EXHIBIT 10.1
================================================================================
ASSET PURCHASE AGREEMENT
DATED AS OF NOVEMBER 1, 2005
BY AND BETWEEN
ABLE LABORATORIES, INC., AS DEBTOR-IN-POSSESSION
AND
SUN PHARMACEUTICAL INDUSTRIES LIMITED, AS PURCHASER
================================================================================
Table of Contents
ARTICLE I
DEFINITIONS...........................................................
1.1 Definitions.....................................................
ARTICLE II
SALE OF ASSETS........................................................
2.1 Purchase and Sale of Assets.....................................
2.2 Excluded Assets.................................................
2.3 Assumed Liabilities.............................................
2.4 Excluded Liabilities............................................
2.5 Purchase Price..................................................
2.6 Deposit.........................................................
2.7 Allocation of Purchase Price....................................
ARTICLE III
THE CLOSING...........................................................
3.1 Closing Date....................................................
3.2 Prorations as of the Closing Date...............................
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER..............................
4.1 Organization....................................................
4.2 Authorization...................................................
4.3 Subsidiaries....................................................
4.4 No Conflict; Required Filings and Consents......................
4.5 No Consents.....................................................
4.6 Property........................................................
4.7 Intellectual Property...........................................
4.8 Litigation, etc.................................................
4.9 Environmental Matters...........................................
4.10 Material Contracts..............................................
4.11 Permits.........................................................
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER...........................
5.1 Organization....................................................
5.2 Authorization; Validity.........................................
5.3 No Conflict.....................................................
5.4 No Consents.....................................................
5.5 No Litigation...................................................
5.6 Financial Wherewithal...........................................
ARTICLE VI
COVENANTS AND AGREEMENTS..............................................
6.1 Further Actions.................................................
6.2 Notices and Consents............................................
6.3 Operation of Transferred Assets.................................
6.4 Seller's Chapter 11 Bankruptcy Case.............................
6.5 Access to Information...........................................
6.6 Employee Benefit Arrangements...................................
6.7 Consents and Commercially Reasonable Efforts....................
6.8 Tax Reporting and Other Tax Matters.............................
6.9 Assumed and Assigned Contracts; Excluded Contracts..............
6.10 Transfer Taxes..................................................
6.11 Bankruptcy Filings..............................................
6.12 Cranbury Lease..................................................
6.13 Title Insurance; Survey.........................................
6.14 Power of Attorney; Right of Endorsement, Etc....................
6.15 Original Documentation..........................................
6.16 Filings.........................................................
6.17 Non-Disturbance Agreement.......................................
6.18 Confidentiality.................................................
ARTICLE VII
CONDITIONS TO OBLIGATIONS.............................................
7.1 Conditions to Obligations of Seller.............................
7.2 Conditions to the Obligations of Purchaser......................
ARTICLE VIII
CLOSING...............................................................
8.1 Closing Transactions............................................
8.2 Deliveries by Seller to Purchaser...............................
8.3 Deliveries by Purchaser to Seller...............................
ARTICLE IX
TERMINATION...........................................................
9.1 Termination.....................................................
9.2 Status of Agreement after Termination...........................
9.3 Fees and Expenses...............................................
9.4 Exclusive Remedy................................................
ARTICLE X
GENERAL PROVISIONS....................................................
10.1 Survival........................................................
10.2 Notices.........................................................
10.3 Binding Effect; Benefits........................................
10.4 Public Announcements............................................
10.5 Entire Agreement................................................
10.6 Waivers and Amendments..........................................
10.7 Counterparts....................................................
10.8 Headings........................................................
10.9 Assignment......................................................
10.10 Applicable Law..................................................
10.11 Jurisdiction....................................................
10.12 Waiver of Jury Trial............................................
10.13 Severability....................................................
10.14 Third Party Beneficiaries.......................................
10.15 Disbursements by Seller.........................................
10.16 Construction....................................................
SCHEDULES
Schedule 1.1(a) Patents
Schedule 2.1(b) Pre-paid Equipment
Schedule 2.2 Excluded Assets
Schedule 4.5 Consents
Schedule 4.6 Real Property
Schedule 4.6(p) Material Tangible Property
Schedule 4.7 Intellectual Property
Schedule 4.8 Litigation
Schedule 4.9 Environmental Matters
Schedule 4.10(a) Material Contracts
Schedule 4.11 Permits
Schedule 6.9(a) Assumed Contracts
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") dated as of
November 1, 2005, by and between ABLE LABORATORIES, INC., a Delaware corporation
("Seller"), and SUN PHARMACEUTICAL INDUSTRIES LIMITED, an India corporation
(together with any successor corporation or permitted assign, "Purchaser").
RECITALS
WHEREAS, Seller is currently in possession of certain assets as
Debtor-in-Possession pursuant to Title 11, U.S. Code, 11 U.S.C. ss.ss.101-1330
as amended (the "Bankruptcy Code"), in Case No. 05-33129-RTL (hereinafter
referred to as the "Bankruptcy Case"), presently pending in the United States
Bankruptcy Court for the District of New Jersey (hereinafter referred to as the
"Bankruptcy Court"), and Seller, upon proper approval and authorization from the
Bankruptcy Court, may sell and assign assets outside of the ordinary course of
business;
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires
to purchase from Seller, all of the Transferred Assets (as defined below) free
and clear of all Liens other than Assumed Liabilities; and
WHEREAS, time is of the essence in completing the sale by Seller to
Purchaser of the Transferred Assets.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements set forth herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
Action. Any action, suit, charge, claim, summons, complaint,
lawsuit, investigation, citation, request for investigation, report or notice of
alleged violation of Law, arbitration, audit or legal proceeding of any nature
filed with or made to or by any private party or Governmental Authority or
organization having jurisdiction or authority over Seller, its assets, its
property or its operations.
Affiliate. As defined in Rule 12b-2 of the Securities Exchange Act
of 1934, as amended.
Agreement. This Asset Purchase Agreement, together with all
Schedules referred to herein, as the same may be amended, supplemented or
otherwise modified from time to time.
Alternative Transaction. As defined in Section 6.4(b).
ANDAs. As defined in Section 2.1(f).
Approval Order. An Order or Orders of the Bankruptcy Court in a form
reasonably satisfactory to Seller and Purchaser that, among other things, (i)
authorizes and approves the sale to Purchaser pursuant to this Agreement of the
Transferred Assets, and approves the terms of this Agreement, (B) finds that
Purchaser is acting in good faith and is entitled to the protections of a buyer
under section 363(m) of the Bankruptcy Code and (C) contains such other findings
and provisions as may be reasonably requested by Purchaser (including a finding
that notice of the transactions contemplated by this Agreement has been properly
given) to assure that (1) title to the Transferred Assets will be transferred to
Purchaser free and clear of all Liens (other than the Assumed Liabilities) and
any such Liens shall attach solely to the Total Purchase Price, (2) Seller will
be duly authorized to execute and deliver such instruments as are required to be
executed and delivered pursuant to the terms of this Agreement, and (3) Seller,
upon assuming and assigning to Purchaser each of the Assumed Contracts will have
properly assumed and assigned the same, and that upon payment of Cure Amounts
being made, there will be no defaults thereunder as of the Closing Date unless
such defaults would not have a material adverse effect on the condition of the
Transferred Assets and that the assignment and transfer of same to Purchaser
will not constitute a default thereunder.
Assumed Contracts. All Contracts set forth on Schedule 6.9(a). When
used in Article IV, "Assumed Contracts" shall refer to those Contracts listed on
Schedule 6.9(a) (i) as of the date of this Agreement, and (ii) as of the Closing
Date as modified pursuant to Section 6.9(a).
Assumed Liabilities. All liabilities and obligations of Seller
arising out of the Assumed Contracts (excluding any liabilities and obligations
attributable to any breach or default by Seller thereunder) following the
Closing Date.
Assumption Agreement. The Assignment and Assumption Agreement to be
entered into by and between Purchaser and Seller at the Closing in a form
reasonably satisfactory to Purchaser and Seller.
Bankruptcy Case. As defined in the Recitals hereto.
Bankruptcy Code. As defined in the Recitals hereto.
Bankruptcy Court. As defined in the Recitals hereto.
Bidding Procedures Motion. The Motion filed by Seller on October 7,
2005, with the Bankruptcy Court seeking, among other things, the entry of the
Bidding Procedures Order.
Bidding Procedures Order. An Order of the Bankruptcy Court in form
and substance satisfactory to Purchaser that, among other things, (i) grants the
Bidding Procedures Motion, (ii) approves the Break-up Fee on the terms and
conditions set forth in Section 9.3 hereof and (iii) establishes a date by which
bids for Alternative Transactions must be submitted by bidders and establishes
procedures for the auction process.
▇▇▇▇ of Sale. The ▇▇▇▇ of Sale to be executed by Seller in a form
reasonably satisfactory to Seller and Purchaser.
Business Day. A day that is not a Saturday, Sunday or legal holiday
in the States of New Jersey and Michigan.
Claims. As defined in section 101 of the Bankruptcy Code.
Closing. As defined in Section 3.1.
Closing Cash Payment. As defined in Section 2.5(b).
Closing Date. As defined in Section 3.1.
Code. Internal Revenue Code of 1986, as amended.
Consent. Any consent, waiver, approval, permit or authorization of,
notice to, or designation, registration, declaration or filing with, any Person.
Contract. Any written or oral contract, agreement, understanding,
lease, license, note, plan, instrument, commitment, restriction, arrangement,
obligation, undertaking or authorization of any kind or character.
Cranbury Lease. That certain Lease Agreement dated September 17,
2003 between Matrix Cranbury Associates, LLC, as lessor, and Seller, as lessee,
with respect to the Leased Real Property.
Cure Amounts. Any amounts due under any Assumed Contract including,
without limitation, any amounts necessary to cure existing pre-petition and
post-petition defaults which are required to be cured or paid by Seller in order
for Purchaser to assume the Assumed Contracts, if any.
Deposit. An aggregate amount in cash equal to $4,629,000 wire
transferred to Seller, or at the request of Purchaser, transferred pursuant to
the Escrow Agreement, within twenty-four (24) hours of Purchaser's execution of
this Agreement. Seller acknowledges receipt of $3,471,750 of the Deposit.
Environment. As defined in Section 4.9(a).
Environmental Law. As defined in Section 4.9(a).
Environmental Liabilities. As defined in Section 4.9(a).
Environmental Permits. As defined in Section 4.9(a).
Escrow Agreement. An escrow agreement in form and substance
reasonably acceptable to Seller and Purchaser, entered into after the date of
this Agreement.
Excluded Assets. As defined in Section 2.2.
Excluded Contracts. As defined in Section 6.9(b).
Excluded Liabilities. As defined in Section 2.4.
Final Order. An order of the Bankruptcy Court, the operation or
effect of which has not been stayed, and which is not subject to any pending
appeal, request for leave to appeal or request for reconsideration.
Governmental Authority. Any federal, state, county, local, foreign
or other governmental or public agency, court, arbitrator, tribunal,
administrative agency, instrumentality, commission, authority, board or body.
Hazardous Materials. As defined in Section 4.9(a).
Hazardous Materials Contamination. As defined in Section 4.9(a).
Intellectual Property. (a) all United States and foreign patents and
patent applications, now owned or hereafter acquired by Seller, including,
without limitation, the inventions and improvements described and claimed
therein, and all licenses thereof and the reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof, including those set
forth on Schedule 1.1(a) ("Patents"); (b) all United States and foreign
copyrights, registered or unregistered, in all copyrightable works including all
registrations and applications therefor and all licenses thereof and any
renewals or extensions of the registrations therefor that may be secured under
the laws now or hereafter in effect in the United States or any other country or
countries ("Copyrights"); (c) with respect only to pharmaceutical products
developed, manufactured and/or sold by Seller, all United States and foreign
trademarks, trade names, trade styles, service marks, logos, other source of
identifiers, prints and labels on which any of the foregoing have appeared or
appear, designs and general intangibles of like nature, trademark registrations
and applications for registration, now owned by Seller and all licenses thereof
(collectively, the "Trademarks"); (d) together with (i) the goodwill of the
business connected with the use of, and symbolized by, each of the Patents,
Copyrights, and Trademarks, and the registration renewals thereof, (ii) all
income, royalties, damages and payments hereafter due or payable under and with
respect thereto, (iii) the right to ▇▇▇ and recover for past, present and future
infringements thereof, (iv) the rights to ▇▇▇ and recover for past, present and
future infringements thereof, and (v) all rights corresponding thereto
throughout the world; (e) all trade secrets, invention, process, design, plant
and plant variety, "know-how", customer lists, supplier lists, pricing and cost
information, business and marketing plans and other confidential business
information, (f) all inventions, ideas, and other recognizable intellectual
property rights including with respect to the assets listed on schedule 4.7, (g)
all computer programs and related software other than commercially available
"off-the-shelf" software, (h) all domain name registrations, (i) all other
recognizable proprietary rights, and (j) all copies and tangible embodiments
thereof.
Inventory. All inventories, including, without limitation, raw
materials, work in process (including offsite inventory with contract
manufacturers) and finished goods, owned by Seller.
ISRA. The New Jersey Industrial Site Recovery Act.
Law. Any law (including common law), statute, code, ordinance, rule,
regulation or Order or other requirement enacted, promulgated, issued or entered
by a Governmental Authority.
Leased Real Property. The property commonly known as ▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ leased by Seller pursuant to the Cranbury Lease.
Liabilities and Costs. All indebtedness, Claims, liabilities,
obligations, responsibilities, losses, diminutions in value, damages, judgments,
punitive damages, economic damages, treble damages, costs or expenses, fines,
penalties and monetary sanctions of Seller, including Environmental Liabilities,
whether accrued, absolute or contingent, asserted or unasserted, and whether or
not of a kind required by United States generally accepted accounting principles
to be set forth on a financial statement or in notes thereto.
Liens. Any and all liabilities, obligations, interests, levies,
Claims, charges, assessments, defenses, setoffs, recoupments, mortgages,
security interests, liens (including Tax liens), pledges, deeds of trust,
hypothecation, conditional sales agreements, title retention contracts, leases,
subleases, easements, clouds on title, rights of first refusal, options to
purchase, restrictions and other encumbrances, or any other similar restriction,
claim or right of others, and agreements or commitments to create or suffer any
of the foregoing.
Material Adverse Effect. Any change, event or circumstance that
would materially adversely affect the Transferred Assets, taken as a whole.
Material Contracts. As defined in Section 4.10(a).
Order. Any decree, consent decree, settlement, injunction, judgment,
order, ruling, writ, quasi-judicial decision or award or administrative decision
or award of any Governmental Authority to which any Person is a party or that is
or may be binding on any Person or its securities, assets or business.
Permit. Any license, permit, consent, franchise, registration,
certificate of authority or order, or any waiver of the foregoing, required to
be issued by any Governmental Authority.
Person. A natural person or any legal, commercial or Governmental
Authority, such as, but not limited to, a business association, corporation,
general partnership, joint venture, limited partnership, limited liability
company, trust, or any person acting in a representative capacity.
Purchased Real Property. The parcels of land commonly known as ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and more fully described on
Schedule 4.6, together with all privileges and appurtenances thereto and all
plants, buildings, structures, installations, fixtures, fittings, improvements,
betterments and additional situated thereon and together with all easements and
rights-of-way used or useful in connection therewith.
Purchaser. As defined in the Recitals hereto.
Purchaser Material Adverse Effect. Any change, event or circumstance
that would materially adversely affect or materially delay Purchaser's ability
to consummate the transactions contemplated by this Agreement.
Real Property. The Purchased Real Property and the Leased Real
Property.
Release. As defined in Section 4.9(a).
Representatives. As defined in Section 6.4(b).
Seller. As defined in the Recitals hereto.
Seller's Knowledge. The actual knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, after reasonable investigation and due inquiry.
Statement of Allocation. As defined in Section 2.7.
Subsidiary. With respect to any Person, (i) any corporation of which
more than fifty percent (50%) of the outstanding capital stock having ordinary
voting power to elect a majority of the board of directors of such corporation
is at the time, directly or indirectly, owned by such Person, or (ii) any
partnership, limited liability company or joint venture or other entity of which
more than fifty percent (50%) of the outstanding equity interests are at the
time, directly or indirectly, owned by such Person.
Superior Transaction. One or more written or oral proposals (with
such oral proposals made on the record at the auction or a hearing before the
Bankruptcy Court) made by one or more third parties for one or more Alternative
Transactions that represent, alone or in the aggregate, and in Seller's and any
applicable secured lender's discretion after consultation with the Official
Unsecured Creditors Committee of the Bankruptcy Case, a higher or better offer
for the Transferred Assets than the offer made by Purchaser for the Transferred
Assets pursuant to the terms of this Agreement.
Survey. As defined in Section 6.13(b).
Tangible Property. As defined in Section 4.6(p).
Taxes. Taxes of any kind, including, but not limited to, those
measured by or referring to income, gross receipts, sales, use, ad valorem,
franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, value added, property or windfall profits
taxes, customs, duties or similar fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any Governmental Authority, including any taxes of
any other Person by reason of Treasury Regulation 1.1502-b, or by reason of
similar state, federal or foreign Law, or by Contract or otherwise.
Tax Return. Any return, report or statement required to be filed
with any Governmental Authority with respect to Taxes.
Title Commitment. As defined in Section 6.13(a).
Title Company. First American Title Insurance Company, writing
through its National Commercial Services division in Chicago, Illinois.
Title Policy. As defined in Section 6.13(a).
Total Purchase Price. As defined in Section 2.5(a).
Transferred Assets. As defined in Section 2.1.
WARN Act. The Worker Adjustment and Retraining Notification Act, as
amended, 29 U.S.C. ▇▇.▇▇. 2101 - 2109.
ARTICLE II
SALE OF ASSETS
2.1 Purchase and Sale of Assets. Subject to the terms and conditions
set forth in this Agreement and in reliance upon the representations and
warranties of Seller and Purchaser herein set forth, at the Closing, Seller
shall sell, transfer, convey, assign and deliver to Purchaser, and Purchaser
shall purchase from Seller, all of Seller's right, title and interest, as of the
Closing Date, in and to the Transferred Assets pursuant to sections 363 and 365
of the Bankruptcy Code. The Transferred Assets shall be conveyed free and clear
of all Liabilities and Costs, obligations, interests and Liens, other than the
Assumed Liabilities. For purposes of this Agreement, the term "Transferred
Assets" shall mean all of the following assets, properties and rights of Seller,
including as more fully described in Exhibits 4.6 (excluding the Excluded
Assets):
(a) the Purchased Real Property;
(b) the pre-paid equipment set forth on Schedule 2.1(b);
(c) all machinery, equipment, furniture, phones and other fixed
assets located at the Purchased Real Property;
(d) all machinery, equipment, phones, office equipment, materials
handling equipment and material, storage racks, laboratory material (including
standards, columns, solvents, reagents and glassware), spare parts, calibration
equipment, any other material (including consumables) and other fixed assets
located at the Leased Real Property;
(e) all of the rights, title, interest and benefits accruing under
the Assumed Contracts, including the Cranbury Lease and all leasehold
improvements made to the Leased Real Property (excluding any Cure Amounts due
and owing thereunder);
(f) copies of all batch master records relating to manufacturing,
packaging, stability and analytical testing of finished product, in process
product, and raw materials;
(g) copies of all books and records, product literature, research
files and data; FDA submissions, Abbreviated New Drug Applications ("ANDAs") and
pending ANDAs, New Drug Applications ("NDAs") and pending NDAs, DESI and
Grandfathered Products, development reports and annual review of products,
equipment and facility specifications, vendor data, documents related to
calibrations, qualifications, validations, and commissioning, operating data,
engineering drawings related to projects and the Leased Real Property, all
general records, customer and supplier lists, all property tax returns for the
period from 2001 through and including 2004, all employee records,
correspondence and other written records, wherever located;
(h) all Intellectual Property, other than the Intellectual Property
set forth on Schedule 2.2, and all goodwill associated therewith;
(i) all intangibles of Seller, including ideas, know-how, processes
and methodologies and all documentation related thereto;
(j) all of the rights to the licenses, Permits, approvals,
clearances and authorizations necessary to operate the Transferred Assets;
(k) other than as set forth in Schedule 2.2, all computers and
installations, software packages and licenses, and security and environmental
monitoring systems (including all related documents, equipment and software);
(l) all unused raw materials still in their original packaging;
(m) copies of all SOP's, protocols, methods of cleaning validation
and methods of analysis for raw materials and for finished products; and
(n) any deposits or prepaid advances made by Seller with respect to
any Assumed Contract, including the lease for the Leased Real Property.
2.2 Excluded Assets. Notwithstanding anything to the contrary set
forth in Section 2.1, Seller shall retain and not sell, transfer, convey, assign
and deliver to Purchaser, and Purchaser shall not purchase from Seller, all
assets of Seller not constituting Transferred Assets (collectively, the
"Excluded Assets"), including, without limitation, the following:
(a) Seller's rights under this Agreement and all cash and non-cash
consideration payable or deliverable to Seller pursuant to the terms and
provisions hereof;
(b) the Excluded Contracts;
(c) other than as set forth in Section 2.1(n), all accounts, notes,
accounts receivable, contract rights, drafts and other forms of claims, demands,
employee advances, instruments, receivables, trade accounts receivable and
rights to the payment of money or other forms of consideration;
(d) other than as set forth in Section 2.1(l), all Inventory;
(e) tax records, corporate minute books, stock transfer books and
corporate seals of Seller and any other books and records relating solely to the
Excluded Assets;
(f) other than as set forth in Section 2.1(n), all cash, cash
equivalents and marketable securities and professional retainers paid by Seller;
(g) all Contracts with any Affiliate of Seller (other than those
which constitute Assumed Contracts);
(h) all rights and claims in or to any refunds or credits of or with
respect to any Taxes, assessments or similar charges paid by or on behalf of
Seller, in each case to the extent applicable to any period prior to the Closing
(but not any of the foregoing paid by any entity comprising Purchaser);
(i) all securities (whether capital stock or debt) of any Person
(including any Subsidiary of Seller);
(j) any employee benefit plans and programs providing benefits to
any employee or former employee of Seller sponsored or maintained by Seller or
any of its Affiliates or to which Seller contributes or is obligated to
contribute (and the assets therein) which is not specifically identified as an
Assumed Contract;
(k) all claims, rights and causes of action of Seller arising under
or relating to Chapter 5 of the Bankruptcy Code (whether or not asserted as of
the Closing Date), including, without limitation, any such claims and actions
arising under sections 544, 545, 547, 548, 549, 551 or 553 of the Bankruptcy
Code;
(l) any insurance policies or contracts; and
(m) the assets described on Schedule 2.2, including all trade names
of Seller not specifically of or related to pharmaceutical products manufactured
and/or sold by Seller.
2.3 Assumed Liabilities. Subject to the terms and conditions set
forth in this Agreement, at the Closing Date, Purchaser shall assume the Assumed
Liabilities pursuant to section 365 of the Bankruptcy Code.
2.4 Excluded Liabilities. Notwithstanding anything in this Agreement
to the contrary, in no event shall Purchaser assume or be obligated to pay, and
none of the Transferred Assets shall be or become liable for or subject to, and
any obligee of any such Excluded Liability (as hereafter defined) shall be
permanently enjoined from commencing, continuing or otherwise pursuing or
enforcing against the Transferred Assets or Purchaser, any of the Liabilities
and Costs of Seller other than the Assumed Liabilities (collectively, the
"Excluded Liabilities").
2.5 Purchase Price.
(a) Subject to the terms and conditions of this Agreement, in
consideration for the Transferred Assets to be acquired hereunder, Purchaser
hereby agrees to pay Seller pursuant to Section 2.5(b) an aggregate amount equal
to Twenty-Three Million One Hundred Forty-Five Thousand Dollars ($23,145,000)
(the "Total Purchase Price"). The Total Purchase Price shall not be deemed to
include the Cure Amounts related to the Assumed Liabilities, if any, which shall
be treated as expenses.
(b) At the Closing, Purchaser shall pay to Seller an amount equal to
(A) the Total Purchase Price, less (B) the Deposit, by wire transfer of
immediately available funds to an account or accounts specified by Seller prior
to the Closing Date (the "Closing Cash Payment").
2.6 Deposit. Within twenty-four (24) hours after execution hereof,
Purchaser shall deliver the balance of the Deposit. Upon termination of this
Agreement, the Deposit shall be refunded promptly to Purchaser unless otherwise
provided herein.
2.7 Allocation of Purchase Price. For federal income tax purposes
only, Purchaser shall be deemed to have delivered cash in the amount of the
Total Purchase Price for the Transferred Assets, and to have assumed liabilities
in the amount equal to the cost of satisfying the Assumed Liabilities (as
determined by Purchaser's accountants). The Total Purchase Price shall be
allocated among the Transferred Assets and the Assumed Liabilities in accordance
with a statement (the "Statement of Allocation") prepared in good faith by
Purchaser's accountants and in accordance with section 1060 of the Code, the
form and substance of which shall be approved by Seller which approval shall not
be unreasonably withheld. Purchaser's accountants shall deliver the Statement of
Allocation to Seller no later than three (3) days prior to the Closing Date.
Seller shall complete and execute a Form 8594 Asset Acquisition Statement under
section 1060 of the Code promptly upon receipt of such allocation, in a manner
consistent with the Statement of Allocation, deliver a copy of such form to
Purchaser and file a copy of such form with Seller's Tax Returns for the period
that includes the Closing Date. None of the parties hereto shall take any action
inconsistent with the Statement of Allocation prepared in accordance with this
Section 2.7.
ARTICLE III
THE CLOSING
3.1 Closing Date. The closing date (the "Closing Date") shall be the
second Business Day after the date on which the conditions set forth in Article
VII are satisfied or such other date as the parties hereto may mutually agree to
in writing. The closing (the "Closing") of the transactions contemplated by this
Agreement shall take place at the offices of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 1251 Avenue of
the Americas, New York, New York on the Closing Date, or at such other place,
time and date as Seller and Purchaser may mutually agree.
3.2 Prorations as of the Closing Date. Purchaser and Seller agree
that the following items (solely to the extent constituting Transferred Assets
or Assumed Liabilities) shall be prorated as of the Closing Date pursuant to the
most recent information available to Seller, with Seller to be responsible for
and to receive the benefit of the same for the period through the Closing Date,
and Purchaser to be responsible for and to receive the benefit of the same after
the Closing Date:
(a) real and personal property Taxes and assessments;
(b) water, sewer and other similar types of Taxes and
installments or special benefit assessments;
(c) electric, gas, telephone and other utility charges;
(d) rentals under leases which constitute Assumed Contracts
(other than the Cure Amounts); and
(e) charges under maintenance, service and other Contracts and
fees under Permits which constitute Transferred Assets (other than
the Cure Amounts).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that:
4.1 Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation.
4.2 Authorization. Subject to the receipt of all necessary Orders
from the Bankruptcy Court (i) Seller has the corporate power and authority
necessary to enter into and perform its obligations under this Agreement and
(ii) the execution, delivery and performance by Seller of this Agreement has
been authorized by all necessary corporate action on the part of Seller and no
other corporate proceedings on the part of Seller are necessary to approve the
consummation of the transactions contemplated hereby.
4.3 Subsidiaries. Seller does not own any equity interest of any
Person nor is a party to any joint venture with any other Person.
4.4 No Conflict; Required Filings and Consents. Neither the
execution nor the delivery by Seller of this Agreement, the performance of its
obligations hereunder nor the consummation of the transactions contemplated
hereby will: (a) conflict with or violate the certificate of incorporation or
by-laws of Seller; or (b) on the Closing Date, assuming that all consents,
approvals and notices contemplated by Section 4.5 have been obtained and all
filings described therein have been made and that all necessary Orders have been
entered by the Bankruptcy Court and are in full force and effect, (i) conflict
with or violate any Laws or Orders or other binding requirements of any
Governmental Authority applicable to Seller or by which its properties are bound
or affected; or (ii) result in any breach or violation of or constitute a
default (or an event which with notice or lapse of time or both could become a
default) or result in the loss of a material benefit under, or give rise to any
right of termination, amendment, acceleration or cancellation of any Assumed
Contract, or result in the creation of a Lien on any of the Transferred Assets.
4.5 No Consents. The execution, delivery and performance of this
Agreement by Seller does not and will not require any approval, authorization or
permit of, action by, filing with or notification to, any Governmental
Authority, or any other Consent, other than (a) the approvals, notices and other
Consents set forth in Schedule 4.5 (which for the avoidance of doubt do not
include any approvals or other Consents required by the Food and Drug
Administration or applicable state authorities), and (b) the entry of the
applicable Orders with the Bankruptcy Court.
4.6 Property.
(a) Schedule 4.6 sets forth the record title holder, legal address,
a complete and accurate legal description, and a permanent index number with
respect to each parcel of the Purchased Real Property.
(b) Seller has heretofore delivered to Purchaser a true, correct and
complete copy of the Cranbury Lease. The Cranbury Lease (i) is in full force and
effect, valid and enforceable against the parties thereto in accordance with its
terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws of general application affecting
the enforceability of creditors' rights generally or by general principles of
equity; and (ii) constitutes the entire agreement to which Seller is a party
with respect to the Leased Real Property. Seller is not in receipt of any notice
of default pursuant to the Cranbury Lease, no rentals are past due and no
condition exists that is or could be a default by any party under the Cranbury
Lease.
(c) Seller has good and marketable fee simple title to the Purchased
Real Property and a valid and assignable interest in the Cranbury Lease, free
and clear of all Liens, other than Liens to be released prior to Closing. To
Seller's Knowledge, there is no unrecorded or undisclosed legal or equitable
interest in any portion of the Real Property owned or claimed by any Person.
Seller has not received written notice of any (i) violation of any applicable
zoning, subdivision and building laws and regulations or (ii) pending or
threatened condemnation proceeding against the Real Property or the desire or
intention of any Governmental Authority to take or use the Real Property or any
material part thereof.
(d) All the buildings and fixtures owned by Seller are located on
the Real Property and none of such buildings, fixtures or improvements encroach
on any adjoining property owned by others or public rights of way.
(e) Each parcel of Real Property abuts on at least one side a public
street or road in a manner so as to permit reasonable, customary and adequate
vehicular and pedestrian ingress, egress and access to such parcel, or has
adequate easements across intervening property to permit reasonable, customary
and adequate vehicular and pedestrian ingress, egress and access to such parcel
from a public street or road. There are no restrictions on entrance to or exit
from the Real Property to adjacent public streets and no conditions which will
result in the termination of the present access from the Real Property to
existing highways or roads.
(f) Seller has enjoyed the continuous and uninterrupted quiet
possession, use and operation of the Real Property without any material
complaint or objection by any Person. There exists no unfulfilled obligation on
the part of Seller to dedicate or grant an easement or easements over any
portion or portions of any of the Real Property to any Governmental Authority.
(g) Seller has not received any written notice of violation of any
restrictive covenants, deed restrictions, right of way, licenses or easements
affecting title to or relating to the use of the Real Property or any Law
applicable to the Real Property, which has not been remedied, nor has Seller
received any written notice of any fence dispute, boundary dispute, boundary
line question, water dispute or drainage dispute concerning or affecting any
portion of the Real Property.
(h) Seller has not received, with respect to the Real Property, any
notice from any insurance company, Governmental Authority or any other party of,
nor are there any facts or circumstances which could give rise to, any
condition, defect, or inadequacy affecting the Real Property that, if not
corrected, would result in termination of insurance coverage or materially
increase its cost.
(i) All water, sewer, electric, natural gas, telephone, drainage
facilities and all other utilities required for the permitted use of the Real
Property are installed on the Real Property, are connected with valid permits,
comply with all Laws and are adequate to service the Purchased Real Property for
its current use.
(j) Seller has not received any notice that (A) any permanent
certificates of occupancy or (B) any other licenses, permits, authorizations and
approvals required by applicable Governmental Authorities having jurisdiction
over the Real Property have not been issued, have not been paid for, or are no
longer in full force and effect.
(k) Neither the Real Property nor the use or occupancy thereof
violates any applicable Laws, Orders or Permits.
(l) The zoning of each parcel of Real Property permits the presently
existing improvements on such parcel. There is no pending or, to Seller's
Knowledge, contemplated rezoning of the Real Property.
(m) There are no outstanding, defaulted or unsatisfied contracts,
commitments, agreements or understandings which have been made to, with or for
the benefit of any utility companies, school districts, water districts,
improvement districts or other Governmental Authorities which could reasonably
be expected to impose any obligation, liability or condition on Seller to grant
any easements or to make any payments, contributions or dedications of money or
land or to construct, install or maintain or to contribute to the construction,
installation or maintenance of any improvements of a public or private nature,
whether on or off the Real Property.
(n) There are no claims, governmental investigations, litigation or
proceedings which are pending or, to Seller's Knowledge, threatened against the
Real Property or Seller which could reasonably be expected to affect the
continued use or possible development of the Real Property. There are no
presently pending or, to Seller's Knowledge, threatened proceedings to (a)
condemn, take or demolish the Real Property or any part thereof, (b) declare the
Real Property or any part of it a nuisance, (c) widen or realign any street or
highway adjacent to the Real Property or (d) exercise the power of eminent
domain or a similar power with respect to all or any part of the Real Property.
(o) Seller has not received any notice of any special tax assessment
or liens affecting the Real Property owned or leased by it, and no such
assessments or liens are pending or, to Seller's Knowledge, threatened.
(p) Schedule 4.6(p) sets forth a correct and complete list, as of
the date of this Agreement, of each item of tangible property (excluding
Inventory) owned by Seller (the "Tangible Property") which has a book value in
excess of $5,000.
(q) Seller has good and marketable title to the Tangible Property,
free and clear of all Liens, or exceptions to title.
(r) The Transferred Assets are in good condition and repair (subject
to routine maintenance and repair for similar assets of like age and use) and
are usable in the ordinary course of business. All of the Transferred Assets are
located at the Real Property.
4.7 Intellectual Property. Except as set forth on Schedule 4.7
hereto, (a) no claims are pending or, to Seller's Knowledge, threatened that
Seller is infringing on or otherwise violating the rights of any Person with
regard to any Intellectual Property constituting a Transferred Asset and (b) no
Person is infringing on or otherwise violating any right of Seller with respect
to any Intellectual Property constituting a Transferred Asset. Schedule 4.7
identifies (a) patents, patent applications, all registered and unregistered
trademarks, and all licenses, agreements or other permissions of Seller, (b)
each material license, agreement or other permission which Seller has granted to
any third party with respect to any Intellectual Property owned by Seller and
(c) each material item of Intellectual Property that any third party owns and
that Seller licenses or otherwise has rights to use.
4.8 Litigation, etc. Except as set forth in Schedule 4.8 or in
connection with the filing of the Bankruptcy Case, there is no pending or, to
Seller's Knowledge, threatened Action against or affecting Seller nor is there
any Order of any Governmental Authority outstanding or, to Seller's Knowledge,
threatened against Seller. Seller has delivered to Purchaser complete and
correct copies of all pleadings and other material documents relating to the
matters referred to on Schedule 4.8.
4.9 Environmental Matters.
(a) Definitions: "Environment" includes, but is not limited to, air,
surface water, groundwater, surface soil and subsurface soil; "Environmental
Law" means any Law or Order at any time in effect relating to the Environment,
public health and safety or worker health and safety, including any Law relating
to Releases or threatened Releases of Hazardous Materials into the Environment,
or relating to the presence, generation, use, storage, treatment,
transportation, recycling, handling, disposal or arranging for transportation,
treatment, disposal or handling of Hazardous Materials; "Environmental
Liabilities" means any and all claims, actions, proceedings, losses, costs,
damages (actual and consequential), judgments, liabilities, obligations, causes
of action, fines, penalties or expenses (including without limitation attorneys'
fees and expenditures for investigation and remediation) incurred by reason of
the presence, Release, threatened Release, handling or transportation of
Hazardous Substances or otherwise related to Environmental Laws; "Environmental
Permits" means, collectively, all Permits required under Environmental Laws;
"Hazardous Materials" means, collectively, any chemicals, materials or
substances that are defined as or included in any definition of or regulated as
"hazardous substances", "hazardous wastes", "hazardous materials", "extremely
hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic
pollutants", "pollutant", "contaminant", or words of similar meanings or
regulatory effect under any Environmental Law, including but not limited to
asbestos, petroleum and its products, radioactive materials, formaldehyde, and
medical or pharmaceutical materials or wastes; "Hazardous Materials
Contamination" means the presence of Hazardous Materials in, at, on, under or
emanating from any improvement, building, or the Environment other than in
compliance with Environmental Law or as not likely to result in material
Environmental Liabilities; "Release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing (including the abandonment or discarding of barrels, containers and
other closed receptacles containing any Hazardous Material) into the
Environment.
(b) Except as set forth on Schedule 4.9, no Release of Hazardous
Materials resulting in Hazardous Materials Contamination has occurred at the
Real Property.
(c) No threat of Release of Hazardous Materials exists at the Real
Property other than in compliance with Environmental Law or as not likely to
result in material Environmental Liabilities.
(d) No Hazardous Materials Contamination exists at the Purchased
Real Property.
(e) There are no pending or, to Seller's Knowledge, threatened,
civil, criminal, administrative or private party Actions, demands, Liens,
Orders, proceedings or hearings based on or related to Environmental Laws or
Hazardous Materials against Seller or involving the Real Property. Seller has
not received any notice of any material noncompliance or Environmental
Liabilities.
(f) No underground storage tanks, impoundments, pits, or disposal
areas for Hazardous Materials are located on or have been removed from,
abandoned or closed at the Real Property other than in compliance with
Environmental Law or as not likely to result in material Environmental
Liabilities.
(g) Seller has been and is in compliance with Environmental Laws and
Environmental Permits. Seller has all material Environmental Permits necessary
for the Real Property. Such Environmental Permits are in full force and effect,
and Seller has timely filed any necessary applications or renewals related to
Environmental Permits.
(h) Seller has delivered to Purchaser true and correct copies of all
environmental audit, assessment or investigation reports and other material
environmental documents relating to the Real Property which are in its
possession or control.
4.10 Material Contracts.
(a) Schedule 4.10(a) contains an accurate and complete list of each
of the following Contracts to which Seller is a party (the "Material
Contracts"):
(i) Contracts for the future acquisition or sale of any assets
or the furnishings of any services;
(ii) Contracts which involve expenditures or receipts in
excess of $25,000;
(iii) Contracts entered into after the date and time of the
filing of the Bankruptcy Case which involve expenditures or receipts by or
to Seller in excess of $25,000, other than any Contract that can be
terminated by Seller upon less than 30 days' prior notice without penalty;
(iv) Contracts relating to the acquisition or disposition by
Seller of any operating business, product line or a material amount of
assets, or the acquisition by Seller of capital stock of any other Person;
(v) Contracts with any current or former officer, director or
employee of Seller;
(vi) Contracts with any labor union or association
representing employees;
(vii) Contracts requiring the payment by or to Seller of a
royalty or similar commission or fee of more than $25,000 in any 12-month
period;
(viii) Contracts relating to the borrowing of money pursuant
to which Seller will remain obligated after the Closing;
(ix) Contracts (A) relating to the creation of Liens or the
guarantee of the payment of Liabilities and Costs or performance of
obligations of any other Person by Seller and (B) constituting Assumed
Contracts;
(x) Contracts for the lease of property from or to third
parties involving annual payments in any one case of more than $25,000;
(xi) all individual customer orders in excess of $25,000;
(xii) Contracts with Affiliates; and
(xiii) Contracts containing covenants of Seller prohibiting or
materially limiting the right to compete in any business or restricting
its ability to conduct any business with any Person or in any geographical
area.
(b) Upon Closing, each Material Contract (other than those which
will have terminated or expired on or prior to the Closing Date in accordance
with their terms) which constitutes an Assumed Contract is in full force and
effect and is a valid and binding obligation of Seller and the other parties
thereto, enforceable in accordance with its terms. True, correct and complete
copies (or, if oral, written summaries) of each Assumed Contract has been
delivered or made available to Purchaser.
4.11 Permits. Seller holds all Permits that are required by any
Governmental Authority to allow it to own the Transferred Assets. Schedule 4.11
contains an accurate and complete list of all Permits held by Seller, and all
such Permits are valid and in full force and effect.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that:
5.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation.
5.2 Authorization; Validity. Purchaser has the corporate power and
authority necessary to enter into and perform its obligations under this
Agreement. The execution, delivery and performance by Purchaser of this
Agreement has been duly authorized by all necessary corporate action on the part
of Purchaser and no other corporate proceedings on the part of Purchaser are
necessary to approve the consummation of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Purchaser and constitutes
the legal, valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, except to the extent enforceability may
be limited by bankruptcy, insolvency, moratorium or other similar laws of
general application affecting the enforceability of creditors' rights generally
or by general principles of equity.
5.3 No Conflict. Neither the execution or the delivery by Purchaser
of this Agreement, the performance of its obligations hereunder nor the
consummation of the transactions contemplated hereby will conflict with or
violate or constitute a default (or an event which with notice or lapse of time
or both could become a default) under any terms, conditions or provisions of (a)
Purchaser's certificate of incorporation or by-laws or (b) any Law, Order or
Contract by which Purchaser is bound or to which either Purchaser or its assets
are subject, except, in the case of this clause (b), any conflict, violation,
breach or default which could not reasonably be expected to result in a
Purchaser Material Adverse Effect.
5.4 No Consents. No Consent of any Person is required to be obtained
by Purchaser in connection with the execution and delivery by Purchaser of this
Agreement or the consummation by Purchaser of the transactions contemplated
hereby to be performed by Purchaser.
5.5 No Litigation. No suit, action or legal, administrative,
arbitration or other proceeding or investigation by any governmental agency is
pending or, to the knowledge of Purchaser, threatened by or against Purchaser
which would have a Purchaser Material Adverse Effect.
5.6 Financial Wherewithal. On the date hereof, Purchaser has
sufficient cash or cash equivalents available, directly or through one or more
Affiliates, to pay the Deposit, and Purchaser will have sufficient cash or cash
equivalents available, directly or through one or more Affiliates, to pay the
Closing Cash Payment for the Transferred Assets on the Closing Date.
ARTICLE VI
COVENANTS AND AGREEMENTS
6.1 Further Actions.
(a) From and after the date hereof, Seller shall execute and deliver
such further documents and instruments and take such further actions as may be
necessary to perform this Agreement and to sell the Transferred Assets to
Purchaser in compliance with the Approval Order. Seller shall submit any
required ISRA initial notification General Information Notice ("GIN") no later
than five (5) calendar days from the signing of this Agreement and shall
promptly submit a Negative Declaration and pay any fees associated with each
filing. If applicable, Seller shall diligently pursue the expedited review
process under ISRA. Seller shall diligently pursue issuance of a no further
action (NFA) letter from the New Jersey Department of Environmental Protection.
In obtaining the NFA letter under ISRA, Seller shall provide Purchaser for its
prompt review and reasonable comment (which shall not impose any responsibility
or liability on Purchaser) a draft copy of any affidavit and/or other document
necessary for obtaining the NFA letter prior to submittal to the state agency.
The GIN and Negative Declaration and/or other related document shall cover the
Purchased Real Property. If the NFA letter is not issued by the Closing Date,
Purchaser shall submit a Remediation Agreement Application in which Purchaser
agrees to be the responsible party as such term is used in the standard ISRA
remediation agreement. Notwithstanding the foregoing sentence, Purchaser retains
all of its rights under this Agreement and does not assume any other Liabilities
and Costs related to the Transferred Assets, except as set forth in the
remediation agreement and except for Assumed Liabilities as provided for in this
Agreement.
(b) Prior to the Closing Date, each of the parties to this Agreement
agrees to use its commercially reasonable efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things necessary, proper or
advisable to satisfy the conditions to the other parties' obligation to
consummate and make effective the transactions contemplated by this Agreement,
including using its commercially reasonable efforts: (i) to defend any lawsuits
or other Actions, whether judicial or administrative, whether brought
derivatively or on behalf of third parties (including any Governmental
Authority), challenging this Agreement or the consummation of the transactions
contemplated hereby; and (ii) to furnish to each other such information and
assistance as reasonably may be requested in connection with the foregoing.
(c) After the Closing, any monies, checks, instruments, invoices,
bills, receipts, notices, mail and other communications received by one party
but directed toward or due to another shall be promptly delivered to the other
party.
6.2 Notices and Consents. As promptly as practicable after the date
hereof, each of the parties to this Agreement will, and will cause its
respective Affiliates and representatives to, use their respective commercially
reasonable efforts to:
(a) (i) obtain all necessary Consents to the assignment to Purchaser
of those licenses and Permits that constitute Transferred Assets which are by
Law or by their terms assignable to Purchaser and (ii) assist Purchaser to
obtain from the relevant Governmental Authorities all non-assignable licenses
and Permits needed by Purchaser to own the Transferred Assets; and
(b) obtain the necessary Consents to the assignment of any Assumed
Contract which pursuant to section 365 of the Bankruptcy Code requires the
Consent of any of the other contracting parties thereto to an assignment thereof
to Purchaser.
6.3 Operation of Transferred Assets. Prior to the Closing Date,
Seller will use its commercially reasonable efforts to preserve intact the
Transferred Assets and take such other actions as are reasonably necessary to
cause an efficient transition to Purchaser of the Transferred Assets at the
Closing. Seller will not use or occupy, or allow the use or occupancy of, the
Real Property in any manner which violates any Laws or which constitutes waste
or a public or private nuisance or which makes void, voidable or cancelable, or
increases the premiums of, any insurance then in force with respect thereto.
Seller will not initiate any zoning reclassification of the Real Property or
seek any variance under existing zoning ordinances applicable to the Real
Property to use or permit the use of the Real Property in such a manner which
would result in such use becoming a nonconforming use under applicable zoning
ordinances or other Law. Seller will not impose any restrictive covenants or
encumbrances on the Real Property or execute or file any subdivision plat
affecting the Real Property. Without limiting the generality of the foregoing,
Seller agrees that it will not:
(a) fail to use its commercially reasonable efforts to prevent the
creation of any Lien on any Transferred Assets;
(b) acquire or dispose of any Transferred Assets, or transfer any
Transferred Assets from the Real Property to any other location;
(c) fail to comply in any material respect with any Laws or perform
any material obligation under any Assumed Contract;
(d) fail to maintain in all material respects the Transferred Assets
in good working order and condition, ordinary wear and tear excepted;
(e) fail to keep in full force and effect present insurance policies
or other comparable insurance benefiting the Transferred Assets; or
(f) commit to do any of the foregoing.
6.4 Seller's Chapter 11 Bankruptcy Case.
(a) This Agreement and the transactions contemplated hereby are
contingent upon the approval and authorization of the Bankruptcy Court pursuant
to the Bidding Procedures Order and the Approval Order, and Seller shall have no
liability under this Agreement unless and until both the Bidding Procedures
Order and the Approval Order are entered by the Bankruptcy Court, other than
pursuant to Section 9.3, which liability Seller shall have following entry of
the Bidding Procedures Order. Purchaser agrees that it will promptly take such
actions as reasonably requested by Seller to assist in obtaining the Approval
Order, including furnishing affidavits or other documents or information for
filing with the Bankruptcy Court for the purposes, among others, of providing
necessary assurances of performance by Purchaser under this Agreement and
demonstrating that Purchaser is a "good faith" purchaser under section 363(m) of
the Bankruptcy Code. Subject to issues of standing, if Purchaser is determined
to have presented the Superior Transaction at the auction, Purchaser shall not,
without the prior written consent of Seller, file, join in, or otherwise support
in any manner whatsoever any motion or other pleading relating to the sale of
the Transferred Assets hereunder. In the event the Bidding Procedures Order or
the Approval Order is appealed, Seller and Purchaser shall each use its
commercially reasonable efforts to defend such appeal.
(b) Seller and Purchaser acknowledge and agree that until the
earlier of the issuance by the Bankruptcy Court of the Approval Order or the
termination of this Agreement in accordance with its terms, Seller and its
respective Affiliates, and their respective officers, directors, employees,
attorneys, investment bankers, accountants and other agents and representatives
(collectively, "Representatives") shall be permitted to solicit inquiries,
proposals, offers or bids from, and negotiate with, any Person relating to, the
direct or indirect sale, transfer or other disposition, in one or more
transactions, of all or substantially all of the Transferred Assets, the equity
interests of Seller and/or the recapitalization or restructuring of Seller, and
may take any other affirmative action (including entering into any agreement or
letter-of-intent with respect thereto) to cause, promote or assist the purchase,
restructuring or recapitalization of Seller (an "Alternative Transaction");
provided, however, that Seller and its respective Affiliates may not enter into
or seek Bankruptcy Court approval of any definitive agreement with respect
thereto prior to termination of this Agreement or termination of the agreement
with the back-up bidder who was a qualified bidder under the Bidding Procedures
Order at the auction held November 1, 2005. Without limiting the foregoing,
Seller and its respective Affiliates and Representatives shall be permitted to
supply information relating to Seller and the Transferred Assets to prospective
purchasers that have executed a confidentiality agreement with Seller or its
respective Affiliates. Neither Seller nor any of its respective Affiliates or
Representatives shall have any liability to Purchaser, either under or relating
to this Agreement or any applicable Law, by virtue of entering into or seeking
Bankruptcy Court approval of such a definitive agreement for a Superior
Transaction pursuant to this Section 6.4(b).
6.5 Access to Information. Prior to the Closing, Seller, its
officers, employees, accountants, counsel and representatives will give
Purchaser and its representatives reasonable access to the offices, properties,
books and records (including Tax Returns) and personnel of Seller pertaining to
the Transferred Assets and the Assumed Liabilities on Sunday, October 30, 2005,
and Monday, October 31, 2005, and thereafter during normal business hours and
upon reasonable prior notice. Purchaser shall not be entitled to (i) access to
any materials containing privileged communications, (ii) information about
employees which is required to be maintained confidentially pursuant to
applicable Law, (iii) bids, letters of intent, expressions of interest or other
proposals received from others in connection with the Transferred Assets, or
(iv) information in violation of applicable Law or that would cause a breach of
any obligation by which Seller is bound.
6.6 Employee Benefit Arrangements.
(a) Seller shall be responsible for and pay any and all liabilities
or obligations arising under the WARN Act, if any, arising out of or resulting
from layoffs of employees on or prior to the Closing and/or the consummation of
the transactions contemplated by this Agreement. Seller shall remain liable for
any and all costs and expenses associated with termination and severance of all
employees of Seller other than employees of Seller employed by Purchaser as of
the Closing Date, if any, including any obligation imposed on Seller or
Purchaser to provide such employees with continued health, disability or life
insurance or other benefits (whether covered by insurance or not).
(b) Notwithstanding anything to the contrary contained herein,
nothing contained herein shall be construed by any individual to be a guarantee
or offer of employment by Purchaser or any obligation related thereto or the
terms or duration thereof.
6.7 Consents and Commercially Reasonable Efforts. Each of the
parties hereto will use its commercially reasonable efforts to obtain as
promptly as practicable all Consents of any Governmental Authority or other
Person required in connection with the consummation of the transactions
contemplated by this Agreement. Seller shall use its commercially reasonable
efforts to (i) obtain Bankruptcy Court approval of the sale and assignment to,
and assumption by, Purchaser of the Assumed Contracts and (ii) obtain all other
Consents, approvals and novations required in connection with the consummation
of the transactions contemplated by this Agreement, including the transfer of
Environmental Permits and all other Consents, approvals and novations required
by Seller to sell the Transferred Assets to Purchaser and for Seller to sell and
assign the Assumed Contracts to Purchaser. In addition, subject to the terms and
conditions herein provided, each of the parties hereto covenants and agrees to
use its commercially reasonable efforts to take, or cause to be taken, all
action or do, or cause to be done, all things necessary, proper or appropriate
to consummate and make effective the transactions contemplated hereby and to
cause the fulfillment of the parties' obligations hereunder.
6.8 Tax Reporting and Other Tax Matters. (a) Purchaser and Seller
will retain for the full period of any statute of limitations and provide the
other party with any records or information which may be relevant to preparation
of any return or report of Taxes, any audit or other examination by any taxing
authority, or any judicial or administrative proceedings relating to liabilities
for Taxes.
(b) All refunds, plus interest paid by the applicable taxing
authority, for Taxes which are Excluded Liabilities shall be the property of
Seller, as the case may be, and such refunds, if received by Purchaser plus any
interest earned in connection with the refund, shall be paid to Seller by
Purchaser promptly upon receipt.
6.9 Assumed and Assigned Contracts; Excluded Contracts.
(a) Assumed Contracts. Schedule 6.9(a) sets forth a proposed list of
Contracts which shall constitute "Assumed Contracts," subject to final
determination as provided below. Subject to the approval of the Bankruptcy Court
and pursuant to the Approval Order, the Assumed Contracts will be assumed by
Seller and sold and assigned to Purchaser free and clear of all Liens and
Claims, except for the Assumed Liabilities, on the Closing Date under sections
363 and 365 of the Bankruptcy Code. Seller shall, consistent with its current
financial condition and the Bankruptcy Case, use its commercially reasonable
efforts to promptly comply with and perform any obligations under the Assumed
Contracts arising from and after the date hereof and through the Closing Date.
In the motion seeking entry of the Approval Order, or in such additional or
subsequent motions as may be appropriate, Seller will seek authority to sell and
assign to Purchaser the Assumed Contracts free and clear of all Liens and
Claims, except for Assumed Liabilities, in accordance with sections 363 and 365
of the Bankruptcy Code. All Assumed Contracts shall be sold and assigned to
Purchaser free and clear of all Liens and Claims, except for Assumed
Liabilities, at the Closing. Notwithstanding Schedule 6.9(a) hereto, (i)
Purchaser shall not be required to make its final determination as to which
Contracts shall constitute "Assumed Contracts," which determination shall be in
Purchaser's sole discretion, until one day prior to the hearing before the
Bankruptcy Court to approve the sale of the Transferred Assets to Purchaser (the
"Hearing"), provided Purchaser shall use commercially reasonable efforts to
notify Seller of any contracts which shall not be included as Assumed Contracts
by November 3, 2005 (it being understood that the addition or deletion of
contracts to be included or excluded as Assumed Contracts through the day prior
to the Hearing shall in no event be a default under this Agreement), and (ii)
upon Purchaser providing to Seller such final determination of the Contracts
that shall constitute "Assumed Contracts," Seller shall immediately thereafter
amend Schedule 6.9(a) to this Agreement and, to the extent required under the
Bankruptcy Case, file in and give proper notice of such amended schedule in the
Bankruptcy Case of Purchaser's final determination of Assumed Contracts.
(b) Excluded Contracts. Any Contract not set forth in Section 6.9(a)
shall constitute an "Excluded Contract." On or before the Closing Date, Seller
shall, pursuant to section 365 of the Bankruptcy Code, reject any Contracts that
are not designated by Purchaser as "Assumed Contracts", all of which Contracts
shall constitute Excluded Contracts.
(c) Consents. To the extent that the assignment of any Contract or
any Permit relating to the Transferred Assets to be assigned to Purchaser
pursuant to this Agreement shall, notwithstanding section 365 of the Bankruptcy
Code, require the consent of any other party, this Agreement shall not
constitute a contract to assign the same if any attempted assignment would
constitute a breach thereof. Seller shall use its commercially reasonable
efforts, and the Purchaser shall cooperate where appropriate, to obtain any
consent necessary to any such assignment. If any such consent is not obtained,
then Seller shall cooperate with Purchaser in any reasonable arrangement
requested by Purchaser designed to provide to Purchaser the benefits under any
such Contract or Permit, including enforcement of any and all rights of Seller
against the other party thereto arising out of breach or cancellation thereof by
such other party or otherwise.
(d) Cooperation. If after the date hereof the parties hereto
discover a Contract which the parties in good faith agree should have been
treated as either an Assumed Contract or an Excluded Contract hereunder, the
parties hereto will take such action as may be reasonably necessary to assume
and assign or reject such Contract.
6.10 Transfer Taxes. In accordance with section 1146(c) of the
Bankruptcy Code, the making or delivery of any instrument of transfer, including
the filing of any deed or other document of transfer to evidence, effectuate or
perfect the rights, transfers and interest contemplated by this Agreement, shall
be in contemplation of a plan or plans of reorganization to be confirmed in the
Bankruptcy Case, and as such shall be free and clear of any and all transfer
Tax, stamp Tax or similar Taxes. Such instruments, Orders and agreements
transferring the Transferred Assets to Purchaser shall contain the following
endorsement:
"Because this [instrument] has been authorized pursuant to an order
of the United States Bankruptcy Court for the District of New Jersey
pursuant to a plan of reorganization of the Grantor, it is exempt
from transfer taxes, stamp taxes or similar taxes pursuant to 11
U.S.C. ss. 1146(c)."
6.11 Bankruptcy Filings. From and after the date hereof until the
Closing Date, Seller shall deliver to Purchaser copies of all pleadings,
motions, notices, statements, schedules, applications, reports and other papers
that Seller (or any Affiliate thereof) files in the Bankruptcy Case which relate
or affect the transactions contemplated hereby within one day after filing but
with respect to any document that relates to this Agreement, the sale of the
Transferred Assets or Purchaser, Seller shall deliver to Purchaser drafts of
such document at least one day prior to filing.
6.12 Cranbury Lease. Each of the parties shall use its commercially
reasonable efforts to jointly negotiate with Matrix Cranbury Associates, LLC
prior to the closing to amend the Cranbury Lease to include a mutually
satisfactory option to purchase the Leased Real Property. In addition, if
requested, Purchaser shall cause its affiliate Sun Pharmaceuticals Industries,
Inc., a Michigan corporation, to be a co-obligor under the Cranbury Lease.
6.13 Title Insurance; Survey. Purchaser and Seller shall work
together to, as soon as practicable and, in any event, no later than ten (10)
days prior to Closing, obtain the following items with respect to the Purchased
Real Property:
(a) Title Insurance. A current commitment (the "Title Commitment")
issued by the Title Company for the most current form of ALTA fee owner's title
insurance policy, with extended coverage, insuring good and marketable fee
simple title to each parcel of the Purchased Real Property and title to all
recorded easements, if any, appurtenant to the Purchased Real Property (the
"Title Policy"), with liability in the amount of the approximate fair market
value of the Purchased Real Property as reasonably agreed upon by Seller and
Purchaser, together with copies of all exceptions and matters referred to
therein, and with such affirmative coverages and endorsements as Purchaser shall
require, including, without limitation, the following endorsements: (i) ALTA 3.1
zoning (plus parking and loading docks); (ii) owner's comprehensive; (iii) land
"same as" survey; (iv) subdivision compliance; (v) tax parcel identification;
(vi) location; (vii) waiver of arbitration; (viii) utility facility; and (ix)
access. Purchaser and Seller shall share equally the costs and expenses of the
Title Commitment and the Title Policy, including the premiums therefor, whether
or not the transactions contemplated by this Agreement are consummated, as well
as all of the Title Company's search and exam fees, escrow fees and closing
charges.
(b) Survey. An up-to-date ALTA Land Title Survey (a "Survey")
acceptable to Purchaser in form and substance, certified within sixty (60) days
prior to the Closing, prepared by a surveyor licensed in New Jersey, completed
in accordance with the most current "Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys," including items 1-4, 6-11 and 13-16 of "Table A"
thereof, and certified to Purchaser, the Title Company, ▇▇▇▇▇▇ LLP and any other
parties designated by Purchaser. Purchaser and Seller shall share equally the
costs and expenses of the Survey whether or not the transactions contemplated by
this Agreement are consummated.
6.14 Power of Attorney; Right of Endorsement, Etc. Effective as of
the Closing, Seller hereby constitutes and appoints Purchaser and its successors
and assigns the true and lawful attorney of Seller with full power of
substitution, in the name of Purchaser or the name of Seller, on behalf of and
for the benefit of Purchaser, (a) to collect all Transferred Assets, (b) to
endorse, without recourse, checks, notes and other instruments attributable to
the Transferred Assets, (c) to defend and compromise all actions, suits or
proceedings with respect to any of the Transferred Assets, (d) to institute and
prosecute all proceedings which Purchaser may deem proper in order to collect,
assert or enforce any claim, right or title in or to the Transferred Assets and
(e) to do all such reasonable acts and things with respect to the Transferred
Assets as Purchaser may deem advisable, subject to the consent of Seller, which
consent shall not be unreasonably withheld. Seller agrees that the foregoing
powers are coupled with an interest and shall be irrevocable by Seller directly
or indirectly by the dissolution of Seller or in any other manner. Purchaser
shall retain for its own account any amounts lawfully collected pursuant to the
foregoing powers and Seller shall promptly pay to Purchaser any amounts received
by Seller after the Closing with respect to the Transferred Assets to which
Purchaser may be entitled.
6.15 Original Documentation. The parties agree that Seller will
retain the originals of the Transferred Assets listed in Section 2.1(f), Section
2.1(g) and Section 2.1(m), but shall provide Purchaser access to such originals
upon its reasonable request made for business or legal purposes. Seller
acknowledges and agrees that such original documents will be used by Seller only
for the purposes of responding to investigations and inquiries of Governmental
Authorities and in no event will be disclosed to any other Person other than as
required by Law; provided, however, that pre-Closing, Seller may disclose any
ANDAs to any other bidder for the Transferred Assets who has executed a
confidentiality agreement with Seller. Notwithstanding the foregoing, if at any
time, Seller is unwilling and/or unable to retain the originals of the
Transferred Assets listed in Section 2.1(f), Section 2.1(g) and Section 2.1(m),
then Purchaser shall have the right to take immediate possession and ownership
of such originals and Seller shall so notify Purchaser and cooperate in
Purchaser's taking of possession.
6.16 Filings. Purchaser shall make all necessary filings with
applicable Governmental Authorities relating to the Transferred Assets following
entry of the Approval Order to the extent Purchaser is required by applicable
Law.
6.17 Non-Disturbance Agreement. Seller will use commercially
reasonable efforts to obtain, prior to Closing, a non-disturbance agreement, in
form and substance reasonably satisfactory to Purchaser, from each lender with a
security interest in the Leased Real Property.
6.18 Confidentiality. Purchaser hereby agrees that it will not
disclose, nor will it permit any of its employees, agents or representatives to
disclose, to any third party any confidential information obtained from Seller
in connection with this Agreement. If this Agreement is terminated without
consummation of the transactions contemplated hereunder, promptly after
termination, Purchaser shall destroy or return to Seller all such confidential
information, including any copies, extracts or other reproductions in whole or
in part. Such return or destruction shall be certified in writing to Seller by
an authorized officer of Purchaser. The provisions of this Section 6.18 shall
survive any termination of this Agreement.
ARTICLE VII
CONDITIONS TO OBLIGATIONS
7.1 Conditions to Obligations of Seller. All obligations of Seller
under this Agreement are subject to the fulfillment, unless waived in writing at
the sole option of Seller, at or prior to the Closing Date, of each of the
following conditions precedent:
(a) Representations and Warranties. The representations and
warranties of Purchaser herein contained shall be true, correct and complete in
all material respects on and as of the Closing Date (except that any
representation or warranty which by its terms is (i) made as of a specified
date, in which case it shall be true, correct and complete in all material
respects as of such specified date or (ii) qualified by a reference to
materiality or Purchaser Material Adverse Effect, in which case such
representation and warranty as so qualified shall be true, correct and complete
in all respects) with the same force and effect as though made on and as of said
date, except as affected by the transactions contemplated or permitted by this
Agreement.
(b) Covenants. Purchaser shall have performed in all material
respects all of the obligations and agreements and complied in all material
respects with all of the covenants contained in this Agreement to be performed
and complied with by it at or prior to the Closing Date.
(c) Closing Documents. Seller shall have received all reports,
agreements, certificates, instruments and other documents required to be
delivered by Purchaser on the Closing Date pursuant to Section 8.3, and the form
and substance of all such reports, agreements, certificates, instruments and
other documents shall be reasonably satisfactory to Seller.
(d) Absence of Orders; Actions. No Law or Order shall have been
enacted, entered, issued, promulgated or enforced by any Governmental Authority
which prohibits or materially restricts the transactions contemplated by this
Agreement. No Action before any court or any other Governmental Authority shall
have been commenced and be continuing, no investigation by any Governmental
Authority shall have been commenced and be continuing, and no Action by any
Governmental Authority shall have been threatened against Purchaser or Seller
seeking to restrain, prevent or challenge the transactions contemplated hereby
or questioning the validity or legality of any of such transactions, or seeking
damages in connection with the same.
(e) Third Party Consents. Purchaser shall have obtained all Consents
required to be obtained by it in connection with the transactions contemplated
by this Agreement, except for such Consents the failure of which so to have been
obtained would not have a Purchaser Material Adverse Effect, subject to
Purchaser's requirement to enter into a remediation agreement under Section
6.1(a).
(f) Purchase Price. In accordance with Section 2.5, Purchaser shall
pay or cause to be paid to Seller the Closing Cash Payment.
(g) Bankruptcy Court Order. The Approval Order shall have been
entered by the Bankruptcy Court.
7.2 Conditions to the Obligations of Purchaser. All obligations of
Purchaser under this Agreement are subject to the fulfillment, unless waived in
writing at the sole option of Purchaser, at or prior to the Closing Date, of
each of the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties of Seller herein contained shall be true, correct and complete in all
material respects on and as of the Closing Date (except that any representation
or warranty which by its terms is (i) made as of a specified date, in which case
it shall be true, correct and complete in all material respects as of such
specified date or (ii) qualified by a reference to materiality or Material
Adverse Effect, in which case such representation and warranty as so qualified
shall be true, correct and complete in all respects) with the same force and
effect as though made on and as of said date, except as affected by transactions
contemplated or permitted by this Agreement.
(b) Covenants. Seller shall have performed in all material respects
all of the obligations and agreements and complied in all material respects with
all of the covenants contained in this Agreement to be performed and complied
with by it at or prior to the Closing Date.
(c) Closing Documents. Purchaser shall have received all reports,
agreements, certificates, instruments and other documents required to be
delivered by Seller on the Closing Date pursuant to Section 8.2, and the form
and substance of all such reports, agreements, certificates, instruments and
other documents shall be reasonably satisfactory to Purchaser.
(d) Absence of Orders; Actions. No Law or Order shall have been
enacted, entered, issued, promulgated or enforced by any Governmental Authority
which prohibits or materially restricts the transactions contemplated by this
Agreement. No Action before any court or any other Governmental Authority shall
have been commenced and be continuing, no investigation by any Governmental
Authority shall have been commenced and be continuing, and no Action by any
Governmental Authority shall have been threatened against Purchaser or Seller
seeking to restrain, prevent or challenge the transactions contemplated hereby
or questioning the validity or legality of any of such transactions, or seeking
damages in connection with the same.
(e) Third Party Consents. Seller shall have obtained all Consents
required to be obtained by it (or which it is required to use its commercially
reasonable efforts to obtain) in connection with the transactions contemplated
by this Agreement, including all Consents contemplated by Section 6.7 including
such Orders of the Bankruptcy Court which relate to the assumption and sale of
the Assumed Contracts.
(f) No Material Adverse Effect. Since the date of this Agreement, no
event shall have occurred which has had or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(g) Bankruptcy Court Order. The Approval Order has been entered by
the Bankruptcy Court in form and substance reasonably acceptable to Purchaser
and is, at the time all other conditions set forth in this Article VII are
satisfied, a Final Order, and all obligations of Seller therein shall have been
satisfied to the reasonable satisfaction of Purchaser.
(h) Permits. Purchaser shall have all material Permits that are
required by any Governmental Authority to allow it to own the Transferred
Assets, except where such Permits, by law or rules and regulations of the
Governmental Authority, cannot be obtained prior to Purchaser's ownership of the
Transferred Assets.
(i) Retained Samples; Manufacturing Records. Seller shall have
removed, or cause to have been removed, from the Real Property prior to the
Closing Date (i) all retained samples of products manufactured by Seller and any
lot specific batch record related thereto and (ii) manufacturing records of
Seller with respect to any retained samples.
ARTICLE VIII
CLOSING
8.1 Closing Transactions. All documents and other instruments
required to be delivered at the Closing shall be regarded as having been
delivered simultaneously, and no document or other instrument shall be regarded
as having been delivered until all have been delivered.
8.2 Deliveries by Seller to Purchaser. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser:
(a) a certificate executed by the President and a Vice President or
the Treasurer of Seller, dated as of the Closing Date, certifying that all
representations and warranties of Seller herein contained were true, correct and
complete in all material respects when made and are true, correct and complete
in all material respects as of the Closing Date (other than any representation
or warranty which by its terms is (i) made as of a specified date, which shall
be true, correct and complete in all material respects as of such date or (ii)
qualified by a reference to materiality or Material Adverse Effect, in which
case it as so qualified shall be true, correct and complete in all respects) as
if made thereon and that Seller has performed or complied in all material
respects with all of the covenants and obligations required by this Agreement to
be performed or complied with by Seller on or prior to the Closing Date;
(b) the duly executed ▇▇▇▇ of Sale;
(c) the duly executed Assumption Agreement;
(d) the Approval Order;
(e) a general warranty deed dated as of the Closing Date, conveying
the Purchased Real Property, duly executed by Seller and in form and substance
satisfactory to Purchaser;
(f) a pro forma Title Policy or "marked-up" Title Commitment, signed
by the Title Company, insuring Purchaser's good and marketable fee simple title
to each parcel of the Purchased Real Property and title to all recorded
easements, if any, appurtenant to each such parcel of Purchased Real Property,
free and clear of all Liens (including, without limitation, any and all of the
Title Company's standard exceptions), together with payment of the premiums
therefor and all of the Title Company title search, escrow and closing fees;
(g) a Survey of the Purchased Real Property in form and substance
acceptable to Purchaser in all respects;
(h) all real property transfer tax declarations and all affidavits
and other documents required by the Title Company in connection with the
issuance of the Title Policy;
(i) a Patent Assignment with respect to any Patents constituting
Transferred Assets in form and substance acceptable to Purchaser in all
respects;
(j) a Trademark Assignment with respect to any Trademarks,
constituting Transferred Assets in form and substance acceptable to Purchaser in
all respects;
(k) a Copyright Assignment with respect to any Copyrights
constituting Transferred Assets in form and substance acceptable to Purchaser in
all respects; and
(l) such other instruments and documents as are (i) required by any
other provisions of this Agreement to be delivered on the Closing Date by Seller
to Purchaser or (ii) reasonably necessary, in the opinion of Purchaser, to
effect the performance of this Agreement by Seller.
8.3 Deliveries by Purchaser to Seller. At the Closing, Purchaser
shall deliver or cause to be delivered to Seller:
(a) an amount equal to the Closing Cash Payment;
(b) a certificate executed by the President and a Vice President or
the Treasurer of Purchaser, dated as of the Closing Date, certifying that all
representations and warranties of Purchaser herein contained were true, correct
and complete in all material respects when made and are true, correct and
complete in all material respects as of the Closing Date (other than any
representation or warranty which by its terms is (i) made as of a specified
date, which shall be true, correct and complete in all material respects as of
such date or (ii) qualified by a reference to materiality or Purchaser Material
Adverse Effect, in which case it as so qualified shall be true, correct and
complete in all respects) as if made thereon and that Purchaser has performed or
complied in all material respects with all of the covenants and obligations
required by this Agreement to be performed or complied with by Purchaser on or
prior to the Closing Date;
(c) certificate of good standing, dated as of a recent date, for
Purchaser from its jurisdiction of incorporation;
(d) the duly executed Assumption Agreement; and
(e) such other instruments and documents as are (i) required by any
other provisions of this Agreement to be delivered on the Closing Date by
Purchaser to Seller or (ii) reasonably necessary, in the opinion of Seller, to
effect the performance of this Agreement by Purchaser.
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated prior to the
Closing and the transactions contemplated hereby may be abandoned:
(a) by the mutual written consent of Purchaser and Seller;
(b) by Seller, upon written notice to Purchaser, if the Closing has
not taken place on or prior to December 31, 2005, other than by reason of a
material breach of this Agreement by Seller;
(c) by Purchaser, upon written notice to Seller, if the Closing has
not taken place on or prior to December 31, 2005, other than by reason of a
material breach of this Agreement by Purchaser;
(d) by Purchaser or Seller, upon written notice to the other, if
there shall be in effect a non-appealable order of a court of competent
jurisdiction permanently prohibiting the consummation of the transactions
contemplated hereby, or otherwise altering the terms of any of the foregoing in
any material respect;
(e) by Seller if Purchaser is in material breach of any
representation, warranty, covenant or agreement under this Agreement which is
not curable or, if curable, is not cured within thirty (30) days after Purchaser
receives written notice of such breach from Seller or such breach has not been
waived by Seller (and Seller is not then in material breach of any
representation, warranty, covenant or agreement under this Agreement);
(f) by Purchaser if Seller is in material breach of any
representation, warranty, covenant or agreement under this Agreement which is
not curable or, if curable, is not cured within thirty (30) days after Seller
receives written notice of such breach from Purchaser or such breach has not
been waived by Purchaser (and Purchaser is not then in material breach of any
representation, warranty, covenant or agreement under this Agreement);
(g) by Purchaser or Seller if,
(i) [reserved];
(ii) the Bidding Procedures Order shall not have been entered
by October 25, 2005;
(iii) the Approval Order shall not have been entered by
November 30, 2005;
(iv) the Approval Order shall not have become a Final Order
within 20 days after the date all the conditions set forth in Article VII
other than the condition in Section 7.2(g) are satisfied; or
(v) the Bankruptcy Court approves (and Seller consummates) an
Alternative Transaction or the Seller otherwise consummates an Alternative
Transaction; or
(h) by Seller or Purchaser if, at or prior to the Closing Date, any
condition set forth herein for the benefit of Seller or Purchaser, respectively,
shall not have been timely met and cannot be met prior to December 31, 2005 and
has not been waived; provided, that the party seeking to terminate this
Agreement pursuant to this clause (h) shall not be responsible for the failure
of such condition.
9.2 Status of Agreement after Termination. Upon any termination of
this Agreement pursuant to Section 9.1, this Agreement shall become void and
shall have no effect; except for those obligations in Sections 9.2 and 9.3 and
Article X hereof, which shall survive the termination of this Agreement in
accordance with its terms.
9.3 Fees and Expenses.
(a) If this Agreement is terminated pursuant to Section 9.1(g)(v)
(and Purchaser is not in breach of its obligations under this Agreement) the
Deposit will be wired in immediately available funds to an account designated by
Purchaser within three (3) Business Days of such termination.
(b) If this Agreement is terminated for any reason (other than as
set forth in subsection (a) above or pursuant to Section 9.1(e)), the Deposit
will be wired in immediately available funds to an account designated by
Purchaser within three (3) Business Days of such termination.
(c) In the event Seller terminates this Agreement pursuant to
Section 9.1(e), Seller shall retain the Deposit and Purchaser shall thereafter
have no rights thereto.
(d) Except as specifically provided in this Article IX, whether or
not the transactions contemplated by this Agreement are consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
9.4 Exclusive Remedy. The parties acknowledge and agree that the
rights and remedies provided in Article IX are the exclusive rights and remedies
in the event of any breach of any representation, warranty, agreement or
covenant by any party hereto prior to the Closing (other than those which cannot
be waived by statute). Furthermore, Seller acknowledges and agrees that (a) the
Deposit shall constitute the sole liability of Purchaser for any Liability and
Costs resulting from any breach of this Agreement prior to Closing (including,
without limitation, for failure to consummate the transactions contemplated
hereby) and (b) neither Seller nor its Affiliates shall have any recourse
whatsoever against any third party with respect to any act or omission by
Purchaser with respect to this Agreement, including, without limitation, against
any present or potential financing source of Purchaser, against any of
Purchaser's past and present Affiliates, or any of the their respective general
and limited partners, shareholders, officers, directors, employees, advisors or
agents.
ARTICLE X
GENERAL PROVISIONS
10.1 Survival. The representations and warranties contained in this
Agreement shall terminate as of the Closing. The covenants contained herein
shall survive in accordance with their terms.
10.2 Notices. All waivers, notices, consents, demands, requests,
approvals and other communications which are required or may be given hereunder
shall be in writing and shall be deemed to have been duly given when
hand-delivered, sent by telecopier, delivered by national overnight courier
service, or 72 hours after mailed by certified first class mail, return receipt
requested, postage prepaid, as follows:
(a) If to Seller:
Able Laboratories, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Purchaser:
Sun Pharmaceutical Industries Limited
C/O ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Atten: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to such other Person as may be designated by a party
by written notice to the other parties hereto.
10.3 Binding Effect; Benefits. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns; provided, however, that, nothing in this
Agreement shall be construed to confer any rights, remedies, obligations or
liabilities on any Person other than the parties hereto or their respective
successors and assigns. In the event that a Chapter 11 trustee is appointed for
Seller, or in the event that the Bankruptcy Case is converted to a case under
Chapter 7 of the Bankruptcy Code, the obligations of Seller hereunder shall be
binding upon such trustee or successor Chapter 7 estate.
10.4 Public Announcements. The parties hereto shall advise and
consult with each other prior to the making of any public announcement with
respect to the transactions contemplated hereby and, in any event, shall not
issue any press releases, make any public announcement or statement without the
consent of the other parties, except for filings, or registrations which may be
required by Law, an Order of the Bankruptcy Court or by obligations pursuant to
an agreement with any national securities exchange; provided, that the party
intending to make such release shall give the other parties prior notice thereof
and shall use its commercially reasonable efforts consistent with such
applicable Law, Order or obligation to consult with the other party with respect
to the text and substance of such announcement.
10.5 Entire Agreement. This Agreement (which includes its Schedules)
embodies the entire agreement and understanding of the parties with respect to
the transactions contemplated hereby and supersedes any prior agreement or
understanding between the parties with respect to the subject matter thereof.
10.6 Waivers and Amendments. Except as provided below, this
Agreement may be amended, superseded, canceled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed by Purchaser and
Seller or, in the case of a waiver, by Purchaser or Seller, as the case may be,
waiving compliance. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof. No waiver on the
part of any party of any such right, power or privilege, and no single or
partial exercise of any such right, power or privilege, shall preclude any
further exercise thereof or the exercise of any other such right, power or
privilege.
10.7 Counterparts. This Agreement may be executed (including by
facsimile transmission) with counterpart signature pages or in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
10.8 Headings. Headings of the Sections and paragraphs in this
Agreement are for reference purposes only and shall not be deemed to have any
substantive effect.
10.9 Assignment. This Agreement may not be assigned by any party
without the prior written consent of the other. Notwithstanding the foregoing,
Purchaser may, without the consent of Seller, assign and delegate its
obligations and rights hereunder to an Affiliate or Affiliates of Purchaser, but
no such assignment shall relieve Purchaser of its obligations hereunder.
10.10 Applicable Law. This Agreement shall be governed and construed
and interpreted in accordance with the laws of the State of New York, without
regard to choice of laws principles, and, to the extent applicable, the federal
laws of the United States of America.
10.11 Jurisdiction. Each party hereto irrevocably submits to the
exclusive jurisdiction of the Bankruptcy Court and, subject to the terms of the
Approval Order, the courts of the State of New Jersey and of the United States
of America sitting in New Jersey, and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that the venue thereof may not be
appropriate, that such suit, action or proceeding is improper or that this
Agreement or any of the documents referred to in this Agreement may not be
enforced in or by said courts, and each party hereto irrevocably agrees that all
claims with respect to such suit, action or proceeding shall be heard and
determined in such Bankruptcy Court or a New Jersey state or federal court. Each
party hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party in the manner provided in this Section 10.11 and to the
addresses provided in Section 10.2 and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by Law.
10.12 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW,
EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY HERETO (A)
CERTIFIES THAT NONE OF THEIR RESPECTIVE REPRESENTATIVES, AGENTS OR ATTORNEYS HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO EXECUTE THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS HEREIN.
10.13 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validly or enforceability of
any other provision of this Agreement, each of which shall remain in full force
and effect.
10.14 Third Party Beneficiaries. Nothing in this Agreement shall
confer any rights upon any Person other than the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
10.15 Disbursements by Seller. Seller agree that they will disburse
any funds received by it pursuant hereto in accordance with all Orders of the
Bankruptcy Court.
10.16 Construction. This Agreement has been freely and fairly
negotiated between the parties. If an ambiguity or question of intent or
interpretation arises, this Agreement will be construed as if drafted jointly by
the parties and no presumption or burden of proof will arise favoring or
disfavoring any party because of the authorship of any provisions of this
Agreement. Any reference to any law will be deemed to refer to such law as in
effect on the date hereof and all rules and regulations promulgated thereunder,
unless the context otherwise requires. The words "include," "includes" and
"including" will be deemed to be followed by "without limitation." Pronouns in
masculine, feminine and neuter genders will be construed to include any other
gender, and words in the singular form will be construed to include the plural
and vice versa, unless the context otherwise requires. The words "this
Agreement," "herein," "hereof," "hereby," "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. Except as expressly stated
herein, there are no third party beneficiaries to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Asset Purchase
Agreement as of November 1, 2005.
ABLE LABORATORIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director of Restructuring
SUN PHARMACEUTICAL INDUSTRIES LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Agent