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Delaware
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001-33137
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14-1902018
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number) |
(IRS Employer
Identification No.) |
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400 Professional Drive, Suite 400,
Gaithersburg, Maryland
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20879
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(Address of Principal Executive Offices)
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(Zip Code)
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Exhibit No.
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Description
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| 2 | Asset Purchase Agreement, dated July 14, 2017, by and between Sanofi Pasteur Biologics, LLC, Acambis Research Ltd. and Emergent BioSolutions Inc.*, ** | |
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99
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Press Release dated July 14, 2017.
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| * |
The schedules and exhibits to the Asset Purchase Agreement have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished to the Securities and Exchange Commission upon request.
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| ** |
Confidential treatment has been requested for certain portions of this Exhibit pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended, which portions are omitted and filed separately with the SEC.
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Date: July 14, 2017
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EMERGENT BIOSOLUTIONS INC.
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By:
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/
s/ ROBERT G. KRAMER, SR.
Robert G. Kramer, Sr.
Executive Vice President and Chief Financial Officer
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1.2.1
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The words "hereof," "herein," "hereinafter," "hereinabove" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement. A reference to an Article, Section, Schedule or Exhibit is, except as otherwise expressly stated, a reference to an Article or Section of, or a Schedule or Exhibit to, this Agreement.
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1.2.2
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Terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa. Whenever required by the context, any pronoun used in this Agreement will include the corresponding masculine, feminine or neuter forms.
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1.2.3
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The words "include," "includes" and "including" and words of similar import will be by way of example rather than by limitation.
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1.2.4
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The word "or" is used in the inclusive sense (and/or).
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1.2.5
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References to monetary amounts are denominated in United States Dollars.
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1.4.1
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The Schedules attached to this Agreement each when delivered, are incorporated by reference into and made a part of this Agreement.
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1.4.2
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There may be included in the Data Room or the Schedules items and information that are not "material," and such inclusion shall not be deemed to be an acknowledgment or agreement that any such item or information (or any non-disclosed item or information of comparable or greater significance) is "material," or to affect the interpretation of such term for purposes of this Agreement. Matters reflected in the Data Room or the Schedules are not necessarily limited to matters required by this Agreement to be disclosed therein. The Schedules each set forth items of disclosure with specific reference to the particular Section or sub-Section of this Agreement to which the information in the applicable disclosure relates;
provided, however
, that any information set forth in one Section of the Schedules will be deemed to apply to each other Section or sub-Section thereof to which its relevance is reasonably apparent on its face.
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(a)
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(i) the Owned Real Property, including all Improvements, (ii) to the extent transferrable, all certificates, licenses, permits, authorizations and approvals issued or granted to the Seller or its Affiliates by Governmental Authorities for the Manufacturing Facility, the Finishing Facility or the Supporting Facility or the current operation thereof, including the certificates, licenses, permits, authorizations, approvals set forth on
Schedule
2.1.1(a)
(ii)
(the "
Facility Permits
"), and (iii) to the extent transferrable, all of the Seller's right, title and interest, if any, under any Third Party warranties relating to the Improvements and the equipment at the Facilities (other than equipment used exclusively in connection with the JEVV) (the "
Equipment Warranties
");
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(b)
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except if used exclusively in connection with the JEVV and excluded in accordance with Section 2.1.2(h), the tangible personal property and interests therein, including machinery and equipment (other than Improvements), equipment, furniture, furnishings physically located at the Manufacturing Facility, the Finishing Facility or the Supporting Facility set forth on
Schedule
2.1.1(b)
(which
Schedule
2.1.1(b)
may be updated by the Seller no later than three Business Days prior to the Closing Date) (the "
Transferred Tangible Personal Property
");
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(c)
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subject to Sections
7.2
and
7.10
, (i) all rights of the Seller and its Affiliates under the Contracts set forth on
Schedule
2.1.1(c)
, as such Schedule may be updated by the Seller not less than three Business Days prior to the Closing Date solely to include rights and interests under any additional Contract relating to the Product or the Transferred Assets,
provided, however,
the Purchaser may request to remove an additional Contract from such Schedule with the consent of the Seller, which consent shall not be unreasonably withheld (the "
Transferred Contracts
"), including any cause of action, lawsuit, judgment, claim or demand with respect to such Transferred Contracts (other than in respect of the Excluded Liabilities) and (ii) all rights in any Unsatisfied Orders arising under the CDC Agreement;
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(d)
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subject to Section
7.1
, all Transferred Books and Records;
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(f)
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Transferred Regulatory Approvals;
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(g)
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Transferred Product Regulatory Documentation;
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(h)
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the Viral Seeds existing as of the Closing Date and in the possession of the Seller or its Affiliates;
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(i)
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the Transferred Intellectual Property, including any cause of action, lawsuit, judgment, claim or demand with respect to such Transferred Intellectual Property (other than in respect of the Excluded Liabilities);
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(k)
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2.1.2
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(a)
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cash and cash equivalents (including investments and securities) and all bank or other deposit accounts of the Seller and any of its Affiliates;
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(b)
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any Intellectual Property of the Seller and any of its Affiliates, other than the Transferred Intellectual Property;
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(d)
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any cause of action, lawsuit, judgment, claim or demand of the Seller or any of its Affiliates in respect of the Excluded Liabilities or the Excluded Assets;
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(e)
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any rights to insurance policies of the Seller or any of its Affiliates, any refunds paid or payable in connection with the cancellation or discontinuance of any such policies or practices and any claims made or proceeds paid or payable under such policies other than in respect of the Transferred Assets or the Assumed Liabilities;
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(f)
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any Seller Compensation and Benefit Plan, any assets of, or set aside in respect of any Seller Compensation and Benefit Plan or any other compensation and benefit plans, programs, policies or arrangements sponsored or otherwise made available by the Seller or any of its Affiliates;
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(g)
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all rights in the JEVV;
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(h)
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all right, title and interest in any assets and tangible property located at the Facilities that are used exclusively in connection with the JEVV and any and all improvements thereon;
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(i)
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any rights of the Seller and its Affiliates under this Agreement and any Ancillary Agreements;
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(j)
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any tangible personal property other than the Transferred Tangible Personal Property; and
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(k)
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any other asset, property or right not included in the definition of Transferred Assets.
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2.2.1
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Upon the terms and subject to the conditions of this Agreement, without limiting the rights of the Purchaser or its Affiliates under
Article 10
in respect of the representations and warranties of the Seller contained in
Article 8
,
on the Closing Date, the Purchaser shall assume and become liable solely for the following Liabilities of the Seller or (as the case may be) its Affiliates (the "
Assumed Liabilities
"):
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(b)
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(c)
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(d)
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without limiting clause (a) or (b), any Liability arising out of or related to the obligation to supply Product under the CDC Agreement, including any obligation to fulfill Unsatisfied Orders under the CDC Agreement;
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(e)
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one-half of any Transfer Taxes arising from or relating to the consummation of the transactions contemplated by this Agreement; and
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(f)
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any Liability arising in respect of the employment or termination of employment of the Transferred Employees by the Purchaser or its Affiliates on or after the Closing Date, except as specifically described in Section
2.2.2
(b).
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2.2.2
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(a)
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one-half of any Transfer Taxes arising from or relating to the consummation of the transactions contemplated by this Agreement; and
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(b)
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any Liability arising directly as a result of the termination by Seller or its Affiliates of employment of the Eligible Employees effective as of or prior to the Closing, unless such Liability arises as a result of Purchaser's breach of its obligations under Sections
6.6
(Offer of Employment to Eligible Employees) (except to the extent that it results from a breach by Seller or Affiliates of its obligations under Section
6.6
) or
7.6
(Transferred Employees).
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2.3.1
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2.3.2
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The Purchaser shall have the right to grant sublicenses under the license granted in Section
2.3.1
through multiple tiers;
provided
, that the Purchaser shall remain liable for the performance or non-performance of any sublicensee, including, for the avoidance of doubt, through multiple tiers. All sublicenses granted hereunder shall be consistent with the terms and conditions set forth in this Agreement.
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2.3.3
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All rights to the Licensed Know-How granted under this Section
2.3
or any Ancillary Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code (the "
Bankruptcy Code
") and other similar foreign Laws, licenses of rights to "intellectual property" as defined under the Bankruptcy Code or such foreign Laws. Purchaser and its Affiliates, as a licensee of rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code and other similar foreign Laws.
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3.1.1
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Upon the terms and subject to the conditions of this Agreement, the Purchaser shall deliver or cause to be delivered to the Seller at Closing, in consideration of the aforesaid sale, transfer and assignment of the Transferred Assets and the assumption of the Assumed Liabilities, $97,500,000 (such amount, the "
Upfront Payment
"), plus the Prepaid Amounts and the Milestone Payments for any Milestone Events that have been achieved prior to the Closing. Payment of the Upfront Payment, the Prepaid Amounts and the Milestone Payments for the Milestone Events that have been achieved prior to the Closing shall be made in accordance with Section
12.4.2
and by wire transfer of immediately available funds to such bank account as shall have been notified in writing to the Purchaser by the Seller.
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3.1.2
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Promptly following (but no more than 30 days after) the first achievement of each event described on
Schedule
3.1.2
(each, a "
Milestone Event
"), the Purchaser shall pay to the Seller, as additional consideration hereunder, an amount set forth opposite the applicable Milestone Event (each, a "
Milestone Payment
") in accordance with Section
12.4.2
and by wire transfer of immediately available funds to such bank account as shall have been notified in writing to the Purchaser by the Seller not less than three days in advance of the date of payment,
provided
,
however
, if any Milestone Event is achieved prior to the Closing and the Seller notifies the Purchaser of such achievement at least three Business Days prior to the Closing Date, then the applicable Milestone Payment(s) shall be due and payable by the Purchaser at Closing. For the avoidance of doubt, the maximum aggregate value of all Milestone Payments payable by the Purchaser in accordance with this Section
3.1.2
is $27,500,000. Each Milestone Payment shall be payable only upon the first achievement of the applicable Milestone Event and no amounts shall be due for subsequent or repeated achievements of the Milestone Event.
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3.1.3
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3.1.5
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If the Purchaser and its Affiliates, taken as a whole, shall no longer engage in the activities required to achieve the Milestone Events, then the Purchaser shall, or shall cause its Affiliates to, send written notice thereof to the Seller together with a detailed explanation for such cessation of activities (provided, however, that any such notice given by Purchaser or its Affiliates shall be subject to the provisions of Section
12.3
).
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3.1.6
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The right of Seller to receive the Milestone Payments (a) is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Seller only the rights of a general unsecured creditor under applicable state Law); (b) will not be represented by any form of certificate or instrument; and (c) does not give the Seller any dividend rights, voting rights, liquidation rights, pre-emptive rights or other similar rights including, without limitation, any rights with respect to the operation or conduct of any Transferred Asset from and after the Closing.
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3.2.2
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Notwithstanding anything contained in Section
3.2.1
: Any Taxes (excluding any Transfer Taxes) levied against the Owned Real Property or any personal property Taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If such Taxes for the current year have not been paid before Closing, Seller shall be charged at Closing an amount equal to that portion of such Taxes which relates to the period before Closing and Purchaser shall pay such Taxes prior to their becoming delinquent. Any such apportionment made with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed shall be based upon the tax rate or assessed valuation last fixed. To the extent that the actual Owned Real Property Taxes for the current year differ from the amount apportioned at Closing, the parties shall make all necessary adjustments by appropriate payments between themselves within 12 months following Closing. Nothing described in this Section
3.2.2
shall include Taxes that arise pursuant to entering into this Agreement.
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(a)
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(b)
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the Assignment of Lease Agreement for each of the Finishing Facility and Supporting Facility, duly executed by the Seller and the applicable landlord;
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(c)
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the Bill of Sale, duly executed by the Seller and, as applicable, its Affiliates;
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(d)
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the Bulk Manufacturing Agreement, duly executed by the Seller;
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(e)
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the Sublicense Agreement, duly executed by the Seller;
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(f)
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(g)
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the Deed of Sale, duly executed by the applicable Seller or its Affiliate;
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(h)
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the Trademark and Domain Name Assignment Agreement duly executed by the Seller and, as applicable, its Affiliates;
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(i)
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the Patent Assignment Agreement duly executed by the Seller and, as applicable, its Affiliates;
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(j)
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the Seller FDA Transfer Letter duly executed by the Seller and, as applicable, its Affiliates;
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(k)
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the Transferred Tangible Personal Property;
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(l)
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the Pre-Novation Agreement duly executed by the Seller and, as applicable, its Affiliates;
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(m)
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the Inventory;
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(n)
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a good standing certificate or equivalent Companies House registry in the jurisdiction of its formation or incorporation (as applicable) for each Seller;
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(o)
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such evidence as the reputable title company issuing Purchaser's title insurance policies for the Owned Real Property may reasonably require as to the authority of the Person or Persons executing documents on behalf of the Seller;
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(p)
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a customary owner's affidavit and gap indemnity executed by the applicable Seller with respect to the Owned Real Property, in form and substance reasonably satisfactory to such Seller and Commonwealth Land Title Insurance Company in the form attached hereto as
Exhibit L
, and any other customary documents required by Commonwealth Land Title Insurance Company in connection with the recordation of the Deed of Sale;
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(q)
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an affidavit duly executed by the applicable Seller (or owner thereof if such Seller is a disregarded entity for U.S. tax purposes) stating that such Seller (or owner) is not a "foreign person" as defined in the Federal Foreign Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act;
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(r)
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a Corporate Excise Tax Lien Waiver from the Massachusetts Department of Revenue in proper form for recording;
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(s)
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a closing statement reflecting all wire transfers to be made by the Purchaser at the Closing, and the related wire transfer instructions, duly executed by the Seller;
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(t)
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originals or copies of the Material Consents; and
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(u)
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the Guaranty, duly executed by the Seller.
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(a)
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(b)
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copies of each of the Ancillary Agreements (but, for clarity, not the Deed of Sale, Owner's Affidavit and Gap Indemnity certificate and Seller FDA Transfer Letter) referred to in Section
4.2
, duly executed by the Purchaser;
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(c)
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the Purchaser FDA Transfer Letter duly executed by the Purchaser and, as applicable, its Affiliates;
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(d)
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evidence of the issuance of the Purchaser's title insurance policy for the Owned Real Property;
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(e)
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evidence of the issuance of the Environmental Insurance Policy; and
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(f)
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the Guaranty, duly executed by the Purchaser.
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(a)
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no Legal Proceeding by any Governmental Authority or any other Person shall be pending, and no Law shall have been promulgated or come into effect or enforced by any court of competent jurisdiction or Governmental Authority, that restrains or prohibits any Party from performing this Agreement, the Ancillary Agreements or any transaction contemplated hereby or thereby or that would reasonably be expected to result in substantial damage to such Party as a consequence thereof;
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(b)
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the Antitrust Approval(s) shall have been obtained, and any applicable waiting period (and any extension thereof) under applicable Law, relating to the consummation of the transactions contemplated by this Agreement shall have expired or have been terminated; and
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(c)
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the Material Consents and Governmental Approvals, in each case, identified in
Schedule
5.1(c)
shall have been obtained
.
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(a)
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(c)
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the Seller shall have executed, and shall have caused its Affiliates, as the case may be, to execute, the agreements and other documents required to be executed in accordance with Section
4.2
.
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(b)
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the Purchaser shall have delivered the Upfront Payment, the Prepaid Amounts and any applicable Milestone Payments, and shall have executed the agreements and other document required to be delivered pursuant to Section
4.3
.
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(a)
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fail to maintain, in the ordinary course of business consistent in all material respects with past practice (
provided
that with respect to manufacture of the Product, Seller's sole obligation shall be as described in Section
6.1.1
), the Product Business as it exists as of the Execution Date, or their business relations with their Third Party suppliers, regulators and customers;
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(b)
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sell, pledge, dispose of, grant, transfer, lease (or sublease), license (or sublicense), encumber or authorize the sale, pledge, disposition, grant, transfer, lease (or sublease), license (or sublicense) or encumber of any Transferred Assets, other than (i) in the ordinary course of business consistent in all material respects with past practice, or (ii) Permitted Encumbrances;
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(c)
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with respect to the assets of the Facilities set forth on
Schedule
2.1.1(b)
:
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(i)
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terminate or close the operations in respect of the Product Business as it exists as of the Execution Date at the Facilities or fail to maintain such assets in their current state of repair, order and condition, in the ordinary course of business in a manner consistent in all material respects with past practice, usual and ordinary wear and tear excepted;
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(ii)
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fail to maintain the insurance coverage with respect thereto as in effect on the Execution Date;
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(iv)
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make any material alterations or additions to the Facilities, except as may be required by Law or to which Purchaser consents (including, for the avoidance of doubt, GMP), under the terms of any lease for the Supporting Facility or the Finishing facility or as otherwise set forth in
Schedule
6.1.2(c)(iv)
;
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(d)
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except as otherwise set forth in
Schedule
6.1.2(d)
or as may be required pursuant to applicable Law or otherwise in the ordinary course of business consistent in all material respects with past practice, increase the compensation payable to any Transferred Employee (including wages, bonuses or salaries);
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(e)
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settle any Legal Proceeding or waive any claims or rights of value, in either case, in a manner that would constitute an Assumed Liability or otherwise be materially adverse to the Transferred Assets, taken as a whole, from and after the Closing; or
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(f)
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agree, in writing or otherwise, to take any of the foregoing actions;
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6.2.1
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Upon the terms and subject to the conditions of this Agreement, each of the Parties shall use all commercially reasonable efforts to fulfill, or cause to be fulfilled, as promptly as reasonably practicable the conditions precedent set forth in
Article 5
and fully cooperate with the reasonable requests of the other Party for such purpose and to cause its Affiliates to take all actions required under this Agreement.
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6.2.2
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(b)
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the Purchaser shall be responsible for the payment of all filing and other fees and expenses in connection with the Required Notifications and obtaining the Antitrust Approval(s);
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(c)
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without limiting the generality of the Purchaser's covenants otherwise set out in this Section
6.2.2
,
[***];
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(d)
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to the extent permitted by applicable Law, each Party shall promptly notify the other of any communication (including oral communications) it or any of its Affiliates receives from any Antitrust Authority relating to the matters that are the subject of this Agreement and permit the other to review in advance any proposed communication by such Party to any Antitrust Authority. To the extent permitted by applicable Law, neither of the Parties shall participate in or agree to participate in any meeting with any Antitrust Authority in respect of any filings, investigation (including any settlement of the investigation), litigation or other inquiry related to the Required Notifications unless it consults with the other in advance and, to the extent permitted by such Antitrust Authority, gives the other the opportunity to attend and participate at such meeting. Each Party will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods under any applicable antitrust or competition Laws. Subject always to the provisions of Section
12.1
, the Parties will provide each other with copies of all correspondence, filings or communications between them or any of their representatives, on the one hand, and any Antitrust Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement;
provided
that materials may be redacted: (i) by the Seller to remove references concerning valuation of the Transferred Assets; (ii) by either Party as necessary to comply with contractual arrangements; and (iii) by either Party as necessary to address reasonable attorney-client or attorney work product privileges or waivers of other privilege or breaches of confidentiality provisions of Contracts with Third Parties; and
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(e)
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6.2.3
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Nothing in this Section
6.2
will under any circumstances purport to require either Party to do, or omit to do, any act which would, in its reasonable opinion, put it in breach of any applicable Laws or regulations relating to anti-bribery, including the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010.
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6.5.1
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Until the Closing Date, the Seller shall promptly notify the Purchaser of any calls made to or received from, or correspondence or other documents submitted to or received from, Governmental Authorities relating to or otherwise in respect of the Transferred Product Regulatory Documentation or Transferred Regulatory Approvals or any events resulting in any Product (a) not being manufactured in accordance with the Master Production and Control Record (within the meaning of 21 CFR part 211.186) and not being managed in accordance with standard operating procedure [***] or standard operating procedure [***], as applicable or (b) not meeting the Certificate of Analysis applicable to the category type of Inventory in its stage of manufacture. The Seller shall use its commercially reasonable efforts to have the Purchaser participate (with such participation by Purchaser to be limited to listening) in any calls with Governmental Authorities relating to or otherwise in respect of the Transferred Product Regulatory Documentation or Transferred Regulatory Approvals.
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6.5.2
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Except as otherwise set forth on
Schedule 6.5.2
, the Seller shall provide the Purchaser with a reasonable amount of time (but in any event not less than five Business Days) prior to the Seller's submission or transmissions of such correspondence or other documents to any Governmental Authority relating to or otherwise in respect of the Transferred Product Regulatory Documentation or Transferred Regulatory Approvals for the Purchaser to review and comment upon any correspondence or other documents in respect of the Transferred Product Regulatory Documentation or Transferred Regulatory Approvals and shall in good faith incorporate any such comments of the Purchaser into such correspondence or other documents. For clarity, the Seller shall have final decision-making authority regarding the contents of any submission or transmission to any Governmental Authority in respect of the Transferred Product Regulatory Documentation or Transferred Regulatory Approvals pursuant to this Section 6.5.2.
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6.6.1
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6.6.2
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As soon as reasonably practicable, but in no event more than 10 Business Days after the Execution Date, the Seller shall notify the Eligible Employees of the transaction contemplated by this Agreement and that each Eligible Employee will receive an offer of employment from the Purchaser as hereinafter provided, with copies of such letters being provided contemporaneously to the Purchaser. At least 10 Business Days after, but in no event more than 20 Business Days after, the Execution Date, the Purchaser shall make an offer of employment, effective as of the Closing Date, to each Eligible Employee,
provided
that in no event shall the Purchaser be required to provide an offer of employment to more than [***] Eligible Employees. Each such offer can be conditioned on the Eligible Employee remaining employed by the Seller or one of its Affiliates as of the Closing Date. The Seller and the Purchaser shall cooperate with one another reasonably to facilitate such offers of employment by the Purchaser, including the Seller providing the Purchaser with the information necessary to make such offers of employment to the Eligible Employees. Except as set forth on
Schedule
6.6.2
, each such offer shall be made so that, on the Closing Date, such Eligible Employee shall be employed by the Purchaser under terms that are no less favorable in the aggregate in terms of [***], with benefits as set forth on
Schedule
7.6.1
, and with duties that are similar to the duties now being performed by such Transferred Employees to those under which such Transferred Employees are employed as of the Execution Date by the Seller or its Affiliates. In addition, each such offer shall be sufficient so as not to constitute a constructive discharge for purposes of the Worker Adjustment and Retraining Notification (WARN) Act and similar state laws.
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6.8.2
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As required under the CDC Agreement, reasonably promptly following the Execution Date, the Seller shall seek consent from the contracting officer of the CDC Agreement to subcontract the performance of substantially all of the Seller's obligations under the CDC Agreement to the Purchaser until such time the Novation Agreement is executed or the CDC Agreement is fulfilled, whichever occurs first. Seller shall make the disclosure required by Section
6.8.1
no later than such time as it makes the consent request.
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6.9.4
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Seller shall pay all recording fees in connection with the release of any Encumbrances on the Owned Real Property, including the release of any Title and Survey Objections and the release of any Encumbrances set forth on
Schedule N
. The Seller and the Purchaser shall each pay one-half (or 50%) of all transfer taxes and documentary stamp charges in respect of the sale and transfer of the Owned Real Property. Purchaser shall pay the cost of recording the Deed of Sale, the cost of any survey (including the Survey) or zoning (including the Zoning Reports), all title insurance premiums, title exam fees and any endorsements to Purchaser's title policy. Any other customary purchase and sale closing costs shall be paid by Seller or Purchaser in accordance with the custom in the jurisdiction where the Owned Real Property is located.
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6.12.1
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The Purchaser shall obtain the Environmental Insurance Policy (subject to reimbursement to the extent provided in this Section
6.12
) on or prior to the Closing Date. Until the Closing Date, the Seller and its Affiliates shall cooperate and use commercially reasonable efforts to assist the Purchaser, the carrier or underwriter of the Environmental Insurance Policy and their respective Representatives in obtaining the Environmental Insurance Policy, including releasing to the proposed insurers existing environmental reports. The Environmental Insurance Policy shall be effective as of the Closing Date [***]
.
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6.12.2
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Seller will allow Purchaser and its environmental consultant reasonable access during normal business hours to the Real Property between the Execution Date and the Closing Date so that Purchaser's environmental consultant may update its inspections of the Real Property in order to issue a Phase I Environmental Site Assessment current under the standards for All Appropriate Inquiry under the Comprehensive Environmental Compensation and Liability Act and to confirm that no new Recognized Environmental Condition (as defined under ASTM Standard E1527-13) has occurred at any Real Property,
provided
that Purchaser shall provide Seller with a copy of the final Phase I Environmental Site Assessment promptly following its issuance but in no event later than five Business Days prior to the Closing Date.
|
|
7.1.1
|
As promptly as reasonably possible after the Closing Date, but no later than 20 Business Days thereafter (except as set forth in the Transitional Services Agreement and excluding those Transferred Books and Records that are addressed by Section
7.1.3
) in the case of those Transferred Books and Records that are located at the Facilities as of the Closing Date and no later than on a schedule to be set forth in the Transitional Services Agreement in the case of those Transferred Books and Records that are not located at the Facilities as of the Closing Date, the Seller shall transmit, or (as the case may be) shall cause its Affiliates to transmit, to the Purchaser all Transferred Books and Records not then already in the possession or under the control of the Purchaser.
|
|
7.1.2
|
Subject to compliance with applicable Laws and the applicable provisions of Section
12.1
, the Seller or its Affiliates shall have the right to retain any Transferred Books and Records for legal, regulatory, tax or accounting purposes, so long as the Seller or such Affiliates provide at least one copy of such Transferred Books and Records to the Purchaser.
|
|
7.1.3
|
|
(a)
|
if it is reasonably practicable for the Relevant Information to be physically extracted from the corresponding books and records, or if it is reasonably practicable for a copy of the corresponding books and records to be transmitted to the Purchaser, redacting any information that is not Relevant Information, then the Seller shall, and shall cause its Affiliates to, transmit to the Purchaser such extract or such redacted copy;
|
|
(b)
|
if it is not reasonably practicable for the Relevant Information to be physically extracted or to be transmitted in a redacted form, then no later than on a schedule to be set forth in the Transitional Services Agreement, the Seller shall, and shall cause its Affiliates to, give access to such Relevant Information to the Purchaser according to the following conditions:
|
|
(i)
|
such Relevant Information must be reasonably useful to the Purchaser to satisfy the Purchaser's Tax or financial reporting requirements, the obligation of the Purchaser or its Affiliates under the CDC Agreement or the requests or requirements of the FDA or other Governmental Authority in respect of the BLA (or any amendment or supplement thereof with respect to the Current Indication) or other Transferred Product Regulatory Documentation or Transferred Regulatory Approvals;
|
|
(ii)
|
the access shall be given in the offices of the Seller or its Affiliates during normal business hours on a Business Day; and
|
|
(iii)
|
all information included in such books and records that is not Relevant Information shall constitute Confidential Information and shall be subject to the provisions of Section
12.1
.
|
|
(a)
|
the Purchaser shall, and shall cause its Affiliates, to notify the Seller and its Affiliates of any Other Product Information (excluding that related to the JEVV) located at the Facilities to confirm whether the Purchaser should transfer to the Seller and its Affiliates, or to destroy, such Other Product Information;
|
|
(b)
|
the Purchaser shall maintain copies of the Other Product Information related to the JEVV at the Facilities on behalf of the Seller and its Affiliates;
|
|
(d)
|
if it is not reasonably practicable for the Other Product Information to be transferred by the Purchaser and its Affiliates to the Seller and its Affiliates, either by extraction or by transmission of copies, then, upon request by the Seller or its Affiliates, the Purchaser shall, and shall cause its Affiliates to, give access to such Other Product Information to the Seller and its Affiliates according to the following conditions:
|
|
(i)
|
the access shall be given in the offices of the Purchaser or its Affiliates during normal business hours on a Business Day; and
|
|
(ii)
|
all information included in such books and records that is Other Product Information and that remains at the Facilities shall constitute Confidential Information and shall be subject to the provisions of Section
12.1
.
|
|
7.2.2
|
Notwithstanding the foregoing, the Shared Contracts shall be either partially assigned on or within 30 days after the Closing to the Purchaser or its Affiliates solely with respect to the Facilities or the Transferred Assets, or terminated on the Closing Date with respect to the Transferred Assets, whichever is permitted according to the terms of such Shared Contracts. Neither the Seller nor any of its Affiliates nor the Purchaser or any of its Affiliates shall be obligated to pay any consideration in respect of the assignment or termination of any Shared Contract. Notwithstanding the immediately preceding sentence, Transferred Contracts and Shared Contracts that are required for Seller to perform services under the Transitional Services Agreement shall not be assigned, in whole or in part, or terminated with respect to such services until the end of the provision of such services under the Transitional Services Agreement.
|
|
7.2.3
|
For the avoidance of doubt, no provision of this Agreement shall be interpreted or construed:
|
|
(a)
|
as an attempt to transfer or assign any Transferred Contract that is by its terms non-transferable or assignable without the required Consent, or
|
|
(b)
|
with respect to any such Consent that pertains to a Transferred Contract and which is not a Material Consent, as creating a condition precedent to the Purchaser's obligation to close under this Agreement.
|
|
7.4.1
|
Notwithstanding the provisions of Section
7.3
, if at any time after the Closing Date, the Purchaser or any of its Affiliates receives any Excluded Accounts Receivable, then the Purchaser shall pay (or shall cause such Affiliate to pay) to the Seller (or to such Affiliate of the Seller as the Seller may have designated in writing to the Purchaser), as soon as practicable the amount recovered.
|
|
7.4.2
|
After the Closing Date, the Seller shall be entitled to collect the Excluded Accounts Receivable and to initiate any Legal Proceedings or any other action with a view to collecting the Excluded Accounts Receivable. The Purchaser shall not waive or release any of the Excluded Accounts Receivable without the prior written consent of the Seller or otherwise interfere with the collection of the Excluded Accounts Receivable.
|
|
7.5.1
|
If and to the extent that the Seller (or any of its Affiliates) has, prior to the Closing Date, received any deposit or payment in advance in respect of obligations to be satisfied after the Closing under any Transferred Contracts, the Seller (or its Affiliate) shall reimburse to the Purchaser, within 20 Business Days from the Closing Date, an amount corresponding to the amount of such deposit or payment in advance.
|
|
7.5.2
|
If and to the extent that the Seller (or any of its Affiliates) has, prior to the Closing Date, made any deposit or payment in respect of supplies of goods or services not received prior to Closing under any Transferred Contracts (excluding any Prepaid Amounts, which are addressed under Section
3.3
) the Purchaser shall reimburse to the Seller (or its Affiliate), within 20 Business Days from the Closing Date, the amount thereof.
|
|
7.5.3
|
If and to the extent that the Seller (or any Affiliate thereof) has, prior to the Closing Date, received any good or service prior to the Closing under any Transferred Contract, the payment for which becomes due and payable and is paid by the Purchaser after the Closing Date, upon request and the presentation of reasonable supporting documentation of such payment by the Purchaser, the Seller shall reimburse the Purchaser for the amount of such payment within 20 Business Days from the date of such request.
|
|
7.5.4
|
In the event of a disagreement between the Parties as to the determination of amounts due pursuant to this Section
7.5
, such disagreement shall be submitted for final and binding adjudication to the Independent Expert, in each case, mutually acceptable to the Parties in writing.
|
|
7.5.5
|
The Independent Expert shall act as an arbitrator to determine only the disputed items specified in the applicable objection notice submitted in accordance with this Section
7.5
, and the determination of each disputed item shall be within the range established by the payment amount requested or offered, as applicable, by each Party in accordance with this Section
7.5
. The determination of the Independent Expert shall be made as promptly as possible and shall be final and binding upon the Parties. Each Party hereto shall be permitted to submit such data and information to the Independent Expert as the Parties deem appropriate. All expenses and fees incurred in connection with the Independent Expert shall be paid equally by the Purchaser, on the one hand, and the Seller, on the other hand.
|
|
7.6.1
|
Effective as of the Closing, the Purchaser shall employ all of the Transferred Employees on terms and conditions which are no less favorable in the aggregate [***], with benefits as set forth on
Schedule
7.6.1
, and with duties that are similar to the duties being performed by such Transferred Employees as of the Execution Date. For the avoidance of doubt, the Seller shall accept and reflect in its books and records the employment of all Transferred Employees by the Purchaser on the Closing Date.
|
|
7.6.2
|
Without limiting anything set forth in Section 7.6.1, for a period ending not earlier than [***] following the Closing Date, except as otherwise required by applicable Law, the Purchaser shall (and the Purchaser's offer of employment made pursuant to Section
6.6.2
shall) provide each Transferred Employee with:
|
|
(a)
|
[***];
|
|
(c)
|
benefits as set forth on
Schedule
7.6.1
.
|
|
(a)
|
for salary, wages, bonuses, commissions, vacations, vacation pay and other compensation relating to the Purchaser's employment of all Transferred Employees accruing on and after the Closing Date; and
|
|
(b)
|
subject to Sections
2.2.1(f)
and
2.2.2
(b), arising as a result of or in respect of the termination of employment of any Transferred Employees by the Purchaser on or following the Closing Date (including by way of constructive dismissals, deemed termination or equivalent concepts under applicable Laws).
|
|
7.6.4
|
From and after the Closing Date, the Purchaser shall recognize the past service of Transferred Employees with the Seller or its Affiliates for such purposes and for any required notice of termination, termination or severance pay (contractual, statutory under the applicable Law).
|
|
7.6.5
|
From and after the Closing Date, Transferred Employees shall be entitled to use and obtain their unused PTO benefits and PTO pay under the Seller or its Affiliates' PTO arrangements which have accrued up to, and including, the Closing Date, determined as of the Closing Date. Effective on Purchaser's hiring of the Transferred Employees at the Closing, Purchaser shall credit each Transferred Employee an amount of PTO hours equal to the amount of PTO hours that such Transferred Employee previously had accrued but not used with the Seller or its Affiliates as of the Closing and, for the period beginning on the Closing Date and ending on the last day of the calendar year in which the Closing Date occurs, Purchaser shall allow each Transferred Employee to accrue PTO hours at the rate at which such Transferred Employee previously accrued PTO hours with the Seller or its Affiliates immediately prior to the Closing. The Transferred Employees may use such PTO hours in accordance with and subject to the terms of the Purchasers' then-in-effect paid time off policies, including, that, as permitted under applicable law, any amounts of accrued but unused PTO hours at the end of the calendar year will be subject to forfeiture. Effective beginning the following calendar year, Purchaser shall allow each Transferred Employee to accrue PTO hours at a rate based on the Purchaser's policies and giving credit to such Transferred Employee for his or her past service with the Seller or its Affiliates. The Seller shall retain liability to Transferred Employees for any bonus accrued or any discretionary bonus consistent with past practice with respect to periods prior to the Closing Date; the amounts and timing of such payments shall be in accordance with the Seller or its Affiliates' bonus plans and, in particular, amounts will be paid as determined by the Seller or its Affiliates.
|
|
7.6.6
|
From and after the Closing, the Purchaser shall indemnify, defend and hold harmless the Seller Indemnified Parties from all Losses arising or relating to (a) any collective or mass termination of employment of the Transferred Employees by Purchaser or its Affiliates, or the employment of the Transferred Employees, in each case, not in accordance with the provisions of applicable Laws, or (b) the severance plan maintained by the Seller or any of its Affiliates as of the Execution Date as described in the summary set forth on
Schedule 7.6.6
, that results from the failure by the Purchaser or its Affiliates to offer to employ each of the Eligible Employees as required by Section
6.6
(Offer of Employment to Eligible Employees) (except to the extent that it results from a breach by Seller or Affiliates of its obligations under Section
6.6
) or to comply with Purchaser's or its Affiliates's obligations required by this Section
7.6
.
|
|
7.7.1
|
|
(a)
|
[***]; or
|
|
(b)
|
[***].
|
|
7.7.2
|
|
(a)
|
[***]; or
|
|
(b)
|
[***].
|
|
7.9.1
|
|
7.9.2
|
The Seller acknowledges and agrees that the covenants set forth in this Section
7.9
are reasonable with respect to period, geographical area and scope. Notwithstanding anything in this Section
7.9
to the contrary, if at any time, in any Legal Proceedings, any of the restrictions stated in this Section
7.9
are found by a final order of a court of competent jurisdiction to be unreasonable or otherwise unenforceable under circumstances then existing, the Seller agrees that the period, scope or geographical area, as the case may be, shall be reduced to the extent necessary to enable the court to enforce the restrictions to the extent such provisions are allowable under Law, giving effect to the agreement and intent of the Parties that the restrictions contained herein shall be effective to the fullest extent permissible. The Seller, on its own behalf and on behalf of its Affiliates, agrees that the restrictions contained in this Section
7.9
are reasonable in all respects and are necessary to protect the goodwill of the Transferred Assets.
|
|
7.10.2
|
As soon as reasonably practicable following the Closing, the novation of the CDC Agreement shall be made pursuant to the Novation Agreement, with such changes thereto as are required by the Responsible Contracting Officer and agreed to by the Parties or their respective applicable Affiliates, such agreement not to be unreasonably withheld, conditioned or delayed;
|
|
7.10.3
|
Subject to Sections
2.1.1
,
2.2.1
,
6.8.2
and
10.1
, from and after the Closing Date until the execution of the Novation Agreement or for the remaining period of performance of the CDC Agreement if novation does not occur, the Parties' rights and obligations with respect to the CDC Agreement shall be as set forth in the Pre-Novation Agreement (and, if applicable, the Transitional Services Agreement); and
|
|
7.10.4
|
|
7.14.1
|
From time to time after Closing, each of the Parties shall, and shall cause its Affiliates to, execute, deliver and file such instruments of transfer or assignment, files, books and records and shall take such other actions as may be required or reasonably requested by the other Party in each case that are consistent with the terms of this Agreement, in order to (i) vest in the Purchaser all of the Seller's right, title and interest in and to the Transferred Assets as contemplated hereby, (ii) effectuate the Purchaser's assumption of the Assumed Liabilities and (iii) grant to each Party all rights contemplated herein to be granted to such Party under the Ancillary Agreements, in each case at the requesting Party's cost and expense but for no further consideration;
provided, however
, that after the Closing, apart from such foregoing customary further assurances, neither the Seller nor the Purchaser shall have any other obligations except as specifically set forth and described herein or in the Ancillary Agreements.
|
|
7.14.2
|
After the Closing, upon reasonable advance written notice, the Purchaser and the Seller shall furnish or cause to be furnished to each other, as promptly as reasonably practicable, such information and assistance (to the extent within the reasonable control of such Party) relating to the Transferred Assets (including access to books and records) as is reasonably requested for the satisfaction of contractual or legal obligations to Third Parties or for Intellectual Property filings or litigation, subject to Section
7.1
, in each case at the requesting Party's cost and expense but for no further consideration.
|
|
7.14.3
|
Neither Party shall be required by this Section
7.14
to take any action that would unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations.
|
|
7.14.4
|
Notwithstanding Section
7.1
, from and after the Closing Date, the Purchaser and the Seller shall reasonably cooperate with each other in the defense or prosecution of any Legal Proceeding, examination or audit instituted prior to the Closing or that may be instituted thereafter against or by either Party relating to or arising out of the Exploitation of the Product prior to or after the Closing (other than Legal Proceedings between the Purchaser and the Seller or their respective Affiliates arising out of the transactions contemplated hereby or by the Ancillary Agreements). In connection therewith, from and after the Closing, each of the Seller and the Purchaser shall make available to the other during normal business hours and upon reasonable prior written notice, but without unreasonably disrupting its business, all records relating exclusively to the Transferred Assets, the Licensed Know-How, the Assumed Liabilities or the Excluded Liabilities held by it and reasonably necessary to permit the defense or investigation of any such Legal Proceeding, examination or audit (other than Legal Proceedings between the Purchaser and the Seller or their respective Affiliates arising out of the transactions contemplated hereby or by the Ancillary Agreements, with respect to which applicable rules of discovery shall apply), and shall preserve and retain all such records for the length of time contemplated by its standard record retention policies and schedules;
provided
that no Party shall be required to make available such documents if such disclosure could, in such Party's reasonable discretion, (a) violate applicable Law or any Contract (including any confidentiality agreement to which such Party or any of its Affiliates is a party),
provided
that such Party uses reasonable best efforts to obtain waivers thereof, (b) jeopardize any attorney/client privilege, attorney-work product doctrine or other established legal privilege or (c) disclose any Trade Secrets. Unless otherwise set forth in this Agreement or any Ancillary Agreement, the Party requesting such cooperation shall pay the reasonable out-of-pocket costs and expenses of providing such cooperation incurred by the Party providing such cooperation (including legal fees and disbursements) and by its officers, directors, employees and agents, and any applicable Taxes in connection therewith.
|
|
8.2.1
|
The Seller has full corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement and the Seller (and any of its Affiliates which is a party to any of the Ancillary Agreements) has full corporate power and authority to execute, deliver and perform its obligations under the Ancillary Agreements to which it is a party and each other agreement, document, instrument or certificate contemplated by this Agreement and the Ancillary Agreements to be executed by the Seller (or any such Affiliates, as the case may be) in connection with the consummation of the transactions contemplated hereby and thereby.
|
|
8.2.2
|
The execution, delivery and performance by the Seller of this Agreement, and the execution, delivery and performance by the Seller (or by any of its Affiliates which is a party to this Agreement or to any of the Ancillary Agreements) of the Ancillary Agreements have been duly authorized or, with respect to the Ancillary Agreements, shall have been duly authorized at the Closing Date, by all necessary corporate action on the part of the Seller (or any such Affiliates, as the case may be), and no additional authorization on the part of the Seller or any such Affiliates is necessary in connection with the execution, delivery and performance of this Agreement or the Ancillary Agreements.
|
|
8.2.3
|
This Agreement constitutes, and on the Closing Date, will constitute, and each of the Ancillary Agreements when duly executed and delivered on the Closing Date will constitute, legal, valid and binding obligations of the Seller and its Affiliates that are parties thereto, enforceable against them in accordance with their respective terms.
|
|
8.3.1
|
Subject to receipt of the Consents, and of any Governmental Approvals set forth in
Schedule
5.1(c)
and the Antitrust Approvals, the execution, delivery and performance of this Agreement and the Ancillary Agreements by the Seller (and any of its Affiliates which is a party to any of the Ancillary Agreements), and the consummation of the transactions contemplated hereby and thereby, do not and will not:
|
|
(a)
|
|
(b)
|
|
(c)
|
conflict with, violate, result in the breach of, or constitute a default under any Law applicable to the Seller or any such Affiliates;
|
|
8.3.2
|
There is no pending Legal Proceeding involving the Seller or the Product Business as it exists as of the Execution Date, or, to the Knowledge of the Seller, threatened in writing against the Seller or the Product Business as it exists as of the Execution Date, which questions or challenges the validity of this Agreement or seeks to prevent, enjoin, alter or delay any other transactions contemplated hereby or by the Ancillary Agreements or any action to be taken pursuant to this Agreement.
|
|
8.3.3
|
As of the Execution Date, the Seller has obtained the consent, effective as of the Closing Date, to the assignment to the Purchaser of the Key License Agreement and has delivered a true and correct copy of such consent to assignment to the Purchaser.
|
|
8.4.1
|
The Seller or its Affiliates have good title to, or in the case of licensed or leased property, a valid license or leasehold interest in, the Transferred Assets (other than the Transferred Intellectual Property and Licensed Know-How, which is addressed in Section
8.15
), free and clear of all Encumbrances except Permitted Encumbrances. The Seller or such Affiliates:
|
|
(a)
|
have not granted, or agreed to grant, (i) any ownership interest or right in, or with respect to, any Transferred Asset other than sold Inventory or (ii) any right to acquire or receive any Transferred Asset other than sold Inventory or any interest or right therein or with respect thereto; and
|
|
(b)
|
are not a party to or bound by any Contract (other than the CDC Agreement, which shall be addressed in the Pre-Novation Agreement), other than this Agreement, affecting or relating to the transfer of any Transferred Asset other than sold Inventory (or any interest or right therein or with respect thereto).
|
|
8.5.1
|
Other than the Seller Government Contracts, which are addressed in Section 8.20.1, and those Transferred Contracts that are added to
Schedule
2.1.1(c)
following the Execution Date and prior to the Closing Date pursuant to Section
2.1.1(c)
, as of the Execution Date, the Seller has Disclosed to the Purchaser or its representatives a true and correct copy of each Transferred Contract, together with all amendments, modifications or supplements thereto.
|
|
8.5.2
|
Each Material Transferred Contract (other than the Seller Government Contracts, which are addressed in Section 8.20.2) is a valid and binding agreement of the Seller and its Affiliates that are parties thereto, and to the Knowledge of the Seller, the counterparties thereto, and is in full force and effect in all material respects.
|
|
8.5.3
|
The Seller and its Affiliates that are parties thereto have performed in all material respects all of the obligations required to be performed by the Seller and such Affiliates under the Material Transferred Contracts (other than the Seller Government Contracts, which are addressed in Section 8.20.2), and none of them is in material breach thereunder. Except as otherwise set forth on
Schedule 8.5.3
, to the Knowledge of the Seller, no Third Party to any of the Material Transferred Contracts (other than the Seller Government Contracts, which are addressed in Section 8.20.2) is in material breach thereunder.
|
|
8.5.4
|
The Material Transferred Contracts and the Transferred Contracts (in each case, other than the Seller Government Contracts) are all of the material Contracts of the Seller or its Affiliates (other than Contracts constituting Purchaser Provided Assets or otherwise set forth on
Schedule
8.5.4
) necessary for Purchaser or its Affiliates to manufacture and Develop the Product as it is manufactured and Developed as of the Closing, including any testing of the Product routinely conducted by the Seller as of the Closing.
|
|
8.6.1
|
Except as set forth in
Schedule
8.6.1
, the Transferred Tangible Personal Property is in normal working order, ordinary wear and tear excepted and having regard to their respective age and use, in all material respects.
|
|
8.6.2
|
|
(a)
|
the Seller has Disclosed to the Purchaser all of the Transferred Tangible Personal Property; and
|
|
(b)
|
the Transferred Tangible Personal Property are all of the material tangible personal property and interests therein of the Seller or its Affiliates (other than the tangible personal property constituting Purchaser Provided Assets) necessary for Purchaser or its Affiliates to manufacture and Developed the Product as it is manufactured and Developed as of the Closing, including any testing of the Product routinely conducted by the Seller as of the Closing.
|
|
8.6.3
|
Except as set forth on
Schedule
8.6.3
:
|
|
(a)
|
the Seller has Disclosed to the Purchaser all of the Transferred Books and Records; and
|
|
(b)
|
the Transferred Books and Records are all of the material books and records of the Seller or its Affiliates (other than books and records constituting Purchaser Provided Assets) necessary for Purchaser or its Affiliates to manufacture and Develop the Product as it is manufactured and Developed as of the Closing, including any testing of the Product routinely conducted by the Seller as of the Closing.
|
|
(a)
|
Schedule
8.7.1
(a)
sets out the municipal address of the Manufacturing Facility and a registrable legal description of the Owned Real Property. The Owned Real Property is free and clear of all Encumbrances except Permitted Encumbrances. The Seller has not granted any option or right of first refusal or first opportunity to any Person to acquire any interest in any of the Owned Real Property.
|
|
(b)
|
Except as otherwise provided on
Schedule
8.7.1
(b)
, the Improvements on the Owned Lands are in reasonably good operating condition and repair, and are suitable and adequate for the purposes for their current use, ordinary wear and tear excepted and having regard to their respective age and use.
|
|
(c)
|
To the Knowledge of the Seller, no application or Legal Proceeding is pending with respect to a reduction or an increase of such Taxes. To the Knowledge of the Seller, there are no Tax refund proceedings relating to the Owned Real Property which are currently pending. To the Knowledge of the Seller, other than general real estate Taxes, the Seller has no material obligations to any Governmental Authority, adjacent property owner or other Person for the payment (or for any donations in lieu of payment) or performance of any infrastructure, capital improvements or other work in connection with the development or ownership of the Owned Real Property.
|
|
(d)
|
There are no brokerage Contracts, leasing commission Contracts or other Contracts providing for payments of any amounts for the purchase or sale of the Owned Real Property, or for leasing activities or procuring tenants with respect to the Owned Real Property or any part thereof, whether now or in the future. No brokerage or similar fee is due or unpaid by the Seller with respect to the Owned Real Property or any part thereof.
|
|
(a)
|
Schedule
8.7.2
sets forth a complete and accurate list of each lease, sublease, license, sublicense, option, right, concession or other agreement or arrangement for real property (collectively, the "
Transferred Leases
") to which the Seller is a tenant, subtenant, licensee, occupant or user or otherwise a party and which is used exclusively in connection with the Exploitation of the Product (collectively, the "
Seller Leased Real Property
"), and, to the Knowledge of the Seller, the Seller has made available to Purchaser a complete and accurate copy of each Transferred Lease.
|
|
(b)
|
The Seller (i) is not, nor, to the Knowledge of the Seller, is any landlord or sublandlord under any Transferred Lease, in material default of any Transferred Lease (with or without the lapse of time or the giving of notice, or both), (ii) except as set forth on
Schedule
8.7.2
, has not entered into any sublease, license, sublicense, option, right, concession or other Contract granting to any Person the right to use or occupy any Seller Leased Real Property or any portion thereof or interest therein, to the Knowledge of the Seller, no Person is in possession or occupancy of any Seller Leased Real Property other than the Seller, and the Seller has not exercised any option or similar right under any Transferred Lease or sublease, license, sublicense, option, right, concession or other Contract set forth on
Schedule
8.7.2
, and (iii) has not delivered any written notice of termination of any Transferred Lease to any other party thereto, nor has any other party to any Seller Lease delivered any such written notice of termination.
|
|
(c)
|
No material casualty has occurred that remains uncured with respect to any Seller Leased Real Property or Owned Real Property, and there is no condemnation by a Governmental Authority pending, or, to the Knowledge of the Seller, threatened in writing, in each case with respect to the Seller Leased Real Property or the Owned Real Property that does or would reasonably be expected to impair the operation of the Product Business as it exists as of the Execution Date. Each Seller Leased Real Property is in reasonably good condition and repair, and is suitable for the purposes for which it is used, ordinary wear and tear excepted.
|
|
(d)
|
Neither the Seller nor its Affiliates is party to any brokerage Contracts, leasing commission Contracts or other Contracts providing for payments of any amounts for leasing activities or procuring tenants with respect to the Seller Leased Real Properties or any part thereof, whether now or in the future. No brokerage or similar fee is due or unpaid by the Seller or any of its Affiliates with respect to any Transferred Lease, the Leased Real Property or any part thereof. No brokerage or similar fee shall be due or payable by the Seller or its Affiliates on account of the exercise of any renewal, extension or expansion options arising under any Transferred Lease.
|
|
8.8.2
|
All Environmental permits required under all applicable Environmental Laws with respect to operations currently conducted at the Real Property have been obtained;
|
|
8.8.3
|
To the Knowledge of the Seller, no written claims, notices, requests for information, complaints or administrative or judicial orders are pending or threatened in writing against any Seller that could reasonably be expected to result in Environmental Matters arising from or as a result of (a) exposures to Hazardous Materials at, on or emanating from the Real Property; (b) Releases of Hazardous Materials at or from the Facilities or (c) off-site treatment, storage or disposal of Hazardous Materials transported from the Facilities by or on behalf of the Seller; and
|
|
8.8.4
|
The Seller has delivered to Purchaser true, correct and complete copies of all environmental assessments, investigations, studies or similar reports in the Seller's possession or control (including in the possession of the Seller's independent contractors), whether in physical or electronic form, pertaining to (a) the Facilities, or (b) successor liability under any applicable Environmental Law related to the Facilities, in each case, since January 1, 2013, pertaining to the Facilities as they exist as of the Execution Date.
|
|
8.9.1
|
The Seller and its Affiliates have complied in all material respects with all obligations owed to the Transferred Employees under the Seller Compensation and Benefit Plans or otherwise, including any obligations arising under applicable Laws, collective bargaining agreements, and terms and conditions of employment, as appropriate.
|
|
8.9.2
|
Except as set forth on
Schedule
8.9.2
, none of the Transferred Employees has received or given any notice terminating his employment or will be entitled to receive any termination indemnity or similar payment as a result of the sale of the Transferred Assets to the Purchaser.
|
|
8.10.1
|
Since January 1, 2013, (a) neither the Seller nor any of its Affiliates, which are employers of the Transferred Employees, has been or is a party to or was or is bound by any collective bargaining agreement covering the Transferred Employees, (b) to the Knowledge of the Seller, there are no labor unions or other organizations representing the Transferred Employees, (c) neither the Seller nor its Affiliates has made commitments to or conducted negotiations with any labor union or employee association with respect to any future collective bargaining agreements covering the Transferred Employees, and (d) to the Knowledge of the Seller, there are no current attempts to organize or establish any labor union or employee association with respect to the Transferred Employees.
|
|
8.10.2
|
Since January 1, 2013, there have not been, there are not currently, and, to the Knowledge of the Seller, there have not been threatened in writing any claims or actions by or on behalf of any Transferred Employee against Seller or any of its Affiliates. Since January 1, 2013, there has not occurred or, to the Knowledge of the Seller, been threatened in writing any material strike, slowdown, picketing or work stoppage with respect to any Transferred Employees.
|
|
8.10.3
|
With respect to the Transferred Employees, the Seller is and, since January 1, 2013, has been, in compliance in all material respects with all currently applicable or then applicable Laws and its own policies regarding hiring, terms and conditions of employment, wages and hours, discrimination, labor relations, and all other employment practices.
|
|
8.13.1
|
The Seller or its Affiliates hold all material Governmental Approvals necessary for the ownership and operation of the Facilities or the Transferred Assets.
|
|
8.13.2
|
Neither the Seller nor any of its Affiliates which owns any of the Transferred Assets has received any written notice that the Seller or any such Affiliate is not in compliance in any material respect with any Law with respect to the Facilities or the Transferred Assets or the Transferred Employees.
|
|
8.13.3
|
|
8.15.1
|
Seller or one of its Affiliates owns, or otherwise has the right to use, the Transferred Intellectual Property and the Licensed Know-How and has the right to license the Licensed Know-How to the Purchaser in accordance with this Agreement and to transfer the Transferred Intellectual Property to the Purchaser hereunder.
|
|
8.15.2
|
|
8.15.3
|
None of the Transferred Patents is involved in any material Legal Proceeding, reissue, interference, reexamination or opposition.
|
|
8.15.4
|
None of the Transferred Trademarks is involved in any Legal Proceeding, cancellation, nullification or opposition proceeding that would have a Material Adverse Effect.
|
|
8.15.5
|
To the Knowledge of the Seller, the conduct of the Product Business as it exists as of the Execution Date does not infringe or misappropriate any Third Party's intellectual property rights. No Legal Proceeding is pending against the Seller (i) based upon, challenging or seeking to deny or restrict the use of any of the Transferred Intellectual Property or the Licensed Know-How or (ii) alleging that Seller's conduct of the Product Business as it exists as of the Execution Date infringes or misappropriates the intellectual property rights of any Third Party.
|
|
8.15.8
|
The Transferred Intellectual Property, collectively with any Intellectual Property that is licensed to the Purchaser under a Transferred Contract or pursuant to Section
2.3.1
, is all of the material Intellectual Property (other than Intellectual Property constituting Purchaser Provided Assets) necessary for Purchaser or its Affiliates to manufacture and Develop the Product as it is manufactured and Developed by or on behalf of the Seller or its Affiliates as of the Closing Date.
|
|
8.17.1
|
The Seller has not, with respect to the Product: (a) made any untrue statement of material fact or fraudulent statement to the FDA or any other equivalent foreign agency; (b) failed to timely disclose a material fact required to be disclosed to the FDA or any equivalent foreign agency; or (c) committed an act, made a statement, or failed to make a statement that would reasonably be expected to provide the basis for the FDA to invoke its policy respecting "Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities," as set forth in 56 Fed. Reg. 46191 (September 10, 1991).
|
|
8.17.2
|
The Seller's Facilities comply with the Seller's quality requirements and also comply, in all material respects, with all Healthcare Laws, including applicable GMPs.
|
|
8.19.1
|
Except as otherwise disclosed in
Schedule
8.19.1
, the Seller has timely filed all Tax Returns required to be filed by it and all such Tax Returns have been true, correct, and complete in all material respects. The Seller has timely paid all Taxes imposed on it when the same have become due. There are no Encumbrances on any of the Transferred Assets that arose in connection with any failure (or alleged failure) to pay any Tax.
|
|
8.19.2
|
The Seller has complied in all material respects with all Laws relating to the withholding and collection of Tax with respect to the Product (including any withholding with respect to wages or other amounts paid or owing to any employee, independent contractor, creditor, member, shareholder or other Third Party), and has timely reported such amounts and paid them over to the applicable Governmental Authority. The Seller has complied in all material respects with all Laws with respect to the Product with respect to record retention of Tax records.
|
|
8.20.1
|
The Seller has Disclosed to the Purchaser in the Data Room a complete and correct copy of each Seller Government Contract, and all modifications and amendments thereto.
|
|
8.20.2
|
With respect to each Seller Government Contract:
|
|
(a)
|
the Seller has complied with all material terms and conditions of such Seller Government Contract other than with regard to the Unsatisfied Orders;
|
|
(b)
|
neither the CDC, a party to a Seller Government Contract, or other Governmental Authority has notified Seller in writing or, to the Knowledge of the Seller, orally that the Seller is in breach of a contract requirement, certification, representation, clause, or provision, or otherwise violated any law, in each case, pertaining to the performance of the Seller Government Contract;
|
|
(c)
|
neither the CDC, a party to a Seller Government Contract, or other Governmental Authority has issued a cure notice or show cause notice pertaining to the Seller Government Contracts, nor, to the Knowledge of the Seller, threatened to terminate or not renew any Seller Government Contract; and
|
|
(d)
|
no outstanding, unresolved material direct or indirect cost invoiced or claimed by the Seller has been disallowed or is, to the Knowledge of the Seller, currently being audited other than in the ordinary course of business.
|
|
8.20.3
|
Seller has received Satisfactory or better on all Contractor Performance Assessment Reports (CPAR) issued by a Governmental Authority regarding the CDC Agreement.
|
|
8.20.4
|
To the Knowledge of the Seller, since January 1, 2013, in connection with the Product Business as it exists as of the Execution Date, neither the Seller nor any of its Principals (as defined at FAR 52.203-13(a)) has:
|
|
(a)
|
been debarred, suspended, or proposed for suspension or debarment from government contracting or have been subject to criminal or civil charges involving a contract with a Governmental Authority, tax, antitrust or other issues that could constitute a cause for suspension or debarment;
|
|
(b)
|
been subject to criminal or civil charges involving issues of deception, fraud, or falsification or destruction of records; or
|
|
(c)
|
pleaded guilty to, or otherwise been convicted of, violating any Federal or state laws or had one or more contracts terminated for default by any Governmental Authority.
|
|
8.20.5
|
To the Knowledge of the Seller, none of the Transferred Intellectual Property was developed under any contract with the U.S. Government such that some or all of the Intellectual Property is subject to the restrictions in the Bayh-Dole Act or other applicable federal regulations that apply to government funded intellectual property. To the Knowledge of the Seller, all Transferred Intellectual Property previously delivered to the U.S. Government under the CDC Agreement has been marked with the appropriate restrictive markings provided for by the FAR, agency FAR supplement, and contract terms, as applicable. To the Knowledge of the Seller, in connection with the Product Business, the Seller has complied with all applicable Laws and with all applicable contractual requirements relating to the placement of legends or assertion of restrictive markings on any Transferred Intellectual Property delivered or provided to the U.S. Government.
|
|
9.2.1
|
The Purchaser has full corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements and to perform its obligations under this Agreement and the Ancillary Agreements, and each other agreement, document, instrument or certificate contemplated by this Agreement and the Ancillary Agreements to be executed by the Purchaser in connection with the consummation of the transactions contemplated hereby and thereby.
|
|
9.2.2
|
The execution, delivery and performance by the Purchaser of this Agreement and the Ancillary Agreements have been duly authorized or, with respect to the Ancillary Agreements, shall have been duly authorized at the Closing Date, by all necessary corporate action on the part of the Purchaser and no additional authorization on the part of the Purchaser is necessary in connection with the execution, delivery and performance of this Agreement or the Ancillary Agreements.
|
|
9.2.3
|
This Agreement constitutes, and on the Closing Date, will constitute, and each of the Ancillary Agreements when duly executed and delivered on the Closing Date will constitute, legal, valid and binding obligations of the Purchaser enforceable against it in accordance with their respective terms.
|
|
9.3.1
|
Subject to receipt of the Antitrust Approval(s) and except as otherwise set forth on Section
9.3.1
to the Purchaser's disclosure schedules, the execution, delivery and performance of this Agreement and the Ancillary Agreements, and the consummation of the transactions contemplated hereby and thereby do not and will not:
|
|
(a)
|
|
(b)
|
|
(c)
|
conflict with, violate, result in the breach of, or constitute a default under any Law applicable to the Purchaser;
|
|
9.3.2
|
Except for the Antitrust Approval(s), the Novation Agreement and the Pre-Novation Agreement or as otherwise set forth on Section
9.3.2
to the Purchaser's disclosure schedules, no consents or approvals are required on the part of the Purchaser in connection with the execution, delivery and performance of this Agreement or any of the Ancillary Agreements.
|
|
9.4.3
|
Assuming that accuracy of the representations and warranties of the Seller contained in
Article 8
and, subject to Section
7.10
, the transfer and delivery of the Transferred Assets and the license of the Licensed Know-How upon the consummation of the transactions, in each case, in accordance with the express terms this Agreement, to the Knowledge of the Purchaser, the Purchaser and its Affiliates will have the expertise reasonably necessary to fulfill the obligations of Seller assumed by the Purchaser under the CDC Agreement and Purchaser's obligations under the Pre-Novation Agreement.
|
|
10.1.1
|
From and after the Closing, and subject to this
Article 10
, the Seller hereby agrees to indemnify the Purchaser, its Affiliates and their respective officers, directors, managers, employees, agents and representatives (collectively, the "
Purchaser Indemnified Parties
") for any and all losses, Liabilities, claims, demands, judgments, demands, fines, suits, actions, costs and expenses (including reasonable attorneys' fees) (collectively, "
Losses
") incurred by the Purchaser Indemnified Parties arising out of, or related to:
|
|
(a)
|
any inaccuracy in or breach of any representation or warranty on the part of the Seller or any of its Affiliates contained in
Article 8
, or on the part of the Seller or any of its Affiliates, as the case may be;
|
|
(b)
|
any failure to perform, breach or violation by the Seller or any of its Affiliates of any of its covenants or agreements contained in this Agreement;
|
|
(d)
|
|
10.1.2
|
From and after the Closing, and subject to this
Article 10
, the Purchaser hereby agrees to indemnify the Seller, its Affiliates and their respective officers, directors, managers, employees, agents and representatives (collectively, the "
Seller Indemnified Parties
") for any and all Losses incurred by the Seller Indemnified Parties arising out of, or related to:
|
|
(a)
|
any inaccuracy or breach of any representation or warranty on the part of the Purchaser contained in
Article 9
;
|
|
(b)
|
any failure to perform, breach or violation by the Purchaser of any of its covenants or agreements contained in this Agreement;
|
|
(e)
|
any Liabilities arising out of the Deed of Sale, the Assignment and Assumption Agreement, the Bill of Sale, the Patent Assignment Agreement or the Trademark and Domain Name Assignment Agreement during the period after Closing; and
|
|
(f)
|
without limiting the foregoing, Liabilities arising out of the CDC Agreement (including any modifications, amendments or extensions thereto) or the Novation Agreement arising during the period after Closing, or the Purchaser's performance or non-performance of the Pre-Novation Agreement, other than those in Section
10.1.1(d)
.
|
|
10.1.3
|
For purposes of determining the amount of Losses subject to indemnification pursuant to this Section
10.1
, but not for purposes of determining whether the representations and warranties giving rise to such right to indemnification have been breached, such Losses shall be determined without regard to any qualification or exception contained in such representation or warranty relating to materiality or Material Adverse Effect applicable thereto.
|
|
10.3.2
|
In the event of a Third Party Claim:
|
|
(a)
|
the Indemnifying Party shall have the right, if it so elects by written notice delivered within five Business Days of receipt of the Third Party Claim Notice, to assume the defense of the Third Party Claim and take such action to avoid, defend, dispute, resist, appeal or compromise such Third Party Claim and for such purpose may retain counsel of its choice to represent the Indemnifiable Party and any others that the Indemnifying Party may reasonably designate in connection with such Third Party Claim and shall pay the fees and disbursements of such counsel with regard thereto;
|
|
(b)
|
the Indemnifiable Party shall have the right, if it so notifies the Indemnifying Party, to be consulted in such defense of the Third Party Claim and to participate at its own expense and with counsel of its choice. In such event, the Indemnifying Party shall afford the Indemnifiable Party and its counsel the opportunity to comment (which comments shall be taken into account to the extent reasonable) with respect to the conduct of the defense of such Third Party Claim; and
|
|
(c)
|
if requested by the Indemnifying Party, the Indemnifiable Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party defends, or, if (i) appropriate and related to the Third Party Claim in question and (ii) reasonable in the judgment of the Indemnifying Party, in making any counterclaim against the Person asserting the Third Party Claim, or any cross complaint against any Person. The Indemnifying Party shall consult the Indemnifiable Party with respect to the prosecution of such counterclaim, demand or cross complaint. In such case and to the extent the counterclaim or cross complaint is related to the circumstances or facts giving rise to the Loss, the amount obtained and actually paid to the Indemnifiable Party as a result thereof shall be deducted from the amount of the indemnification to be paid by the Indemnifying Party to the Indemnifiable Party.
|
|
10.3.3
|
In the event the Indemnifying Party does not timely assume the defense in respect of the Third Party Claim, the Indemnifying Party shall have the right, if it so notifies the Indemnifiable Party, to be consulted in such defense of the Third Party Claim and to participate at its own expense and with counsel of its choice. In such event, the Indemnifiable Party shall afford the Indemnifying Party and its counsel the opportunity to comment (which comments shall be taken into account to the extent reasonable) with respect to the conduct of the defense of such Third Party Claim.
|
|
10.3.4
|
From and after the delivery of a Third Party Claim Notice hereunder, at the reasonable request of the Indemnifying Party, the Indemnifiable Party shall promptly provide the Indemnifying Party with copies of any document received or sent in connection with the Third Party Claim and shall grant the Indemnifying Party and its representatives all reasonable access to the books, records and properties of the Indemnifiable Party to the extent reasonably related to the matters to which the Third Party Claim Notice relates and which does not waive any rights of the Indemnifiable Party to the work product doctrine or attorney-client or similar privileges. The Indemnifying Party shall not, and shall require that its representatives shall not, use (except in connection with such Third Party Claim) or disclose to any Third Party other than the Indemnifying Party's representatives (except as may be required by applicable Law) any information obtained pursuant to this Section
10.3.4
which is designated confidential by the Indemnifiable Party. All such access shall be granted during normal business hours on a Business Day and shall be granted under conditions which will not unreasonably interfere with the business and operations of the Indemnifiable Party.
|
|
10.3.5
|
Any compromise or settlement made or caused to be made by the Indemnifying Party or the Indemnifiable Party, as the case may be, in connection with any Third Party Claim shall be binding upon, and be for the benefit of, the Indemnifying Party and the Indemnifiable Party, as the case may be, in the same manner as if a final Order had been entered by a court of competent jurisdiction in the amount of such settlement or compromise;
provided, however
, that no settlement or compromise shall be entered into by either the Indemnifying Party or the Indemnifiable Party without the express written consent of the other Party (which consent shall not be unreasonably withheld or delayed). In the event the Indemnifiable Party refuses to consent to a settlement providing for a monetary payment that provides for a full release of the Indemnifiable Party and its Affiliates without any admission of fault or liability on the part of the Indemnifiable Party and its Affiliates or impose any restrictions on the Indemnifiable Party or its Affiliates, the Indemnifying Party shall not be liable to indemnify the Indemnifiable Party for any amount in excess of the amount of such settlement proposal.
|
|
10.4.1
|
From and after the Closing, indemnification under this
Article 10
shall constitute the sole and exclusive remedy of any Party with respect to any and all claims relating to this Agreement, except for claims of actual fraud, gross negligence, actions taken in bad faith or intentional misrepresentation, any claims resolved by an Independent Expert under the terms of this Agreement, and except for the specific performance of covenants or agreements or claims in respect of the provisions of Sections
7.7
,
7.9
or
12.1
. Each Party waives, and shall cause its Affiliates to waive, any other right against the other Party and its Affiliates for indemnification pursuant to any breach of representations or warranties, other than as provided in this Agreement or any Ancillary Agreement.
|
|
10.4.2
|
No claim for indemnification made by a Purchaser Indemnified Party pursuant to Section
10.1.1(a)
will be indemnifiable if and to the extent that the fact, matter, event or circumstance giving rise to such claim is Disclosed to the Purchaser by the Seller or its Affiliates as of the Execution Date. No claim for indemnification made by a Seller Indemnified Party pursuant to Section
10.1.2(a)
will be indemnifiable if and to the extent that the fact, matter, event or circumstance giving rise to such claim is Disclosed to the Seller by the Purchaser as of the Execution Date.
|
|
10.4.3
|
The Indemnifiable Party shall take commercially reasonable steps to avoid or mitigate any Losses in respect of which it might be entitled to indemnification pursuant to this
Article 10
.
|
|
10.4.4
|
No indemnification shall be available to the Purchaser Indemnified Parties hereunder in respect of any Loss resulting directly from:
|
|
(a)
|
the conduct by the Purchaser or its Affiliates after the Closing Date (including any restructuring or Tax election); or
|
|
(b)
|
the conduct by the Seller or its Affiliates before the Closing Date at the direction or request of the Purchaser or its Affiliates.
|
|
10.4.5
|
The amount of any Loss for which indemnification is provided under this
Article 10
shall be net of any amounts actually recovered by the Indemnifiable Party under insurance policies or from Third Parties (other than amounts recovered from another Indemnifiable Party) with respect to such Loss. If the Indemnifiable Party actually receives a full or partial recovery under insurance policies or from a Third Party (other than from another Indemnifiable Party) following payment of indemnification by the Indemnifying Party in respect of such Loss, the Indemnifiable Party shall forward such insurance or other such amounts recovered to the Indemnifying Party less any costs, fees and expenses, duly evidenced, incurred by the Indemnifiable Party in connection with the recovery of such amount (not to exceed the amount of indemnification paid by the Indemnifying Party). For clarity, the provisions of this Section
10.4.5
shall not apply in respect of any claims in respect of breaches of the representations and warranties contained in Section
8.8
(Environmental Matters) for which the Purchaser's remedy is addressed in Section
10.6.5
.
|
|
10.4.6
|
The amount of any Loss for which indemnification is provided under this
Article 10
shall be reduced to take account of the actual amount by which the Taxes of the Indemnifiable Party or its Affiliates shall be reduced by such Loss, and increased by any Tax detriment actually realized by the Indemnifiable Party that is attributable to the receipt of indemnification payments under this Agreement in respect of such Losses.
|
|
10.4.7
|
In no event shall any Loss relating to a breach of any representation or warranty set forth in Article 8 or Article 9 for which indemnification is provided under this
Article 10
include amounts arising out of or in connection with a change or development in Law after the Execution Date, including any change or development in the enforcement thereof or any change in the rates of taxation in force at the Execution Date.
|
|
10.4.8
|
In no event shall any Indemnifiable Party be entitled to double recovery under this Agreement or any Ancillary Agreement. In particular, in the event any circumstances giving rise to a Loss constitute a breach of more than one representation and warranty, obligation or covenant on the part of the Indemnifying Party, the Indemnifiable Party shall only be entitled to be indemnified once in respect of such Loss.
|
|
10.4.9
|
If any claim for indemnification is based upon a liability which is contingent, the Indemnifying Party shall not be liable to make any indemnification payment to the Indemnifiable Party unless and until such contingent liability becomes due and payable, other than payments made to the Indemnifiable Party to cover the costs and expenses of investigating or defending such contingent liability, including reasonable attorneys' fees incurred by the Indemnifiable Party;
provided, however
, that any claim for indemnification that is made with respect to a contingent liability prior to the termination of the survival period defined in Section
10.5
shall not be denied, and no Indemnifying Party's liability hereunder shall be extinguished solely because such liability remains contingent at the end of such survival period.
|
|
10.4.10
|
For the purposes of this
Article 10
,
all amounts which are denominated in a currency other than the dollar shall be converted into dollars at the rate published in the Wall Street Journal on the date of the notice of claim by the Indemnifiable Party.
|
|
10.6.1
|
To the extent that any Losses incurred by a Purchaser Indemnified Party arise out of (a) a breach of the Seller's representations in any of Section
8.3
(No Violations; Consents and Approvals), Section
8.4
(Title to Transferred Assets) or Section
8.6
(Transferred Tangible Personal Property and Inventory), or (b) a breach of the Seller's covenants to convey a Transferred Asset, and is capable of mitigation through the conveyance to the Purchaser or the applicable Purchaser Indemnified Party of any non-conveyed asset giving rise to such Loss (or another non-conveyed asset that would cure such Loss), the Purchaser and the Seller shall cooperate (at the Seller's expense) to effect any arrangement reasonably proposed by the Purchaser for the conveyance to the Purchaser or the applicable Purchaser Indemnified Party of such asset. To the extent that any Losses incurred by a Purchaser Indemnified Party arise out of a breach of the Seller's covenants in Section
7.2
(Consents pertaining to Transferred Contracts; Shared Contracts) which is capable of mitigation through making available to the Purchaser or the applicable Purchaser Indemnified Party any Shared Contract giving rise to such Loss (or another asset that would cure such Loss), the Purchaser and the Seller shall cooperate (at the Seller's expense) to effect any arrangement reasonably proposed by the Purchaser to mitigate such Loss. In such event, if the Seller is unable to effect such arrangement, the Purchaser shall be entitled to obtain a reasonably equivalent replacement or substitute for such asset on a commercially reasonable basis, and the reasonable cost of such reasonably equivalent replacement or substitute will be an indemnifiable Loss hereunder.
|
|
10.6.2
|
|
(b)
|
until the indemnifiable Losses pursuant to Section
10.1.1(a)
exceed $[***] in the aggregate (the "
Deductible
"), in which event the Indemnifying Party will reimburse the Indemnifiable Party only for the amount of the indemnifiable Losses in excess of the Deductible, except as otherwise set forth in Section
10.6.5
,
|
|
10.6.3
|
Notwithstanding Section
10.6.2
above, claims made with respect to the Fundamental Warranties and the representations and warranties contained in Section
8.8
(Environmental Matters) will not be subject to, and will not be considered in calculating whether claims have exceeded, the Minimum Claim Threshold, the Deductible or the Cap,
provided, however
, that the maximum amount for which the Seller may be liable with respect to claims made with respect to the Fundamental Warranties will not exceed the Purchase Price, and claims in respect of breaches of the representations and warranties contained in Section
8.8
(Environmental Matters) will be recoverable solely and exclusively as set forth in Section
10.6.5
.
|
|
10.6.4
|
The Indemnifying Party shall be liable only for Losses that are direct damages incurred by the Indemnifiable Party, except as provided in the next sentence. The Indemnifying Party shall not be liable for any consequential, incidental, indirect, special or punitive damages, including loss of income, revenue, goodwill or profits or diminution in value, whether actual or prospective, in each case, except to the extent any such Losses are paid or payable (and subsequently paid) with respect to a Third Party Claim as to which an Indemnifiable Party is entitled to indemnification under this Agreement.
|
|
10.6.5
|
From and after the Closing, the sole and exclusive remedy of any Purchaser Indemnified Party in respect of Environmental Matters shall be recovery pursuant to the Environmental Insurance Policy, and the Purchaser Indemnified Parties hereby waive any and all rights and remedies against the Seller and its Affiliates under any Environmental Laws or relating to Environmental Matters, including for any breach of Section
8.8
(Environmental Matters).
|
|
10.6.6
|
Under no circumstances shall the aggregate liability of the Seller and its Affiliates under this Agreement (excluding the Seller's indemnification obligations under Section
10.1.1(c)
) exceed the Purchase Price.
|
|
(a)
|
by the mutual written agreement of each of the Purchaser and the Seller;
|
|
(b)
|
by either Party if the Closing shall not have occurred on or before the six-month anniversary of the Execution Date
provided, however
, that the right to terminate pursuant to this Section
11.1(b)
is not available to any Party whose breach of any provision of this Agreement results in or causes the failure of the Closing to be consummated by such time (it being understood that no Party shall be deemed in breach pursuant to this Section
11.1(b)
as a result of any breach that was due, in whole or in part, to any breach or other action or omission of the other Party);
|
|
(c)
|
by either Party if any Law is enacted that makes the consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited, or if consummation of the transactions contemplated by this Agreement would violate any non-appealable final Order of any Governmental Authority; or
|
|
(d)
|
by the Purchaser if the condition precedent set forth in Section
5.2(b)
is not fulfilled, or by the Seller if the condition precedent set forth in Section
5.3(a)
is not fulfilled, in each case as a result of a breach, failure or misrepresentation which has not been cured within 20 Business Days of receiving written notice thereof from the terminating Party indicating that unless such breach, failure or misrepresentation is cured in accordance with this Section
11.1(d)
, the terminating Party intends to terminate this Agreement.
|
|
(a)
|
|
(b)
|
the obligations resulting from a willful breach of any obligations under this Agreement,
provided
such breach occurred prior to the termination of this Agreement.
|
|
12.1.1
|
For the purposes of this Section
12.1
:
|
|
(a)
|
subject to Section
12.1.2
below, "
Confidential Information
" shall mean:
|
|
(i)
|
(in relation to the obligations of the Purchaser) any and all information related to the Seller or its Affiliates or, prior to Closing, the Transferred Assets or the Assumed Liabilities or the Product Business or the WetVax Deliverable, as it exists as of the Execution Date, received or held by the Purchaser or its Representatives, whether oral or written;
|
|
(ii)
|
(in relation to the obligations of the Seller) any and all information related to the Purchaser or its Affiliates or, following Closing, the Transferred Assets or the Assumed Liabilities or the Product Business or the WetVax Deliverable, as it exists as of the Closing Date, received or held by the Seller or its Representatives, whether oral or written; and
|
|
(iii)
|
any of the terms, conditions or content of the discussions between the Parties with respect to, and the existence and the terms of, this Agreement and the other Ancillary Agreements; and
|
|
(b)
|
|
(a)
|
is or becomes generally available to the public other than as a result of a disclosure by that Party or any of its Representatives in violation of this Section
12.1
;
|
|
(b)
|
was lawfully in the possession of that Party or any of its Representatives prior to such information being received from the other Party or its Representatives free of any restriction as to its use and disclosure (as can be demonstrated by that Party's or its Representative's written records);
|
|
(c)
|
becomes available to that Party or any of its Representatives thereafter,
provided
that at the time of its receipt such information is not, to the best of that Party's and its Representative's knowledge, subject to any confidentiality or restricted-use obligation for the benefit of the other Party; or
|
|
(d)
|
is independently developed by that Party or any of its Representatives without reference to the other Party's Confidential Information (as can be demonstrated by that Party's or its Representative's written records).
|
|
12.1.3
|
Subject to the provisions of this Section
12.1
, or unless otherwise agreed to in writing by the other Party, each of the Seller and the Purchaser hereby agrees not to (and to cause its Representatives not to):
|
|
(a)
|
disclose any Confidential Information to any Person other than its Representatives who need to know the Confidential Information for the purpose of the consummation of the transactions contemplated by this Agreement or any of the Ancillary Agreements; and
|
|
(a)
|
provide the other Party with prior written notice of such request or requirement so that the other Party may seek a protective order or other appropriate remedy;
|
|
(b)
|
exercise commercially reasonable efforts to narrow the scope of any such request or requirement and consult with the other Party to that effect; and
|
|
(c)
|
if such protective order or other remedy is not obtained, furnish only that portion of the Confidential Information which the Disclosing Party (or its Representative) is compelled to disclose and exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to such Confidential Information.
|
|
12.1.5
|
In the event of termination of this Agreement in accordance with Section
11.1
, the Purchaser shall (and shall ensure that its Representatives shall) promptly, upon the Seller's written request, and in any event within 10 Business Days of such request return all copies of Confidential Information in its possession or in the possession of any of its Representatives and destroy all information or other documents derived from such Confidential Information. Notwithstanding the foregoing, the Purchaser (and its Representatives) shall be permitted, subject to their continued compliance with the obligations specified in this Section
12.1
, entitled to retain copies of any computer records and files containing such Confidential Information which have been created pursuant to its automatic electronic archiving and back up procedures. If so requested by the Seller, the Purchaser shall confirm in writing that its undertakings relating to the return or destruction of any such Confidential Information have been complied with.
|
|
12.2.1
|
Without limitation to Section
12.1
above (and subject always to Section
12.1.4
above), the Purchaser and the Seller shall consult with each other before issuing (or before any of its Affiliates issues) any press release or otherwise making (or any of its Affiliates makes) any public statements with respect to this Agreement or any Ancillary Agreement, the other Party's name or the transactions contemplated hereby and neither the Purchaser nor the Seller shall issue any such press release or make any such public statement without having submitted a draft thereof to the other Party at least 10 Business Days prior to issuance of such press release or public statement. The issuance thereof shall not be made without the prior written approval of the other Party (such approval not to be unreasonably withheld or delayed)
.
|
|
12.2.2
|
Notwithstanding Section
12.2.1
, the Parties agree that this Agreement and the Ancillary Agreements (and the exhibits and schedules hereto and thereto) and any financial statements relating to the Product, and any descriptions of the foregoing (collectively, the "
Sensitive Information
") may contain competitively sensitive information, the public disclosure of which would be competitively harmful. The Parties agree that each Party shall notify the other Party prior to disclosing, filing or furnishing any Sensitive Information with the United States Securities and Exchange Commission or any counterpart under any foreign jurisdiction (a "
Securities Regulator
"), including as an exhibit to any registration statement or periodic report filed with a Securities Regulator, and shall give the other Party a reasonable opportunity to review and comment upon (a) any confidential treatment request to be submitted by the disclosing, filing or furnishing party with a Securities Regulator related to the Sensitive Information, (b) any redacted form of the Sensitive Information that the filing party intends to disclose, file or furnish in accordance with any other applicable Law and (c) any proposed public disclosure relating to the Sensitive Information. The disclosing, filing or furnishing Party shall use its reasonable best efforts to ensure that all information reasonably requested by the non-disclosing, non-filing or non-furnishing party to be added to a confidential treatment request or redacted, as the case may be, is so added or redacted. The redactions and requests for confidential treatment shall be made in a manner consistent with applicable Securities Regulator's regulations and guidance. Each request shall seek the longest confidentiality term possible. Any confidentiality request shall be submitted to and subject to the non-disclosing, non-filing or non-furnishing party's reasonable approval in advance of filing or furnishing.
|
|
12.2.3
|
For the avoidance of doubt, the provisions of this Section
12.2
shall not apply to the disclosure of the execution of this Agreement by the Parties, the disclosure of which (including any confidential treatment requests in respect of this Agreement) shall have been agreed upon by the Parties as of the Execution Date. In addition, for clarity, nothing set forth in this Section
12.2
, shall restrict any Party from making any Required Notifications or seeking any Antitrust Approvals or Consents in accordance with the provisions of this Agreement or any Ancillary Agreement.
|
|
(a)
|
if to the Purchaser or any of its Affiliates:
|
|
(b)
|
if to the Seller or any of its Affiliates:
|
|
12.3.2
|
All such Notices shall be deemed given:
|
|
(a)
|
if delivered by facsimile or email transmission, upon electronic confirmation of receipt;
|
|
(b)
|
if delivered in person, upon actual receipt by the Person to receive delivery; or
|
|
(c)
|
if sent by overnight courier, be deemed given two Business Days following the day sent by express courier,
|
|
12.3.3
|
Any Party from time to time may change its address, email address, facsimile number or other information for the purpose of Notices to that Party by giving Notice specifying such change to the others Parties.
|
|
12.3.4
|
Except as otherwise expressly provided in this Agreement, all Notices shall be in English or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail.
|
|
12.4.1
|
Except as expressly set forth otherwise in this Agreement and to the extent legally feasible, any and all payments to be made by one Party or its Affiliates to the other Party or its Affiliates as a result of or in connection with this Agreement shall be made solely by the Seller entity designated by the Seller to the Purchaser or by the Purchaser to the Seller entity designated by the Seller, as the case may be, it being understood that each Party will be then responsible for allocating the amounts thus received from the other Party to its Affiliates.
|
|
12.4.4
|
The Seller shall be responsible for the timely filing (taking into account any extensions received from the relevant Governmental Authorities) of all Tax Returns required by Law to be filed with respect to the Transferred Assets for periods ending on or prior to the Closing Date. All Taxes, other than Transfer Taxes with respect to the transactions contemplated hereby, indicated as due and payable on such Tax Returns shall be paid by the Seller when required by Law, except for such Taxes as may be contested by the Seller in good faith and pursuant to appropriate Legal Proceedings.
|
|
12.4.5
|
The Purchaser shall be responsible for the timely filing (taking into account any extensions received from the relevant Government Authorities) of all Tax Returns required by Law to be filed with respect to the Transferred Assets for the periods ending after the Closing Date. All Taxes indicated as due and payable on such Tax Returns shall be paid by the Purchaser when required by Law, except for such Taxes as maybe contested by the Purchaser in good faith and pursuant to appropriate Legal Proceedings.
|
|
12.4.6
|
For clarity, this Section
12.4
shall survive any termination of this Agreement or any Closing, for the statute of limitations applicable to such underlying expenses or Taxes.
|
|
12.9.1
|
This Agreement and the Ancillary Agreements shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
|
|
12.9.2
|
Nothing in this Agreement, including Section
6.6
and Section
7.6
, shall create or be deemed to create any third party beneficiary rights in any Person not Party to this Agreement, including any Transferred Employee, current or former employee, director or independent contractor or any other individual associated therewith, other than, as the context expressly requires, any Affiliate of the Seller which, according to the provisions of this Agreement, is intended to be a signatory to any of the Ancillary Agreements, or any Affiliate on behalf of which a right is created or a commitment is taken by the Seller pursuant to this Agreement.
|
|
12.9.3
|
No assignment of this Agreement or of any rights or obligations hereunder may be made by either Party without the prior written consent of the other Party, and any attempted assignment without such required consent shall be null and void ab initio; except that (a) the Seller may assign its rights under this Agreement to an Affiliate (provided that such assignee undertakes at the time of the assignment that if such assignee ceases to be an Affiliate of Seller such right will, immediately prior to the assignee ceasing to be an Affiliate, be re-assigned to the Seller or another of its Affiliates) and no such assignment will relieve the Seller of liability, and (b) the Purchaser may assign its rights under this Agreement to an Affiliate (provided that such assignee undertakes at the time of the assignment that if such assignee ceases to be an Affiliate of Purchaser such right will, immediately prior to the assignee ceasing to be an Affiliate, be re-assigned to the Purchaser or another of its Affiliates) and no such assignment will relieve the Purchaser of liability. For the avoidance of doubt, this Section
12.9.3
applies solely to any assignment (in whole or in part) of this Agreement and nothing set forth in this Section
12.9.3
shall apply to any sale, assignment, transfer, delivery or other conveyance of the Transferred Assets by Purchaser after the Closing Date.
|
|
12.12.1
|
This Agreement shall be governed in all respects by the Laws of the State of New York, without regard to the principles of conflicts of Laws that might otherwise be applicable. With respect to matters related to the CDC Agreement, the federal law of contracts shall govern, to the extent applicable.
|
|
12.12.2
|
Each Party hereby irrevocably and unconditionally:
|
|
(a)
|
submits for themselves, their Affiliates and their respective property in any legal action or proceeding relating to this Agreement to which they are a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the Courts of the State of New York sitting in New York County, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;
|
|
(b)
|
consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
|
|
(c)
|
agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Party at its address set forth in Section
12.3
or at such other address of which the administrative agent shall have been notified pursuant thereto; and
|
|
(d)
|
agrees that nothing herein shall affect the right of any Party hereto to effect service of process in any other manner permitted by Law or shall limit the right of any Party hereto to sue in any other jurisdiction.
|
|
12.14.1
|
The representations and warranties provided in
Article 8
are the only representations and warranties given by the Seller in connection with the Transferred Assets, the Facilities, the Product Business as it exists as of the Execution Date, and the transactions herein contemplated. The representations and warranties made in this Agreement with respect to the Transferred Assets, the Facilities and the transactions herein contemplated are in lieu of all other representations and warranties the Seller or any of its Affiliates might have given the Purchaser, including implied warranties of merchantability and implied warranties of fitness for a particular purpose.
|
|
12.14.2
|
Except as expressly provided in
Article 8
, none of the Seller, its Affiliates nor any other Person acting on their behalf shall be deemed to have made any representation or warranty as to the accuracy or completeness of any projections, estimates, forecasts, forward-looking statements, pro-forma business plans, which were made available to the Purchaser in order to assist the Purchaser in making its own evaluation of the transactions contemplated herein. The Purchaser acknowledges that such information relies on assumptions and that it has conducted its own investigation and analysis of such information and data and assumes any responsibility in connection with the relevance of the use of such information for its own analyses.
|
|
12.14.3
|
The Purchaser acknowledges that:
|
|
(a)
|
all representations and warranties other than those provided in
Article 8
that the Seller, its Affiliates or anyone purporting to represent the Seller or its Affiliates gave or might have given, or which might be provided or implied by applicable Law or commercial practice with respect to the Transferred Assets, the Facilities and the transactions herein are hereby expressly excluded; and
|
|
(b)
|
none of the Seller, its Affiliates nor any other Person acting on their behalf shall have or be subject to any Liability or indemnification obligation to the Purchaser, its Affiliates or any other Person acting on their behalf under this Agreement resulting from any material Disclosed to the Purchaser as of the Execution Date; provided, however, that this clause (b) will under no circumstances qualify any claim for indemnification by, or Liability of the Seller or its Affiliates to, the Purchaser or its Affiliates under this Agreement in respect of the Fundamental Warranties.
|
|
12.14.4
|
The Seller acknowledges that the Purchaser makes no representations and warranties to the Seller in respect of transfer of the Transferred Assets or the assumption of the Assumed Liabilities other than as provided in
Article 9
.
|
|
Sanofi Pasteur Biologics, LLC
By:
/s/ Frank A. Epifano
Name: Frank A. Epifano
Title: Director and Treasurer
Acambis Research LTD.
By:
/s/ Frank A. Epifano
Name: Frank A. Epifano
Title: Attorney-in-fact
|
|
|
Emergent BioSolutions Inc.
By:
/s/ Daniel Abdun-Nabi
Name:
Daniel Abdun-Nabi
Title:
President and Chief Executive Officer
|
|
Milestone Event
|
Milestone Payment
|
|
Submission of the BLA supplement (the "
Proposed PAS
") to CBER of the Product [***].
|
$
|
12,500,000
|
||
|
Prior to or at Closing, filling of unlabeled vials of the Product in the quantities set forth below [***].
[***]
(the "
Second Milestone Event
")
|
$
|
7,500,000
|
||
|
CBER approval of the Proposed PAS [***].
[***]
|
$
|
7,500,000
|
|
Description
|
Specification
|
|
[***]
|
[***]
|
|
[***]
|
[***]
|
|
[***]
|
[***]
|
|
[***]
|
[***]
|
|
[***]
|
[***]
|
|
[***]
|
[***]
|
|
[***]
|
[***]
|
|
[***]
|
[***]
|
|
·
|
Addition of ACAM2000
®
, the only FDA-licensed smallpox vaccine, expands and diversifies Emergent's portfolio of medical countermeasures and is synergistic with company's existing smallpox countermeasure offering
|
|
·
|
Company to assume responsibility for existing CDC contract with a remaining value of up to approximately $160 million for deliveries of ACAM2000 to the Strategic National Stockpile
|
|
·
|
All-cash consideration of $97.5 million upfront and up to $27.5 million in near-term contingent regulatory and manufacturing-related milestones
|
|
·
|
Transaction expected to be accretive beginning with anticipated product deliveries in 2018 following FDA licensure of U.S.-based manufacturing facility
|
|
·
|
ACAM2000
®
, (Smallpox (Vaccinia) Vaccine, Live), the only vaccine licensed by the Food and Drug Administration (FDA) for active immunization against smallpox disease for persons determined to be at high risk for smallpox infection;
|
|
·
|
An existing 10-year contract originally valued at up to $425 million with the Centers for Disease Control and Prevention (CDC) with a remaining value of up to approximately $160 million for deliveries of ACAM2000 to the Strategic National Stockpile (SNS);
|
|
·
|
A cGMP bulk manufacturing facility and a lease to a cGMP fill/finish facility, both U.S.-based, along with the existing staff of approximately 100 employees.
|