheld).
PBD shall notify Prosidion forthwith of it becoming aware of any
event causing a material change or impact to the Assets and/or
Contracts.
11.4 EXCLUSIVITY. During the period between the Effective Date and the
Closing Date or the termination in accordance with Section 10.3, PBD
shall (i) not, by any of its officers, directors, employees, agents
or representatives (including, without limitation, any investment
banker, attorney or accountant retained by it or any of its
subsidiaries) solicit or encourage (including by way of furnishing
material, non-public information), directly or indirectly, any
enquiry, proposal or offer with respect to a merger, consolidation
or similar transaction involving the Assets or Contracts, or any
purchase or license of all or of a material part of the Assets or
Contracts (any such proposal or offer being hereinafter
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referred to as a "ACQUISITION PROPOSAL") or engage in any
negotiations concerning an Acquisition Proposal; and (ii)
immediately cease and cause to be terminated any existing
negotiations with any parties conducted heretofore with respect to
any of the foregoing. PBD shall promptly notify Prosidion of any
requests for licenses to be granted under the Sold Patents including
the identity of the person or group requesting such licenses,
including the identity of the person or group requesting such
licenses and of the material terms and conditions of any such
license request.
11.5 SHAREHOLDERS MEETING OF PBD. PBD hereby undertakes to convene a
general meeting of its shareholders for the approval of this
Agreement.
SECTION 11A
COSTS AND TRANSFER TAXES
11A.1 COSTS OF ADVISORS. Each Party shall bear its own costs and expenses
in connection with the preparation, execution and consummation of
this Agreement, including, without limitation, any and all
professional fees and charges of its advisors.
11A.2 TRANSFER TAXES AND COSTS. Any transfer taxes and similar domestic or
foreign taxes or charges resulting from the execution and
consummation of this Agreement shall be borne by Prosidion. This
shall also apply to any costs associated with the transfer of
assets, rights and contracts under this Agreement, in particular
without limitation any costs for the registration of the transfer of
Sold Patents.
SECTION 12
NOTICES
12.1 FORM OF NOTICE. Any statement of legal significance, notice or other
declaration (heretofore and hereinafter referred to as "NOTICES") in
connection with this Agreement shall be made in writing, unless
notarization or any other specific form is required by mandatory law
or explicit provision in this Agreement. The written form shall
include telecopy (but no other transmission by way of
telecommunication) and exchange of letters. Any electronic form
(e.g. e-mail) shall not replace the written form.
12.2 ADDRESSES. Any Notice to be given to PBD hereunder shall be
addressed as follows:
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Probiodrug ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇
▇▇▇▇▇▇▇,
with a copy to:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Freshfields Bruckhaus ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇,
and a further copy to:
▇▇▇▇ ▇▇▇▇▇, Esq.
Biotech Business and Law Advisors, PC
▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Any Notice to be given to the Prosidion hereunder shall be addressed
as follows:
▇▇ ▇▇▇▇▇ Lundemose
CEO
Prosidion Limited
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇
Company Secretary
Prosidion Limited
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇.
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The Parties are to, without being legally obliged to, communicate
any change of their respective addresses set forth in this Section
13.2 as soon as possible in writing to the respective other Party.
Until such communication, the address as hitherto shall be relevant.
SECTION 13
MISCELLANEOUS
13.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Germany, excluding the United Nations
Convention on Contracts for the International Sale of Goods (CISG).
13.2 JURISDICTION. In respect of any dispute, controversy or claim
arising from or in connection with this Agreement or its validity
the competent courts of Frankfurt am Main, Germany, shall have
exclusive jurisdiction thereupon.
13.3 NO ASSIGNMENT. No rights or obligations under this Agreement shall
be assigned by any Party to a third party without the prior written
consent of the respective other Party.
13.4 AMENDMENT, SUSPENSION. Any amendment, supplementation or suspension
of this Agreement, including of this provision, shall be valid only
if made in writing, except where a stricter form (e.g. notarization)
is required under applicable law.
13.5 SEVERABILITY. Should any provision of this Agreement be or become
invalid, ineffective or unenforceable as a whole or in part, the
validity, effectiveness and enforceability of the remaining
provisions shall not be affected thereby. Any such invalid,
ineffective or unenforceable provision shall be deemed replaced by
such valid, effective and enforceable provision as comes closest to
the economic intent and purpose of such invalid, ineffective or
unenforceable provision as regards subject-matter, amount, time,
place and extent. The aforesaid shall apply mutatis mutandis to any
gap in this Agreement.
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For Probiodrug AG: For Prosidion Limited:
Place: Frankfurt / M Place: Frankfurt
--------------------------------- ------------------------
Date: 17 June 2004 Date: 17 June 2004
---------------------------------- -------------------------
Name: K ▇▇▇▇▇ ▇ ▇ ▇▇▇▇▇▇ Name: Anker Lundemose
-------------------------------- ------------------------
Signature: /s/ K ▇▇▇▇▇ /s/ ▇ ▇ ▇▇▇▇▇▇ Signature: /s/ Anker Lundemose
----------------------------- ---------------------
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ASSET PURCHASE AGREEMENT ANNEXURES
1. DP-IV Assay Documentation
2. DP-IV License Agreements
3. GIP Derivatives
4. GIP Patents
5. Medical Use Patents
6. P93/01 Compounds
7. P93/01 Patents
8. PBD Patents
9. Service Contracts
10. Database Files to P93/01 Compounds
11. Inventory of Drug Product
12. Reports
13. Inventory of P93/01 at 3rd Party Locations
14. Employee Statistics
15. PBD Confirmation Template
16. Guarantee
17. Sold Patents and Underlying Inventions
18. Press Release
19. Consent Letters