EXHIHBIT 99.6
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ASSET PURCHASE AGREEMENT
by and between
Celgene Corporation
as Purchaser
and
EntreMed, Inc.
as Seller
Dated as of December 31, 2002
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TABLE OF CONTENTS
ARTICLE I CERTAIN DEFINITIONS
Section 1.1 Certain Definitions..........................................1
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Section 1.2 Interpretation...............................................5
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ARTICLE II SALE AND PURCHASE OF ASSETS
Section 2.1 Transfer of Assets...........................................5
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Section 2.2 Assumed Liabilities..........................................7
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Section 2.3 Purchase Price...............................................7
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Section 2.4 Closing......................................................7
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Section 2.5 Nonassignable Assets.........................................8
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Section 2.6 Opinion of Counsel...........................................8
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.1 Organization.................................................8
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Section 3.2 Authority....................................................9
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Section 3.3 No Conflict; Required Filings and Consents...................9
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Section 3.4 Permits; Compliance With Law.................................9
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Section 3.5 Absence of Certain Changes or Events........................10
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Section 3.6 Title to Assets; Sufficiency of Assets......................11
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Section 3.7 Assumed Contracts...........................................11
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Section 3.8 Conveyed Intellectual Property..............................11
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Section 3.9 Litigation..................................................12
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Section 3.10 Brokers.....................................................12
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Section 3.11 Preclinical Testing and Clinical Trials.....................13
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Section 3.12 Certain Regulatory Matters..................................13
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Section 3.13 Taxes.......................................................14
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 4.1 Organization................................................14
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Section 4.2 Authority...................................................15
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Section 4.3 No Conflict; Required Filings and Consents..................15
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Section 4.4 Litigation..................................................15
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Section 4.5 Brokers.....................................................16
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ARTICLE V COVENANTS
Section 5.1 Conduct of the Business.....................................16
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Section 5.2 Access to Information; Confidentiality; Cooperation.........17
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Section 5.3 Appropriate Action; Consents; Filings.......................18
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Section 5.4 Further Assurances..........................................19
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Section 5.5 Tax Matters.................................................19
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Section 5.6 Publicity...................................................20
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Section 5.7 Certain Provisions Relating to the Transfer.................20
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Section 5.8 Supplemental Disclosure.....................................20
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Section 5.9 Closing Documents...........................................20
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Section 5.10 Patent Prosecution..........................................21
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Section 5.11 Non-Competition.............................................21
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Section 5.12 Confidentiality.............................................22
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Section 5.13 Rights to Certain Technologies of Seller....................23
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ARTICLE VI CONDITIONS
Section 6.1 Conditions to Each Party's Obligations......................23
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Section 6.2 Conditions to Obligations of Purchaser......................23
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Section 6.3 Conditions to Obligations of Seller.........................24
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ARTICLE VII TERMINATION AND AMENDMENT
Section 7.1 Termination.................................................24
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Section 7.2 Effect of Termination.......................................25
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Section 7.3 Amendment...................................................25
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Section 7.4 Extension; Waiver...........................................25
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ARTICLE VIII SURVIVAL; INDEMNIFICATION
Section 8.1 Survival Period.............................................26
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Section 8.2 Indemnification.............................................26
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Section 8.3 Indemnification Procedures..................................27
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Section 8.4 Qualifications on Liability.................................28
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ARTICLE IX MISCELLANEOUS
Section 9.1 Notices.....................................................28
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Section 9.2 Descriptive Headings........................................29
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Section 9.3 Counterparts; Facsimile Signatures..........................29
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Section 9.4 Entire Agreement............................................30
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Section 9.5 Fees and Expenses...........................................30
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Section 9.6 Governing Law...............................................30
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Section 9.7 WAIVER OF JURY TRIAL........................................30
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Section 9.8 Assignment..................................................30
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Section 9.9 Parties in Interest.........................................31
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Section 9.10 Interpretation..............................................31
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Section 9.11 Severability................................................31
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Section 9.12 Payments....................................................31
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Section 9.13 Bulk Sales Laws.............................................31
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THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of
the 31st day of December, 2002, by and between Celgene Corporation, a Delaware
corporation ("Purchaser"), and EntreMed, Inc., a Delaware corporation
("Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller is engaged in the Business;
WHEREAS, Purchaser has agreed to acquire from Seller, and
Seller has agreed to sell to Purchaser, the Conveyed Assets on the terms and
subject to the conditions set forth herein; and
WHEREAS, Purchaser has agreed to assume the Assumed
Liabilities on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, covenants,
representations and warranties contained herein, and other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. As used in this Agreement,
the following terms shall have the following meanings:
"Affiliate" of a specified Person shall mean another Person
that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person.
"Analog Patents" has the meaning ascribed thereto in the
Exclusive License Agreement.
"Assignment of Intellectual Property" shall mean the
instrument evidencing the assignment to Purchaser of all of Seller's and its
Subsidiaries' right, title and interest in and to the Conveyed Intellectual
Property, which shall be in form and substance reasonably satisfactory to
Purchaser and Seller.
"▇▇▇▇ of Sale" shall mean the ▇▇▇▇ of sale transferring to
Purchaser all of Seller's and its Subsidiaries' right, title and interest in and
to the Conveyed Assets, which shall be in form and substance reasonably
satisfactory to Purchaser and Seller.
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"Business" shall mean the business of researching and
developing pharmaceutical drug products, medical devices, diagnostic products,
veterinary products, vaccines, prophylactics and other commercial products that
contain Thalidomide Analogs as an active ingredient, including, without
limitation, Thalidomide Analogs of a type contemplated by the Analog Patents.
"Business Day" shall mean any day on which banks are not
required or authorized to close in New York, New York.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"control" (including the terms "controlled by" and "under
common control with") shall mean, with respect to a Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of
securities or as trustee or executor, by contract or credit arrangement or
otherwise.
"Exclusive License Agreement" shall mean the Exclusive
License Agreement among Purchaser, Children's Medical Center Corporation and,
for purposes of certain provisions thereof, Seller, in the form attached as
Exhibit 1 to the Settlement Agreement.
"GAAP" shall mean United States generally accepted accounting
principles consistently applied.
"Governmental Entity" shall mean a domestic or foreign court,
legislature, governmental agency, governmental commission, or a judicial or
regulatory authority of any government.
"Instrument of Assignment and Assumption" shall mean the
instrument evidencing Seller's and its Subsidiaries' assignment to Purchaser of
the Assumed Liabilities, which shall be in form and substance reasonably
satisfactory to Purchaser and Seller.
"Intellectual Property" shall mean statutory and common law
trademarks, service marks, trade names, Internet domain names, designs, trade
dress, logos, slogans and general intangibles of like nature, together with
registrations and applications relating to any of the foregoing; patents and
copyrights, together with registrations and applications relating to any of the
foregoing; Software; confidential information, data, compilations, technology,
Know-How and goodwill relating to any of the foregoing, and all rights to ▇▇▇
and recover damages or obtain injunctive relief for past and future
infringement, misappropriation, violation, dilution or breach of any of the
foregoing.
"IRS" shall mean the Internal Revenue Service.
"Know-How" shall mean any information, in any form whatsoever,
relating to Thalidomide Analogs, whether such information is patentable or not,
including without limitation technical and non-technical information, marketing,
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cost, and sales information, know-how, skill, knowledge, experience, machinery,
equipment and equipment designs, inventions, invention disclosure statements,
notebooks, practices, methods, processes, procedures, manufacturing technology,
compositions, reagents, devices, formulae, chemical structures and models,
formulations, protocols, methodologies, techniques, algorithms, designs,
drawings, plans, diagrams, specifications, models, samples, materials (including
without limitation chemical and biological materials), data (including without
limitation pharmacological, toxicological and clinical test data, analytical and
quality assurance and quality control data), assays, and the results (including
without limitation of experimentation, tests and assays), to the extent such
information relates to or is used, useful, or potentially useful in, the conduct
of the Business, expressly including, without limitation, the items set forth in
Section 1.1 of the Seller Disclosure Letter.
"knowledge" of any Person that is not an individual shall
mean, with respect to any specific matter, the knowledge, after reasonable
inquiry, of such Person's executive officers and any other officer having
responsibility for such matter.
"Law" shall mean any foreign or domestic law, including the
common law, statute, code, rule, regulation, ordinance, order, judgment, writ,
injunction or decree.
"Lien" shall mean any lien, security interest, pledge,
mortgage, claim, charge, hypothecation or other encumbrance of any nature
whatsoever.
"Litigations" has the meaning ascribed thereto in the
Settlement Agreement.
"Material Adverse Effect" shall mean any fact, event,
circumstance or condition (excluding general economic conditions) that has a
material adverse effect, individually or in the aggregate, on the financial
condition, results of operations, assets, liabilities or prospects of the
Business or the ability of Seller to perform any of its material obligations
under, or to consummate the transactions contemplated by, this Agreement.
"Permitted Liens" shall mean: (i) Liens for Taxes or
assessments which are not yet due and payable or are being contested in good
faith by appropriate proceedings; (ii) mechanics', warehousemens',
materialmens', contractors', workmens', repairmens', carriers' and other similar
Liens; and (iii) Liens incurred in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other types of social
security.
"Person" shall mean any individual, group, corporation,
partnership or other organization or entity.
"Prosecution" has the meaning ascribed thereto in the
Exclusive License Agreement.
"Regulatory Filings" shall mean any and all applications made
to the United States Food and Drug Administration or any other analogous United
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States or foreign regulatory agency or authority, seeking approval to
investigate, market, or sell any Thalidomide Analog, including without
limitation all Investigational New Drug Applications, New Drug Applications,
Abbreviated New Drug Applications and Orphan Drug Status applications, and all
grants of any such applications, and of any other rights to investigate, market
or sell any Thalidomide Analog, and all extensions of all such grants and
rights.
"Related Instruments" shall mean the ▇▇▇▇ of Sale, the
Instrument of Assignment and Assumption, the Assignment of Intellectual
Property, the Exclusive License Agreement, the Securities Purchase Agreement and
the Settlement Agreement.
"Securities Purchase Agreement" shall mean the Securities
Purchase Agreement between Purchaser and Seller in the form of Exhibit A hereto,
together with all exhibits thereto.
"Seller Disclosure Letter" shall mean the disclosure letter
delivered by Seller to Purchaser in connection with the execution of this
Agreement.
"Settlement Agreement" shall mean the Settlement and Mutual
Release Agreement between Purchaser and Seller in the form of Exhibit B hereto,
and all Exhibits thereto, including without limitation the Exclusive License
Agreement among Purchaser, Children's Medical Center Corporation, and, for
purposes of certain provisions thereof, Seller, attached thereto as Exhibit 1,
and the Stipulations of Dismissal executed on behalf of both Seller and
Purchaser, attached thereto as Exhibits 2 and 3.
"Software" shall mean computer programs, including any and all
software implementations of algorithms, models and methodologies whether in
source code or object code form, databases and compilations, including any and
all data and collections of data, all documentation, including user manuals and
training materials, related to any of the foregoing and the content and
information contained on any Web site.
"Subsidiary" of any Person means any corporation, partnership,
joint venture or other legal entity of which such Person owns, directly or
indirectly, a majority of the stock or other equity interests the holders of
which are generally entitled to vote for the election of the Board of Directors
or other governing body of such corporation or other legal entity.
"Tax Return" shall mean any report, declaration, statement,
return or other information filed in respect of Taxes, and any claims for refund
of Taxes, including any amendments or supplements to any of the foregoing with
any taxing authority with respect to Taxes imposed upon or attributable to the
operations of the Business.
"Taxes" shall mean any and all taxes, levies or other like
assessments, including, but not limited to, income, transfer, gains, gross
receipts, excise, inventory, property (real, personal or intangible), custom,
duty, sales, use, license, withholding, payroll, employment, capital stock and
franchise taxes (including any fee, assessment or other charge in the nature of
or in lieu of any tax), imposed by the United States, or any state, local or
foreign government or subdivision or agency thereof, any interest, penalties,
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additions to tax or additional amounts in respect of any of the foregoing
(whether disputed or not), any transferee or secondary liability in respect of
tax (whether imposed by Law, contractual agreement or otherwise) and any
liability in respect of any tax as a result of being a member of any affiliated,
consolidated, combined, unitary or similar group.
"Thalidomide Analogs" has the meaning ascribed thereto in the
Exclusive License Agreement.
"Transaction Taxes" shall mean any and all sales, use,
transfer, filing, conveyance, recording, gross receipts, value added and similar
taxes imposed by the United States, or any state, local or foreign government or
subdivision or agency thereof, any interest, penalties, additions to tax or
additional amounts in respect of any of the foregoing (whether disputed or not),
and any transferee or secondary liability in respect of any of the foregoing
(whether imposed by Law, contractual agreement or otherwise).
Section 1.2 Interpretation. Unless otherwise indicated to the
contrary in this Agreement by the context or use thereof: (a) the words,
"herein," "hereto," "hereof" and words of similar import refer to this Agreement
as a whole and not to any particular Section or paragraph hereof; (b) words
importing the masculine gender shall also include the feminine and neutral
genders, and vice versa; (c) words importing the singular shall also include the
plural, and vice versa; and (d) the word "including" means "including without
limitation."
ARTICLE II
SALE AND PURCHASE OF ASSETS
Section 2.1 Transfer of Assets. (a) On the terms and subject
to the conditions set forth in this Agreement, at the Closing, Seller shall
sell, assign, convey, transfer and deliver (and Seller shall cause its
Subsidiaries to sell, assign, convey, transfer and deliver) to Purchaser, and
Purchaser shall purchase, all assets, properties and rights owned by Seller or
any of its Subsidiaries, or to which any of them is entitled, belonging to, used
or intended to be used in the Business, of every kind and description and
wherever located, free and clear of all Liens (except for Permitted Liens),
including, without limitation, all of Seller's and its Subsidiaries' rights,
title and interest in and to the assets set forth below, but excluding the
Excluded Assets (collectively, the "Conveyed Assets"):
(i) all Intellectual Property relating to the
Business, including the Intellectual Property set forth in
Section 2.1(a)(i) of the Seller Disclosure Letter (the
"Conveyed Intellectual Property"), all tangible embodiments of
all such Conveyed Intellectual Property and true and complete
files relating to the Prosecution, assertion, enforcement or
defense of any of the Conveyed Intellectual Property;
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(ii) all rights and interest as of the Closing in and
to the contracts, agreements, arrangements, commitments and
understandings (collectively, "Contracts") relating to the
Business and listed on Section 2.1(a)(ii) of the Seller
Disclosure Letter, which schedule shall include all applicable
patent licenses and consulting agreements regarding FDA and
patent matters (the "Assumed Contracts");
(iii) all pre-clinical and clinical data and market
research data used in connection with the Business, all web
site content and all records, including supplier lists,
manufacturing records, sampling records, product samples,
standard operating procedures and batch records relating to
the Business;
(iv) all Permits and applications for Permits, but
only to the extent Seller is permitted to transfer such
Permits and applications;
(v) All books, records, files and papers, whether in
hard copy or computer format, to the extent they contain
information relating to the Business, including, without
limitation, all financial records, correspondence and other
documents and all notices to or from, and filings and other
communications with, the FDA, the U.S. Patent and Trademark
Office and other patent offices;
(vi) All claims, causes of action, rights of recovery
and rights of set-off of any kind pertaining solely to, or
arising solely out of, the Business;
(vii) All Regulatory Filings; and
(viii) The goodwill of the Business together with the
right of Purchaser to represent itself to third parties as the
successor-in-interest to the Business.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the term "Conveyed Assets" shall not include: (i) any cash, cash
equivalents, bank deposits or similar cash items of Seller as of the Closing
Date; (ii) rights under the Assumed Contracts relating to the performance or
non-performance of such Assumed Contracts prior to the Closing; (iii) all rights
of Seller under this Agreement and the Related Instruments; (iv) any interests
in any real estate; (v) any rights to refunds, rebates or abatements of any
Taxes with respect to the Conveyed Assets or the Business that relate to any
period ending on or prior to the Closing Date; (vi) any insurance policies of
Seller or its Affiliates or rights thereunder or proceeds thereof; and (vii)
assets under any employee benefit plan of Seller or any of its Subsidiaries (the
rights, properties and assets expressly excluded from "Conveyed Assets" by this
Section 2.1(b) are referred to collectively as the "Excluded Assets").
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Section 2.2 Assumed Liabilities. (a) In partial consideration
of the sale of the Conveyed Assets to Purchaser, at the Closing, Purchaser shall
assume only the following liabilities and obligations of Seller and its
Subsidiaries to the extent related to the Business or the Conveyed Assets, in
each case only to the extent arising and relating solely to the period after the
Closing (collectively, the "Assumed Liabilities"):
(i) all liabilities and obligations under the Assumed
Contracts;
(ii) all liabilities and obligations specifically
assumed by Purchaser pursuant to other provisions of this
Agreement;
(iii) all liabilities and obligations with respect to
the Permits to the extent such Permits are Conveyed Assets.
(b) Except as otherwise provided in Section 2.2(a), Seller and
its Subsidiaries shall retain all, and Purchaser shall not assume, pay, perform,
defend or discharge any, liabilities and obligations of Seller and its
Subsidiaries of any and every kind whatsoever, whether disclosed, undisclosed,
direct, indirect, absolute, contingent, secured, unsecured, accrued, known,
unknown or otherwise (collectively, the "Excluded Liabilities").
Section 2.3 Purchase Price. In consideration for the sale of
the Conveyed Assets and the Settlement Agreement, at the Closing Purchaser shall
(i) assume the Assumed Liabilities and (ii) pay to Seller a purchase price equal
to $10,000,000 (the "Purchase Price"). The Purchase Price shall be payable in
cash by wire transfer of immediately available funds to an account designated in
writing by Seller at least two Business Days prior to the Closing Date.
Section 2.4 Closing. (a) The consummation of the transactions
contemplated by this Agreement (the "Closing") will take place on the second
Business Day following the satisfaction or waiver of the conditions set forth in
Article VI hereof (other than those conditions which, by their nature, can only
be satisfied at Closing), at 10:00 a.m. (New York City time), at the offices of
Proskauer Rose LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
time and place as shall be mutually agreed upon by the parties. The date on
which the Closing occurs is referred to herein as the "Closing Date."
(b) At the Closing, Seller shall deliver or cause to be
delivered to Purchaser the following: (i) a duly executed ▇▇▇▇ of Sale; (ii) a
duly executed Instrument of Assignment and Assumption; (iii) a duly executed
Assignment of Intellectual Property; (iv) the Exclusive License Agreement duly
executed by Seller and Children's Medical Center Corporation; (v) a duly
executed Securities Purchase Agreement; (vi) a duly executed Settlement
Agreement, together with duly executed originals of the Stipulations of
Dismissal attached thereto as Exhibits 2 and 3; (vii) an opinion of counsel to
Seller, in form and substance reasonably satisfactory to Purchaser; (viii)
consents, approvals, authorizations, waivers and Permits of all Persons and
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Governmental Entities necessary for Purchaser to operate the Business and use
the Conveyed Assets substantially as heretofore operated and used; (ix) evidence
of the release of all Liens on the Conveyed Assets, in form and substance
reasonably satisfactory to Purchaser; and (x) such other documents as may be
reasonably requested by Purchaser to vest in Purchaser good and marketable to
the Conveyed Assets.
(c) At the Closing, Purchaser shall deliver or cause to be
delivered to Seller the following: (i) cash in the amount of the Purchase Price
by wire transfer of immediately available funds; (ii) a duly executed Instrument
of Assignment and Assumption; (iii) a duly executed Exclusive License Agreement;
(iv) a duly executed Securities Purchase Agreement; and (v) a duly executed
Settlement Agreement, together with duly executed originals of the Stipulations
of Dismissal attached thereto as Exhibits 2 and 3.
Section 2.5 Nonassignable Assets.
Nothing in this Agreement, nor the consummation of the
transactions contemplated hereby, shall be construed as an attempt or agreement
to assign or transfer any Conveyed Asset (including any Assumed Contract) to
Purchaser which by its terms or by Law is nonassignable without the consent of a
third party or a Governmental Entity (a "Nonassignable Asset"), unless and until
such consent shall have been obtained. From and after the Closing, Seller shall
use reasonable best efforts and shall cooperate with Purchaser to the extent
requested by Purchaser to obtain any such necessary consents and, to the extent
that such consents are not obtained, use reasonable best efforts to assure
Purchaser of the benefits of such Conveyed Assets under reasonable and lawful
arrangements. Notwithstanding anything to the contrary contained in this
Agreement, to the extent that such consents are not obtained, or the benefits of
such Conveyed Assets are not provided to Purchaser, Purchaser shall have no
obligations with respect thereto.
Section 2.6 Opinion of Counsel. Contemporaneously with the
execution and delivery of this Agreement, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to Seller, is
delivering its opinion addressed to Purchaser with respect to the matters set
forth in Sections 3.1 and 3.2 hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows
(reference to Seller in this Article III shall include its Subsidiaries, unless
the context otherwise requires):
Section 3.1 Organization. Seller is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Delaware. Seller has the requisite power and authority to own, lease and operate
the Conveyed Assets and to conduct the Business as it is now being conducted.
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Section 3.2 Authority. Seller has the requisite power and
authority to execute and deliver this Agreement and the Related Instruments, to
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by
Seller of this Agreement and the Related Instruments, the performance by Seller
of its obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby have been authorized by all
requisite corporate action on the part of Seller and no other authorization of
Seller or its shareholders is required to authorize the execution and delivery
by Seller of this Agreement or the Related Instruments, the performance by
Seller of its obligations hereunder and thereunder or the consummation of the
transactions contemplated hereby or thereby. This Agreement has been validly
executed and delivered by Seller and constitutes, and each Related Instrument
that is to be executed and delivered by Seller will constitute when executed and
delivered by Seller, a legal, valid and binding obligation of Seller enforceable
against Seller in accordance with its terms.
Section 3.3 No Conflict; Required Filings and Consents. (a)
Except as set forth in Section 3.3(a) of the Seller Disclosure Letter, the
execution and delivery by Seller of this Agreement and the Related Instruments
do not, and the performance by Seller of its obligations under this Agreement
and the Related Instruments will not, (i) conflict with or violate any provision
of Seller's certificate of incorporation or Seller's bylaws, (ii) assuming that
all consents, approvals, authorizations and permits described in Section 3.3(b)
have been obtained and that all filings and notifications described in Section
3.3(b) have been made and any waiting periods thereunder have terminated or
expired, conflict with or violate any Law applicable to Seller or by which any
of the Conveyed Assets is bound, or (iii) assuming that all consents, approvals,
authorizations and permits described in Section 3.3(b) have been obtained and
that all filings and notifications described in Section 3.3(b) have been made
and any waiting periods thereunder have terminated or expired, require any
consent or approval under, result in any breach of or any loss of any benefit
under, constitute a change of control or default (or an event which with notice
or lapse of time or both would become a default) under, or give to others any
right of termination, acceleration or cancellation of, any Assumed Contract or
result in the creation of a Lien on any Conveyed Asset.
(b) The execution and delivery by Seller of this Agreement and
the Related Instruments do not, and the performance by Seller of its obligations
under this Agreement and the Related Instruments will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Entity, except (i) as set forth in Section 3.3(b) of the Seller
Disclosure Letter and (ii) where failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not,
individually or in the aggregate, reasonably be expected to prevent or
materially delay the performance or consummation of this Agreement or the
Related Instruments by Seller.
Section 3.4 Permits; Compliance With Law. (a) Seller is in
possession of all authorizations, licenses, permits, registrations,
certificates, approvals and clearances of Governmental Entities (including under
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the Federal Food, Drug and Cosmetic Act of 1938, as amended (the "FDCA"), and
the regulations of the United States Food and Drug Administration (the "FDA")
promulgated thereunder) necessary to own, lease and operate the Conveyed Assets
and to carry on the Business as it is being conducted as of the date hereof (the
"Permits"), and all such Permits are valid and in full force and effect.
(b) Seller's conduct of the Business has not and does not
conflict with or violate in any material respect (i) any Law applicable to the
Business or by which any Conveyed Asset is bound or affected or (ii) any
Permits. There are no outstanding notices of violations, demands, claims,
orders, judgments, writs, injunctions or decrees of any Governmental Entity or
any third party that apply to the Conveyed Assets or the Business that restrict
the ownership, disposition or use of the Conveyed Assets or the conduct of the
Business in any material respect or that otherwise seek to impose liability or
obligations on Seller under applicable Law.
Section 3.5 Absence of Certain Changes or Events. Except as
set forth in Section 3.5 of the Seller Disclosure Letter, since December 31,
2001, except as expressly contemplated by this Agreement, with regard to the
Conveyed Assets, Seller has not suffered a Material Adverse Effect with respect
to the Business and has conducted the Business in the ordinary course and Seller
has not, with respect to the Business:
(a) subjected any of the Conveyed Assets to any Liens, other
than Permitted Liens;
(b) sold, assigned, transferred, leased, subleased, licensed,
sublicensed or otherwise disposed of, to any third party, any properties or
assets necessary for the conduct of, or used in, the Business, other than in the
ordinary course of business;
(c) entered into, terminated or amended any Contract, other
than in the ordinary course of business;
(d) transferred to any third party any rights under any
license, sublicense or other agreement with respect to any Conveyed Intellectual
Property or any Intellectual Property that is the subject of the Exclusive
License Agreement;
(e) surrendered, revoked or otherwise terminated any Permit,
other than in the ordinary course of business;
(f) incurred any Assumed Liabilities, other than in the
ordinary course of business;
(g) waived, released or assigned any rights in connection with
the Business, other than in the ordinary course of business; or
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(h) agreed, whether in writing or otherwise, to do any of the
foregoing, except as expressly contemplated by this Agreement.
Section 3.6 Title to Assets; Sufficiency of Assets. (a) Seller
has, and at the Closing Seller will deliver to Purchaser, good, valid and
marketable title to all of the Conveyed Assets free and clear of all Liens,
other than Permitted Liens.
(b) The Conveyed Assets and the rights of Purchaser under the
Exclusive License Agreement include all assets and Intellectual Property that
are necessary for the conduct of the Business immediately following the Closing
in substantially the same manner as currently conducted by Seller, except for
the Excluded Assets. None of the Conveyed Assets is used by Seller or any
Affiliate of Seller in connection with any business or enterprise other than the
Business.
Section 3.7 Assumed Contracts. True and complete copies of all
Assumed Contracts have been delivered or made available to Purchaser. Each of
the Assumed Contracts is valid and binding on Seller and the other parties
thereto and is in full force and effect, and, upon consummation of the
transactions contemplated by this Agreement, except to the extent that any
consents set forth in Section 3.3(a) of the Seller Disclosure Letter are not
obtained, shall continue in full force and effect without penalty or other
adverse consequences. Except as set forth in Section 3.7 of the Seller
Disclosure Letter, neither Seller nor, to the knowledge of Seller, any other
party thereto is in material default under any Assumed Contract (and no
condition exists that, with notice or lapse of time or both, would become such a
material default by any such party).
Section 3.8 Conveyed Intellectual Property. Except as set
forth in Section 3.8 of the Seller Disclosure Letter:
(i) Seller owns or has exclusive rights to the
Conveyed Intellectual Property free and clear of all Liens,
other than Permitted Liens;
(ii) the Conveyed Intellectual Property and the
Intellectual Property that is the subject of the Exclusive
License Agreement have been duly maintained and have not been
cancelled, expired or abandoned;
(iii) Except for the Litigations, Seller has not
received notice from any third party regarding any actual or
potential infringement or misappropriation by Seller of any
Intellectual Property of such third party relating to the
Conveyed Assets, the Business or any Intellectual Property
that is the subject of the Exclusive License Agreement, and
Seller has no knowledge of any reasonable basis for such a
claim against Seller. Seller is not aware of any issued third
party patents or other third party intellectual property
rights that would be infringed by the exercise by Purchaser of
any right granted to it under this Agreement or the Exclusive
License Agreement;
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(iv) Except for the Litigations, Seller has not
received notice from any third party regarding any assertion
or claim challenging the validity of any Conveyed Intellectual
Property or any Intellectual Property that is the subject of
the Exclusive License Agreement and Seller has no knowledge of
any reasonable basis for such a claim;
(v) Except for the Litigations, to the knowledge of
Seller, no third party is misappropriating, infringing,
diluting or violating any Conveyed Intellectual Property or
any Intellectual Property that is the subject of the Exclusive
License Agreement. Seller has not notified any third party
that it may be misappropriating, infringing, diluting or
violating any Conveyed Intellectual Property or any
Intellectual Property that is the subject of the Exclusive
License Agreement;
(vi) Except for the Litigations, Seller has not
received any notice of interfering subject matter with respect
to any Conveyed Intellectual Property or any Intellectual
Property that is the subject of the Exclusive License
Agreement, and is not aware of any third party patents or
patent applications that contain any interfering subject
matter with any of same or any inventorship challenges raised
by a third party relating to any of same;
(vii) Seller has complied with the required duty of
candor and good faith in dealing with the United States Patent
and Trademark Office with respect to the Conveyed Intellectual
Property, including the duty to disclose all information
believed to be material to the patentability of same; and
(viii) To the knowledge of Seller, no third party,
including any academic organization or Governmental Entity,
possesses rights to any of the Conveyed Intellectual Property
or any Intellectual Property that is the subject of the
Exclusive License Agreement.
Section 3.9 Litigation. Except as set forth in Section 3.9 of
the Seller Disclosure Letter, there is no material suit, claim, action,
proceeding or investigation pending or, to the knowledge of Seller, threatened
against Seller or any of its licensors (including Children's Medical Center
Corporation) in respect of the Conveyed Assets or the Business. There is no
suit, claim, action, proceeding or investigation pending or, to the knowledge of
Seller, threatened against Seller that challenges the transactions contemplated
by this Agreement or the Related Instruments and would be reasonably expected to
prevent or materially interfere with or delay the performance or consummation of
the transactions contemplated hereby or thereby.
Section 3.10 Brokers. No broker, finder or investment banker
(other than Ferghana Partners Inc., all fees of which shall be paid by Seller in
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connection with the transactions contemplated hereby) is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Seller.
Section 3.11 Preclinical Testing and Clinical Trials. To
Seller's knowledge, the human clinical trials, animal studies and other
preclinical tests conducted by Seller or in which Seller has participated, and
such studies and tests conducted on behalf of Seller, with respect to the
Business were and, if still pending, are being conducted in accordance with
experimental protocols, informed consents, procedures and controls generally
used by qualified experts in the preclinical or clinical study of comparable
products. Neither Seller nor any agent or representative of Seller has received
any written notice or correspondence from the FDA or any other Governmental
Entity requiring the termination, suspension or modification (other than such
modifications as are normal in the regulatory process) of any animal studies,
preclinical tests or clinical trials conducted by or on behalf of Seller or in
which Seller has participated with respect to the Business. To Seller's
knowledge, no clinical investigator acting for Seller with respect to the
Business has been or is now, or is threatened to become, the subject of any
disbarment or disqualification proceedings by any Governmental Entity.
Section 3.12 Certain Regulatory Matters. With respect to the
Business:
(a) Section 3.12(a) of the Seller Disclosure Letter sets forth
a complete and accurate list of all Regulatory Filings and all material written
communications between the Seller, on the one hand, and the FDA or any other
Governmental Entity, on the other hand, and all written summaries of material
discussions between any such parties. Seller has made available to Purchaser
copies of all such documents.
(b) Seller has filed with the FDA and all applicable state,
local and foreign regulatory bodies for, and received approval of, all
Regulatory Filings and all other registrations, applications, licenses, requests
for exemptions, permits and other regulatory authorizations necessary to conduct
the Business as currently conducted and as currently proposed to be conducted.
Seller is and has been in compliance in all material respects with all such
Regulatory Filings, registrations, applications, licenses, requests for
exemptions, permits and other regulatory authorizations. Seller is and has been
in compliance in all material respects with all FDA, state, local and foreign
rules, regulations, guidelines and policies, including, but not limited to, FDA,
state, local and foreign rules, regulations, guidelines and policies relating to
good manufacturing practice ("GMP") and good laboratory practice ("GLP"). Seller
has no reason to believe that any party granting any such Regulatory Filing,
registration, application, license, request for exemption, permit or other
regulatory authorization is considering terminating, limiting, suspending,
revoking, canceling, rescinding, refusing to renew in the ordinary course or
modifying the same and knows of no basis for any such action.
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(c) Seller is in compliance in all material respects with all
obligations arising under any consent decree, consent agreement, warning letter,
Form 483 issued by or entered into with the FDA or other notice, response or
commitment made to the FDA or any comparable state, local or foreign
Governmental Entity.
(d) Seller has disclosed to Purchaser any warning letters or
Form 483s or similar notices, or other correspondence relating to Seller's
compliance status under applicable legal requirements, from the FDA or any
comparable state, local or foreign Governmental Entity within the last three
years.
(e) Neither Seller nor, to Seller's knowledge, any of its
officers, employees, independent contractors or agents has knowingly committed
any act, made any statement or failed to make any statement that would
reasonably be expected to provide a basis for the FDA to invoke its policy
respecting "Fraud, Untrue Statements of Material Facts, Bribery, and Illegal
Gratuities," set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any
amendments thereto.
(f) Neither Seller nor, to Seller's knowledge, any of its
officers, employees, independent contractors or agents has been convicted of any
crime or engaged in any conduct which could result in debarment under 21 U.S.C.
ss. 335a or any similar state, local or foreign Law.
(g) There are no proceedings pending or, to Seller's
knowledge, threatened with respect to a violation by Seller of the Food, Drug
and Cosmetic Act, FDA regulations adopted thereunder, the Controlled Substance
Act or any other legislation or regulation promulgated by any other Governmental
Entity that reasonably might be expected to result in criminal liability.
Section 3.13 Taxes. Seller has timely filed all material Tax
Returns required to be filed with respect to Taxes pertaining, in whole or in
part, to the Conveyed Assets or the Business. All such Tax Returns are true,
correct and complete in all material respects, and Seller has duly paid all
Taxes shown on such Tax Returns and has paid or made adequate provision for
payment of all accrued but unpaid Taxes anticipated in respect of such Tax
Returns. Seller has not received notice from a taxing authority in a
jurisdiction where Seller does not file Tax Returns that Seller is or may be
subject to taxation by such jurisdiction. There are no Tax Liens upon any of the
Conveyed Assets, except Permitted Liens.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
Section 4.1 Organization. Purchaser is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Delaware.
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Section 4.2 Authority. Purchaser has the requisite power and
authority to execute and deliver this Agreement and the Related Instruments, to
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by
Purchaser of this Agreement and the Related Instruments, the performance by
Purchaser of its obligations hereunder and thereunder and the consummation of
the transactions contemplated hereby and thereby have been authorized by all
requisite corporate action on the part of Purchaser and no other authorization
of Purchaser or its shareholders is required to authorize the execution and
delivery by Purchaser of this Agreement or the Related Instruments, the
performance by Purchaser of its obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby. This Agreement
has been validly executed and delivered by Purchaser and constitutes, and each
Related Instrument that is to be executed and delivered by Purchaser will
constitute when executed and delivered by Purchaser, a legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms.
Section 4.3 No Conflict; Required Filings and Consents. (a)
The execution and delivery by Purchaser of this Agreement and the Related
Instruments do not, and the performance by Purchaser of its obligations under
this Agreement and the Related Instruments will not, (i) conflict with or
violate any provision of Purchaser's certificate of incorporation or Purchaser's
bylaws, (ii) assuming that all consents, approvals, authorizations and permits
described in Section 4.3(b) have been obtained and that all filings and
notifications described in Section 4.3(b) have been made and any waiting periods
thereunder have terminated or expired, conflict with or violate any Law
applicable to Purchaser or by which any material property or asset of Purchaser
is bound or (iii) assuming that all consents, approvals, authorizations and
permits described in Section 4.3(b) have been obtained and that all filings and
notifications described in Section 4.3(b) have been made and any waiting periods
thereunder have terminated or expired, require any consent or approval under,
result in any breach of, or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, any material contract to
which Purchaser is a party or by which Purchaser is bound.
(b) The execution and delivery by Purchaser of this Agreement
and the Related Instruments do not, and the performance by Purchaser of this
Agreement and the Related Instruments will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity, except where failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not, individually or
in the aggregate, reasonably be expected to prevent or materially delay the
performance or consummation of this Agreement or the Related Instruments by
Purchaser.
Section 4.4 Litigation. There is no suit, claim, action,
proceeding or investigation pending or, to the knowledge of Purchaser,
threatened against Purchaser that challenges the transactions contemplated by
this Agreement or the Related Instruments and would be reasonably expected to
15
prevent or materially interfere with or delay the performance or consummation of
the transactions contemplated hereby or thereby.
Section 4.5 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Purchaser.
ARTICLE V
COVENANTS
Section 5.1 Conduct of the Business. During the period from
the date hereof to the Closing, except as otherwise expressly provided in this
Agreement, or unless Purchaser shall otherwise consent in writing, Seller shall,
and shall cause its Subsidiaries to, (x) operate the Business in the ordinary
course of business consistent with past practice and (y) use its reasonable best
efforts to preserve substantially intact the Conveyed Assets and the Business.
Without limiting the generality of the foregoing, and except as otherwise
expressly provided in this Agreement, during the period from the date hereof to
the Closing, without the prior written consent of Purchaser, Seller shall not,
and shall cause its Subsidiaries not to:
(i) subject any of the Conveyed Assets to any Lien,
other than Permitted Liens;
(ii) sell, assign, transfer, lease, sublease,
license, sublicense or otherwise dispose of any Conveyed
Assets, other than in the ordinary course of business;
(iii) transfer to any third party any rights, whether
under licenses, sublicenses, other agreements or otherwise,
with respect to any Conveyed Intellectual Property or any
Intellectual Property that is the subject of the Exclusive
License Agreement;
(iv) enter into, terminate or amend any Contract that
constitutes or would constitute an Assumed Contract, except in
the ordinary course of business;
(v) abandon or terminate any clinical trials relating
to the Business other than in the ordinary course of business
(including for safety concerns) or in accordance with the
terms of existing arrangements with respect to such clinical
trials;
(vi) surrender, revoke or otherwise terminate any
Permit, other than in the ordinary course of business;
(vii) incur any Assumed Liabilities, other than in
the ordinary course of business;
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(viii) waive, release or assign any rights in
connection with the Business, other than in the ordinary
course of business; or
(ix) agree, whether in writing or otherwise, to do
any of the foregoing.
Section 5.2 Access to Information; Confidentiality;
Cooperation. (a) After the date hereof and prior to the Closing, Seller shall
permit Purchaser and its authorized representatives to have reasonable access
during normal business hours, upon reasonable prior notice to Seller, to
Seller's properties, books, records, contracts, commitments and personnel
relating to the Conveyed Assets, the Assumed Liabilities or the Business, and
Seller shall furnish promptly to Purchaser such information concerning the
Conveyed Assets, the Assumed Liabilities or the Business as Purchaser may
reasonably request; provided, however, that any such access shall be conducted
in such a manner as not to materially interfere with the operation of Seller's
business. Notwithstanding the foregoing, (i) Seller need not disclose to
Purchaser any information that would violate applicable Law, result in a breach
of attorney-client privilege or violate any confidentiality agreement or similar
agreement or arrangement to which Seller is a party and (ii) Seller may redact
such portions of its books and records that do not directly relate to the
Conveyed Assets, the Assumed Liabilities or the Business.
(b) Purchaser will, and will cause its representatives to,
hold any such information obtained pursuant to Section 5.2(a) in confidence,
except to the extent any such information (i) is or becomes publicly available
other than as a result of a breach of this Section 5.2(b), (ii) is or becomes
available to Purchaser on a non-confidential basis from a source other than
Seller, provided that such source is not known to Purchaser to be bound by a
confidentiality agreement with Seller or otherwise prohibited from transmitting
the information to Purchaser by a contractual, legal or fiduciary obligation,
(iii) was in the possession of Purchaser prior to its being furnished to it by
Seller, (iv) has been or is independently developed by Purchaser or (v) is
required to be disclosed by Law or Governmental Entity.
(c) Following the Closing, for so long as such information is
retained by Purchaser (which shall be for no less than the period of time that
Purchaser customarily would retain similar information), Purchaser shall permit
Seller and its authorized representatives to have reasonable access during
normal business hours, upon reasonable prior notice to Purchaser, to the books,
records and personnel relating to the Conveyed Assets, the Assumed Liabilities
or the conduct of the Business by Seller, to the extent that such access may be
reasonably required (i) in connection with the preparation of Seller's
accounting records or with any audits, (ii) in connection with the preparation
of any Tax Returns or with any Tax audits, (iii) in connection with any suit,
claim, action, proceeding or investigation relating to Seller's conduct of the
Business or (iv) in connection with any regulatory filing or matter; provided,
that such access shall be conducted in such a manner as not to materially
interfere with Purchaser's business, and provided, further, that Seller shall
reimburse Purchaser promptly for all reasonable out-of-pocket costs and expenses
incurred by Purchaser in connection with any such request. Notwithstanding the
foregoing, (i) Purchaser need not disclose to Seller any information which would
17
violate applicable Law, result in a breach of attorney-client privilege or
violate any confidentiality agreement or similar agreement or arrangement to
which Purchaser is a party and (ii) Purchaser may redact such portions of its
books and records that do not directly relate to the Conveyed Assets, the
Assumed Liabilities or the Business. Purchaser may, as it deems reasonably
necessary or advisable, designate any competitively sensitive information
provided to Seller under this Section 5.2(c) as available to "outside counsel
and retained experts only."
(d) Purchaser shall, and shall instruct its employees to, at
Seller's request, cooperate with Seller as may be reasonably required in
connection with the investigation and defense of any suit, claim, action,
proceeding or investigation relating to the Business that is brought against
Seller or any of its Affiliates at any time after the Closing; provided,
however, that Seller shall reimburse Purchaser promptly for all reasonable
out-of-pocket costs and expenses incurred by Purchaser in connection with any
such request.
(e) Seller shall, and shall instruct its employees to, at
Purchaser's request, cooperate with Purchaser as may be reasonably required in
connection with the investigation and defense of any suit, claim, action,
proceeding or investigation relating to the Business that is brought against
Purchaser or any of its Affiliates at any time after the Closing; provided,
however, that Purchaser shall reimburse Seller promptly for all reasonable
out-of-pocket costs and expenses incurred by Seller in connection with any such
request.
Section 5.3 Appropriate Action; Consents; Filings. (a) Subject
to Section 5.3(c) hereof, Seller and Purchaser shall use their reasonable best
efforts to take, or cause to be taken, all actions and do, or cause to be done,
all things necessary, proper or advisable under applicable Law or otherwise to
consummate and make effective the transactions contemplated by this Agreement as
promptly as practicable, including to: (i) obtain from Governmental Entities any
consents, licenses, permits, waivers, approvals, authorizations or orders
required (A) to be obtained by Seller or Purchaser or any of their respective
Affiliates to consummate the transactions contemplated by this Agreement or (B)
to avoid any action or proceeding by any Governmental Entity in connection with
the authorization, execution and delivery of this Agreement and to permit the
consummation of the transactions contemplated hereby to occur as promptly as
practicable; (ii) make all necessary filings, and thereafter make any other
required submissions, with respect to this Agreement required under the FDCA or
any other applicable Law; (iii) obtain all necessary consents, waivers,
approvals and authorizations of third parties; and (iv) defend any suits or
proceedings, whether judicial or administrative, challenging this Agreement or
the consummation of the transactions contemplated hereby. Seller and Purchaser
shall cooperate with each other in connection with the making of all filings
referenced in the preceding sentence, including providing copies of all such
documents to the non-filing party and its advisors prior to filing and, if
requested, to accept all reasonable additions, deletions or changes suggested in
connection therewith. Seller and Purchaser shall have the right to review in
advance, and, to the extent practicable and reasonable, each shall consult the
other on, all the information relating to Seller or Purchaser, as the case may
be, that appears in any filing made with, or written materials submitted to, any
18
third party and/or any Governmental Entity in connection with the transactions
contemplated by this Agreement. Seller and Purchaser may, as each deems
reasonably necessary or advisable, designate any competitively sensitive
information provided to the other under this Section 5.3(a) as available to
"outside counsel and retained experts only." Such information shall be given
only to outside counsel of the recipient. In addition, Purchaser and Seller may
redact any information from such documents shared with the other party or its
counsel that is not pertinent to the subject matter of the filing or submission.
(b) Without limiting Section 5.3(a), but subject to Section
5.3(c), Purchaser and Seller shall use their respective reasonable best efforts
to obtain, or to cause to be obtained, any consent, substitution, approval,
authorization or amendment from, and to provide any notice to, applicable
Governmental Entities and third parties required to assign or transfer any
Conveyed Asset to Purchaser.
(c) Notwithstanding anything in this Agreement to the contrary
(including paragraphs (a) and (b) of this Section 5.3), neither Purchaser nor
any of its Affiliates shall be required to commit to any divestitures, licenses
or hold separate or similar arrangements with respect to its assets or conduct
of business arrangements, whether as a condition to obtaining any approval from
a Governmental Entity or any other Person or for any other reason.
Section 5.4 Further Assurances. From time to time following
the Closing, Seller and Purchaser shall, and shall cause their respective
Affiliates to, execute, acknowledge and deliver all such further conveyances,
notices and other instruments, and take such further actions, as may be
necessary or appropriate to assure fully to Purchaser, its successors and
assigns all of the properties, rights, titles, interests, estates, remedies,
powers and privileges intended to be conveyed to Purchaser under this Agreement
and to otherwise make effective the transactions contemplated hereby. Such
actions shall include, without limitation, causing the release of any Liens on
the Conveyed Assets, including any Liens in connection with the Master Loan and
Security Agreement No. 7711, dated November 19, 1999, between Oxford Venture
Finance, LLC and Seller, and the filing of UCC-3 Termination Statements to
reflect the release of such Liens.
Section 5.5 Tax Matters. (a) Seller shall pay any and all
Transaction Taxes imposed in connection with the transfer of the Conveyed
Assets, the assumption of the Assumed Liabilities and the execution, delivery or
performance of any of the Related Instruments, and shall file such applications
and documents as shall permit any such Transaction Taxes to be assessed and paid
on or prior to the Closing Date in accordance with any available pre-sale filing
procedures.
(b) Seller shall pay all Taxes with respect to the Conveyed
Assets, regardless of when due and payable, (i) with respect to all taxable
periods ending on or prior to the Closing Date and (ii) with respect to all
taxable periods beginning before the Closing Date and ending after the Closing
Date, but only with respect to the portion of such periods up to and including
the Closing Date. After the Closing Date, all refunds of Taxes paid by Seller
that are attributable to any such periods shall be for the account of Seller.
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(c) Except as otherwise provided in Section 5.5(a), Purchaser
shall pay all Taxes with respect to the Conveyed Assets, regardless of when due
and payable, (i) with respect to all taxable periods beginning after the Closing
Date and (ii) with respect to all taxable periods beginning before the Closing
Date and ending after the Closing Date, but only with respect to the portion of
such periods commencing after the Closing Date. All refunds of Taxes paid by
Purchaser that are attributable to any such periods shall be for the account of
Purchaser.
Section 5.6 Publicity. Except as otherwise required by
applicable Law or applicable stock exchange or Nasdaq National Market System
requirements, neither Purchaser nor Seller shall, and each of them shall cause
their respective Affiliates, representatives and agents not to, issue or cause
the publication of any press release or public announcement with respect to the
transactions contemplated by this Agreement without the express prior approval
of the other party, which approval shall not be unreasonably withheld or
delayed.; provided, however, that each of Seller and Purchaser may make any
public statement in response to questions by the press, analysts, investors or
those attending industry conferences or financial analyst calls, or issue press
releases, so long as any such public statement or press release is not
inconsistent with prior public disclosures, press releases or public statements
approved by the other party in accordance with this Section 5.6 and which do not
reveal non-public information about the other party.
Section 5.7 Certain Provisions Relating to the Transfer.
Except in respect of Nonassignable Assets (which are the subject of Section 2.5
hereof), in the event that record or beneficial ownership or possession of any
Conveyed Asset has not been transferred to Purchaser on the Closing Date, Seller
and Purchaser shall cooperate and shall use their reasonable best efforts to
transfer, or cause to be transferred, as promptly as practicable, from Seller to
Purchaser such Conveyed Asset, and pending such transfer to Purchaser, Seller
shall hold such Conveyed Asset and provide to Purchaser all of the benefits and
liabilities associated with the ownership and operation of such Conveyed Asset
and, accordingly, Seller shall cause such Conveyed Asset to be operated or
retained as may reasonably be instructed by Purchaser.
Section 5.8 Supplemental Disclosure. Each party will promptly
notify the other party in writing if it is in, or becomes aware of any fact or
condition that causes or constitutes a, breach of any of its representations or
warranties as of the date of this Agreement, or if it becomes aware of the
existence or occurrence after the date of this Agreement of any fact or
condition that would (except as expressly contemplated by this Agreement) cause
or constitute a breach of any of its representations or warranties had any such
representation or warranty been made as of the time of the existence, occurrence
or discovery of such fact or condition. The delivery of any notice pursuant to
this Section 5.8 shall not limit or otherwise affect the remedies available
hereunder to a party receiving such notice.
Section 5.9 Closing Documents. At or prior to the Closing, (i)
Seller shall execute and deliver, or cause to be executed and delivered, to
Purchaser the documents and instruments described in Section 2.4(b) and (ii)
20
Purchaser shall execute and deliver, or cause to be executed and delivered, to
Seller the documents and instruments described in Section 2.4(c).
Section 5.10 Patent Prosecution
Seller shall render reasonable assistance to Purchaser in the
Prosecution of the Conveyed Intellectual Property whenever requested to do so,
at Purchaser*s expense, including without limitation to cooperate, and to
require each past or present employee, consultant, representative, contractor,
agent or other individual under the custody or control of Seller (including
without limitation any such individual that is, or is identified as, an inventor
of any of the Conveyed Intellectual Property) to cooperate, with Purchaser, its
attorneys, agents, successors and assigns, to Prosecute, assert, enforce and
defend, and to otherwise protect any and all of the Conveyed Intellectual
Property and Purchaser's rights and title therein, including, without
limitation, to (a) execute such documents, sign all lawful papers, and make all
rightful oaths as Purchaser deems reasonably necessary or appropriate in
connection with same; (b) communicate any facts known or reasonably available
respecting any of the Conveyed Intellectual Property; and (c) provide all
documents, samples and other tangible materials necessary or useful testimony to
Prosecute, assert, enforce and/or defend any of the Conveyed Intellectual
Property.
Section 5.11 Non-Competition
(a) For a period of fifteen (15) years after the Closing Date,
neither Seller nor any of its Subsidiaries (each, a "Restricted Party" and,
collectively, the "Restricted Parties") shall, directly or indirectly, anywhere
in the world, engage in the Business as currently conducted ("Competitive
Activity"); provided, however, that it shall not be a violation of this Section
5.10(a) for a Restricted Party to (i) own any debt securities or other debt
obligations (other than convertible debt) of any Person, (ii) invest in, own an
interest in or acquire all or a majority of the stock or assets of any Person
that is not "significantly engaged in a Competitive Activity" (as defined below)
or (iii) invest in securities representing less than five percent (5%) of the
outstanding capital stock of any Person, the securities of which are publicly
traded or listed on any securities exchange or automated quotation system. For
purposes of this Section 5.10(a), "significantly engaged in a Competitive
Activity" shall mean that at least 10% of the consolidated net revenue derived
during the last complete fiscal year of the acquired Person is derived from a
Competitive Activity.
(b) The parties hereto agree that the covenants set forth in
this Section 5.10 shall be enforced to the fullest extent permissible under
applicable Law. If all or any part of this Section 5.10 is held invalid, illegal
or incapable of being enforced by any Law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect.
Seller agrees that in the event of a breach or threatened breach by it or any of
its Subsidiaries of the provisions of this Section 5.10, money damages would not
be an adequate remedy and that Purchaser shall be entitled to seek temporary,
preliminary or permanent injunctive relief without the necessity of posting a
bond. If any part of this Section 5.10 is held to be excessively broad as to
21
duration, scope, activity or subject, such part will be construed by limiting
and reducing it so as to be enforceable to the maximum extent compatible with
applicable Law.
Section 5.12 Confidentiality.
For purposes of this Agreement, all information pertaining to the Conveyed
Assets, including without limitation the Conveyed Intellectual Property, the
Prosecution, assertion, enforcement or defense of any of same, and the
Regulatory Filings, shall be treated by Seller as the "Confidential Information"
of Purchaser.
Restrictions on Disclosure and Use. With regard to Confidential Information, for
a period beginning on the Closing Date and continuing for a period of ten (10)
years, Seller agrees:
(a) not to use the Confidential Information except for the
sole purpose of performing under the terms of this Agreement;
(b) to use its best efforts to safeguard Confidential
Information against disclosure to others; and
(c) not to disclose Confidential Information to others (except
to its employees, agents or consultants who are bound by a like obligation of
confidentiality) without the express prior written permission of Purchaser,
except that Seller shall not be prevented from using or disclosing any of the
Confidential Information which:
(i) is now, or becomes in the future, public
knowledge other than through any act or omission by or on
behalf of Seller or any past or present employee, agent,
contractor or consultant thereof;
(ii) is lawfully obtained by Seller from a source
independent of Purchaser, provided that such source is not
known to Seller to be bound by a confidentiality agreement
with Purchaser or otherwise prohibited from transmitting the
information to Seller by a contractual, legal or fiduciary
obligation; or
(iii) is required by Law to be disclosed, only to the
extent so required and provided that Seller notifies Purchaser
sufficiently prior to the deadline for such disclosure to
permit Purchaser to seek, at Seller's expense, a protective
order or confidential treatment or otherwise limit the extent
of such disclosure, and cooperates with Purchaser in obtaining
same.
22
Section 5.13 Rights to Certain Technologies of Seller.
At any time during the period commencing on the Closing Date
and ending on the date that is one year after the Closing Date, Purchaser may
notify Seller in writing of Purchaser's election (the "Election") to enter into
a license agreement with Seller for Purchaser to develop one of the following
pre-clinical products (each, a "Pre-Clinical Product"):
(1) hepatocyte growth factor (HGF) proteins and fragments
thereof;
(2) prostate specific antigen (PSA) and fragments thereof; and
(3) tissue factor pathway inhibitor protein (TFPI).
Following Seller's receipt of Purchaser's Election, Purchaser
and Seller shall negotiate in good faith the terms of such license agreement for
a period of 60 days, consistent with commercially reasonable terms in the
biotechnology industry, provided that such license agreement shall provide for
no up-front license fee and royalty payments of no more than 5% of revenues
derived from such Pre-Clinical Product. Seller may not enter into any license
agreement with respect to such Pre-Clinical Product with a third party unless
Purchaser and Seller do not reach agreement by the end of such 60-day period,
after which ▇▇▇▇ ▇▇▇▇▇▇ may only enter into a license agreement with respect to
such Pre-Clinical Product on terms and conditions that are no more favorable to
such third party than the most favorable terms and conditions proposed by Seller
to Purchaser at any time during such 60-day period.
ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Each Party's Obligations. The
respective obligations of each party to effect the transactions contemplated by
this Agreement shall be subject to the satisfaction at or prior to the Closing
of the following condition: There shall not be in effect any Law of any
Governmental Entity that makes illegal, enjoins or prevents the consummation of
the transactions contemplated by this Agreement.
Section 6.2 Conditions to Obligations of Purchaser. The
obligation of Purchaser to effect the transactions contemplated by this
Agreement shall be further subject to the satisfaction at or prior to the
Closing of the following conditions, any or all of which may be waived, in whole
or in part, by Purchaser:
(a) The representations and warranties of Seller contained in
Article III of this Agreement that are qualified by reference to materiality or
Material Adverse Effect shall be true and correct in all respects, and the
representations and warranties of Seller contained in Article III of this
Agreement that are not so qualified shall be true and correct in all material
respects, at and as of the Closing Date as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of
such earlier date);
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(b) Seller shall have performed and complied with in all
material respects all agreements and covenants required to be performed or
complied with by Seller under this Agreement at or prior to the Closing;
(c) Purchaser shall have received from Seller a certificate,
dated the Closing Date, duly executed by an officer of Seller, to the effect of
Section 6.2(a) and Section 6.2(b) above; and
(d) Seller shall have delivered or caused to be delivered to
Purchaser each of the documents specified in Section 2.4(b) hereof.
Section 6.3 Conditions to Obligations of Seller. The
obligation of Seller to effect the transactions contemplated by this Agreement
shall be further subject to the satisfaction at or prior to the Closing of the
following conditions, any or all of which may be waived, in whole or in part, by
Seller:
(a) The representations and warranties of Purchaser contained
in Article IV of this Agreement that are qualified by reference to materiality
or Material Adverse Effect shall be true and correct in all respects, and the
representations and warranties of Purchaser contained in Article IV of this
Agreement that are not so qualified shall be true and correct in all material
respects, at and as of the Closing Date as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of
such earlier date);
(b) Purchaser shall have performed and complied with in all
material respects all agreements and covenants required to be performed or
complied with by Purchaser under this Agreement at or prior to the Closing;
(c) Seller shall have received from Purchaser a certificate
dated the Closing Date, duly executed by an officer of Purchaser, to the effect
of Section 6.3(a) and Section 6.3(b) above; and
(d) Purchaser shall have delivered or caused to be delivered
to Seller each of the documents specified in Section 2.4(c) hereof.
ARTICLE VII
TERMINATION AND AMENDMENT
Section 7.1 Termination. This Agreement may be terminated at
any time prior to the Closing by:
(a) mutual written consent of Seller and Purchaser;
(b) either Seller or Purchaser, if the Closing shall not have
occurred on or before December 31, 2002 (the "Outside Date"); provided, however,
that the right to terminate this Agreement under this Section 7.1(b) shall not
24
be available to a party whose failure to perform its obligations under this
Agreement has been the cause of, or resulted in, the failure of the Closing to
occur on or before the Outside Date;
(c) either Seller or Purchaser, if a competent Governmental
Entity shall have issued a ruling, decree, order or injunction or taken any
other action which, in any such case, permanently restrains, enjoins or
prohibits the consummation of the transactions contemplated hereby and such
ruling, decree, order or injunction or other action shall have become final and
non-appealable; provided, however, that in the event that such ruling, decree,
order or injunction or other action has been entered, the party seeking to
terminate this Agreement pursuant to this Section 7.1(c) shall have used its
reasonable best efforts to remove such ruling, decree, order, injunction or
other action; or
(d) either Seller or Purchaser (provided that the terminating
party is not then in material breach of any representation, warranty, covenant
or other agreement contained herein), if there shall have been a breach of any
of the representations, warranties, covenants or agreements set forth in this
Agreement on the part of the other party such that any of the conditions set
forth in Article VI would not be satisfied, such breach has not been waived by
the terminating party, and such breach has not been cured within 30 days
following the terminating party's written notice of such breach to the other
party.
Section 7.2 Effect of Termination. In the event of the
termination of this Agreement pursuant to Section 7.1 hereof, this Agreement
shall forthwith become null and void and have no effect, without any liability
on the part of either party hereto or its Affiliates, directors, officers or
stockholders, other than the provisions of Article IX and Sections 5.2(b) and
7.2 hereof; provided, however, that nothing contained in this Section 7.2 shall
relieve either party to this Agreement from liability to the other party for any
breach of this Agreement.
Section 7.3 Amendment. This Agreement may be amended or
modified at any time by Seller and Purchaser, but only by an instrument in
writing signed by or on behalf of each of Seller and Purchaser.
Section 7.4 Extension; Waiver. At any time prior to the
Closing, either party hereto may (i) extend the time for the performance of any
of the obligations or acts of the other party, (ii) waive any inaccuracies in
the representations and warranties of the other party contained herein or in any
document delivered pursuant hereto, (iii) waive compliance with any of the
agreements of the other party contained herein or (iv) waive any condition to
its obligations hereunder. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in a written
instrument signed by or on behalf of such party. Except as otherwise expressly
provided herein, no failure to exercise, delay in exercising, or single or
partial exercise of any right, power or remedy by any party, and no course of
dealing between the parties, shall constitute a waiver of any such right, power
or remedy.
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ARTICLE VIII
SURVIVAL; INDEMNIFICATION
Section 8.1 Survival Period. The representations and
warranties of the parties contained in Articles III and IV hereof shall survive
the Closing until the second anniversary of the Closing Date; provided, however,
that the representations and warranties of Seller contained in Section 3.13
hereof shall survive the Closing until the date that is 90 days after the
expiration of the applicable statute of limitations and the representations and
warranties of Seller contained in Sections 3.1, 3.2 and 3.10 hereof and of
Purchaser contained in Sections 4.1, 4.2 and 4.5 hereof shall survive the
Closing indefinitely. The period of time a representation or warranty survives
the Closing pursuant to the preceding sentence shall be the "Survival Period"
with respect to such representation or warranty. The covenants and agreements of
the parties hereto contained herein shall survive in accordance with their
respective terms. In the event notice of any claim for indemnification under
Sections 8.2(a)(i) or 8.2(b)(i) hereof shall have been given within the
applicable Survival Period and such claim has not been finally resolved by the
expiration of such Survival Period, the representations and warranties that are
the subject of such claim shall survive with respect to such claim until such
claim is finally resolved.
Section 8.2 Indemnification. Subject to the terms and
conditions set forth in this Article VIII, from and after the Closing:
(a) Seller shall defend, indemnify and hold harmless Purchaser
and its Affiliates and their respective directors, officers, equity holders,
employees, agents, legal counsel, independent accountants and representatives
and their respective heirs, successors and assigns (collectively, the "Purchaser
Indemnified Parties") from and against any and all Losses that are directly or
indirectly imposed on, suffered or incurred by any Purchaser Indemnified Party
arising out of or relating to (i) any breach of, or inaccuracy in, any
representation or warranty of Seller in this Agreement or any of the Related
Instruments, (ii) any failure to perform, or breach of, any covenant or
agreement of Seller set forth in this Agreement or any of the Related
Instruments, (iii) any of the Excluded Liabilities or (iv) the conduct of the
Business prior to the Closing or in connection with the performance by Seller of
this Agreement. "Losses" shall mean any and all liabilities, obligations,
losses, assessments, judgments, fines, damages, deficiencies, demands, claims,
actions, causes of action, costs and expenses (including, without limitation,
interest, penalties, court costs and reasonable attorneys' fees and expenses and
any amounts paid in investigation, defense or settlement of any of the
foregoing), of any kind, manner or nature whatsoever, whether or not arising out
of third-party claims.
(b) Purchaser shall defend, indemnify and hold harmless Seller
and its Affiliates and their respective directors, officers, equity holders,
employees, agents, legal counsel, independent accountants and representatives
and their respective heirs, successors and assigns (collectively, the "Seller
Indemnified Parties") from and against any and all Losses that are directly or
indirectly imposed on, suffered or incurred by any Seller Indemnified Party
26
arising out of or relating to (i) any breach of, or inaccuracy in, any
representation or warranty of Purchaser in this Agreement or any of the Related
Instruments, (ii) any failure to perform, or breach of, any covenant or
agreement of Purchaser set forth in this Agreement or any of the Related
Instruments, (iii) any of the Assumed Liabilities or (iv) the conduct of the
Business after the Closing.
Section 8.3 Indemnification Procedures. (a) All claims for
indemnification by any party entitled to indemnification under this Article VIII
(an "Indemnified Party") with respect to a third-party claim shall be asserted
and resolved as set forth in this Section 8.3. In the event that any claim or
demand by a third party for which a party hereto (the "Indemnifying Party") may
be required to indemnify any Indemnified Party hereunder (a "Claim") is asserted
against or sought to be collected from any such Indemnified Party by a third
party, such Indemnified Party shall as promptly as practicable notify the
Indemnifying Party in writing of such Claim, and such notice shall specify (to
the extent known) in reasonable detail the amount of such Claim and any relevant
facts and circumstances relating thereto (the "Claim Notice"); provided,
however, that any failure to give such prompt notice or to provide any such
facts and circumstances shall not constitute a waiver of any rights of the
Indemnified Party, except to the extent that the rights of the Indemnifying
Party are materially prejudiced thereby.
(b) The Indemnifying Party shall have 15 days from delivery of
the Claim Notice to notify the Indemnified Party whether or not the Indemnifying
Party elects to defend the Indemnified Party against such Claim. In the event
that the Indemnifying Party notifies the Indemnified Party that it elects to
defend the Indemnified Party against such Claim, the Indemnifying Party shall
have the right to defend the Indemnified Party by appropriate proceedings and
shall control such defense at the Indemnifying Party's expense. After notice to
the Indemnified Party of the Indemnifying Party's election to assume the defense
of such Claim, the Indemnifying Party shall not be liable to the Indemnified
Party for any legal expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof unless the Indemnifying Party fails to
diligently pursue the defense of such Claim; provided that the Indemnified Party
shall have the right to employ counsel to represent it if the Indemnified Party
has been advised by counsel that either (x) such Claim involves remedies which,
in the Indemnified Party's reasonable judgment, could have a material adverse
effect on such Indemnified Party, (y) the Indemnified Party may have available
to it one or more defenses or counterclaims which are inconsistent with or
additional to those available to the Indemnifying Party or (z) the use of
counsel chosen by the Indemnifying Party would present such counsel with a
conflict of interest, and in any such event the fees and expenses of such
separate counsel shall be paid by the Indemnifying Party; provided, however,
that the Indemnifying Party shall not be responsible for the fees and expenses
of more than one counsel for all Indemnified Parties with respect to such Claim.
If the Indemnifying Party elects not to defend the Indemnified Party against
such Claim, then the Indemnified Party shall defend such Claim by appropriate
proceedings and shall control such defense, at the expense of the Indemnifying
Party.
(c) The parties shall render to each other such assistance as
may reasonably be requested, at the expense of the Indemnifying Party, in order
27
to insure the proper and adequate defense of any such Claim, including making
employees available on a mutually convenient basis to provide additional
information and explanation of any relevant materials or to testify at any
proceedings relating to such Claim and giving the other party reasonable access
to any books, records and other documents and information relating to the
defense of such Claim.
(d) The Indemnifying Party will not consent to the entry of
any judgment or enter into any settlement with respect to a Claim without the
prior written consent of the Indemnified Party, unless the judgment or
settlement (x) involves only the payment of money damages and (y) includes as an
unconditional term thereof the giving by the claimant or plaintiff to the
Indemnified Party of an unconditional release from all liability in respect of
the Claim. The Indemnified Party will not consent to the entry of any judgment
or enter into any settlement with respect to a Claim without the prior written
consent of the Indemnifying Party, which shall not be unreasonably withheld or
delayed.
Section 8.4 Qualifications on Liability. (a) In no event shall
Seller be liable for indemnification pursuant to Section 8.2(a)(i) unless and
until the aggregate amount of all Losses which are incurred or suffered by the
Purchaser Indemnified Parties thereunder exceeds $60,000, in which case the
Purchaser Indemnified Parties shall only be entitled to indemnification for such
Losses in excess of such amount; provided, however, that Seller shall not be
required to make payments for indemnification pursuant to Section 8.2(a)(i) in
an aggregate amount in excess of the Purchase Price.
(b) In no event shall Purchaser be liable for indemnification
pursuant to Section 8.2(b)(i) unless and until the aggregate amount of all
Losses which are incurred or suffered by the Seller Indemnified Parties
thereunder exceeds $60,000, in which case the Seller Indemnified Parties shall
only be entitled to indemnification for such Losses in excess of such amount;
provided, however, that Purchaser shall not be required to make payments for
indemnification pursuant to Section 8.2(b)(i) in an aggregate amount in excess
of the Purchase Price.(c) (c) Although a representation, warranty, covenant or
agreement of either party hereto may not be deemed breached or inaccurate unless
or until a certain standard as to "material," "materiality" or "Material Adverse
Effect" has been met, for purposes of calculating Losses in connection with this
Article VIII, once such standard has been met, the Indemnified Party shall be
entitled to indemnification for all Losses arising out of or relating to such
breach or inaccuracy of any such representation, warranty, covenant or agreement
without giving effect to any such standard.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices. Any notices or other communications
required or permitted under, or otherwise in connection with, this Agreement
shall be in writing and shall be deemed to have been duly given (w) when
delivered in person, (x) upon confirmation of receipt when transmitted by
facsimile transmission, (y) on receipt after dispatch by registered or certified
mail, postage prepaid, or (z) on the next Business Day if transmitted by
28
national overnight courier, addressed in each case as follows (or to such other
address which has been delivered in accordance with this Section 9.1):
(a) if to Purchaser, to:
Celgene Corporation
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Hugin
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(b) if to Seller, to:
EntreMed, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Section 9.2 Descriptive Headings. The descriptive headings
herein are inserted for convenience only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
Section 9.3 Counterparts; Facsimile Signatures. This Agreement
may be executed in counterparts, each of which shall be deemed an original, but
both of which together shall constitute one and the same agreement. In the event
29
that any signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
Section 9.4 Entire Agreement. This Agreement, the exhibits and
schedules hereto, the Seller Disclosure Letter and the Related Instruments
constitute the entire agreement of the parties hereto, and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof, including, without limitation, the
Confidentiality Agreement, dated December 16, 2002, between Seller and
Purchaser.
Section 9.5 Fees and Expenses. Regardless of whether or not
the transactions contemplated by this Agreement are consummated, each party
shall bear its own fees and expenses incurred in connection with the
negotiation, execution, delivery and performance of this Agreement and the
Related Instruments, except as otherwise expressly provided herein.
Section 9.6 Governing Law. This Agreement shall be governed
and construed in accordance with the Laws of the State of New York, without
regard to any applicable principles of conflicts of law. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of New York located in New
York County and of the United States District Court for the Southern District of
New York, as well as any courts of appeal therefrom, for any litigation arising
out of or relating to this Agreement, any of the Related Instruments or any of
the transactions contemplated hereby or thereby (and agrees not to commence any
litigation relating thereto except in such courts). Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any litigation arising out of or relating to this Agreement, any of the
Related Instruments or any of the transactions contemplated hereby or thereby in
the courts of the State of New York located in New York County and of the United
States District Court for the Southern District of New York, as well as any
courts of appeal therefrom, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such
litigation brought in any such court has been brought in an inconvenient forum.
The parties agree that a final judgment in any such litigation shall be
conclusive and may be enforced in other jurisdictions by suits on the judgment
or in any other manner provided by Law.
Section 9.7 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE
RELATED INSTRUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 9.8 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be transferred, assigned or
30
delegated by either of the parties hereto, in whole or in part, without the
prior written consent of the other party hereto, and any attempt to make any
such transfer, assignment or delegation without such consent shall be null and
void.
Section 9.9 Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto and its
successors and permitted assigns, and, except as expressly provided herein,
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other Person any rights, interests, benefits or remedies of any nature
whatsoever under or by reason of this Agreement.
Section 9.10 Interpretation. In the event of an ambiguity or
question of intent or interpretation, this Agreement shall be construed as if
drafted jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement.
Section 9.11 Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable in any respect for any
reason, the parties shall negotiate in good faith with a view to the
substitution therefor of a suitable and equitable solution in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid provision; provided, however, that the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by Law.
Section 9.12 Payments. Unless otherwise provided herein, all
payments required to be made pursuant to this Agreement shall be made in U.S.
dollars in the form of cash or by wire transfer of immediately available funds
to an account designated by the party receiving such payment.
Section 9.13 Bulk Sales Laws. Purchaser waives compliance by
Seller with any bulk sales or similar Laws applicable to the transactions
contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this
Asset Purchase Agreement as of the date first written above.
CELGENE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Hugin
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Hugin
Title: Senior Vice President and
Chief Financial Officer
ENTREMED, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
32