EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
Between
XXXXXXX PHARMA, INC.
and
NASTECH PHARMACEUTICAL COMPANY, INC.
Dated September 30, 2002
TABLE OF CONTENTS
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1. DEFINITIONS.........................................................................1
1.1 Defined Terms................................................................1
1.2 Other Definitional and Interpretative Matters................................4
2. PURCHASE AND SALE OF ASSETS.........................................................4
2.1 Purchased Assets.............................................................4
2.2 Excluded Assets..............................................................5
2.3 Assumed Liabilities..........................................................5
2.4 Excluded Liabilities.........................................................5
2.5 Purchase Price...............................................................5
2.6 Further Assurances...........................................................6
2.7 Bulk Sales Law...............................................................6
2.8 Taxes........................................................................6
3. REPRESENTATIONS AND WARRANTIES OF SELLER............................................7
3.1 Organization.................................................................7
3.2 Enforceability of Agreement..................................................7
3.3 No Violation.................................................................7
3.4 Consents.....................................................................7
3.5 Title to Properties..........................................................8
3.6 Product Quality..............................................................8
3.7 Compliance with Laws.........................................................8
3.8 Legal Proceedings............................................................8
3.9 No Finder....................................................................8
4. REPRESENTATIONS AND WARRANTIES OF BUYER.............................................8
4.1 Organization.................................................................9
4.2 Enforceability of Agreement..................................................9
4.3 No Inconsistent Obligations..................................................9
4.4 Consents.....................................................................9
4.5 Legal Proceedings............................................................9
4.6 No Finder...................................................................10
5. CERTAIN COVENANTS..................................................................10
5.1 Tax Reporting and Allocation of Consideration...............................10
5.2 Effort to Close.............................................................10
5.3 Returned Products...........................................................10
5.4 Government Rebates, Chargebacks and Similar Items...........................10
5.5 Certain Names...............................................................10
5.6 Confidential Information....................................................11
5.7 NDC Number..................................................................11
5.8 Promotional Materials.......................................................11
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TABLE OF CONTENTS
(Continued)
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6. CLOSING............................................................................12
6.1 Documents to be Delivered by Seller.........................................12
6.2 Documents to be Delivered by Buyer..........................................12
6.3 Closing Date................................................................13
6.4 Contemporaneous Effectiveness...............................................13
7. CONDITIONS PRECEDENT TO CLOSING....................................................13
7.1 Legal Proceedings...........................................................13
7.2 Performance.................................................................13
7.3 Government Consents.........................................................13
8. INDEMNIFICATION....................................................................13
8.1 Survival of Representations and Warranties..................................14
8.2 General Agreement to Indemnify..............................................14
8.3 General Procedures for Indemnification......................................15
8.4 Indemnification Exclusive Remedy............................................16
9. MISCELLANEOUS PROVISIONS...........................................................17
9.1 Notices.....................................................................17
9.2 Expenses....................................................................18
9.3 Entire Agreement; Modification..............................................18
9.4 Assignment; Binding Effect; Severability....................................18
9.5 Governing Law...............................................................18
9.6 Submission to Jurisdiction..................................................18
9.7 Waiver of Jury Trial........................................................18
9.8 Execution in Counterparts...................................................19
9.9 Public Announcement.........................................................19
9.10 No Third-Party Beneficiaries................................................19
10. TERMINATION AND WAIVER.............................................................19
10.1 Termination.................................................................19
10.2 Effect of Termination.......................................................20
10.3 Waiver of Agreement.........................................................20
10.4 Amendment of Agreement......................................................20
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TABLE OF CONTENTS
(Continued)
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EXHIBITS
Exhibit A - Form of Assignment and Xxxx of Sale [not included]
Exhibit B - Form of Assumption Agreement [not included]
Exhibit C - Form of Loan Agreement [executed copy filed as Exhibit 10.1 to
Form 8-K filed on October 15, 2002]
Exhibit D - Form of Security Agreement [executed copy filed as Exhibit 10.2 to Form
8-K filed on October 15, 2002]
Exhibit E - Form of Trademark Security Agreement [not included]
Exhibit F - Form of Patent Security Agreement [not included]
Exhibit G - Form of Termination and Mutual Release Agreement [executed copy filed
as Exhibit 10.3 to Form 8-K filed on October 15, 2002]
Exhibit H - Form of Press Release [filed as Exhibit 99.1 to Form 8-K filed on
October 15, 2002]
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of September 30, 2002 (this
"Agreement"), is by and between Nastech Pharmaceutical Company, Inc., a Delaware
corporation (the "Buyer") and Xxxxxxx Pharma, Inc., a Delaware corporation (the
"Seller").
WITNESSETH:
WHEREAS, Buyer and Seller entered into that certain License and Supply
Agreement, dated as of July 25, 1997 (as amended on November 24, 2000, the
"License Agreement") in respect of the pharmaceutical product Nascobal; and
WHEREAS, Seller wishes to sell, assign and transfer to Buyer and Buyer
wishes to purchase from Seller all of Seller's right, title and interest in and
to Nascobal arising out of the License Agreement or otherwise for the
consideration and on the terms specified herein.
NOW THEREFORE, in consideration of the premises, the mutual promises
made herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions.
1.1 Defined Terms. Capitalized terms used in this Agreement, including
in the Recitals hereto, shall have the meanings given below or provided
parenthetically herein:
"Affiliate" of any Person means any Person, directly or indirectly
controlled by, controlling or under common control with, such Person. For
purposes of this Agreement, "control" means the power to direct the management
and policies of a Person, whether through the ownership of voting securities, by
agreement or otherwise.
"Assumed Liabilities" means the liabilities and obligations of Seller
assumed by Buyer pursuant to the Assumption Agreement and Section 2.3.
"Best Efforts" means, as to any party obligated to use its Best Efforts
to accomplish a particular objective, that the obligated party is required to
make a diligent, reasonable and good faith effort to accomplish the applicable
objective. Such obligation, however, does not require that the obligated party
act in a manner that would be contrary to normal commercial practices in order
to accomplish the objective. The fact that the objective is not actually
accomplished is no indication that the obligated party did not in fact utilize
its Best Efforts in attempting to accomplish the objective.
"Business" means the development, manufacture, marketing, sale and
distribution of Nascobal in the Territory.
"Business Day" means a day that is not a Saturday, a Sunday or a
statutory or civic holiday in the States of Wisconsin or Washington or any other
day on which the principal offices of either Seller or Buyer are closed or
become closed prior to 2:00 p.m. local time whether in
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accordance with established company policy or as a result of unanticipated
events, including adverse weather conditions.
"Closing" means the closing of the transactions described in Article 6.
"Closing Date" means the date of the Closing as determined pursuant to
Section 6.3.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning given in the Security Agreement.
"Encumbrance" means any lien, claim, charge, security interest,
mortgage, pledge, easement, conditional sale or other title retention agreement,
covenant or other similar restrictions affecting the Purchased Assets.
"Excluded Assets" means the properties and assets of the Business
excluded from the Purchased Assets by Section 2.2.
"Excluded Liabilities" means the liabilities and obligations that are
not assumed by Buyer as provided in Section 2.4.
"FDA" means the U.S. Food and Drug Administration.
"GAAP" means U.S. generally accepted accounting principles consistently
applied in accordance with past practices.
"Governmental Body" means any legislative, executive or judicial unit of
any governmental entity (federal, state or local) or any department, commission,
board, agency, bureau, official or other regulatory, administrative or judicial
authority thereof.
"Governmental Permits" means all the governmental permits and licenses,
certificates of inspection, approvals or other authorizations issued to Seller
with respect to the Business and necessary for the operation of the Business.
"Inventory" means any finished and unsold Nascobal units which Seller
holds title to or is in possession immediately after the Closing.
"IRS" means the U.S. Internal Revenue Service.
"License Agreement" has the meaning given in the recitals hereto.
"Loan Agreement" means a Loan Agreement in the form set forth at Exhibit
C hereto.
"Nascobal" means an intranasal form of cyanocobalamin/vitamin B-12 in
all dosage strengths and sizes that may, pursuant to applicable laws and
regulations, be manufactured, marketed and sold in the Territory under the
approved NDA, together with all expansions and
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improvements to Nascobal which may be included in any supplement, modification
or addition to the NDA.
"NDA" means New Drug Application No. 19-722.
"Patent Security Agreement" means a Security Agreement in the form set
forth at Exhibit F hereto.
"Permitted Encumbrances" means (i) statutory Encumbrances for current
taxes, assessments or other governmental charges not yet delinquent or the
amount or validity of which is being contested in good faith by appropriate
proceedings; (ii) mechanics', carriers', workers', repairers' and similar
Encumbrances arising or incurred in the ordinary course of business that are not
in the aggregate material to the Business; (iii) Liens created in connection
with any Transaction Agreement; and (iv) such other imperfections in title,
charges, easement, restrictions and encumbrances which do not in the aggregate
have a material adverse effect on the Purchased Assets, taken as a whole.
"Person" means any individual, corporation, partnership, limited
liability company, firm, association, joint venture, joint stock company, trust,
unincorporated organization or other entity, or any government or regulatory,
administrative or political subdivision or agency, department or instrumentality
thereof.
"Proprietary Information" means all information (whether or not
protectable by patent, copyright, mask works or trade secret rights) not
generally known in the relevant trade (except for patents), including, but not
limited to, works of authorship, inventions, discoveries, patentable subject
matter, patents, patent applications, industrial models, industrial designs,
trade secrets, trade secret rights, software, works, copyrightable subject
matters, copyright rights and registrations, mask works, know-how, trademarks,
trade names, service marks, emblems, logos, insignia and related marks and
registrations, specifications, technical manuals and data, libraries,
blueprints, drawings, proprietary processes, product information and development
work-in-process.
"Purchase Price" has the meaning assigned in Section 2.5.
"Purchased Assets" has the meaning assigned in Section 2.1.
"Security Agreement" means a Security Agreement in the form set forth at
Exhibit D hereto.
"Termination and Mutual Release Agreement" means a Termination and
Mutual Release Agreement in the form set forth at Exhibit G hereto.
"Territory" means the United States and its territories and possessions.
"Third Party" means any Person not an Affiliate of the other referenced
Person or Persons and not including the parties hereto or their Affiliates.
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"Trademark Security Agreement" means a Security Agreement in the form
set forth at Exhibit E hereto.
"Transaction Agreements" mean this Agreement and, when executed and
delivered by the parties hereto, the exhibits hereto and the agreements,
documents and instruments contemplated hereby and thereby.
1.2 Other Definitional and Interpretative Matters. Unless otherwise
provided, for purposes of this Agreement, the following rules of interpretation
shall apply:
Accounting Terms. All accounting terms not specifically defined in this
Agreement shall be construed in accordance with GAAP.
Calculation of Time Period. When calculating the period of time before
which, within which or following which any act is to be done or step taken
pursuant to this Agreement, the date that is the reference date in calculating
such period shall be excluded. If the last day of such period is a non-Business
Day, the period in question shall end on the next succeeding Business Day.
Gender and Number. Any reference in this Agreement to gender shall
include all genders, and words imparting the singular number only shall include
the plural and vice versa.
Headings. The provision of a Table of Contents, the division of this
Agreement into Articles, Sections and other subdivisions and the insertion of
headings are for convenience of reference only and shall not affect or be
utilized in construing or interpreting this Agreement. All references in this
Agreement to any "Section" are to the corresponding Section of this Agreement
unless otherwise specified.
Herein. The words such as "herein", "hereinafter", "hereof" and
"hereunder" refer to this Agreement as a whole and not merely to a subdivision
in which such words appear unless the context otherwise requires.
Including. The word "including" or any variation thereof means
"including, without limitation" and shall not be construed to limit any general
statement that it follows to the specific or similar items or matters
immediately following it.
Schedules and Exhibits. The Schedules and Exhibits attached to this
Agreement shall be construed with and as an integral part of this Agreement to
the same extent as if the same had been set forth verbatim herein.
2. Purchase and Sale of Assets.
2.1 Purchased Assets. Upon the terms and subject to the conditions of
this Agreement and in reliance on the representations and warranties contained
herein, on the Closing Date, Seller shall grant, bargain, sell, transfer,
assign, convey and deliver to Buyer, and Buyer shall purchase, acquire and
accept from Seller, all of Seller's right, title and interest in, to and under
the Purchased Assets. For purposes of this Agreement, "Purchased Assets" shall
mean all
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the assets, properties and rights set forth or described in this Section 2.1
(except in each case for the Excluded Assets), whether or not any of such
assets, properties or rights have any value for accounting purposes or are
carried or reflected on or specifically referred to in Seller's books or
financial statements:
(a) all rights of Seller arising under or by virtue of the License
Agreement;
(b) any existing mailing lists, customer lists and sales reports related
exclusively to the Business;
(c) all Inventory; and
(d) all advertising, marketing and promotional material of Seller that
is related exclusively to the Business.
2.2 Excluded Assets. Notwithstanding Section 2.1, it is hereby expressly
acknowledged and agreed that the Purchased Assets shall not include, and Seller
is not selling, transferring, assigning, conveying or delivering to Buyer, and
Buyer is not purchasing, acquiring or accepting from Seller, any properties,
assets, rights and interests of Seller or its Affiliates that do not exclusively
relate to the Business (the "Excluded Assets").
2.3 Assumed Liabilities. On the Closing Date, and subject to Sections
5.3 and 5.4, Buyer shall accept, assume and agree to pay, perform or otherwise
discharge, in accordance with the respective terms and subject to the respective
conditions thereof, all Assumed Liabilities. "Assumed Liabilities" shall mean
all obligations and liabilities in respect of or stemming from any action taken
by Buyer in connection with the Business prior to the Closing Date, including,
without limitation, Buyer's manufacture, handling, sale or marketing of
Nascobal, whether fixed, contingent, known or unknown, and whether arising
before or after the Closing.
2.4 Excluded Liabilities. Except for the Assumed Liabilities, Buyer
shall not assume any obligations or liabilities of Seller (the "Excluded
Liabilities"), and Seller shall pay, satisfy and perform all of such Excluded
Liabilities (other than the Assumed Liabilities), whether fixed, contingent,
known or unknown, and whether existing as of the Closing or arising thereafter,
which shall include, without limitation, (a) any violation by Seller of any law,
ordinance or regulation in effect prior to the Closing, (b) any liability of
Seller for expenses or taxes, if any, in connection with, resulting from or
arising out of this Agreement or the transactions contemplated hereby, except as
expressly provided in Section 2.8 hereof, (c) any liability of Seller under or
arising by reason of this Agreement, (d) any compensation, benefits or other
obligations or liabilities of Seller to independent contractors, consultants,
employees or other service providers, in each case that are not related to the
Business; or (e) except as expressly provided by any Transaction Agreement, all
obligations and liabilities in respect of, or stemming from, any action taken by
Seller in connection with its handling, marketing, sale or distribution of
Nascobal prior to the Closing Date.
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2.5 Purchase Price.
(a) Amount. The aggregate purchase price (the "Purchase Price") shall be
the sum of (i) Eight Million Seven Hundred Fifty Thousand Dollars ($8,750,000)
for the Purchased Assets (other than the Inventory), the Assumed Liabilities and
the Termination and Mutual Release Agreement and (ii) the product of the total
number of Nascobal units comprising the Inventory, as certified by an officer of
Seller on the Closing Date, times $6.00 (such product, the "Inventory Purchase
Price").
(b) Payment of Purchase Price. The Purchase Price shall be due from
Buyer to Seller as of the Closing Date as follows: (i) on the Closing Date,
Buyer shall pay to Seller a portion of the Purchase Price equal to One Million
Five Hundred Thousand Dollars ($1,500,000) by wire transfer of immediately
available funds to such account or accounts as are designated by Xxxxxxx at
least one Business Day prior to the Closing Date; and (ii) Buyer shall pay the
remaining balance of the Purchase Price by delivering to Seller the Note in
favor of Seller issued pursuant to the Loan Agreement. Buyer shall, upon receipt
of the Inventory from Seller, pay the Inventory Purchase Price to Seller by wire
transfer of immediately available funds to the account described in the
foregoing sentence. On the Closing Date, Buyer shall execute the Loan Agreement
and the Note provided for therein, evidencing Buyer's obligation to pay the
unpaid balance of the Purchase Price, and the Security Agreement, the Patent
Security Agreement and the Trademark Security Agreement, granting a first
priority lien in favor of Seller with respect to the Collateral.
2.6 Further Assurances.
(a) Performance of Obligations. Seller and Buyer shall use Best Efforts
to take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable to carry out all of their respective
obligations under this Agreement and to consummate the transactions contemplated
by this Agreement.
(b) Further Conveyances and Assumptions. After the Closing Date, Seller
and Buyer shall, and shall cause their Affiliates to, execute, acknowledge and
deliver all such further conveyances, notices, assumptions, releases and
acquittances and such other instruments, and shall take such further actions, as
may be necessary or appropriate to assure fully to Buyer and its respective
successors or assigns, all of the properties, rights, titles, interests,
estates, remedies, powers and privileges intended to be conveyed to Buyer
hereunder and to assure fully to Seller and its Affiliates and their successors
and assigns, the assumption of the liabilities and obligations intended to be
assumed by Buyer hereunder and to otherwise make effective the transactions
contemplated by this Agreement.
2.7 Bulk Sales Law. Buyer hereby waives compliance by Seller with the
requirements and provisions of any "bulk-transfer" laws of any jurisdiction that
may otherwise be applicable with respect to the sale of any or all of the
Purchased Assets to Buyer.
2.8 Taxes. Buyer shall be responsible for the payment of all sales, use,
excise, transfer, value added and similar taxes imposed by any Governmental Body
in the State of
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Washington in connection with the transactions contemplated herein but not for
any income or capital gains tax liability of Seller.
3. Representations and Warranties of Seller.
Seller represents and warrants to Buyer as follows:
3.1 Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite power and authority to conduct its business.
3.2 Enforceability of Agreement. Seller has the full corporate power and
authority to enter into and execute the Transaction Agreements and to carry out
the transactions contemplated thereby in accordance with their respective terms.
Except as contemplated by the Transaction Agreements, there are no outstanding
contracts, demands, commitments or other agreements or arrangements under which
Seller is or may become obligated to sell, transfer or assign any of the
Purchased Assets. The Transaction Agreements and all transactions required
thereunder to be performed by Seller have been duly and validly authorized and
approved by all necessary corporate action and duly and validly executed and
delivered on behalf of Seller by its duly authorized officers. The Transaction
Agreements constitute the valid and legally binding obligation, subject to
general equity principles, of Seller, enforceable against Seller in accordance
with their respective terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors
generally.
3.3 No Violation. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated herein will (a) result in
a violation or breach of, or constitute a default under (with or without the
giving of notice or lapse of time or both) (i) the certificate of incorporation
or bylaws of Seller, (ii) any term or provision of any indenture, note,
mortgage, bond, security agreement, loan agreement, guaranty, pledge, license or
other instrument, contract, agreement or commitment, (iii) any writ, order,
judgment, decree, law, rule, regulation, or ordinance, (iv) any applicable
approval, ruling or order of or any exemption by any Governmental Body, or (v)
any other commitment or restriction, to which Seller is a party or by which it
or any of the Purchased Assets is subject or bound, except to the extent that
any such violation, breach or default with respect to the matters specified in
clauses (ii) through (v) could not reasonably be expected to have a material
adverse effect on the Purchased Assets, taken as a whole; or (b) result in (i)
the creation of any Encumbrance on any of the Purchased Assets, other than
Permitted Encumbrances, (ii) the acceleration or creation of any material
obligation of Seller, (iii) the forfeiture of any material right or privilege of
Seller, or (iv) the forfeiture of any material right or privilege of Seller
which may affect Seller's ability to perform under this Agreement.
3.4 Consents. The execution and delivery of this Agreement by Seller and
the consummation of the transactions contemplated by this Agreement (a) other
than notification to the FDA, do not require the consent, approval or action of,
or any filing with or notice to, any person, firm or other entity, or any
Governmental Body, (b) except for approvals that have already been obtained, do
not require consent or approval of any of Seller's shareholders or
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members of Seller's board of directors pursuant to any business combination,
takeover or other similar law, rule, regulation or ordinance, and (c) other than
notification to the FDA, do not impose any other term, condition or restriction
on Buyer or the Purchased Assets pursuant to any business combination, takeover
or other similar statute, rule or regulation.
3.5 Title to Properties. Except as set forth in the License Agreement,
Seller has, and upon consummation of the transactions contemplated by this
Agreement at the Closing, Buyer will have, good and marketable title to all of
the Purchased Assets, free and clear of any and all Encumbrances of any kind or
character, other than Permitted Encumbrances.
3.6 Product Quality. No Nascobal units included in the Inventory are
adulterated within the meaning of the United States Food, Drug and Cosmetic Act
(21 U.S.C. Section 301, et seq.) and the regulations promulgated thereunder, as
currently in effect.
3.7 Compliance with Laws. Seller has at all times conducted, and is
presently conducting, the Business so as to comply with all laws, ordinances and
regulations applicable to the conduct or operation of the Business or the
ownership or use of the Purchased Assets, in each case except where the failure
to comply would not, individually or in the aggregate, have a material adverse
effect on any of the Purchased Assets, taken as a whole.
3.8 Legal Proceedings. There is no claim, action, suit, proceeding,
investigation or inquiry pending before any federal, state or other court or
governmental or administrative agency or threatened against the Business or any
of the Purchased Assets, or relating to the transactions contemplated by this
Agreement that could reasonably be expected to have a material adverse effect on
the Purchased Assets or the results of operations of the Business, nor does
Seller know or have reasonable grounds to know of any basis for any such claim,
action, suit, proceeding, investigation, or inquiry. Seller is not a party to or
subject to the provisions of any judgment, order, writ, injunction, decree or
award of any court, arbitrator or governmental, regulatory or administrative
official, body or authority that relates to the Purchased Assets, taken as a
whole, or that might affect the transactions contemplated by this Agreement.
3.9 No Finder. Seller has not taken any action that would give to any
Person a right to a finder's fee or any type of brokerage commission in relation
to, or in connection with, the transactions contemplated by this Agreement.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 3, THE SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES AND SPECIFICALLY DISCLAIMS ANY STATUTORY OR
IMPLIED WARRANTIES.
4. Representations and Warranties of Buyer.
Buyer represents and warrants to Seller as follows:
4.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite power and authority to conduct its business.
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4.2 Enforceability of Agreement. Buyer has the full corporate power and
authority to enter into and execute the Transaction Agreements and to carry out
the transactions contemplated thereby in accordance with their respective terms.
The Transaction Agreements and all transactions required thereunder to be
performed by Buyer have been duly and validly authorized and approved by all
necessary corporate action and duly and validly executed and delivered on behalf
of Buyer by its duly authorized officers. The Transaction Agreements constitute
the valid and legally binding obligation, subject to general equity principles,
of Buyer, enforceable against Buyer in accordance with their respective terms,
except as the same may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally.
4.3 No Inconsistent Obligations. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions contemplated herein
will (a) result in a violation or breach of, or constitute a default under (with
or without the giving of notice or lapse of time or both) (i) the certificate of
incorporation or bylaws of Buyer, (ii) any term or provision of any indenture,
note, mortgage, bond, security agreement, loan agreement, guaranty, pledge,
license or other instrument, contract, agreement or commitment, (iii) any writ,
order, judgment, decree, law, rule, regulation, or ordinance, (iv) any
applicable approval, ruling or order of or any exemption by any administrative
or governmental body, or (v) any other commitment or restriction, to which Buyer
is a party or by which it or any of the Purchased Assets is subject or bound,
except to the extent that any such violation, breach or default with respect to
the matters specified in clauses (ii) through (v) could not reasonably be
expected to have a material adverse effect on the Purchased Assets, taken as a
whole; or (b) result in (i) the creation of any claim, lien, charge or
encumbrance on any of the Purchased Assets, (ii) the acceleration or creation of
any obligation of Buyer, (iii) the forfeiture of any material right or privilege
of Buyer, or (iv) the forfeiture of any material right or privilege of Buyer
which may affect Buyer's ability to perform under this Agreement.
4.4 Consents. The execution and delivery of this Agreement by Buyer and
the consummation of the transactions contemplated by this Agreement (a) other
than notification to the FDA, do not require the consent, approval or action of,
or any filing with or notice to, any person, firm or other entity, or any
Governmental Body, (b) except for approvals that have already been obtained, do
not require consent or approval of any of Buyer's shareholders or members of
Buyer's board of directors pursuant to any business combination, takeover or
other similar law, rule, regulation or ordinance, and (c) other than
notification to the FDA, do not impose any other term, condition or restriction
on Buyer or the Purchased Assets pursuant to any business combination, takeover
or other similar statute, rule or regulation.
4.5 Legal Proceedings. There is no claim, action, suit, proceeding,
investigation or inquiry pending before any federal, state or other court or
governmental or administrative agency or threatened relating to the transactions
contemplated by this Agreement, nor does Buyer know or have reasonable grounds
to know of any basis for any such claim, action, suit, proceeding,
investigation, or inquiry. Buyer is not a party to or subject to the provisions
of any judgment, order, writ, injunction, decree or award of any court,
arbitrator or governmental, regulatory or
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administrative official, body or authority that might affect the transactions
contemplated by this Agreement.
4.6 No Finder. Buyer has not taken any action that would give to any
Person a right to a finder's fee or any type of brokerage commission in relation
to, or in connection with, the transactions contemplated by this Agreement.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 4, BUYER MAKES NO
REPRESENTATIONS OR WARRANTIES PURSUANT TO THIS AGREEMENT AND SPECIFICALLY
DISCLAIMS ANY STATUTORY OR IMPLIED WARRANTIES.
5. Certain Covenants.
5.1 Tax Reporting and Allocation of Consideration. Buyer and Seller
recognize their mutual obligations pursuant to Section 1060 of the Code to
timely file IRS Form 8594 (the "Asset Acquisition Statement") with each of their
respective federal income tax returns.
5.2 Effort to Close. Each party hereto shall use its Best Efforts prior
to Closing to obtain all regulatory approvals and consents and to cause the
conditions to Closing hereunder to be satisfied as promptly as practicable.
5.3 Returned Products.
(a) Any Nascobal units sold by Seller that are returned to either Buyer
or Seller following the Closing Date shall be allocated 84% for the account of
Seller and 16% for the account of Buyer; provided, however, that, once the
aggregate value of all such returns accepted by Buyer and Seller after the
Closing Date equals $379,000, all returns accepted by either Buyer or Seller
shall thereafter be allocated 100% for the account of Buyer. Seller shall give
written notice to Buyer, and Buyer shall give written notice to Seller, as
applicable, of any such returns accepted by either such party on a monthly or
quarterly basis as provided by Section 5.3(c). Within fifteen (15) Business Days
after receipt of such notice, Buyer or Seller, as applicable, shall remit the
appropriate amount (either 16%, 84% or 100%, in accordance with this Section
5.3(a)) of such returns by check to the other party. Seller and Buyer shall
destroy such returned Nascobal units. Seller shall not take any action intended
to induce any purchaser of Nascobal units to return such Nascobal units.
(b) Any Nascobal units sold by Buyer that are returned to either Buyer
or Seller following the Closing Date shall be allocated 100% for the account of
the Buyer. Seller shall give written notice to Buyer of any such returns
accepted by Seller since the later of the Closing Date or the last such notice
sent to Buyer. Within fifteen (15) Business Days after receipt of such notice,
Buyer shall remit 100% of the amount of such returns by check to Seller. Seller
shall promptly forward such returned Nascobal units to Buyer.
(c) Reporting Procedures. No later than fifteen (15) Business Days after
(i) the end of each month during the first twelve months after the Closing Date
and (ii) the end of each fiscal quarter following the one-year anniversary of
the Closing Date, until the earlier of (A) the date
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on which the aggregate value of all returns accepted by Buyer or Seller as
contemplated by Section 5.3(a), above, equals $379,000 or (B) June 30, 2005,
Seller and Buyer shall each furnish to the other a report in respect of the
returns accepted by the reporting party during the preceding month or quarter,
as applicable, setting forth the date, quantity and NDC number of such returns,
the customer from whom each return was accepted, the amount credited to such
customers, whether such returns were destroyed or delivered to Buyer as provided
by Sections 5.3(a) and 5.3(b), and any other information regarding such returns
as Buyer or Seller, as applicable, shall reasonably request.
5.4 Government Rebates, Chargebacks and Similar Items.
(a) Seller shall be responsible for administering and satisfying all
requests for rebates owing to the Government or pursuant to managed care
agreements and similar arrangements (collectively, "Rebates") and all
chargebacks, allowances, administrative fees and similar arrangements
(collectively, "Chargebacks") in each case arising with respect to Nascobal
units that are sold by Seller on or before the Closing Date. Seller shall bear
84% and Buyer shall bear 16% of the liability for any such Rebates and
Chargebacks accepted by Seller as follows: (i) Seller shall give written notice
to Buyer of any such Rebates and Chargebacks accepted and paid by Seller since
the later of the Closing Date or the last such notice sent to Buyer; and (ii)
within 20 days after receipt of such notice, Buyer shall remit by check to
Seller an amount equal to 16% of the amount of such Rebates or Chargebacks paid
by Seller.
(b) Buyer shall be solely responsible for administering and satisfying
all requests for Rebates and Chargebacks arising with respect to Nascobal units
that are sold by Buyer after the Closing Date. Buyer shall be solely liable for
any such Rebates and Chargebacks accepted by it. Seller shall give written
notice to Buyer of any requests for such Rebates and Chargebacks received by
Seller since the later of the Closing Date or the last such notice sent to
Buyer. Buyer shall indemnify Seller for any Losses incurred by Seller in
connection with any such Rebates or Chargebacks by check to Seller.
5.5 Certain Names. Notwithstanding anything herein to the contrary, no
interest in or right to use the name "Xxxxxxx" or any derivation thereof or any
logo, trademark or trade name in which Seller has any interest and which is not
used in the Business (collectively, the "Retained Names and Marks") is being
transferred to Buyer pursuant to the transactions contemplated hereby. Buyer
agrees not to, and will cause its Affiliates not to, directly or indirectly use
the Retained Names and Marks in the distribution, marketing or sale Nascobal
units. Buyer acknowledges and agrees to re-label all Inventory purchased from
Xxxxxxx hereunder prior to the distribution, marketing or sale thereof so that
such re-labeled Inventory contains no references to the Retained Names and
Marks.
5.6 Confidential Information.
(a) Buyer agrees that it will not disclose to any Third Party or use for
its own benefit, any Confidential Information (as defined below) of Seller.
Notwithstanding the foregoing, no Person shall have an obligation hereunder to
keep confidential the Confidential Information of the Seller if and to the
extent disclosure thereof is required by applicable law, regulation, court
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order, or accounting rule or custom, as determined by legal counsel or
accountants to such party, as applicable (provided that unless unlawful prior to
such disclosure the party disclosing such information shall notify the party
which originally provided the information in advance of such disclosure).
(b) Seller agrees that it will not disclose to any Third Party or use
for its own benefit, any Confidential Information of Buyer. Notwithstanding the
foregoing, no Person shall have an obligation hereunder to keep confidential the
Confidential Information of the Buyer if and to the extent disclosure thereof is
required by applicable law, regulation, court order, or accounting rule or
custom, as determined by legal counsel or accountants to such party, as
applicable (provided that unless unlawful prior to such disclosure the party
disclosing such information shall notify the party which originally provided the
information in advance of such disclosure).
(c) For purposes of this Agreement, "Confidential Information" shall
mean information of either party disclosed to the other party that was marked
"confidential," "Trade secret" or a similar designation if in tangible form,
designated as confidential at time of disclosure whether in oral or written form
or which by its nature should be understood by a reasonable party in the
pharmaceutical industry to constitute confidential information provided that
"Confidential Information" shall not include information which (i) is already
lawfully in the receiving party's possession or within its knowledge, including
all information contained in the Transaction Agreements or constituting
Purchased Assets, or lawfully becomes available or known to such other party;
provided that such information is not known by such other party to be subject to
another confidentiality agreement with or other obligation of secrecy to such
party, or (ii) becomes generally available to the public other than as a result
of an impermissible disclosure by such other party or its directors, officers,
employees, agents or advisors.
(d) Anything in the Agreement to the contrary notwithstanding, the
obligations under subsections (a) and (b) above shall survive for five years
from the Closing Date.
5.7 NDC Number. Buyer shall use its Best Efforts to establish its own
NDC number for Nascobal and market Nascobal thereunder as soon as practicable.
In no event shall Buyer, and Buyer shall cause its Affiliates not to, directly
or indirectly distribute, market or sell Nascobal units pursuant to Sellers
NDC number. For purposes of determining whether the Nascobal units were sold by
Buyer or Seller pursuant to this Agreement, including, without limitation,
Sections 5.3 and 5.4, Buyer and Seller shall refer to the NDC number under which
the relevant Nascobal units were sold.
5.8 Promotional Materials. Seller shall take all commercially reasonable
steps necessary or reasonably requested by Buyer to cease all promotional,
marketing and sales efforts in respect of Nascobal as of the Closing Date,
including, without limitation, removing all references to Nascobal from Seller's
(and its Affiliates') websites and destroying or returning to Buyer all
promotional, sales and marketing materials relating to Nascobal in Seller's
possession; provided, however, that Seller reserves the right to retain one copy
of any written materials in respect of Nascobal for a period of five (5) years,
which materials shall remain subject to the confidentiality provisions contained
herein, and shall be used solely to monitor compliance with Seller's legal
obligations.
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6. Closing.
At the Closing, the following transactions shall take place:
6.1 Documents to be Delivered by Seller. On the Closing Date, Seller
shall deliver, or execute and deliver, the following documents and agreements to
Buyer:
(a) the Termination and Mutual Release Agreement;
(b) an Assignment and Xxxx of Sale in substantially the form set forth
as Exhibit A with respect to the Purchased Assets;
(c) a certificate of an appropriate officer of Seller, dated the Closing
Date, certifying on behalf of Seller to the best of his or her knowledge the
fulfillment of the conditions set forth in Sections 7.1 to 7.3;
(d) all such other bills of sale, assignments and other instruments of
assignment, transfer or conveyance as Buyer may reasonably request or as may be
otherwise necessary to evidence and effect the sale, transfer, assignment,
conveyance and delivery of the Purchased Assets to Buyer and to put Buyer in
ownership, actual possession or control of the Purchased Assets.
6.2 Documents to be Delivered by Buyer. On the Closing Date, Buyer (and,
in the case of the Security Agreement, each Subsidiary of Buyer having an
interest in the Collateral (as defined in the Security Agreement)) shall
deliver, or execute and deliver, the following funds, documents and agreements
to Seller:
(a) the Loan Agreement and the Note provided for therein;
(b) the Security Agreement;
(c) the Trademark Security Agreement;
(d) the Patent Security Agreement;
(e) the Termination and Mutual Release Agreement;
(f) an Assumption Agreement in substantially the form of Exhibit B with
respect to the Assumed Liabilities;
(g) a certificate of an appropriate officer of Buyer, dated the Closing
Date, certifying on behalf of Buyer to the best of his or her knowledge the
fulfillment of the conditions set forth in Sections 7.1 to 7.3; and
(h) all such other documents and instruments as Seller may reasonably
request or as may be otherwise reasonably necessary or desirable to evidence and
effect the assumption by Buyer of the Assumed Liabilities.
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6.3 Closing Date. The Closing shall take place at the offices of Mayer,
Brown, Xxxx & Maw, located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
a.m. on September 30, 2002, or at such other place or time or on such other date
as Seller and Buyer may agree upon in writing (such date and time being referred
to herein as the "Closing Date").
6.4 Contemporaneous Effectiveness. All acts and deliveries prescribed by
this Article 6, regardless of chronological sequence, shall be deemed to occur
contemporaneously and simultaneously on the occurrence of the last act or
delivery, and none of such acts or deliveries shall be effective until the last
of the same has occurred. The Closing shall be effective as of 11:59 pm, New
York City time, on the Closing Date.
7. Conditions Precedent to Closing.
The respective obligations of Buyer and Seller to effect the Closing of
the transactions contemplated hereby are subject to the fulfillment, prior to or
at the Closing, of each of the following conditions:
7.1 Legal Proceedings. No order of any court or administrative agency
shall be in effect that enjoins, restrains, conditions or prohibits consummation
of this Agreement.
7.2 Performance. In the case of Buyer, Seller shall have performed in
all material respects all obligations and agreements and complied in all
material respects with all covenants and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing, including
executing and delivering the agreements and certificates specified in Section
6.1 hereof. In the case of Seller, Buyer shall have performed in all material
respects all obligations and agreements and complied in all material respects
with all covenants and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing, including executing and
delivering the agreements and certificates specified in Section 6.2 hereof.
7.3 Government Consents. Seller and Buyer shall have received from any
and all persons, firms and other legal entities, or any public or governmental
authorities, bodies or agencies or judicial authority having jurisdiction over
the transactions contemplated by this Agreement, or any part hereof, such
consents, authorizations and approvals as are necessary for the consummation
thereof, and all notices required to be given to government authorities shall
have been given and all applicable waiting periods shall have expired.
8. Indemnification.
The rights and obligations of Buyer and Seller under this Agreement
shall be subject to the following terms and conditions:
8.1 Survival of Representations and Warranties. The representations and
warranties of Buyer and Seller contained in this Agreement shall survive the
Closing for five (5) years. Neither Seller nor Buyer shall have any liability
whatsoever with respect to any such representations or warranties after such
period.
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8.2 General Agreement to Indemnify.
(a) Each party shall indemnify, defend and hold harmless the other party
hereto and any director, officer or Affiliate of the other party (each an
"Indemnified Party") from and against any and all claims, actions, suits,
proceedings, liabilities, obligations, losses, and damages, amounts paid in
settlement, interest, costs and expenses (including reasonable attorney's fees,
court costs and other out-of-pocket expenses incurred in investigating,
preparing or defending the foregoing) (collectively, "Losses") incurred or
suffered by any Indemnified Party to the extent that the Losses arise by reason
of, or result from (i) the failure of any representation or warranty of such
party contained in this Agreement to have been true in all material respects
when made and as of the Closing Date or (ii) the breach by such party of any
covenant or agreement of such party contained in this Agreement to the extent
not expressly waived in writing by the other party.
(b) Seller further agrees to indemnify and hold harmless Buyer from and
against any Losses incurred by Buyer arising out of, resulting from, or relating
to: (i) the Excluded Liabilities; and (ii) Buyer's waiver of any applicable Bulk
Sales laws.
(c) Buyer further agrees to indemnify and hold harmless Seller from and
against any Losses incurred by Seller with respect to: (i) any failure of Buyer
to discharge any of the Assumed Liabilities whether known or unknown, accrued or
contingent, or now or subsequently incurred; and (ii) any liability arising out
of the operation of the Business by Buyer after the Closing Date.
(d) The amount of the Indemnifying Party's liability under this
Agreement shall be reduced by any applicable insurance proceeds or proceeds from
other available indemnity rights actually received by, and other savings,
including tax savings, that reduce the overall impact of the Losses upon, the
Indemnified Party.
(e) The Indemnifying Party's liability for all claims including those
made under Section 8.2(a) shall be subject to the following limitations: (i) the
Indemnifying Party shall have no liability for such claims until the aggregate
amount of the Losses incurred shall exceed 1% of the Purchase Price, in which
case the Indemnifying Party shall be liable for such excess Losses only and (ii)
the Indemnifying Party's aggregate liability for all such claims shall not
exceed the then outstanding balance owing to Seller pursuant to the Loan
Agreement. The Indemnified Party may not make a claim for indemnification under
Section 8.3(a) for breach by the Indemnifying Party of a particular
representation or warranty after the expiration of the survival period specified
in Section 8.1.
(f) Except as provided by the next sentence, the rights to
indemnification under Section 8 shall not be subject to set-off for any claim by
the Indemnifying Party against any Indemnified Party, whether or not arising
from the same event giving rise to such Indemnified Party's claim for
indemnification. NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, IN THE
EVENT THAT BUYER OR ANY OF ITS DIRECTORS, OFFICERS OR AFFILIATES IS THE
INDEMNIFIED PARTY HEREUNDER, THE SOLE RECOURSE OF SUCH INDEMNIFIED PARTY FOR ANY
CLAIM FOR LOSSES IN
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CONNECTION WITH THIS AGREEMENT, THE OTHER TRANSACTION AGREEMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY SHALL BE TO SET OFF THE AMOUNT OF
SUCH LOSSES AGAINST AMOUNTS OWING TO SELLER PURSUANT TO THE LOAN AGREEMENT.
8.3 General Procedures for Indemnification.
(a) The Indemnified Party seeking indemnification under this Agreement
shall promptly notify the party against whom indemnification is sought (the
"Indemnifying Party") of the assertion of any claim, or the commencement of any
action, suit or proceeding by any Third Party, in respect of which indemnity may
be sought hereunder and shall give the Indemnifying Party such information with
respect thereto as the Indemnifying Party may reasonably request, but failure to
give such notice shall not relieve the Indemnifying Party of any liability
hereunder (unless the Indemnifying Party has suffered material prejudice by such
failure). The Indemnifying Party shall have the right, but not the obligation,
exercisable by written notice to the Indemnified Party within 30 days of receipt
of notice from the Indemnified Party of the commencement of or assertion of any
claim, action, suit or proceeding by a Third Party in respect of which indemnity
may be sought hereunder (a "Third-Party Claim"), to assume the defense and
control the settlement of such Third-Party Claim that (i) involves (and
continues to involve) solely money damages or (ii) involves (and continues to
involve) claims for both money damages and equitable relief against the
Indemnified Party that cannot be severed, where the claims for money damages are
the primary claims asserted by the Third Party and the claims for equitable
relief are incidental to the claims for money damages.
(b) The Indemnifying Party or the Indemnified Party, as the case may be,
shall have the right to participate in (but not control), at its own expense,
the defense of any Third-Party Claim that the other is defending, as provided in
this Agreement.
(c) The Indemnifying Party, if it has assumed the defense of any
Third-Party Claim as provided in this Agreement, shall not consent to a
settlement of, or the entry of any judgment arising from, any such Third-Party
Claim without the Indemnified Party's prior written consent (which consent shall
not be unreasonably withheld) unless such settlement or judgment relates solely
to monetary damages. The Indemnifying Party shall not, without the Indemnified
Party's prior written consent, enter into any compromise or settlement that (i)
commits the Indemnified Party to take, or to forbear to take, any action or (ii)
does not provide for a complete release by such Third Party of the Indemnified
Party with respect to such Third-Party Claim. The Indemnified Party shall have
the sole and exclusive right to settle any Third-Party Claim, on such terms and
conditions as it deems reasonably appropriate, to the extent such Third-Party
Claim involves equitable or other non-monetary relief against the Indemnified
Party, and shall have the right to settle any Third-Party Claim involving money
damages for which Seller has not assumed the defense pursuant to this Section
8.3 with the prior written consent of the Indemnifying Party, which consent
shall not be unreasonably withheld or delayed.
(d) In the event an Indemnified Party shall claim a right to payment
pursuant to this Agreement, such Indemnified Party shall send written notice of
such claim to the Indemnifying Party. Such notice shall specify the basis for
such claim with reasonable specificity. As
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promptly as possible after the Indemnified Party has given such notice, and
subject to the limitations set forth herein, the Indemnified Party and the
Indemnifying Party shall establish the merits and amount of such claim by mutual
agreement.
(e) From and after the Closing, Buyer shall maintain customary property,
casualty, business interruption and other insurance in respect of the Business
in accordance with Buyer's general practices provided that in no event shall
such insurance provide coverage in an amount less than five million dollars
($5,000,000) in the aggregate. Indemnification claims shall be reduced by and to
the extent that an Indemnified Party shall have received or reasonably expects
to receive proceeds under insurance policies, risk sharing pools, or similar
arrangements specifically as a result of, and in compensation for, the subject
matter of an indemnification claim by such indemnitee.
(f) No Indemnified Party will be entitled to indemnification pursuant to
this Section 8:
(i) with respect to consequential damages consisting of business
interruption or lost profits, or with respect to punitive damages; or
(ii) with respect to any obligation, liability or matter,
arising under laws, regulations or statutes that arise or are
promulgated or announced after the Closing Date.
(g) The Indemnified Party shall utilize all commercially reasonable
efforts, consistent with normal practices and policies and good commercial
practice, to mitigate such Losses.
(h) Any amounts payable under this Section 8.3 shall, for Tax reporting
purposes, be treated by Buyer and Seller as an adjustment to the Purchase Price
and shall be calculated after giving effect to (i) any proceeds received from
insurance policies covering the damage, loss, liability or expense that is the
subject of the claim for indemnity and (ii) to the extent reasonably
determinable the actual recognized Tax benefit to the indemnitee resulting from
the damage, loss, liability or expense that is the subject of the indemnity. For
purposes of this Section 8.3, an actual recognized Tax benefit is an actual
reduction in Taxes payable or a refund of Taxes previously paid.
8.4 Indemnification Exclusive Remedy. The sole recourse and exclusive
remedy of Buyer and Seller after the Closing Date for the breach of any
representation, warranty, agreement or covenant contained in this Agreement, any
certificate, agreement or instrument contemplated hereby, any document relating
hereto or thereto contained in any Exhibits to this Agreement, or otherwise
arising from Buyer's acquisition of the Purchased Assets or in connection with
this Agreement, shall be to assert a claim for indemnification under the
indemnification provisions of this Section 8. The only legal action which may be
asserted by any party hereto or any Indemnified Party against any other party
hereto with respect to any matter which is the subject of this Section 8 shall
be a contract action to enforce, or to recover Losses for the breach of, this
Agreement, in accordance with and subject to this Section 8. Without limiting
the generality of the foregoing, no legal action based upon predecessor or
successor liability, contribution, tort or strict liability may be maintained by
any party hereto against any other party hereto with respect
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to any matter that is the subject of this Section 8. In furtherance of the
foregoing, Buyer, on behalf of itself, its Affiliates and Subsidiaries, hereby
releases and discharges any directors, officers, stockholders, employees,
representatives and agents of each party hereto, from any lawsuits, claims or
actions in respect of this Agreement and the agreements, instruments,
transactions contemplated hereby.
9. Miscellaneous Provisions.
9.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given upon receipt if (i) mailed
by certified or registered mail, return receipt requested, (ii) sent by Federal
Express or other express carrier, fee prepaid, (iii) sent via facsimile with
receipt confirmed, or (iv) delivered personally, addressed as follows or to such
other address or addresses of which the respective party shall have notified the
other.
(a) If to Seller, to: 0000 X. Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
With a copy to: Mayer, Brown, Xxxx & Maw
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Buyer, to: Nastech Pharmaceutical Company, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Facsimile Number: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
9.2 Expenses. Except as otherwise provided in this Agreement, each party
to this Agreement shall bear all the fees, costs and expenses that are incurred
by it in connection with the transactions contemplated hereby, whether or not
such transactions are consummated.
9.3 Entire Agreement; Modification. The agreement of the parties, which
is comprised of this Agreement, the Exhibits hereto and the documents referred
to herein, sets forth the entire agreement and understanding between the parties
and supersedes any prior agreement or understanding, written or oral, relating
to the subject matter of this Agreement. No
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amendment, supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby.
9.4 Assignment; Binding Effect; Severability. This Agreement may not be
assigned by either party hereto without the other party's written consent. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the successors, legal representatives and permitted assigns of each party
hereto. The provisions of this Agreement are severable, and in the event that
any one or more provisions are deemed illegal or unenforceable the remaining
provisions shall remain in full force and effect unless the deletion of such
provision shall cause this Agreement to become materially adverse to either
party, in which event the parties shall use Best Efforts to arrive at an
accommodation that best preserves for the parties the benefits and obligations
of the offending provision.
9.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED EXCLUSIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.
9.6 Submission to Jurisdiction. Each party hereby irrevocably submits to
and accepts for itself and its properties, generally and unconditionally, the
non-exclusive jurisdiction of the courts of the State of New York and of the
U.S. District Court for the Southern District of New York, waives any defense of
forum non conveniens and agrees to be bound by any judgment rendered thereby
arising under or in respect of this Agreement, the Transaction Agreements or any
related document or obligation. Each party further irrevocably designates and
appoints the individual identified in Section 9.1 as its agent to receive
service of process pursuant to the notification provisions thereof; provided
that, unless otherwise provided by Applicable Law, any failure to mail such copy
shall not affect the validity of the service of such process. If any agent so
appointed refuses to accept service, the designating party hereby agrees that
service of process sufficient for personal jurisdiction in any action against it
in the applicable jurisdiction may be made by registered or certified mail,
return receipt requested, to its address provided in Section 9.1. Each party
hereby acknowledges that such service shall be effective and binding in every
law or shall limit the right of any party to bring any action or proceeding
against the other party in any other jurisdiction.
9.7 Waiver of Jury Trial. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER TRANSACTION AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
COMPANY OR ANY MEMBER. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT
IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THE PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES HERETO ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER TRANSACTION AGREEMENT.
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9.8 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.9 Public Announcement. Promptly after the Closing, Nastech shall issue
the press release attached hereto as Exhibit H. Except for such press release,
neither Seller nor Buyer shall, without the approval of the other party, make
any press release or other announcement concerning the existence of this
Agreement or the terms of the transactions contemplated by this Agreement,
except as and to the extent that any such party shall be so obligated by law, in
which case the other party shall be advised and the parties shall use their Best
Efforts to cause a mutually agreeable release or announcement to be issued;
provided, however, that the foregoing shall not preclude communications or
disclosures necessary to comply with accounting and German or U.S. federal
securities law disclosure obligations.
9.10 No Third-Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended to or shall (a) confer on any Person other than the parties
hereto and their respective successors or assigns any rights (including
Third-Party beneficiary rights), remedies, obligations or liabilities under or
by reason of this Agreement or (b) constitute the parties hereto as partners or
as participants in a joint venture. This Agreement shall not provide Third
Parties with any remedy, claim, liability, reimbursement, cause of action or
other right in excess of those existing without reference to the terms of this
Agreement. No Third Party shall have any right, independent of any right that
exists irrespective of this Agreement, under or granted by this Agreement, to
bring any suit at law or equity for any matter governed by or subject to the
provisions of this Agreement.
10. Termination and Waiver.
10.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date by:
(a) Mutual Consent. The mutual written consent of Buyer and Seller;
(b) Court or Administrative Order. Buyer or Seller if there shall be in
effect a non-appealable order of a court or government administrative agency of
competent jurisdiction prohibiting the consummation of the transactions
contemplated hereby.
(c) The Buyer or Seller if the Closing shall not have occurred by
December 31, 2002, 2002, provided that the terminating party is not otherwise in
material default or breach of this Agreement.
10.2 Effect of Termination. In the event of the termination of this
Agreement, this Agreement shall become void and have no effect.
10.3 Waiver of Agreement. Any term or condition hereof may be waived at
any time prior to the Closing Date by the party hereto which is entitled to the
benefits thereof; provided, however, that such action shall be evidenced by a
written instrument duly executed on behalf of
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such party. The failure of either party to enforce at any time any provision of
this Agreement shall not be construed to be a waiver of such provision nor shall
it in any way affect the validity of this Agreement or the right of such party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
10.4 Amendment of Agreement. This Agreement may be amended with respect
to any provision contained herein; provided, however, that such amendment shall
be evidenced by a written instrument duly executed on behalf of each party
hereto.
[Signatures Next Page]
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IN WITNESS WHEREOF, each of Buyer and Seller has caused this Asset
Purchase Agreement to be duly executed on its behalf by its duly authorized
officer as of the date first written above.
XXXXXXX PHARMA, INC.
By: /s/ Xxx Xxxxxxxx
Xx. Xxx Xxxxxxxx, President and COO
NASTECH PHARMACEUTICAL COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: CFO
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