ASSET PURCHASE AND TRADEMARK ASSIGNMENT AGREEMENT
ASSET PURCHASE AND TRADEMARK ASSIGNMENT AGREEMENT entered
between KOFFOLK, Inc., a Delaware corporation ("Purchaser"), having an address
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, U.S. and MERCK & CO., INC., a
New Jersey corporation ("Seller"), having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and having an Effective Date of August 5,
1996.
ARTICLE 1 -- DEFINITIONS
The following terms as used in this Agreement shall have the meanings
set forth below:
SECTION 1.1 "Acquired Assets" means the United States ("U.S.")
trademark NICARB(R), as set forth in Schedule A, and United States Food and
Drug Administration New Animal Drug Application for the Products, as set forth
in Schedule B, but specifically excluding all Excluded Assets.
SECTION 1.2 "Affiliate" means with respect to a party to this
Agreement (i) any corporation or business entity fifty (50%) percent or more of
the voting stock of which is owned directly or indirectly by a party; or (ii)
any corporation or business entity which directly or indirectly owns fifty
(50%) percent or more of the voting stock of a party; or (iii) any corporation
or business entity under the direct or indirect control of a corporation or
business entity as described in clause (i) or (ii).
SECTION 1.3 "Agreement" or "this Agreement" means this Asset Purchase
and Trademark Assignment Agreement, including all Schedules hereto.
SECTION 1.4 "Assumed Liabilities" means the liabilities to be assumed
by Purchaser pursuant hereto, namely all claims and complaints (including,
without limitation, all damages, losses, expenses and liabilities), relating to
any or all of the Acquired Assets, following the Effective Date including,
without limitation, (i) all liabilities arising out of the sale, purchase,
consumption or use of the Products following the Effective Date and (ii) all
liabilities arising out of any generation, treatment, storage, transportation,
disposal or release, of any hazardous material, substance, waste, or any toxic
or other material regulated by any federal, state, or local environmental
statute, rule or regulation following the Effective Date.
SECTION 1.5 "Excluded Assets" means all assets of Seller other than
the Acquired Assets, including without limitation, the animal drug Applications
for nicarbazin and trademark NICARB(R) as registered by Seller outside of the
U.S., and any other trademark, tradename, New Drug and/or New Animal Drug
Application, product registration, intellectual property, information, know-how
and other assets of Seller.
SECTION 1.6 "Excluded Liabilities" means the liabilities retained by
Seller pursuant hereto, namely all claims and complaints (including, without
limitation, all damages, losses, expenses and liabilities), relating to any or
all of the Acquired Assets, prior to the
Effective Date including, without limitation, (i) all liabilities arising out
of the sale, purchase, consumption or use of the Products prior to the
Effective Date and (ii) all liabilities arising out of any generation,
treatment, storage, transportation, disposal or release, of any hazardous
material, substance, waste or any toxic or other material regulated by any
federal, state or local environmental statute, rule or regulation prior to the
Effective Date.
SECTION 1.7 "Execution Date" means the date as provided in Section
3.1.
SECTION 1.8 "Liens and Encumbrances" means, with respect to the
Acquired Assets, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, including, without limitation, the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
SECTION 1.9 "New Animal Drug Applications" and "NADAs" mean the
applications for the Product prepared in conformance with applicable U.S. Food
and Drug Administration ("FDA") regulations for filing with the FDA for
marketing authorization of the Products within the United States, as described
in Schedule B.
SECTION 1.10 "Person" means an individual, a corporation, a
partnership, an association, a trust, or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
SECTION 1.11 "Product" or "Products" means the nicarbazin based
products for treatment of coccidiosis in poultry marketed by Seller in the U.S.
under the trademark NICARB(R).
SECTION 1.12 "Trademark" or "Trademarks" means the trademark and
trademark registrations for the Products as set forth in Schedule A.
ARTICLE II -- PURCHASE AND SALE
SECTION 2.1 Purchase and Sale. On the terms and conditions set forth
in this Agreement, Seller agrees to sell, convey, assign and transfer to
Purchaser, and Purchaser agrees to purchase, on the Effective Date, the
Acquired Assets, subject only to Seller's retained right to use any information
within the Acquired Assets to the extent it relates to the Excluded Assets or
to any products hereinafter developed by Seller. The Purchaser shall not
acquire pursuant hereto any assets or rights of any kind or nature, real or
personal, tangible or intangible, other than the Acquired Assets and such
rights as may be set forth herein, and Seller shall retain all other assets,
including, with ut limitation, the Excluded Assets.
SECTION 2.2 Assumption of Liabilities. On the terms and subject to
the conditions of this Agreement, the Purchaser agrees to assume the Assumed
Liabilities. The parties understand and agree that Purchaser does not and
should not assume or become liable for any liabilities, obligations,
commitments or debts, contingent or otherwise, of Seller, including
2
without limitation, any claims arising from the sale, purchase, consumption, or
use of Products sold by Seller prior to the Execution Date. However, nothing in
this Section 2.2 shall restrict, reduce or in any way affect the obligations of
Purchaser pursuant to Section 8.3 of this Agreement.
SECTION 2.3 Purchase Price.
(a) Purchaser shall pay to Seller, in consideration for
the Acquired Assets $4,000,000 (including interest imputed at eight and one-half
percent (8.5%) per annum and $100,000 for technical and support services
provided by Seller to Purchaser in connection with transfer of the NADAs
according to the following payment schedule:
1996 1997 1998 1999 2000
---- ---- ---- ---- ----
$300,000 $700,000 $1,000,000 $1,000,000 $1,000,000
(b) The 1996 Payment of $300,000 will be tendered by
Purchaser to Seller by August 2,1996, by Federal wire of funds to Chase
Manhattan Bank, ABA #▇▇▇▇▇▇▇▇▇, Merck & Co., Inc. A/C #▇▇▇-▇-▇▇▇▇▇▇; Reference:
Sale of Nicarbazin NADA and Assignment of Trademark NICARB(R) to Koffolk by
Agreement dated August 5,1996. All remaining Payments as provided in subsection
(a) above shall be paid by Purchaser to Seller on or before March 31 of the
applicable year by federal wire funds according to the wire transfer fund
instructions above.
SECTION 2.4 Personal Guaranty. On the Execution Date, Purchaser will
deliver to Seller a Letter and Personal Guaranty, in the form attached hereto
as Schedule C from its owner, guaranteeing all of Purchaser's payments required
under this Agreement.
SECTION 2.5 Interest on Late Payments/Acceleration of Payments. In
the event that any payment by Purchaser under this Agreement is made thirty
(30) or more days later than when due, Purchaser shall pay interest to Seller,
on all such payments, in the amount of the prime rate reported in the Wall
Street Journal on the payment due date, plus one percentage point, such
interest to be accrued on a daily basis. Purchaser shall indemnify Seller for
all costs and expenses (including but not limited to attorney's fees) incurred
in attempt(s) to collect any payments due under this Agreement. In the event
Purchaser fails to make any payment required under this Agreement within sixty
(60) days of the date when due, Seller shall provide notice to Purchaser of its
default in payment, and shall permit Purchaser an additional sixty (60) days
from the date of such notice within which to make all payments then due to
Seller, together with any interest owed. If Purchaser fails within that period
to make the requisite payment(s), Seller shall be entitled to accelerate and
receive immediate payment by Purchaser of all Base Payments and all minimum
Royalties on Sales required under this Agreement during the term of this
Agreement, whether or not such payments are yet due.
SECTION 2.6 Breach; Notice. Except as provided in Section 2.5, in the
event that either party breaches its obligations under this Agreement, the
non-breaching party shall provide notice of the breach to the breaching party
and shall permit the breaching party sixty (60)
3
days in which to cure the breach.
ARTICLE III -- EXECUTION
SECTION 3.1 The Execution.
(a) The Execution cf this Agreement shall take place on
July 17, 1996 ("Execution Date"). Purchaser and Seller shall on that date sign
two (2) originals, one (1) fully executed original to be provided to each party.
(b) On the Execution Date, Seller shall provide to
Purchaser an appropriately executed and authenticated Trademark Assignment to
the Purchaser, in the form of Schedule D hereto. Purchaser shall hold the
Trademark Assignment in escrow for filing with the U.S. Patents and Trademarks
Office on or after August 5,1996.
(c) Purchaser shall pay to Seller the 1996 Payment of
$300,000.00 by wire transfer in federal funds available to Seller on August 2,
1996, payable to such entities as designated in Section 2.3(b).
(d) Seller shall pay or cause to be paid any and all
transfer, stamp, sales or other similar taxes or duties payable in connection
with the sale or transfer of the Acquired Assets to Purchaser.
(e) Purchaser shall pay or cause to be paid any and all
costs and expenses relating to the transfer and assignment to Purchaser of the
Trademarks, including, without limitation, all costs and taxes with respect to
recordation of transfer. Recordation of transfer and assignment of the
Trademarks shall be the responsibility of Purchaser.
(f) At any time or from time to time after the closing,
Seller shall, at the request of Purchaser and Purchaser's expense, execute and
deliver any further instruments or documents and take such further action as
Buyer may reasonably request in order to accomplish consummation of the
transactions contemplated hereby.
ARTICLE IV -- SELLER'S REPRESENTATIONS AND WARRANTIES
Seller represents and warrants that:
SECTION 4.1 Corporate Existence and Authorization; Contravention.
(a) Seller is a corpolation duly organized, validly
existing and in good standing under the laws of the State of New Jersey.
(b) The execution, delivery and performance by Seller of
this Agreement is within Seller's corporate power, have been duly authorized by
all necessary corporate action and do not contravene or constitute a default
under any provision of the certificate of incorporation or by-laws of Seller or
any provision of applicable law or regulation or of any judgment, injunction,
order or decree binding upon Seller or to which any Acquired
4
Asset is subject, or any indenture, bank loan, credit, or other agreement
binding upon Seller or to which the Acquired Assets are subject. This Agreement
is a legal, valid and binding agreement of Seller enforceable in accordance w
th its terms.
(c) Except for the requirement that both Purchaser and
Seller provide written notice, in the form attached hereto as Schedule E, of the
transfer of title to the NADA from Seller to Purchaser, the execution, delivery
and performance by Seller of this Agreement, and the consummation by Seller of
the transactions contemplated hereby, require no action by or in respect of, or
filing with, any gvernmental body, agency or official or any other consent of
any person, firm or other entity.
SECTION 4.2 Title to Acquired Assets.
(a) Seller has good title to all of the Acquired Assets,
free and clear of all Liens and Encumbrances.
(b) (i) To the best of Seller's knowledge, no product,
formula, formulation, Trademark, process, method, substance, or other material
(an "Item") which is part of the Acquired Assets infringes any rights owned or
held by any other person other than Seller, and (ii) to the best of Seller's
knowledge no Item currently being manufactured, distributed, sold or used by any
person infringes any rights of Seller to the Acquired Assets.
SECTION 4.3 Litigation.
(a) There are no private or governmental proceedings,
claims, actions, or investigations in the United States of America against
Seller relating to the Products pending or, to the knowledge of Seller,
threatened, which are likely (either individually or in the aggregate) to result
in an adverse decision imposing a judgment, fine or penalty.
(b) There are no judgments, decrees or orders of any
court or other governmental body in the United States of America binding upon
Seller relating to the Products.
SECTION 4.4 Compliance with Laws. (i) Seller is in compliance in all
material respects with all applicable U.S. federal, state or local laws,
regulations or orders or other requirements of any governmental, regulatory or
administrative agency or authority or court or other tribunal in the United
States of America relating to the Products (including, without limitation, the
U.S. Food, Drug & Cosmetic Act, as amended, the regulations thereunder, and the
transfer of the Acquired Assets pursuant to this Agreement is in compliance
therewith), and (ii) Seller is not now charged with, and to the best of the
knowledge of Seller is not now under investigation with respect to, any
violation of any applicable law, regulation, order or requirements in the
United States of America which relate to the Products. Seller has filed all
reports relating to the Products required to be filed with any governmental,
regulatory or administrative agency or authority in the United States of
America if failure to file such report would result in a fine or a penalty.
SECTION 4.5 Sufficiency of Transfer. The Acquired Assets and the
rights
5
transferred under this Agreement include all assets used or held by Seller for
use primarily in connection with the Products as of the date hereof, except for
the Excluded Assets. Upon consummation of the transactions contemplated hereby,
Purchaser will have acquired good title in and to the Acquired Asset in each
case free and clear of all Liens and Encumbrances.
SECTION 4.6 Transfer Document. The assignments and transfer documents
to be delivered to Purchaser pursuant to Section 3.1 will be in appropriate
form and sufficient to convey, transfer and assign to Purchaser good title to
the Acquired Assets.
SECTION 4.7 NADA Review. Seller has provided Purchaser with the
opportunity to review the true, accurate and complete NADAs for the Products,
which include information concerning any side effects, injury, toxicity or
sensitivity reaction, or any unexpected incidents, whether or not serious or
unexpected, relating to the Products ("Adverse Experiences"), which Seller has
reported to the FDA during the three (3) years immediately preceding the
Execution Date. Any additional information regarding Adverse Experiences
received by Seller before the Effective Date but not yet reported to the FDA,
will be provided to Purchaser within fourteen (14) days after Effective Date.
For purposes of this Section 4.7, "serious" is deemed to have the meaning set
forth in Section 6.4 of this Agreement. Additionally, Seller has allowed
Purchaser to meet with officials of the Food and Drug Administration, Centers
for Veterinary Medicine to review the approval status of the NADAs for the
Products.
SECTION 4.8 Disclosure. No representation or warranty by Seller in
this Agreement contains any untrue statement of material facts.
ARTICLE V -- PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants that:
SECTION 5.1 Corporate Existence and Authorization; Contravention.
Purchaser is a corporation duly organized and validly existing under the laws
of the State of Delaware. The execution, delivery and performaiice by Purchaser
of this Agreement are within Purchaser's power, have been duly authorized by
all necessary action and do not contravene or constitute a default under the
constitutive documents of Purchaser or of applicable law or regulation or of
any agreement, judgment, injunction, order, decree or other instrument binding
upon Purchaser. This Agreement is a legal, valid and binding agreement of
Purchaser enforceable in accordance with its terms. To the best of Purchaser's
knowledge, except for the requirement that both Purchaser arid Seller provide
written notice, in the form attached hereto as Schedule E, of the transfer of
title to the NADA from Seller to Purchaser, the execution, delivery and
performance by Purchaser of this Agreement require no action by or in respect
of, or filing with, any governmental body, agency or official, or any other
consent.
SECTION 5.2 Solvency. Purchaser is financially sound and fully
solvent and has no reason to anticipate any inability to perform, or material
difficulty performing, any of its obligations set forth in this Agreement.
SECTION 5.3 Disclosure. No representation or warranty by Purchaser in
this Agreement contains any untrue statement of material fact.
6
ARTICLE VI -- SELLER'S COVENANTS
Seller agrees that:
SECTION 6.1 Filings. Seller will use its reasonable efforts in good
faith to file or cause to be filed with the FDA, by the Effective Date, the
notice (substantially in the form of Schedule E attached hereto), required to
be filed by it in connection with its sale of the NADA and to make promptly any
further filings pursuant thereto as may be necessary to consummate the
transactions contemplated hereby.
SECTION 6.2 No Encumbrances. Any Liens and Encumbrances with respect
to any of the Acquired Assets represented, created or secured by a mortgage,
deed of trust, security agreement or similar instrument shall be satisfied of
record on or prior to the Execution Date by Seller.
SECTION 6.3 Confidentiality. For a period often (10) years following
the Execution Date, Seller will, and will cause each of its Affiliates and
employees to, preserve the confidentiality of all confidential, proprietary and
trade secret information used or held for use primarily in connection with the
Acquired Assets, provided that (i) Seller may use and disclose any such
information which has been publicly disclosed (other than by Seller or any
Affiliate thereof in breach of its obligations under this Section) or as
otherwise permitted under this Agreement; or to the extent such information
related to Excluded Assets, provided that, if such information relates to both
Acquired Assets and Excluded Assets, Seller will maintain its confidentiality
only to the extent that maintenance of its confidentiality does not
unreasonably interfere with Seller's ability to use, market or sell any or all
of the Excluded Assets; and (ii) to the extent that Seller or any Affiliate
thereof may become legally compelled to disclose any of such information.
Seller or such Affiliate may (to the extent so compelled) disclose such
information if they shall have first used reasonable efforts in good faith, and
shall have afforded Purchaser the opportunity, to obtain an appropriate
protective order, or other satisfactory assurance of confidential treatment,
for the information required to be so disclosed.
SECTION 6.4 Adverse Reaction Reporting. Seller shall notify Purchaser
of any information concerning any side effect, injury, toxicity, sensitivity
reaction, or any incidents, whether or not serious or unexpected, relating to
the Products, of which Seller receives notice on or after the Execution Date,
including providing copies of all such adverse experience reports within two
(2) weeks of Seller's receipt of such reports. For purposes of this Section 6.4
and for purposes of Section 7.7, "serious" means an experience which is (1) one
resulting in severe disability or death of one or more animals, (2) one that is
life threatening to man, or (3) one involving a large number of animals; and
"unexpected" means a condition or development not listed in the then-current
FDA-approved labeling for the Product, and includes those experiences that show
a significant increase in incidence or severity over what appears on the
labeling of the Product or in NADA trials or that are a failure of the Product
to achieve claimed activity.
ARTICLE VII -- PURCHASER'S COVENANTS
Purchaser agrees that:
7
SECTION 7.1 Confidentiality. For a period of ten (10) years following
the Execution Date, Purchaser will, and will cause each of its Affiliates and
employees to, preserve the confidentiality of all confidential, proprietary and
trade secret information and material included within the Acquired Assets, or
disclosed hereunder, which relates to any Excluded Assets, provided that (i)
Purchaser may use and disclose any such information which has been publicly
disclosed (other than by Purchaser or an" Affiliate thereof in breach of its
obligations under this Section) or as otherwise permitted under this Agreement;
or to the extent such information relates to the Acquired Assets, provided
that, if such information relates to both Acquired Assets and Excluded Assets,
Purchaser will maintain its confidentiality only to the extent that maintenance
of its confidentiality does not unreasonably interfere with Purchaser's ability
to use, market, or sell units of the Products in the ordinary course of
business; and (ii) to the extent that Purchaser or any Affiliate thereof may
become legally compelled to disclose any of such information, Purchaser or such
Affiliate may (to the extent so compelled) disclose such information if they
shall have first used reasonable efforts in good faith, and shall have afforded
Seller the opportunity to obtain an appropriate protective order, or other
satisfactory assurance of confidential treatment, for the information required
to be so disclosed.
SECTION 7.2 FDA Filings. Purchaser will use its reasonable efforts in
good faith to file or cause to be filed with the FDA, by August 5,1996, the
notice, documents and/or other materials required to be filed by it in
connection with its purchase of the Acquired Assets and to make promptly any
further filings and take any actions required of it as may be necessary to
consummate the transactions contemplated hereby.
SECTION 7.3 Post-Closing; Use of Names. Beginning on the Effective
Date Purchaser will ▇▇▇▇ clearly all units of the Products manufactured to
indicate Purchaser's ownership of the Products and will not use the words,
names or combined letters "Merck", "Merck & Co., Inc.", "Merck AgVet", "MSD
AGVTR", "MMD", "Merck Sharp & Dohme", or any variation thereof or other word,
name or letter combination substantially similar thereto, or any other trade
name or trademark of Seller in connection with the Products, or as part of the
name of the Purchaser or any Affiliate, after the Execution Date, except to the
extent necessary to comply with its obligations pursuant to the Toll
Manufacturing Agreement relating to the Products entered into between Purchaser
and Seller effective August 5,1996.
SECTION 7.4 Cooperation in Litigation. From and after the Effective
Date, Purchaser agrees that in the defense of any litigation, hearing,
regulatory proceeding or investigation or other similar matter relating to tho
Acquired Assets, Purchaser will make available to Seller during normal business
hours, but without unreasonably disrupting its business, all personnel and
records as to the Acquired Assets held by Purchaser and reasonably necessary to
permit the effective defense or investigation of such matters.
SECTION 7.5 Adverse Reaction Reporting. Effective on the Effective
Date, Purchaser shall be responsible for reporting adverse experiences with
respect to the Products in conformance with all applicable laws, rules and
regulations and shall send to Seller, throughout the term of this Agreement,
copies of all such adverse experience reports, with all serious and
8
unexpected adverse experiences (and government forms) sent within two (2) weeks
of Purchaser's receipt, and all non-serious adverse experiences (and government
forms) sent to Seller on a quarterly basis addressed to Seller.
SECTION 7.6 Resale; Abandonment. Purchaser agrees not to resell or
abandon the NADA for the Products, or effect any substantial change in
ownership or control of Purchaser, on or before payments required under Section
2.3 are made. If Purchaser resells or abandons such NADA, or effects such a
substantial change of ownership or control after payment in full of the
payments required under Section 2.3, Purchaser agrees to provide advance
written notice of same to Seller. Notwithstanding the foregoing, Purchaser
shall be entitled to transfer the Acquired Assets or any interest in Purchaser
to an Affiliate of Purchaser without violating the provisions of this section,
provided that no such transfer shall operate to release Purchaser from any of
its obligations hereunder. In the event of Purchaser's breach of this Section
7.8, in addition to all other remedies available to Seller in law or equity,
Seller is entitled to accelerate and receive immediate payment by Purchaser of
all payments required under this Agreement during the term of this Agreement,
whether or not such payments are yet due.
SECTION 7.7 Territorial Limitation; Other Products. Purchaser agrees
to sell units of the Products only within the United States. Except for
submissions to be made by Purchaser in connection with CODEX/JECFA, Purchaser
further agrees that it will use the information and data contained within the
NADA(s) for the Product solely for maintaining the registration(s) for Product
in the United States arid will make no use whatsoever of the information and
data contained in the NADA(s) outside of the United States.
SECTION 7.8 Authorization for Manufacture of the Products. Purchaser
agrees that Seller shall continue to toll manufacture the Products after the
Effective Date pursuant to the terms of the Toll Manufacturing Agreement
entered between the parties effective August 5, 1996.
SECTION 7.9 Change in Corporate Status/Ownership or Control of
Purchaser. Except as provided for in Section 7.6, in the event of any
substantial change in the status, ownership or control of Purchaser, Seller is
entitled to accelerate and receive immediate payment by Purchaser of all
payments required under this Agreement during the term of this Agreement,
regardless of whether or not such payments are yet due.
ARTICLE VIII -- SURVIVAL; INDEMNIFICATION
SECTION 8.1 Survival: Remedy for Breach. All representations,
warranties and indemnities of the parties contained herein shall survive the
Execution Date forever. The covenants and agreements of Seller and Purchaser
hereunder that require by their terms performance or compliance on and after
the Execution Date shall continue in force thereafter in accordance with their
terms.
9
SECTION 8.2 Indemnification by Seller. Seller shall indemnify
Purchaser against and defend Purchaser against any and all damage, loss,
liability and expense (including, without limitation, reasonable expense s of
investigation and attorneys' fees and expenses in connection with any action,
suit or proceeding brought against Purchaser and/or its Affiliate(s) and
penalties and the cost of remedial action under applicable laws and
regulations) incurred or suffered by Purchaser arising out of (i) any
misrepresentation or breach of covenant, agreement, representation or warranty
of Seller contained in this Agreement or (ii) any Excluded Liability, provided,
however, that Purchaser shall not be entitled to any indemnification under this
Section 8.2, except for claims under sections 4.2 and 4.5, unless and until the
amount of claims for which Purchaser is entitled to be indemnified exceeds in
the aggregate $100,000 (the "Deductible"), in which event Purchaser is entitled
to receive with respect to such claims the entire amount of the Deductible.
SECTION 8.3 Indemnification by Purchaser.
(a) Purchaser shall indemnify Seller against and agrees
to hold Seller harmless from any and all damage, loss, liability and expense
(including without limitation, reasonable expenses of investigation and
attorneys' fees and expenses in connection with any action, suit or proceeding
brought against Seller and/or its Affiliate(s)) and suffered by Seller and/or
its Affiliate(s) arising out of (i) any misrepresentation or breach of covenant,
agreement, representation or warranty of Purchaser contained in this Agreement,
or (ii) any Assumed Liability.
(b) If Seller or any Affiliate thereof has retained any
liability which would otherwise be an Assumed Liability as a result of the
failure to obtain the consent of a third party to transfer such liability to
Purchaser, Purchaser shall indemnify Seller against and agrees to hold Seller
harmless from any such liability incurred with respect to any period beginning
on or after the Execution Date, provided that Seller notifies Purchaser of the
existence of such failure to obtain consent in a notice expressly referring to
this Section 8.3 (b).
SECTION 8.4 Indemnification; Notice and Settlements. A party seeking
indemnification pursuant to Section 8.2 or 8.3 (an "indemnified party") shall
give prompt notice to the party from whom such indemnification is sought (the
"indemnifying party") of the assertion of any claim, or the commencement of any
action or proceeding, in respect of which indemnity may be sought hereunder.
The indemnifying party shall have the right to, and shall at the request of the
indemnified party, assume the defense, with counsel reasonably satisfactory to
the indemnified party, or any such suit, action or proceeding at its own
expense. An indemnifying party shall not be liable under Section 8.2 or 8.3 for
any settlement effected without its consent of any claim, litigation or
proceeding in respect of which indemnity may be sought hereunder, which consent
shall not be unreasonably withheld.
ARTICLE IX -- MISCELLANEOUS
SECTION 9.1 Notices. All notices, requests and other communications
to any party hereunder shall be in writing and shall be given:
10
if to Seller to:
Merck & Co., Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 3
Attention:
President
Merck AgVet Division
if to Purchaser to:
Koffolk, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
or such other address as such party may hereafter specify by written notice to
the other party. Each such notice, request or other communication shall be
effective when received at the address specified in this Section 9.1
SECTION 9.2 Expenses. All legal and other costs and expenses incurred
in connection herewith and the transactions contemplated hereby shall (except
as otherwise provided herein) be paid by the party incurring such expenses.
SECTION 9.3 Bulk Sales Statutes. Purchaser hereby waives compliance
by Seller with any applicable bulk sales statutes in any jurisdiction in
connection with the transactions under this Agreement.
SECTION 9.4 Limitation on Sellers Representations and Warranties.
PURCHASER ACKNOWLEDGES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN THIS AGREEMENT, SELLER HAS MADE NO REPRESENTATION OR WARRANTY
WHATSOEVER AND PURCHASER HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER ACKNOWLEDGES THAT, EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, PURCHASER IS ACQUIRING THE ACQUIRED ASSETS
WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES AS TO THE FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY OR CONDITION OF THE ACQUIRED ASSETS OR AS TO ANY OTHER
MATTER.
SECTION 9.5 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective
successors and assigns; provided that this Agreement may not be assigned by
either party without the written consent of the other party hereto.
11
SECTION 9.6 Entire Agreement; Amendment. This Agreement, including,
without limitation, the Schedules hereto, embodies the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior agreements with respect thereto. This Agreement may be amended, and
any provisions hereof waived, but only in writing signed by both parties.
SECTION 9.7 Captions; Construction. Captions herein are inserted for
convenience of reference only and shall be ignored in the construction or
interpretation of this Agreement. Unless otherwise specified, the words
"herein", "hereof" and terms of like import shall be deemed to refer to the
Agreement as a whole and not merely to a single part thereof.
SECTION 9.8 Public Announcement. No press release, public
announcement, confirmation or other information regarding this Agreement or
related matters shall be made by either party without the prior written consent
of the other party (other than as necessary to perform the provisions of this
Agreement or to its employees or as may be required by law or by any applicable
rules of any stock exchange; provided that disclosure to employees shall not
result in a requirement of public disclosure under such applicable law or
rules).
SECTION 9.9 Returned Products. For purposes of this Section 9.9,
"Returned Products" means any Products sold by Seller before the Execution Date
and returned to Purchaser. Purchaser shall notify Seller of receipt of any
Returned Products and shall immediately remit all such Returned Products to
Seller at: Merck & Co., Inc., Branch Operations, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at the sole expense of Seller. All credits and/or
reimbursements that may be due customers for Returned Products shall be the
sole responsibility of Seller.
SECTION 9.10 Governing Law; Jurisdiction. This Agreement shall be
governed by, interpreted and construed, and all claims and disputes, whether in
tort, contract or otherwise be resolved in accordance with the substantive laws
of the State of New York, United States of America without reference to any
rules of conflict or laws or renvoi. In the event of any controversy or claim
arising out of or relating to this Agreement, performance hereunder,
termination hereof, or relationship created hereby, each party irrevocably
submits to the exclusive jurisdiction of the courts of the Supreme Court of the
State of New York and the U.S. District Court for the Southern District of New
York for the purposes of any suit, action or other proceeding arising out of
this Agreement or transactions contemplated hereby. Each party irrevocably and
unconditionally waives any objection to the laying of venue in the courts of
New York as stated above and that any such action was brought in an
inconvenient forum. Notwithstanding the foregoing, in the event of a threatened
disclosure in violation of this Agreement, MERCK shall have the right to seek
injunctive relief from any competent court in the jurisdiction where the
disclosure is threatened to prevent such disclosure pending resolution of the
merits of the dispute.
SECTION 9.11 Cooperation. Each party agrees to execute such further
papers, agreements, documents, instruments and the like as may be reasonably
necessary or desirable to effect the purpose of this Agreement and to carry out
its provisions.
SECTION 9.11 Waiver. No waiver by any party in one or more
instances of any
12
of the provisions of this Agreement or the breach thereof shall establish a
precedent for any other instance with respect to that or any other provision.
Furthermore, in case of waiver of a particular provision, all other provisions
of this Agreement will continue in full force and effect.
SECTION 9.13 Severance. If any provision of this Agreement is held to
be invalid or unenforceable, all other provisions shall nevertheless continue
in full force and effect.
IN WITNESS WHEREOF, this Agreement has been signed by authorized
representatives on behalf of each of the parties hereto as of the day and year
first above written.
MERCK & CO., INC. KOFFOLK, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------- --------------------------
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President President
Merck AgVet Division
13
SCHEDULE A
TRADEMARKS
----------
TRADEMARK REG. NO./LOCATION REG. DATE
NICARB(R) ▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇ July 31, 1956
July 31, 1976 (renewed)
14
14
SCHEDULE B
U.S. NEW ANIMAL DRUG APPLICATION
NADA #
------
NICARB(R) 9-476 (Approved)
Nicarbazin-Bacitracin-Methylene-Disalicylate 98-378 (codified 1995)
Nicarbazin-Bacitracin-Methylene-Disalicylate
Roxarsone 100-853 (not codified)
Nicarbazin-Roxarsone-Lincomycin
Medicated Feed 107-997 (Approved 7/13/79)
Nicarbazin-Roxarsone 108-115 (Approved 7/13/79)
Nicarbazin-Lincomycin 108-116 (Approved 7/13/79)
15
15
SCHEDULE C
Personal Guaranty
Merck & Co., Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Gentlemen:
I understand that Koffolk, Inc., a wholly-owned subsidiary of ▇▇▇▇▇▇▇▇
Brothers, is indebted to you by virtue of an Asset Purchase and Trademark
Transfer Agreement ("Agreement") entered into between Merck & Co., Inc. and
Koffolk and effective as of August 5, 1996. I further understand that it is
your desire to obtain a personal guarantee of the payments under this Agreement
by me. I also understand that as consideration for your executing this
Agreement, this personal guarantee of payment by me is required by you.
Therefore, I have determined that it is in my best interests as the owner of
Koffolk, Inc. to personally guarantee payment of the payment obligations of
Koffolk, Inc. to you under this Agreement.
I agree as follows:
1. I guarantee to you the payment by me of all payments required of
Koffolk, Inc., its successors and/or assigns under this Agreement, as
and when due, whether by maturity or acceleration. This guaranty
shall be unconditional, continuing and absolute.
2. I waive notice of acceptance of this guaranty by you. My liability
shall not be affected by any extension, modification or renewal of
any payment obligation or indebtedness incurred by Koffolk, Inc., nor
by any default in payment by Koffolk, Inc. You may without prejudice
to any claim against me, at any time or from time to time, in your
discretion and without notice to me extend or change the time of
payment or the manner, place or terms of payment of any obligation
hereby guaranteed. I hereby waive notice of default or of non-payment
and waive any action required, upon notice or without notice, by any
statute, against me. You will not be required to proceed first
against Koffolk, Inc., or another person, firm or corporation before
resorting to me as guarantor for payment.
3. This guaranty will continue until all payment obligations of
Koffolk, Inc., its successors and/or assigns under the Agreement have
been paid in full.
16
4. I agree to pay all costs and expenses, including reasonable
attorneys fees, incurred by you in enforcing this obligation.
5. Any collateral or assets held, owned or available by or to me for all
of or any part of the payments due Merck by Koffolk, Inc. may be
sold, exchanged, surrendered, compromised or released to satisfy all
or my part of the payments due.
6. I warrant that this guaranty is not contrary to any statute or
regulation of any authority in any state or country in which the
undersigned does business, owns property or maintains bank and
investment accounts. I further represent that this guaranty is not in
conflict with any contractual obligation or restriction the
undersigned may have with any other creditors.
By: ____________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
State of __________________
ss.
County of ________________
Subscribed and sworn to before
me this ____ day of _______ 1996
__________________________________
Notary Public
17
SCHEDULE D
U.S. TRADEMARK ASSIGNMENT
WHEREAS, MERCK & CO., INC., a New Jersey corporation, having its
principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, has adopted, used, is using and is the owner of the following
trademarks now registered in the United States Patent and Trademark Office:
TRADEMARK REGISTRATION NO. DATE OF REGISTRATION
--------- ---------------- --------------------
NICARB(R) 631617 July 31, 1956
July 31, 1976 (renewed)
WHEREAS, Koffolk, Inc., a Delaware corporation having its principal
offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, U.S.A., is desirous of
acquiring said registered trademarks,
NOW, THEREFORE, in consideration of the sum of One ($1.00) Dollar and
other good and valuable consideration, the receipt of which is hereby
acknowledged, MERCK & CO., INC., as of August 5,1996 hereby assigns to Koffolk,
Inc. all right, title and interest in the United States in and to said
trademarks together with the goodwill of the business symbolized by said
trademarks and registrations thereof.
Signed this 17th day of July, 1996
MERCK & CO., INC.
By: ___________________________
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Merck AgVet Division
State of
ss.
County of
Subscribed and sworn to before me this day of 1996.
______________________________
Notary Public
18
SCHEDULE E
Food and Drug Administration
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear _____________
Pursuant to 21 CFR 514.106, we are notifying you that as of August 5,1996,
Merck Research Laboratories is transferring ownership and all rights and
responsibilities for NADA # 9-476, 98- 378, 100-853, 107-997, 108-115 and
108-116 to Koffolk, Inc.
Please direct questions or need for additional information concerning the
transfer of these NADAs to ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, Associate Director, Regulatory
Affairs, Coordination and Planning, Merck & Co., Inc. (Phone (▇▇▇)▇▇▇-▇▇▇▇/Fax
(▇▇▇)▇▇▇-▇▇▇▇).
Beginning today, August 5,1996, all communication to the sponsor should be
addressed to:
Koffolk, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
Sincerely yours,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Associate Director
Regulatory Affairs
Coordination & Planning
Certified No.
19