MEMBERSHIP INTEREST PURCHASE AGREEMENT by and between PROGENICS PHARMACEUTICALS, INC. and CYTOGEN CORPORATION Dated April 20, 2006
EXHIBIT
2.1
by
and between
PROGENICS
PHARMACEUTICALS, INC.
and
CYTOGEN
CORPORATION
Dated
April 20, 2006
TABLE
OF CONTENTS
Page
|
Article
I
|
DEFINITIONS
AND DEFINED TERMS
|
1
|
|
Section
1.1
|
Definitions
and
Defined Terms
|
1
|
|
Article
II
|
PURCHASE
OF MEMBERSHIP INTEREST
|
2
|
|
Section
2.1
|
Purchase
and
Sale of Membership Interest
|
2
|
|
Section
2.2
|
Purchase
Price
|
2
|
|
Section
2.3
|
Allocation
of
Purchase Price
|
2
|
|
Section
2.4
|
Withholding
Taxes
|
3
|
|
Article
III
|
CLOSING
|
3
|
|
Section
3.1
|
Closing
|
3
|
|
Section
3.2
|
Deliveries
at
Closing
|
3
|
|
Article
IV
|
REPRESENTATIONS
AND WARRANTIES OF SELLER
|
5
|
|
Section
4.1
|
Ownership
of
Membership Interest; No Third Party Options
|
5
|
|
Section
4.2
|
Corporate
Organization and Good Standing
|
6
|
|
Section
4.3
|
Authorization
and Effect of Agreement
|
6
|
|
Section
4.4
|
Consents
and
Approvals; No Violations
|
6
|
|
Section
4.5
|
Litigation
|
7
|
|
Section
4.6
|
Performance
of
Obligations; Other Matters
|
7
|
|
Section
4.7
|
Seller
Sophistication; Excluded Information
|
7
|
|
Section
4.8
|
No
Broker
|
8
|
|
Section
4.9
|
No
Misleading Statements
|
8
|
|
Article
V
|
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
|
8
|
|
Section
5.1
|
Corporate
Organization and Good Standing
|
8
|
|
Section
5.2
|
Authorization
and Effect of Agreement
|
9
|
|
Section
5.3
|
Consents
and
Approvals; No Violations
|
9
|
|
Section
5.4
|
No
Broker
|
9
|
|
Section
5.5
|
Litigation
|
9
|
|
Section
5.6
|
Performance
of
Obligations; Other Matters
|
10
|
|
Section
5.7
|
No
Misleading Statements
|
10
|
i
|
Section
5.8
|
Third
Parties
|
10
|
|
Article
VI
|
COVENANTS
|
10
|
|
Section
6.1
|
Further
Assurances
|
10
|
|
Section
6.2
|
Confidentiality
|
11
|
|
Section
6.3
|
Non-Hiring
|
12
|
|
Section
6.4
|
Termination
of
Rights and Liabilities Under PSMA Operating Agreement
|
12
|
|
Section
6.5
|
Tax
Matters
|
13
|
|
Article
VII
|
MISCELLANEOUS
PROVISIONS
|
14
|
|
Section
7.1
|
Notices
|
14
|
|
Section
7.2
|
Expenses
|
15
|
|
Section
7.3
|
Successors
and
Assigns
|
15
|
|
Section
7.4
|
Extension;
Waiver
|
16
|
|
Section
7.5
|
Entire
Agreement
|
16
|
|
Section
7.6
|
Amendments,
Supplements, Etc
|
16
|
|
Section
7.7
|
Applicable
Law
|
16
|
|
Section
7.8
|
Execution
in
Counterparts
|
16
|
|
Section
7.9
|
Titles
and Headings
|
16
|
|
Section
7.10
|
Invalid
Provisions
|
16
|
|
Section
7.11
|
Publicity
|
16
|
|
Section
7.12
|
Specific
Performance
|
17
|
ii
Annex
and Exhibits
Annex
A -
Definitions and Defined Terms
Exhibit
A
- Membership Assignment Agreement
Exhibit
B
- Amended and Restated PSMA/PSMP License
Exhibit
C
- Resignations
Exhibit
D
- Managing Representative Certificate
Exhibit
E
- Management Committee Waiver and Approval Certificate
iii
This
MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”)
is
made and entered into as of April 20, 2006 by and between Progenics
Pharmaceuticals, Inc., a Delaware corporation (“Purchaser”)
and
Cytogen Corporation, a Delaware corporation (“Seller”).
RECITALS:
WHEREAS,
Purchaser and Seller are members of PSMA Development Company LLC, a Delaware
limited liability company (the “Company”),
and
have entered into a Limited Liability Company Agreement for the Company, dated
June 15, 1999, as amended by Amendment Number 1, dated March 22, 2002 (the
“PSMA
Operating Agreement”);
WHEREAS,
Purchaser and Seller each own a 50% membership interest in the Company;
WHEREAS,
upon the terms and subject to the conditions set forth herein, Seller desires
to
sell to Purchaser, and Purchaser desires to purchase from Seller, Seller’s 50%
membership interest in the Company;
WHEREAS,
Purchaser and Seller desire to terminate, and/or acknowledge the termination
of,
any rights granted to Seller pursuant to the PSMA Operating Agreement which
are
personal in nature to Seller or otherwise not transferable or licensable,
including, without limitation, the rights contained in Article IX of the PSMA
Operating Agreement; and
WHEREAS,
following
the Closing, Purchaser, as the sole member of the Company, intends to amend,
restate and supersede in its entirety the PSMA Operating Agreement by executing
an Amended and Restated Limited Liability Company Agreement for the
Company.
NOW,
THEREFORE, in consideration of the mutual representations, warranties, covenants
and agreements herein contained, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
AND DEFINED TERMS
Section
1.1 Definitions
and Defined Terms.
Unless
the context otherwise requires or as otherwise defined herein, capitalized
terms
used in this Agreement shall have the meanings set forth in Annex
A
hereto.
1
ARTICLE
II
PURCHASE
OF MEMBERSHIP INTEREST
Section
2.1 Purchase
and Sale of Membership Interest.
Upon
the terms and subject to the conditions set forth herein, at and as of the
Closing as described in Article
III
hereto,
Seller shall sell, transfer, convey, assign and deliver to Purchaser all of
Seller’s membership interests in the Company, including all of Seller’s economic
interests in the capital, profits, losses and distributions of the Company
and
all of Seller’s other rights and interests as a member of the Company,
including, without limitation, voting rights (the “Membership
Interest”),
and
Purchaser shall purchase and acquire from Seller, all right, title and interest
in the Membership Interest, free and clear of any Lien.
Section
2.2 Purchase
Price.
In
consideration of the conveyance to Purchaser of the Membership Interest, and
subject to the terms and conditions hereof, Purchaser shall pay to Seller an
aggregate purchase price of $13,200,000 (the “Purchase
Price”),
payable by Purchaser on the Closing Date.
Section
2.3 Allocation
of Purchase Price.
(a) Purchaser
and Seller shall allocate the sum of the Purchase Price and the liabilities
of
the Company among the assets of the Company in the manner required by section
1060 of the Code and the Treasury Regulations thereunder. Within sixty (60)
days
after the Closing Date, Purchaser shall use its reasonable efforts to prepare
and deliver to Seller a proposed IRS Form 8594 allocating all such amounts
as
provided herein, and a statement specifying a methodology for the allocation
of
any adjustments to the Purchase Price under this Agreement (together, the
“Asset
Acquisition Statement”).
Seller shall cooperate with Purchaser and Purchaser’s representatives in
connection with the preparation of such Asset Acquisition Statement, including
by furnishing such information and access to books, records, personnel and
properties as may be reasonably requested. Both Purchaser and Seller shall
file
such Asset Acquisition Statement in the manner required by Treasury Regulation
section 1.1060-1(e). Such Asset Acquisition Statement shall become final and
binding for purposes of this Section 2.3 unless Seller objects in writing to
the
Asset Acquisition Statement within ten (10) days after Seller’s receipt thereof.
If Seller so objects, Purchaser and Seller shall in good faith attempt to
resolve the dispute within sixty (60) days of written notice to Purchaser of
Seller’s objection. Seller and Purchaser agree to submit any unresolved dispute
to arbitration to one of the major nationally-recognized certified public
accounting firms (the “Reviewing
Accountants”),
whose
decision on the matter shall be final and binding on the parties hereto.
Purchaser and Seller will each pay one-half of the fees and expenses of the
Reviewing Accountant. Seller shall cooperate with Purchaser and Purchaser’s
representatives, as well as the Reviewing Accountant, in connection with the
matters contemplated by this Section 2.3, including, by furnishing such
information and access to books, records, personnel and properties as may be
reasonably requested.
2
(b) Each
of
Purchaser and Seller agrees to (i) prepare and timely file all Tax Returns
in a
manner consistent with the Asset Acquisition Statement as finalized and revised
in accordance with Sections 2.3(a) and 2.3(b) and (ii) act in accordance with
the Asset Acquisition Statement for all Tax purposes, in either case, except
as
otherwise required by Law. In the event that any of the allocations determined
pursuant to such statement are disputed by any Tax Authority, the Party
receiving notice of such dispute shall promptly notify and consult with the
other Party hereto concerning the resolution of such dispute.
Section
2.4 Withholding
Taxes.
Purchaser shall be entitled to deduct and withhold from the amounts otherwise
payable pursuant to this Agreement to Seller such amounts, if any, as it is
required to deduct and withhold with respect to the making of such payment
under
any provision of federal, state, local or foreign Law relating to Taxes. To
the
extent that amounts are so withheld by Purchaser, Purchaser shall provide Seller
with evidence of any amounts withheld, and such withheld amounts shall
nonetheless be treated for all purposes of this Agreement as having been paid
to
Seller.
ARTICLE
III
CLOSING
Section
3.1 Closing.
Upon
the terms and subject to the conditions of this Agreement, the closing of the
transactions contemplated by this Agreement (the “Closing”)
will
take place at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, 1301 Avenue of the Americas,
New York, New York on April 20, 2006 (the “Closing
Date”).
Section
3.2 Deliveries
at Closing.
On the
Closing Date:
(a) Seller
shall deliver, or cause to be delivered, to Purchaser the
following:
(i) an
Assignment of Membership Interest, duly executed by Seller, in substantially
the
form attached hereto as Exhibit
A
(the
“Membership
Assignment”);
(ii) an
amended and restated PSMA/PSMP License, duly executed by Seller, in
substantially the form attached hereto as Exhibit
B
(the
“Amended
and Restated PSMA/PSMP License”);
(iii) written
resignations, dated the Closing Date, duly executed by each Representative
appointed to the Management Committee and, if any, the Scientific Advisory
Board, by Seller, in substantially the forms attached as Exhibit
C
(the
“Resignations”);
(iv) a
certificate, dated the Closing Date, notifying persons to whom certificates
contemplated by Section 4.1(h)(i) or Section 4.1(h)(iii) of the PSMA Operating
Agreement were previously delivered of the resignation of the Representatives
and Managing Representative appointed by Seller, duly executed by the Managing
Representative appointed by Seller, in substantially the form attached hereto
as
Exhibit
D
(the
“Managing
Representative Certificate”);
3
(v) a
certificate, dated the Closing Date, duly executed by each Representative
appointed by Seller certifying that the Management Committee has (a) not
requested any additional information, representations or opinions pursuant
to
Section 6.2 of the PSMA Operating Agreement and that the assignment of the
Membership Interest to Purchaser is effective and (b) authorized and approved
the execution, delivery and performance of, and the consummation of the
transactions contemplated by, the Amended and Restated PSMA/PSMP License
Agreement and any other documents or instruments contemplated thereby, in
substantially the form attached hereto as Exhibit
E
(the
“Management
Committee Waiver and Approval Certificate”);
(vi) a
certificate, dated the Closing Date, duly executed by the Secretary or Assistant
Secretary of Seller, on behalf of Seller, certifying as to (a) the attached
copy
of the resolutions of the Board of Directors of Seller authorizing and approving
the execution, delivery and performance of, and the consummation of the
transactions contemplated by this Agreement and the Collateral Agreements and
any other documents or instruments contemplated hereby or thereby, and stating
that the resolutions thereby certified have not been amended, modified, revoked
or rescinded, and (b) the incumbency, authority and specimen signature of each
officer of Seller executing this Agreement, the Collateral Agreements or any
other document or instrument contemplated hereby or thereby;
(vii) a
certificate to the effect that, as of the Closing Date, Seller is not a foreign
person within the meaning of section 1445 of the Code, and the Treasury
Regulations thereunder, such certificate to be substantially in the form
described in Treasury Regulations section 1.1445-2(b)(2)(iv)(B);
and
(viii) such
other duly executed documents and certificates as may be required to be
delivered by Seller pursuant to the terms of this Agreement or the Collateral
Agreements or as may be reasonably requested by Purchaser prior to the Closing
Date.
(b) Purchaser
shall deliver, or cause to be delivered, to Seller the following:
(i) the
Purchase Price by wire transfer of immediately available federal funds to an
account designated by Seller (which designation shall be made by Seller not
less
than two Business Days before the Closing Date);
(ii) the
Membership Assignment, duly executed by Purchaser;
4
(iii) Amended
and Restated PSMA/PSMP License, duly executed by the Company and
Purchaser;
(iv) the
Managing Representatives Certificate, dated the Closing Date, duly executed
by
the Managing Representative appointed by Purchaser;
(v) the
Management Committee Waiver and Approval Certificate, dated the Closing Date,
duly executed by each Representative appointed by Purchaser; and
(vi) a
certificate, dated the Closing Date, duly executed by the Secretary, Assistant
Secretary or other officer of Purchaser, on behalf of Purchaser, certifying
as
to (a) the attached copy of the resolutions of the Board of Directors of
Purchaser authorizing and approving the execution, delivery and performance
of,
and the consummation of the transactions contemplated by, this Agreement and
the
Collateral Agreements and any other documents or instruments contemplated
hereby, and stating that the resolutions thereby certified have not been
amended, modified, revoked or rescinded, and (b) the incumbency, authority
and
specimen signature of each officer of Seller executing this Agreement, the
Collateral Agreements or any other document or instrument contemplated hereby
or
thereby.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF SELLER
Except
as
otherwise disclosed to Purchaser in a schedule delivered to Purchaser by Seller
prior to the execution of this Agreement (with specific reference to the
representations and warranties in this Article
IV
to which
the information in such schedule relate) (the “Disclosure
Schedule”),
Seller represents and warrants to Purchaser as follows:
Section
4.1 Ownership
of Membership Interest; No Third Party Options.
Seller
is the owner, beneficially and of record, of the Membership Interest, free
and
clear of any Lien. The Membership Interest represents Seller’s entire ownership
interest in the Company. On the Closing Date, Seller will transfer to Purchaser
good and marketable title to such Membership Interest free and clear of any
Lien. The sale and delivery of the Membership Interest as contemplated by this
Agreement is not subject to any preemptive right, right of first refusal or
other restriction, other than as set forth in PSMA Operating Agreement. Except
for this Agreement and the PSMA Operating Agreement, there are no existing
agreements, options, commitments or other rights relating to the Membership
Interest or granting any Person the right to acquire the Membership Interest
or
any interest therein. The Membership Interest represents 50% of the membership
interests in the Company and, to Seller’s knowledge, no one other than Purchaser
owns or has any right or option to acquire any membership or other ownership
interest in the Company.
5
Section
4.2 Corporate
Organization and Good Standing.
Seller
is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power and
authority to own, lease, operate and otherwise hold its properties and assets
and to carry on its business as presently conducted. Seller is duly qualified
or
licensed to do business as a foreign corporation and is in good standing in
every jurisdiction in which the nature of the business conducted by it or the
assets or properties owned or leased by it requires qualification, except where
the failure to be so qualified, licensed or in good standing would not,
individually or in the aggregate, be reasonably likely to have a material
adverse effect on (i) its ability to consummate the transactions contemplated
by
this Agreement or the Collateral Agreements or (ii) the financial condition
of
Seller.
Section
4.3 Authorization
and Effect of Agreement.
Seller
has all requisite corporate power and authority to execute and deliver this
Agreement and the Collateral Agreements and to perform its obligations hereunder
and thereunder. The execution and delivery of this Agreement and the Collateral
Agreements by Seller and the performance by Seller of its obligations hereunder
and thereunder and the consummation by Seller of the transactions contemplated
hereby and thereby have been duly authorized by its Board of Directors and
no
other corporate or other action on the part of Seller is necessary to authorize
the execution and delivery of this Agreement and the Collateral Agreements
or
the consummation of the transactions contemplated hereby or thereby. This
Agreement and the Collateral Agreements have been duly and validly executed
and
delivered by Seller and constitute legal, valid and binding obligations of
Seller, enforceable against Seller in accordance with their terms, subject
to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar Laws affecting creditors’ rights and remedies
generally.
Section
4.4 Consents
and Approvals; No Violations.
No
filing with, and no permit or Consent of any Governmental Authority or any
other
Person is necessary for the consummation by Seller of the transactions
contemplated by this Agreement or the Collateral Agreements. Neither the
execution and delivery of this Agreement or the Collateral Agreements by Seller
nor the consummation by Seller of the transactions contemplated by this
Agreement or the Collateral Agreements nor compliance by Seller with any of
the
provisions hereof or thereof will (a) conflict with or result in any breach
of
any provision of its certificate of incorporation or by-laws, (b) result in
a
violation or breach of, or constitute (with or without due notice or lapse
of
time or both) a default (or give rise to any right of termination, modification,
cancellation or acceleration or loss of material benefits) under, any of the
terms, conditions or provisions of any Contract to which Seller is a party
or by
which Seller or any of its properties or assets may be bound, (c) result in
any
Lien on any part of the Membership Interest, (d) violate any permit or Law
applicable to Seller, or (e) violate the PSMA Operating Agreement, except in
the
case of clauses (b) or (d), for violations, breaches or defaults which would
not, individually or in the aggregate, be reasonably likely to have a material
adverse effect on (i) its ability to consummate the transactions contemplated
by
this Agreement or the Collateral Agreements or (ii) the Company.
6
Section
4.5 Litigation.
There
is no action, proceeding, claim, suit, opposition, challenge, cancellation
proceeding, reexamination, interference proceeding, charge or investigation
(collectively, “Proceedings”)
pending or, to Seller’s knowledge, threatened, that relates to Seller’s
ownership of the Membership Interest or that questions the validity of this
Agreement or the Collateral Agreements or any action taken or to be taken in
connection with this Agreement or the Collateral Agreements. There are no
outstanding judgments, writs, injunctions, orders, decrees or settlements that
apply, in whole or in part, to the Membership Interest or that restrict the
ownership of the Membership Interest in any way.
Section
4.6 Performance
of Obligations; Other Matters.
(a) Other
than pursuant to the PSMA/PSMP License, the PSMA Operating Agreement and/or
the
Services Agreement, neither Seller nor any of its Affiliates has ever been
a
party to any Contract with the Company and, except as reflected in the Company’s
audited financial statements for the period ended December 31, 2005, the Company
does not have, and has never had, any obligation or liability, contingent or
otherwise, owing to Seller or any of its Affiliates (including pursuant to
any
Proceeding or order). Immediately following the Closing Date, neither Seller
nor
any of its Affiliates will be a party to any Contract with the Company other
the
Amended and Restated PSMA/PSMP License.
(b) No
amounts are owing by the Company or Purchaser to Seller pursuant to the PSMA
Operating Agreement.
(c) Seller’s
Member’s Percentage is equal to 50%. Seller is not in default of any of its
obligations under the PSMA Operating Agreement and has timely paid in full
all
Capital Contributions required to be made by it to the Company pursuant to
the
PSMA Operating Agreement. As of the date hereof no amounts are owing by Seller
to the Company or Purchaser.
(d) Seller
has reacquired the Manufacturing Rights (as defined in the Amended and Restated
PSMA/PSMP License) and granted a license with respect thereto to the Company
in
accordance with Section 2.2(e) of the PSMA Operating Agreement.
(e) The
Services Agreement has terminated pursuant to Section 3(a)(ii) thereof following
the discharge in full of Purchaser’s obligation pursuant to Section 2.2 of the
PSMA Operating Agreement to make additional Capital Contributions of up to
$3
million to fund the Company’s research and development programs as budgeted in
the work plans described in Section 2 of the Services Agreement.
(f) Immediately
after giving effect to the transactions contemplated by this Agreement and
the
Collateral Agreements, neither Seller nor any of its Affiliates will have an
ownership, leasehold or other right or interest in or to, or otherwise retain
possession of, any Company Assets.
Section
4.7 Seller
Sophistication; Excluded Information.
7
(a) Seller
represents that it (i) is a member of the Company, (ii) is a sophisticated
seller of the Membership Interest, (iii) has adequate information concerning
the
business and financial condition of the Company to make an informed decision
regarding the sale of the Membership Interest and (iv) has independently and
without reliance upon Purchaser, and based on such information as Seller has
deemed appropriate, made its own analysis and decision to enter into this
Agreement and the Collateral Agreements.
(b) Seller
acknowledges that (i) Purchaser has not given Seller any investment advice,
credit information, or opinion on whether the sale of the Membership Interest
is
prudent, (ii) Purchaser and Seller have differed as to the development
priorities and budgets for the Company, (iii) Seller has had a full opportunity
to make inquiries of, and receive satisfactory answers from, Purchaser regarding
all aspects of the business, finances, intellectual property and prospects
of
the Company, and (iv) Seller has determined, taking into account the foregoing
acknowledgements in this Section 4.7(b), to sell the Membership
Interest.
Section
4.8 No
Broker.
No
agent, broker, investment banker, financial advisor or other firm or Person
is
or will be entitled to any broker’s or finder’s fee or any other commission or
similar fee in connection with any of the transactions contemplated by this
Agreement.
Section
4.9 No
Misleading Statements.
No
representation or warranty by Seller in this Agreement, and no statement made
by
Seller in the Seller Disclosure Schedule (if any) or any certificate or other
document furnished to Purchaser pursuant hereto, or in connection with the
negotiation or execution of this Agreement, contains any untrue statement of
a
material fact or omits to state a material fact necessary to make any statement
herein not misleading.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrant to Seller as follows:
Section
5.1 Corporate
Organization and Good Standing.
Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to own, lease, operate and otherwise hold its properties
and
assets and to carry on its business as presently conducted. Purchaser is duly
qualified or licensed to do business as a foreign corporation and is in good
standing in every jurisdiction in which the nature of the business conducted
by
it or the assets or properties owned or leased by it requires qualification,
except where the failure to be so qualified, licensed or in good standing would
not, individually or in the aggregate, be reasonably likely to have a material
adverse effect on its ability to consummate the transactions contemplated by
this Agreement or the Collateral Agreements.
8
Section
5.2 Authorization
and Effect of Agreement.
Purchaser has all requisite corporate power and authority to execute and deliver
this Agreement and the Collateral Agreements and to perform its obligations
hereunder and thereunder. The execution and delivery of this Agreement and
the
Collateral Agreements by Purchaser and the performance by Purchaser of its
obligations hereunder and thereunder and the consummation by Purchaser of the
transactions contemplated hereby and thereby have been duly authorized by its
Board of Directors and no other corporate or other action on the part of
Purchaser is necessary to authorize the execution and delivery of this Agreement
and the Collateral Agreements or the consummation of the transactions
contemplated hereby or thereby. This Agreement and the Collateral Agreements
have been duly and validly executed and delivered by Purchaser and constitute
legal, valid and binding obligations of Purchaser, enforceable against Purchaser
in accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar Laws affecting
creditors’ rights and remedies generally.
Section
5.3 Consents
and Approvals; No Violations.
No
filing with, and no permit or Consent of any Governmental Authority or any
other
Person is necessary for the consummation by Purchaser of the transactions
contemplated by this Agreement or the Collateral Agreements. Neither the
execution and delivery of this Agreement or the Collateral Agreements by
Purchaser nor the consummation by Purchaser of the transactions contemplated
by
this Agreement or the Collateral Agreements nor compliance by Purchaser with
any
of the provisions hereof or thereof will (a) conflict with or result in any
breach of any provision of its certificate of incorporation or by-laws, (b)
result in a violation or breach of, or constitute (with or without due notice
or
lapse of time or both) a default (or give rise to any right of termination,
modification, cancellation or acceleration or loss of material benefits) under,
any of the terms, conditions or provisions of any Contract to which Purchaser
is
a party or by which Purchaser or any of its properties or assets may be bound
or
(c) violate any permit or Law applicable to Purchaser, except in the case of
clauses (b) or (c) for violations, breaches or defaults which would not,
individually or in the aggregate, be reasonably likely to have a material
adverse effect on its ability to consummate the transactions contemplated by
this Agreement or the Collateral Agreements.
Section
5.4 No
Broker.
No
agent, broker, investment banker, financial advisor or other firm or Person
is
or will be entitled to any broker’s or finder’s fee or any other commission or
similar fee in connection with any of the transactions contemplated by this
Agreement.
Section
5.5 Litigation.
There
is no Proceeding pending or, to Purchaser’s knowledge, threatened, that
questions the validity of this Agreement or the Collateral Agreements or any
action taken or to be taken in connection with this Agreement or the Collateral
Agreements. There are no outstanding judgments, writs, injunctions, orders,
decrees or settlements that apply, in whole or in part, to the Membership
Interest or that restrict the ownership of the Membership Interest in any
way.
9
Section
5.6 Performance
of Obligations; Other Matters.
(a) Other
than pursuant to the PSMA/PSMP License, the PSMA Operating Agreement and/or
the
Services Agreement, neither Purchaser nor any of its Affiliates has been a
party
to any Contract with the Company and, except as reflected in the Company’s
audited financial statements for the period ended December 31, 2005, the Company
does not have, and did not have, any obligation or liability, contingent or
otherwise, owing to Purchaser or any of its Affiliates (including pursuant
to
any legal proceeding or order).
(b) No
amounts are owing by the Company or Seller to Purchaser pursuant to the PSMA
Operating Agreement.
(c) Purchaser’s
Member’s Percentage is equal to 50%. Purchaser is not in material default of any
of its obligations under the PSMA Operating Agreement and has timely paid in
full all Capital Contributions required to be made by it to the Company pursuant
to the PSMA Operating Agreement. As of the date hereof no amounts are owing
by
Purchaser to the Company or Seller.
Section
5.7 No
Misleading Statements.
No
representation or warranty by Purchaser in this Agreement, and no statement
made
by Purchaser in the Purchaser Disclosure Schedule (if any) or any certificate
or
other document furnished to Purchaser pursuant hereto, or in connection with
the
negotiation or execution of this Agreement, contains any untrue statement of
a
material fact or omits to state a material fact necessary to make any statement
herein not misleading.
Section
5.8 Third
Parties.
Except
for the entity disclosed by Purchaser to Seller in connection with the inquiries
referred to in clause (iv) of Section 4.7(b), Purchaser has had no discussions
with any third parties regarding any transactions involving the Company or
its
assets reasonably likely to have a material effect on the Company or the
economic value of the Membership Interest.
ARTICLE
VI
COVENANTS
Section
6.1 Further
Assurances.
From
time to time after the Closing Date, without additional consideration, each
party hereto will (or, if appropriate, cause its Affiliates to) execute and
deliver such further instruments and take such other action as may be necessary
or reasonably requested by the other party to make effective the transactions
contemplated by this Agreement and the Collateral Agreements and to provide
the
other party with the intended benefits of this Agreement and the Collateral
Agreements. Without limiting the foregoing, upon reasonable request of
Purchaser, Seller shall, and Seller shall cause its Affiliates to, as
applicable, execute, acknowledge, notarize and deliver all such further
assurances, deeds, assignments, powers of attorney and other instruments and
paper as may be required to sell, transfer, assign, convey and deliver to
Purchaser all right, title and interest in, to and under the Membership Interest
or
10
provide
evidence of such sale, transfer, assignment, conveyance and delivery. If,
notwithstanding Section 4.6(f) and any remedies available to Purchaser for
breach thereof, the Seller or any of its Affiliates shall, following the Closing
Date, have an ownership, leasehold or other right or interest in or to, or
otherwise retain possession of, any Company Assets, Seller shall, and Seller
shall cause its Affiliates to, without additional consideration, promptly
transfer, assign, convey and deliver such Company Assets to the Company. Without
limiting the foregoing, upon reasonable request of Purchaser or the Company,
Seller shall, and Seller shall cause its Affiliates to, without additional
consideration, execute, acknowledge, notarize and deliver all such further
assurances, deeds, assignments, powers of attorney and other instruments and
paper as may be required to provide verification, confirmation or evidence
of
the Company’s rights, titles and interests in, to and under the Company
Assets.
Section
6.2 Confidentiality.
(a) As
used
herein, “Confidential
Information”
means
all confidential and proprietary business, technical, or financial information
received from, or relating to, Purchaser or the Company.
(b) In
order
to protect the Confidential Information that was developed by, or has become
available to Seller, Seller agrees as follows:
(i) It
will
make no use of any Confidential Information except in furtherance of the
purposes contemplated by this Agreement or the Collateral
Agreements.
(ii) From
the
Closing Date and for a period of five years (5) years thereafter, it will not,
without the prior written consent of Purchaser, disclose to any third party
Confidential Information (which shall include the terms or existence of this
Agreement, the Collateral Agreements, the PSMA Operating Agreement or the
PSMA/PSMP License or other matters relating to the transactions contemplated
hereby and thereby).
(iii) Notwithstanding
the foregoing:
Seller
may disclose Confidential Information to those of its representatives, employees
and agents (“Agents”)
who
have a need to know such Confidential Information in relation to the matters
discussed herein and who are under obligations of confidentiality and non-use
consistent with those set forth herein. Any unauthorized disclosure of
Confidential Information by Seller’s Agents shall be a breach by Seller of this
Section 6.2.
Disclosure
of Confidential Information is permitted to the extent that such disclosure
is
required pursuant to applicable Laws, provided,
however,
that
Seller shall promptly notify Purchaser in writing of the existence
or
11
imposition
of any such requirement or order and cooperate with Purchaser in seeking an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Information.
(c) The
provisions governing confidentiality and non-use contained in this Section
6.2
shall not apply to any Confidential Information which:
| (i) |
was
in the public domain or the subject of public knowledge at the time
of
disclosure;
|
| (ii) |
becomes
part of the public domain or the subject of public knowledge through
no
breach by or act of default of Seller;
or
|
| (iii) |
is
obtained by Seller from a third party other than in breach of a legal
or
contractual obligation of confidentiality owed by such third party
to
Purchaser (or the Company) in respect thereof, the existence of which
such
obligation was known or should have been known by
Seller.
|
(d) Any
Confidential Information of the Company conveyed by Seller to Purchaser or
the
Company prior to the Closing Date for the exclusive use of the Company shall
remain subject to the confidentiality and non-use provisions contained in this
Section 6.2.
Section
6.3 Non-Hiring.
From
the Closing Date and for a period of two (2) years thereafter, Seller shall
not,
and shall cause its Affiliates not to, hire as an employee or engage as a
consultant any person who is employed by or who is a consultant to or is
otherwise affiliated with the Company, or to solicit or induce any such person
to terminate his or her employment, consultancy or affiliation with the Company.
In addition, from the Closing Date and for a period of two (2) years thereafter,
neither Purchaser nor Seller shall, and Purchaser and Seller shall cause their
respective Affiliates not to, hire as an employee or engage as a consultant
any
person who is employed by or who is a consultant to or otherwise affiliated
with
the other party, or to solicit or induce any such person to terminate his or
her
employment, consultancy or affiliation with the other party.
Section
6.4 Termination
of Rights and Liabilities Under PSMA Operating Agreement.
(a) From
and
after the Closing, Seller shall cease to be a member of the Company and shall
have no further powers, rights, or privileges as a Member or otherwise under
the
PSMA Operating Agreement.
(b) Each
of
Seller and Purchaser hereby agree and acknowledge that, immediately upon
consummation of the Closing, all rights of Seller contained in the PSMA
Operating Agreement which are not transferable to Purchaser pursuant to this
agreement, including, without limitation, the rights contained in Article IX
of
the PSMA
12
Operating
Agreement, shall be terminated as of the Closing and shall be of no further
force and effect.
(c) Notwithstanding
Section 11.9 of the PSMA Operating Agreement or any other provision of the
PSMA
Operating Agreement to the contrary, effective as of the Closing, each of
Purchaser and Seller hereby releases and discharges the other, and Seller hereby
releases and discharges the Company, from any liability, claim, demand, debt,
obligation, dispute, action or cause of action (“Claims”)
that
Seller or Purchaser may have against each other, or that Seller may have against
the Company, pursuant to the PSMA Operating Agreement, the Delaware Limited
Liability Company Act or otherwise by reason of being a member of the Company,
including all Claims which shall have already accrued at the time of the Closing
and all Claims which may accrue after the Closing; provided,
however,
that
nothing in this Section 6.4(c) shall operate as (i) a waiver by either party
hereto of the terms, conditions, representations and warranties contained in
this Agreement, the Amended and Restated PSMA/PSMP License, the Collateral
Agreements or any other agreement contemplated herein or therein or (ii) a
release or discharge of any Claims which Purchaser or Seller may have against
the other with respect to any such terms, conditions, representations and
warranties.
(d) From
and
after the Closing, Seller’s consent shall not be required to effect any
amendment, restatement or termination of the PSMA Operating
Agreement.
Section
6.5 Tax
Matters.
With
respect to the Taxable Periods of the Company ending on or before the Closing
Date, Seller and Purchaser agree as follows:
(a) The
tax
matters partner (“Tax
Matters Partner”)
of the
Company for purposes of Section 6223 of the Code shall be Purchaser. Unless
otherwise required by law, the Tax Matters Partner shall not take any action
pursuant to this Section 6.5 unless such action has been consented to by
Seller.
(b) All
elections by the Company for income and franchise tax purposes and all
determinations regarding the book basis, depreciation or amortization of any
Company assets, and all other matters relating to all tax returns (including
amended returns), including the characterization and allocation of income and
loss, filed by the Company, including tax audits and related matters and
controversies, shall be made and conducted by the Tax Matters Partner at the
expense of the Company, subject to the approval of Seller. The Tax Matters
Partner shall, at the expense of the Company and subject to the approval of
Seller, cause to be prepared and filed all tax returns (including amended
returns) required to be filed by the Company; provided,
however,
that
Seller shall have the opportunity to review any and all tax returns in advance
of such filing. In the event of a dispute between Seller and Purchaser
concerning the preparation and filing of the Company's tax returns, Seller
and
Purchaser agree to submit the dispute to arbitration to one of the major
nationally-recognized certified public accounting firms, whose decision on
the
matter shall be final and binding.
13
(c) The
Tax
Matters Partner shall be responsible for all negotiations on behalf of the
Company with the IRS or the Departments of the Treasury or Justice or any state
or local tax authority with respect to the income tax treatment of Company
items, and shall provide Seller with the opportunity, at the expense of the
Company, to participate in any such negotiations. The Tax Matters Partner shall
not bind Seller to a settlement agreement unless Seller has given its written
consent to such agreement.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section
7.1 Notices.
All
notices and other communications required or permitted hereunder will be in
writing and, unless otherwise provided in this Agreement, will be deemed to
have
been duly given when delivered in person or when dispatched by electronic
facsimile transfer (confirmed in writing by mail simultaneously dispatched)
or
one (1) Business Day after having been dispatched by a nationally recognized
overnight courier service to the appropriate party at the address specified
below:
(a) If
to
Purchaser, to:
Progenics
Pharmaceuticals, Inc.
▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy:
▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇.
▇▇▇▇▇, Senior Vice President
&
General Counsel
with
a
copy (which shall not constitute notice) to:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy:
▇▇▇-▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇
14
(b) If
to
Seller, to:
Cytogen
Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy:
▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
and
General Counsel
with
a
copy (which shall not constitute notice) to:
▇▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy:
▇▇▇-▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
or
to
such other address or addresses as any such party may from time to time
designate as to itself by like notice.
Section
7.2 Expenses.
Except
as otherwise expressly provided herein, each party hereto will pay any expenses
incurred by it incident to this Agreement or the Collateral Agreements and
in
preparing to consummate and consummating the transactions provided for herein
and therein.
Section
7.3 Successors
and Assigns.
No
party to this Agreement may assign any of its rights under this Agreement
without the prior written consent of the other parties hereto; provided,
however,
that
Purchaser may assign its rights and obligations under this Agreement, without
the prior written consent of Seller, to an Affiliate of Purchaser. Subject
to
the preceding sentence, this Agreement will apply to, be binding in all respects
upon, and inure to the benefit of the successors and permitted assigns of the
parties hereto. Nothing expressed or referred to in this Agreement will be
construed to give any Person other than the parties to this Agreement any legal
or equitable right, remedy or claim under or with respect to this Agreement
or
any provision of this Agreement. This Agreement and all of its provisions and
conditions are for the sole and exclusive benefit of the parties to this
Agreement and their successors and permitted assigns.
Section
7.4 Extension;
Waiver.
Any
party hereto may, by written notice to the other parties hereto (a) extend
the
time for performance of any of the obligations of the other party under this
Agreement, (b) waive any inaccuracies in the representations or warranties
of
the other party contained in this Agreement, (c) waive compliance with any
of
the conditions or covenants of the other party contained in this Agreement
or
(d) waive or modify performance of any of the obligations of the other party
under this Agreement; provided
that no
such party hereto may, without the prior written consent of the other parties
hereto, make or grant such extension of time, waiver
15
of
inaccuracies or compliance or waiver or modification of performance with respect
to its representations, warranties, conditions or covenants hereunder. Except
as
provided in the immediately preceding sentence, no action taken pursuant to
this
Agreement will be deemed to constitute a waiver of compliance with any
representations, warranties, conditions or covenants contained in this Agreement
and will not operate or be construed as a waiver of any subsequent breach,
whether of a similar or dissimilar nature.
Section
7.5 Entire
Agreement.
This
Agreement, which includes the schedules and exhibits hereto, supersedes any
other agreement, whether written or oral, that may have been made or entered
into by any party relating to the matters contemplated by this Agreement and
constitutes the entire agreement by and among the parties hereto.
Section
7.6 Amendments,
Supplements, Etc.
This
Agreement may be amended or supplemented at any time by additional written
agreements as may mutually be determined by Purchaser and Seller to be
necessary, desirable or expedient to further the purposes of this Agreement
or
to clarify the intention of the parties hereto.
Section
7.7 Applicable
Law.
This
Agreement shall be governed by and construed under the laws of the State of
Delaware applicable to agreements made and to be performed in
Delaware.
Section
7.8 Execution
in Counterparts.
This
Agreement may be executed in two (2) or more counterparts, each of which will
be
deemed an original, but all of which together will constitute one (1) and the
same agreement. Facsimile and/or electronically delivered signatures to this
Agreement and all Collateral Agreements executed in connection herewith shall
be
binding on the parties to this Agreement.
Section
7.9 Titles
and Headings.
Titles
and headings to sections herein are inserted for convenience of reference only,
and are not intended to be a part of or to affect the meaning or interpretation
of this Agreement.
Section
7.10 Invalid
Provisions.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future Law, and if the rights or obligations under this
Agreement of Seller on the one hand and Purchaser on the other hand will not
be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part hereof, (c)
the
remaining provisions of this Agreement will remain in full force and effect
and
will not be affected by the illegal, invalid, or unenforceable provision or
by
its severance from this Agreement and (d) in lieu of such illegal, invalid
or
unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
Section
7.11 Publicity.
Except
as otherwise required by applicable Law or the rules and regulations of any
national securities exchange, no party hereto shall
16
issue
any
press release or otherwise make any public statement with respect to the
transactions contemplated by this Agreement or the Collateral Agreements without
prior consultation with and consent of the other parties hereto, which consent
shall not be unreasonably withheld, conditioned or delayed.
Section
7.12 Specific
Performance.
The
parties hereto agree that if any of the provisions of this Agreement or the
Collateral Agreements were not performed in accordance with their specific
terms
or were otherwise breached, irreparable damage would occur, no adequate remedy
at law would exist and damages would be difficult to determine, and that the
parties hereto shall be entitled to specific performance of the terms hereof
or
thereof, in addition to any other remedy at law or equity.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
17
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
PROGENICS
PHARMACEUTICALS, INC.
By:
/s/
▇▇▇▇
▇. ▇▇▇▇▇
Name: ▇▇▇▇
▇.
▇▇▇▇▇
|
Title:
|
Senior
Vice President, General Counsel &
Secretary
|
CYTOGEN
CORPORATION
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President and Chief Executive Officer
Annex
A
DEFINITIONS
AND DEFINED TERMS
(a) As
used
in this Agreement, the following terms shall have the following
meanings:
“Affiliate”
shall
mean with respect to any Person, any other Person who, directly or indirectly,
controls, is controlled by or is under common control with that Person. For
purposes of this definition, a Person has control of another Person if it has
the direct or indirect ability or power to direct or cause the direction of
management policies of such other Person or otherwise direct the affairs of
such
other Person, whether through ownership of at least fifty percent (50%) of
the
voting securities of such other Person, by Contract or otherwise. The term
Affiliate shall not include the Company as it relates to the Purchaser or
Seller, as the case may be, through and including the date hereof.
“Business
Day”
shall
mean a day other than a Saturday, Sunday or other day on which commercial banks
in New York are authorized or required by Law to close.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended.
“Collateral
Agreements”
shall
mean the Amended and Restated PSMA/PSMP License and the Membership
Assignment.
“Company
Assets”
shall
mean any properties or assets (whether tangible, intangible, real, personal
or
mixed), which are used in, held for use in, necessary for or otherwise relate
to
or arise from the business of the Company, as conducted on the Closing Date
(other than the rights licensed to the Company pursuant to the Amended and
Restated PSMA/PSMP License Agreement).
“Consent”
shall
mean any consent, approval or authorization of, notice to, or designation,
registration, declaration or filing with, any Person.
“Contract”
shall
mean any note, bond, mortgage, indenture, contract, agreement, permit, license,
lease, purchase order, sales order, arrangement or other commitment, obligation
or understanding, written or oral, to which a Person is a party or by which
a
Person or its assets or properties are bound.
“Governmental
Authority”
shall
mean any federal, state, local or foreign government or any subdivision, agency,
instrumentality, authority, department, commission, board or bureau thereof
or
any federal, state, local or foreign court, tribunal or arbitrator.
“knowledge”
shall
mean the knowledge any Person would have after due inquiry.
“IRS”
means
the United States Internal Revenue Service.
A1
“Laws”
shall
mean all federal, state, local or foreign laws, orders, writs, injunctions,
decrees, ordinances, awards, stipulations, statutes, judicial or administrative
doctrines, rules or regulations enacted, promulgated, issued or entered by
a
Governmental Authority.
“Liens”
shall
mean, other than Permitted Liens, all title defects or objections, mortgages,
liens, claims, charges, pledges or other encumbrances of any nature whatsoever,
including, without limitation, licenses, leases, chattel or other mortgages,
collateral security arrangements, pledges, title imperfections, defect or
objection liens, security interests, conditional and installment sales
agreements, easements, encroachments or restrictions, of any kind and other
title or interest retention arrangements, reservations or limitations of any
nature.
“Management
Committee”
shall
have the meaning ascribed to that term in the PSMA Operating
Agreement.
“Managing
Representative”
shall
have the meaning ascribed to that term in the PSMA Operating Agreement.
“Member”
shall
have the meaning ascribed to that term in the PSMA Operating
Agreement.
“Member’s
Percentage”
shall
have the meaning ascribed to that term in the PSMA Operating
Agreement.
“Permitted
Liens”
mean
(a) Liens for current real or personal property Taxes not yet due and payable
and with respect to which the Seller maintains adequate reserves, (b) workers’,
carriers’ and mechanics’ or other like Liens incurred in the ordinary course of
business with respect to which payment is not due and that do not impair the
conduct of business or the present or proposed use of the affected property
and
(c) Liens that are immaterial in character, amount, and extent and which do
not
detract from the value or interfere with the present or proposed use of the
properties they affect.
“Person”
shall
mean any individual, partnership, joint venture, corporation, limited liability
company, trust, unincorporated organization, Governmental Authority or other
entity.
“PSMA/PSMP
License”
means
the PSMA/ PSMP License Agreement dated June 15, 1999 by and among Purchaser,
Seller and the Company.
“Representative”
shall
have the meaning ascribed to that term in the PSMA Operating
Agreement.
“Scientific
Advisory Board”
shall
have the meaning ascribed to that term in the PSMA Operating
Agreement.
“Services
Agreement”
means
the Services Agreement dated June 15, 1999 by and among Purchaser, Seller and
the Company.
A2
“Tax”
or
“Taxes”
means
any taxes and similar government charges (including taxes on or with respect
to
net or gross income, franchise, profits, gross receipts, capital, sales, use,
ad
valorem, value added, transfer, registration, capital stock, license, payroll,
employment, social security, unemployment, severance, real or personal property,
excise, recordation, estimated taxes, withholding and stamp), together with
any
interest thereon, penalties, fines and additions to tax with respect thereto,
imposed by a Governmental Authority.
“Tax
Authority”
shall
mean any Governmental Authority having jurisdiction over the assessment,
determination, collection or imposition of any Tax.
“Tax
Returns”
shall
mean any report, return, election, declaration or other filing required to
be
filed with any Tax Authority, including any amendments thereto.
“Taxable
Period”
shall
mean any taxable year or any other period that is treated as a taxable year,
with respect to which any Tax may be imposed under any applicable statute,
rule,
or regulation.
“Treasury
Regulations”
shall
mean the regulations, including temporary regulations, promulgated under the
Code, as the same may be amended hereafter from time to time (including
corresponding provisions of succeeding regulations).
A3
(b) Each
of
the following terms is defined in the Section set forth opposite such
term:
|
Term
|
Section
|
|
Agents
|
6.2(b)(iii)
|
|
Agreement
|
Preamble
|
|
Amended
and Restated PSMA/PSMP License
|
3.2(a)(ii)
|
|
Asset
Acquisition Statement
|
2.3(a)
|
|
Claims
|
6.4(c)
|
|
Closing
|
3.1
|
|
Closing
Date
|
3.1
|
|
Company
|
Recitals
|
|
Confidential
Information
|
6.2(a)
|
|
Disclosure
Schedule
|
Article
IV
|
|
Management
Committee Waiver and Approval Certificate
|
3.2(a)(v)
|
|
Managing
Representative Certificate
|
3.2(a)(iv)
|
|
Membership
Assignment
|
3.2(a)(i)
|
|
Membership
Interest
|
2.1
|
|
Proceedings
|
4.5
|
|
PSMA
Operating Agreement
|
Recitals
|
|
Purchase
Price
|
2.2
|
|
Purchaser
|
Preamble
|
|
Resignations
|
3.2(a)(iii)
|
|
Reviewing
Accountants
|
2.3(a)
|
|
Seller
|
Preamble
|
|
Tax
Matters Partner
|
6.5(a)
|
A4