1
EXHIBIT 10.46
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
DATED: 11 OCTOBER 2000
(1) ▇▇▇▇▇ VACCINES LIMITED
(2) AVIRON UK LIMITED
--------------------------
TRANSFER AGREEMENT
--------------------------
CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
2
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
TABLE OF CONTENTS
PAGE
----
1. Definitions and interpretation ...................................... 1
2. Completion .......................................................... 3
3. Consideration ....................................................... 3
4. The Employees ....................................................... 3
5. Warranties .......................................................... 5
6. Limitations to the Warranties ....................................... 5
7. Successors and Assigns .............................................. 7
8. Protection of Goodwill .............................................. 7
9. Announcements and Publicity ......................................... 7
10. Variation ........................................................... 8
11. Costs ............................................................... 8
12. Severance ........................................................... 8
13. Waivers ............................................................. 8
14. Entire agreement .................................................... 8
15. Notices ............................................................. 8
16. Counterparts ........................................................ 8
17. Applicable Law and jurisdiction ..................................... 8
18. [***] ............................................................... 9
19. [***] ............................................................... 9
20. Post-completion effect .............................................. 10
SCHEDULE 1 THE EMPLOYEES ................................................... 15
SCHEDULE 2 EMPLOYEE WARRANTIES ............................................. 16
i
3
THIS AGREEMENT is made the 11th day of October 2000
BETWEEN:
(1) ▇▇▇▇▇ VACCINES LIMITED (registered in England under Company Number:
3970089) the registered office of which is at ▇▇▇▇▇▇ House, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Avenue, The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
"TRANSFEROR"); and
(2) AVIRON UK LIMITED (registered in England under Company Number: 3854275)
the registered office of which is at Carmelite, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (the "TRANSFEREE").
WHEREAS:
(A) Pursuant to an agreement (the "RESTATED AGREEMENT") dated on or about
the date of this Agreement the Transferor and the holding company of the
Transferee, Aviron ("AVIRON") have agreed to amend and restate the terms
of an amended and restated contract manufacture agreement (the "CONTRACT
MANUFACTURE AGREEMENT") dated 7 June 1999 between the Transferor (as
assignee of Medeva Pharma Limited ("MEDEVA")) and Aviron, with the
result that Aviron has agreed that the manufacture of the Intermediate
Product at premises situated in ▇▇▇▇▇▇▇ Road, Speke, Liverpool will be
carried on by the Transferee.
(B) On completion of the Transaction Agreements, the Transferor has agreed
to transfer the Employees listed in Schedule 1 to this Agreement to the
Transferee. It is the Parties understanding that the Transfer
Regulations will apply to transfer the Employees to the Transferee.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise, the following
words shall have the following meanings:
"BUSINESS" means the contract manufacture of the
Intermediate Product as more fully
described in the Contract Manufacture
Agreement prior to the Restated Agreement
having effect;
"COMPLETION" means completion of this Agreement in
accordance with Clause 2;
"COMPLETION DATE" means the date of this Agreement;
"DISCLOSED" means fairly disclosed to the Transferee
for the purposes of this Agreement in the
Disclosure Letter;
"DISCLOSURE LETTER" means a letter dated the date of this
Agreement from the Transferor to the
Transferee including the documents listed
in the index attached to it;
"EMPLOYEES" means the persons employed in the
Business at the date of this Agreement
(whose names are set out in Schedule 1
together with certain particulars of
their respective employment);
"INTERMEDIATE PRODUCT" shall have the meaning ascribed to it in
the Shared Services
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
1
4
Agreement;
"IP LICENCE" means the licence of certain intellectual
property rights dated on or about the
date of this Agreement between the
Parties;
"MASTER AGREEMENT" means the agreement dated on or about the
date of this Agreement between, inter
alia, the Parties providing, inter alia,
for the entry into the Transaction
Agreements;
"MEDEVA SALE AGREEMENT" means the agreement dated 7 September
2000 between Medeva (1), and the
Transferor (2) pursuant to which the
Business (as defined therein) was
acquired by the Transferor;
"PARTIES" means the Transferor and the Transferee;
"PROPERTY AGREEMENTS" means (i) the agreements for sub-lease of
the AVU Premises and the AVU Extension
Premises; and (ii) the three licences to
jointly occupy or access certain areas of
the Transferor's premises in Speke,
Liverpool to be entered into by the
Parties on or about the date of this
Agreement;
"QUALITY AGREEMENT" means the quality agreement entered into
by the Parties on or about the date of
this Agreement;
"SHARED SERVICES AGREEMENT" means the shared services agreement dated
on or about the date of this Agreement
between the Parties and Aviron;
"TRANSACTION AGREEMENTS" means the Property Agreements, the Shared
Services Agreement, the IP Licence, the
Restated Agreement, the Master Agreement,
the Warrants and the Quality Agreement;
"TRANSFER REGULATIONS" means the [***];
"TRANSFEREE GROUP" means the Transferee, its holding company
from time to time and all companies and
undertakings which now are or in the
future become subsidiaries or subsidiary
undertakings of the Transferee or of any
such holding company;
"TRANSFEROR GROUP" means the Transferor, its holding company
from time to time and all companies and
undertakings which now are or in the
future become subsidiaries or subsidiary
undertakings of the Transferor or of any
such holding company;
"VAT" means value added tax under VATA 1994 or
any similar tax from time to time
replacing it or performing a similar
function;
"VATA 1994" means the Value Added Tax ▇▇▇ ▇▇▇▇;
"WARRANTIES" means the warranties set out Schedule 2;
and
"WARRANTS" means the warrant instrument(s) dated on
or about the date of this Agreement
entered into by Aviron granting the
Transferor the right
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2
5
to subscribe for certain shares in the
capital of Aviron.
1.2 In this Agreement:
1.2.1 the index and the clause headings are included for convenience
only and shall not affect the construction of this Agreement;
1.2.2 words denoting the singular shall include the plural and vice
versa;
1.2.3 words denoting any gender shall include a reference to each
other gender;
1.2.4 references to persons shall be deemed to include references to
natural persons, firms, partnerships, companies, corporations,
associations, organisations, foundations and trusts (in each
case whether or not having separate legal personality); and
1.2.5 words and expressions defined in the Companies ▇▇▇ ▇▇▇▇ (as
amended) shall, where the context so admits, bear the same
meanings in this Agreement.
1.3 References in this Agreement to statutory provisions shall (where the
context so admits and unless otherwise expressly provided) be construed
as references to those provisions as respectively amended, consolidated,
extended or re-enacted as at the date of this Agreement and to any
orders, regulations, instruments or other subordinate legislation made
under the relevant statutes.
1.4 References to Clauses or Schedules are to Clauses or Schedules to this
Agreement and the Schedules are deemed to be incorporated in this
Agreement, and a reference to "this Agreement" includes a reference to
the Schedules.
1.5 For the purposes of the Warranties a matter shall be treated as being
within the [***] of the Transferor if, and only if such matter was (i)
[***]; or (ii) is within the [***] and references in this Agreement to
any matter warranted "so far as the Transferor is aware" or "to the best
of the knowledge, information or belief of the Transferor" or with any
similar qualification shall be construed accordingly.
2. COMPLETION
At Completion:
2.1 the Transferor shall deliver to or procure the delivery to the
Transferee of all [***] of the Employees then in its possession; and
2.2 against compliance by the Transferor with its obligations under Clause
2.1 the Transferee shall pay the consideration as provided in Clause 3.
3. CONSIDERATION
The total consideration for the transfer of the Employees to the
Transferee shall be the payment by the Transferee to the Transferor of
the cash sum of [***] to be paid at Completion.
4. THE EMPLOYEES
4.1 Subject to Clause 4.4, the Parties acknowledge and agree that the
amendment and restatement of the Contract Manufacture Agreement pursuant
to the Restated Agreement and the completion of each of the other
Transaction Agreements will constitute a relevant transfer for the
purposes of the Transfer Regulations and that it will [***] and such
contracts shall [***] with effect from the Completion Date.
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
3
6
4.2 The Transferee will indemnify and keep indemnified the Transferor
against any loss, damage, cost, action, award, penalty, fine,
proceeding, claim, demand, liability and expense (together "LIABILITY")
in respect of [***] or any other matter or circumstance occurring after
Completion which arises out of:
4.2.1 the [***] occurring by virtue of the Transfer Regulations and/or
this Agreement;
4.2.2 a change on or after Completion to [***] (including any term or
condition relating to [***]) or any proposal to make such a
change including any proposal communicated [***] by the
Transferee or by the Transferor on the basis of any information
received from the Transferee regarding such a proposal;
4.2.3 any claim by any [***] that as a result of [***], or as a result
of [***], or as a result of [***] that they have been [***] by
the [***] Completion; or
4.2.4 the [***] with its obligations under [***] in respect of any
[***];
PROVIDED ALWAYS THAT the Transferee shall not have indemnified the
Transferor under this Clause in relation to:
(a) any Liability in respect of which the Transferor has [***]
(subject always to any [***]); and
(b) any matter for which the Transferor is [***] under [***].
4.3 The Transferor will indemnify and keep indemnified the Transferee
against any Liabilities incurred by the Transferee in relation to the
[***] by reason or on account of or arising from all and any matters
arising [***] or attributable to [***] including, but in no way limited
to:
4.3.1 the [***] during the period [***] to the extent that it arises
out of [***] by the [***] or by [***];
4.3.2 any [***] (other than any [***] or [***]), [***] and any other
[***] any extent to [***] and any applicable [***];
4.3.3 any claim or other legal recourse by any [***] or [***]
recognised by the Transferor arising from or connected with the
[***] to such [***] or [***];
PROVIDED ALWAYS THAT the Transferor shall not have indemnified the
Transferee under this Clause in relation to:
(a) any Liability in respect of which the Transferee has [***]
(subject always to any [***]); and
(b) any matter for which the Transferee is [***] under [***];
(c) any obligation in respect of the [***] to make any payment as a
result of [***] by the Transferee up to the extent which is
calculated by reference to [***] with the Transferor or any
member of the Transferor Group as well as the [***] with the
Transferee; and
(d) any Liability which arises out of a [***] by the [***] to comply
with any requirement of [***] in respect of any [***].
4.4 If, but only if, the [***] of [***] is found or alleged [***] after the
Completion Date as if [***] as a consequence of the completion of the
[***] other than by virtue of [***], the Transferee agrees that,
provided that such [***] is [***] in the [***]:
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
4
7
(a) in consultation with the Transferor, it will, within [***] of
being so [***] by the Transferor (as long as the [***] is made
no later than [***] after the Transferor [***] such finding or
allegation), [***] to that [***] an [***] referred to below; and
(b) the [***] to be [***] will be such that [***] of the [***]
(other than the [***] and any [***]) will [***] from the [***]
of the [***] (as such [***] have been [***]) immediately before
the Completion Date.
Upon that [***] being [***] (or at any time after the expiry of the
[***] if the [***] is not [***] as [***]), the Transferor shall [***]
concerned from [***] and the Transferee shall indemnify the Transferor
against [***] of all Liabilities arising from [***] and [***] of all
liabilities which are [***] or [***] and which arise directly from [***]
after the Completion Date until [***].
4.5 For the avoidance of doubt the Transferee agrees that it shall pay and
discharge [***] due to certain of the [***] (as [***]) in respect of the
year ended [***] regardless of whether an [***] to such payment accrued
[***] the Completion Date.
5. WARRANTIES
5.1 The Transferor warrants to the Transferee in the terms set out in
Schedule 2 and acknowledges that the Transferee is entering into this
Agreement in reliance on the Warranties.
5.2 The Warranties are given subject only to matters [***].
5.3 Each of the Warranties shall be given on the date of this Agreement.
6. LIMITATIONS TO THE WARRANTIES
6.1 The Transferee acknowledges and agrees that:
6.1.1 the Warranties are the only warranties or other assurances of
any kind given by or on behalf of the Transferor or any member
of the Transferor's Group and on which the Transferee may rely
in entering into this Agreement;
6.1.2 no other statement, promise or forecast made by or on behalf of
the Transferor or any member of the Transferor's Group may form
the basis of, or be pleaded in connection with, any claim by the
Transferee under or in connection with this Agreement;
6.1.3 any claim by the Transferee or any person deriving title from it
in connection with the Warranties (a "WARRANTY CLAIM") shall be
subject to the following provisions of this clause; and
6.1.4 at the time of entering into this Agreement it is not aware of
any matter or thing which constitutes a breach of any of the
Warranties.
6.2 The maximum aggregate liability of the Transferor under the Warranties
and under Clause 5.2 of the IP Licence and Clause 4.4(c) of the Shared
Services Agreement inclusive of all costs and interest, shall in no
event exceed US$[***].
6.3 Subject to Clause 6.4, the Transferee shall not be entitled in any event
to damages or other payment in respect of any claim or claims under any
of the Warranties in respect of any individual claim (or series of
related claims with respect to related facts or circumstances) unless
and until the aggregate amount of all claims made in respect of the
Warranties and under Clause 5.2 of the IP Licence and Clause 4.4(c) of
the Shared Services Agreement exceeds US$[***].
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
5
8
6.4 The Transferee shall not be entitled to make any claim against the
Transferor in respect of any breach of the Warranties unless the
Transferee has given written notice of its intention to make such a
claim on or before [***], such notice to specify all relevant facts
relating to the Warranty Claim, as soon as reasonably practicable, and
in any event within [***] of the Transferee becoming aware of those
facts, to the Transferor in the case of any other Warranties, Provided
always that the [***] of the [***] in respect of such Warranty Claims
shall [***] if proceedings in respect of it have not been commenced
within [***] of service of notice of that Warranty Claim.
6.5 The Transferee shall not be entitled to make any Warranty Claim:
(a) in respect of anything [***];
(b) if the Warranty Claim would not have arisen [***] a change in
[***] made after the date of this Agreement (whether or not the
change purports to be effective retrospectively in whole or in
part); or
(c) to the extent that the Warranty Claim arises as a result only of
any change after Completion in the [***] upon which any member
of the Transferee's Group [***] its [***].
6.6 If the Warranty Claim in question arises as a result of or in connection
with a liability or alleged liability to a third parry (a "RELEVANT
CLAIM") the Transferee shall [***] give written notice of the Relevant
Claim and subject to the Transferee being fully indemnified against any
reasonable costs, liabilities and expenses thereby incurred:
6.6.1 [***];
6.6.2 [***];
6.6.3 [***];
6.6.4 [***];
6.6.5 [***];
6.6.6 [***]:
(a) [***];
(b) [***];
Provided always that nothing in this Clause 6.7 shall require the
Transferee to take any action which is reasonably likely to have a [***]
on the [***] of the Transferee's Group.
6.7 The provisions of this Clause shall have effect notwithstanding any
other provisions of this Agreement and shall apply to all or any claims
of the Transferee under Clause 5.2 of the IP License and Clause 4.4(c)
of the Shared Services Agreement.
6.8 Without prejudice to the Transferee's duty to mitigate any loss in
respect of any breach of the Warranties, if in respect of any matter
which would otherwise give rise to a breach of the Warranties, the
Transferee is entitled to [***] the amount of [***] to which the
Transferee is or would have been entitled shall [***] or [***] the
Warranty Claim.
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
6
9
6.9 If the Transferor makes any payment by way of damages for breach of the
Warranties (the "DAMAGES PAYMENT") and within [***] of the making of the
relevant payment the Transferee [***] otherwise than from the Transferor
which would not have been [***] the circumstance giving rise to the
Warranty Claim in respect of which the Damages Payment was made the
Transferee shall, once it has [***], [***] to the [***] an amount equal
to [***] and the [***], less the [***] and all and any [***].
6.10 The [***] shall refrain from [***](other than [***]) which it [***] may
give rise to a Warranty Claim which would not otherwise arise.
6.11 The [***] of the [***] for a breach of the Warranties shall be [***] and
the Transferee shall [***] in any circumstances or at any time.
7. SUCCESSORS AND ASSIGNS
[***] party may assign [***] its rights or delegate [***] its
obligations under this Agreement (other than [***] as the case may be,
provided that such assignee [***] and provided further that before such
assignee [***] will procure that the benefit of this Agreement is
re-assigned to [***] or (upon giving further written notice to [***]) to
[***](subject always to the foregoing provisions of this Clause) of such
party [***] the prior written consent of [***], except as expressly
provided herein.
8. PROTECTION OF GOODWILL
8.1 As further consideration for the Transferee agreeing to indemnify the
Transferor on the terms contained in this Agreement, the Transferor
shall not (and shall procure that no member of the Transferor Group
shall) for [***] following Completion, [***] any [***] to [***] the
Transferee.
8.2 As further consideration for the Transferor agreeing to enter into this
Agreement, the Transferee shall not (and shall procure that no member of
the Transferee Group shall) for [***] following Completion, [***] any
[***] or [***] to [***] the Transferor or the relevant member of the
Transferor's Group.
8.3 The undertakings in Clauses 8.1 and 8.2 are considered by the Parties to
be reasonable in all the circumstances. If any of these undertakings
should for any reason be held to be invalid but would have been held to
be valid if part of the wording were deleted, the undertakings shall
apply with such part of the wording deleted.
8.4 Nothing in Clause 8.1 shall prevent the Transferor, or any member of the
Transferor's Group, from [***] in any [***] or other [***], or from
[***] or [***] with the Transferor, or any member of the Transferor's
Group.
8.5 Nothing in Clause 8.2 shall prevent the Transferee, or any member of the
Transferee's Group, from [***] in any [***] or other [***], or from
[***] or [***] with the Transferee, or any member of the Transferee's
Group.
9. ANNOUNCEMENTS AND PUBLICITY
No announcement or circular or other publicity in connection with the
subject matter of this Agreement (other than as permitted by this
Agreement) shall be made by or on behalf of the Transferor and the
Transferee without the approval of the other as to its content, form and
manner of publication (such approval not to be unreasonably withheld or
delayed) save that any announcement, circular or other publicity
required to be made or issued by the Transferor or the Transferee
pursuant to any legal or regulatory authority may be made or issued by
the Transferor or the Transferee without such approval. The Parties
shall consult together upon the form of any such announcement, circular
or other publicity and
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
7
10
the other party shall promptly provide such information and comment as
the party issuing any such announcement, circular or other publicity may
from time to time reasonably request.
10. VARIATION
No variation of this Agreement shall be effective unless made in writing
and signed by or on behalf of each of the Parties.
11. COSTS
Save as expressly provided in this Agreement, the Parties shall [***]
costs and expenses in relation to the preparation, execution and
carrying into effect of this Agreement.
12. SEVERANCE
If at any time any provision of this Agreement is or becomes invalid or
illegal in any respect, such provision shall be deemed to be severed
from this Agreement but the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected or impaired
thereby.
13. WAIVERS
A failure by any party to exercise and any delay, forbearance or
indulgence by any party in exercising any right, power or remedy under
this Agreement shall not operate as a waiver of that right, power or
remedy or preclude its exercise at any subsequent time or on any
subsequent occasion. The single or partial exercise of any right, power
or remedy shall not preclude any other or further exercise of that
right, power or remedy. No custom or practice of the Parties at variance
with the terms of this Agreement shall constitute a waiver of the rights
of any party under this Agreement. The rights, powers and remedies
provided in this Agreement are cumulative and not exclusive of any
rights, powers or remedies provided by law.
14. ENTIRE AGREEMENT
This Agreement and the Transaction Agreements and all other agreements
entered, or to be entered into, pursuant to the terms of this Agreement
or entered into between the Transferor and the Transferee together
constitute the entire agreement and understanding between the Parties
with respect to the subject matter of this Agreement and supersede all
prior agreements between the Parties.
15. NOTICES
The provisions of the Master Agreement shall apply mutatis mutandis to
this Agreement.
16. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, and which together shall
constitute one and the same Agreement. Unless otherwise provided in this
Agreement, this Agreement shall become effective and be dated (and each
counterpart shall be dated) on the date on which this Agreement (or a
counterpart of this Agreement) is signed by the last of the Parties to
execute this Agreement or, as the case may be, a counterpart thereof.
17. APPLICABLE LAW AND JURISDICTION
17.1 This Agreement shall be governed by [***] and each of the Parties
submits to the exclusive jurisdiction of the [***].
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
8
11
17.2 The Parties irrevocably consent to any process in a legal action or
proceedings in connection with this Agreement being served on it in
accordance with the provisions of this Agreement relating to the service
of notices. Nothing contained in this Agreement shall affect the right
to serve process in any other manner permitted by law.
18. [***]
The Parties agree that the provisions of the [***] shall not apply to
this Agreement.
19. [***]
19.1 Notwithstanding anything contained in this Agreement, if any of the
amounts payable by the Transferee to the Transferor are expressed to be
[***] then [***] shall only be payable [***] if:
19.1.1 [***] on such sums or amounts; and
19.1.2 a proper [***] invoice is submitted to the [***].
19.2 If [***] under this Agreement, in accordance with Clause 19.1, or,
notwithstanding Clause 19.1, if (as applicable) no ruling under Clause
19.3 has been received to the effect that [***] in respect of any
relevant amount by the date on which any [***] under this Agreement,
then it shall be [***] on the date of this Agreement within 14 business
days of the date of this Agreement and in any other case on the date on
which [***].
19.3
19.3.1 The Parties consider that the transactions detailed in the
Transaction Agreements shall not together constitute a [***] or
[***] for [***] purposes, and agree that the Transferor shall
prepare a [***] to this effect. This [***] shall be sent first,
[***] or its agents for approval (such approval not to be
unreasonably withheld or delayed) and once approved shall be
sent to [***].
19.3.2 The Parties shall use their reasonable endeavours to ensure that
the [***] is obtained on or before the date of this Agreement.
If no [***] by the date of this Agreement the Parties should use
their reasonable endeavours to ensure that within 5 business
days of the date of this Agreement a letter is sent to [***].
The [***] shall send a copy of any [***] to [***] and the [***]
within 5 business days of receipt of it from [***].
19.3.3 If no such [***] has been obtained by the time that [***] and
the [***] (as the case may be) are due to [***] which include a
[***] they may notify [***] that they have [***] on a transfer
of assets which has not been treated as [***].
19.4
19.4.1 If [***] that any or all of the [***] which are being treated as
[***] under this Agreement constitute a [***] or [***] or a
[***]:
(a) the [***], if it has not submitted a [***] on which it
has accounted for the [***] on the date on which such
[***], will forthwith issue [***] which has been [***]
in which case the [***] will on the date of [***] as
applicable the [***] detailed in the applicable [***];
or
(b) the [***], if it has submitted a [***] on which the
[***] has been accounted for, will make an [***] as
appropriate for recovery of the applicable [***] from
[***] and will
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
9
12
account to [***] as appropriate on the date of such [***]
and will issue at that date [***] which has been [***].
19.4.2 For the avoidance of doubt any failure by the [***] to comply
with any conditions detailed in the [***] under which a [***] is
made (such that the [***] does not receive a [***] or only
receives a [***] from [***]) will not affect the obligation of
the [***] to refund to [***] any [***] and for the purposes of
clause 19.4.1(a) it shall be regarded as having [***] on the
date on which it would have [***] were it not for such failure.
20. POST-COMPLETION EFFECT
This Agreement shall remain in full force and effect after and
notwithstanding Completion in respect of all obligations, agreements,
covenants, undertakings or conditions contained in or implied by this
Agreement which have not been done, observed or performed at or prior to
Completion the Warranties shall continue in full force and effect after
and notwithstanding Completion.
AS WITNESS the hands of the Parties to this Agreement or their duly
authorised representatives on the date written above.
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
10
13
SCHEDULE 1
THE EMPLOYEES
[***]
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Sch. 1
14
SCHEDULE 2
EMPLOYEE WARRANTIES
[***]
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Sch. 2
15
SIGNED by /s/ C.S.W. ▇▇▇▇▇▇▇▇▇
-----------------------------
for and on behalf of
▇▇▇▇▇ VACCINES LIMITED
SIGNED by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
for and on behalf of
AVIRON UK LIMITED
[***] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
Sch. 3