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EXHIBIT 10.11
STOCK PURCHASE AGREEMENT
BETWEEN
TRANSCEND THERAPEUTICS, INC.
AND
BOEHRINGER INGELHEIM INTERNATIONAL GMBH
DATED AS OF FEBRUARY 28, 1997
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TABLE OF CONTENTS
1. Certain Defined Terms.................................................. 1
1.1. Transcend Stock.................................................. 1
1.2. Purchase Price................................................... 2
1.3. Fair Market Value................................................ 2
2. Authorization and Sale of Shares of Transcend Stock.................... 2
2.1. Authorization of Shares of Transcend Stock....................... 2
2.2. Sale of Stock.................................................... 2
2.3. IPO Notice....................................................... 2
2.4. The Closing...................................................... 2
2.5 Extension of the IPO Closing Date by the Company................. 3
3. Representations of Transcend........................................... 3
3.1. Organization and Corporate Power................................. 3
3.2. Authorization.................................................... 4
3.3. Capitalization................................................... 4
3.4. Stockholder List and Agreements.................................. 5
3.5. Financial Statements............................................. 5
3.6. Absence of Undisclosed Liabilities............................... 5
3.7. Absence of Certain Developments.................................. 5
3.8. Title to Properties.............................................. 6
3.9. Tax Matters...................................................... 6
3.10. Contracts and Commitments........................................ 6
3.11. Proprietary Rights; Employee Restrictions........................ 7
3.12. Effect of Transactions........................................... 8
3.13. Litigation....................................................... 8
3.14. Business; Compliance with Laws................................... 8
3.15. Books and Records................................................ 8
3.16. Brokerage........................................................ 8
3.17. Employee Benefit Plans........................................... 9
4. Representations of BI.................................................. 9
4.1. Investment Representation........................................ 9
4.2. Authority........................................................ 10
4.3. Experience....................................................... 10
4.4. Brokerage........................................................ 10
5. Conditions to the Obligations of BI.................................... 10
5.1. Accuracy of Representations and Warranties....................... 10
5.2. Performance...................................................... 11
5.3. Blue Sky Approvals............................................... 11
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5.4. Certificates and Documents....................................... 11
5.5. Compliance Certificate........................................... 11
5.6. Other Agreements................................................. 11
5.7. Opinion of Xxxx and Xxxx LLP..................................... 12
6. Conditions to the Obligations of Transcend............................. 12
6.1. Accuracy of Representations and Warranties....................... 12
6.2. Delivery of the Aggregate Purchase Price......................... 12
6.3. Development Agreement............................................ 12
6.4. Lock-Up Agreement................................................ 13
6.5. Co-Sale Agreement................................................ 13
7. Certain Covenants of Transcend......................................... 13
7.1. Financial Statements............................................. 13
7.2. Conduct of Business.............................................. 14
7.3. Payment of Taxes, Compliance with Laws, etc...................... 14
7.4. Insurance........................................................ 14
7.5. Key Man Life Insurance........................................... 14
7.6. Maintenance of Properties........................................ 14
7.7. Affiliated Transactions.......................................... 15
7.8. Inspection....................................................... 15
7.9. Integration...................................................... 15
7.10. Material Changes and Litigation.................................. 15
7.11. Reservation of Conversion Stock.................................. 15
7.12. Use of Proceeds.................................................. 16
8. Certain Covenants of BI................................................ 16
8.1. Standstill....................................................... 16
8.2. Interpretation................................................... 17
8.3. Equitable Remedy................................................. 17
8.4. Lock-Up Agreement................................................ 17
9. Transfers of Certain Rights............................................ 17
10. Successors and Assigns................................................. 18
11. Survival of Representations and Warranties............................. 18
12. Notices................................................................ 18
13. No Conditions to Effectiveness; Entire Agreement....................... 19
14. Force Majeure.......................................................... 19
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15. Assignment............................................................. 20
16. Severability........................................................... 20
17. Applicable Law......................................................... 21
18. Dispute Resolution; Choice of Forum.................................... 21
19. Entire Agreement....................................................... 21
20. Headings............................................................... 21
21. Waiver................................................................. 21
22. Counterparts........................................................... 22
Exhibit A Certificate of Amendment of Restated Certificate of Incorporation
Exhibit B Form of Lock-Up Agreement with Vector Securities International, Inc.
Exhibit C Opinion of Xxxx and Xxxx LLP
Schedule 3 Exceptions to the Representations and Warranties of Transcend
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STOCK PURCHASE AGREEMENT
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This Agreement dated as of February 28, 1997 is by and among TRANSCEND
THERAPEUTICS, INC., a Delaware corporation having its principal place of
business at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 X.X.X.
("TRANSCEND"), and BOEHRINGER INGELHEIM INTERNATIONAL GMBH, a limited liability
company organized under the laws of the Federal Republic of Germany having its
principal place of business at D-55216 Ingelheim am Rhein Germany ("BI").
R E C I T A L S
A. Transcend and BI (each, a "PARTY," and together, the "PARTIES") are
entering into a Development and License Agreement (the "DEVELOPMENT AGREEMENT")
as of the date hereof with respect to their collaboration for the worldwide
development and marketing of intravenous formulations of Procysteine(R).
B. The Development Agreement provides that BI shall purchase shares of
capital stock of Transcend, and that the terms of such purchase shall be more
fully set forth in a separate Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and intending to be legally bound by the terms and
conditions of this Agreement, the parties hereto hereby agree as follows:
1. CERTAIN DEFINED TERMS.
1.1. "TRANSCEND STOCK" shall have the following meanings: (a) if on
or prior to April 15, 1997 (as such date may be extended pursuant to Section
2.5, the "IPO CLOSING DATE"), Transcend closes an underwritten sale of shares of
its common stock, $.01 par value per share (the "COMMON STOCK"), in connection
with an effective registration statement under the U.S. Securities Act of 1933,
as amended (the "SECURITIES ACT"), which results in the conversion into Common
Stock of all shares of Transcend's preferred stock, $.01 par value per share
(the "PREFERRED STOCK"), outstanding immediately prior to the sale of such
Common Stock (an "IPO"), Transcend Stock shall mean Common Stock (which shall be
issued as restricted securities and not registered as part of such IPO); and (b)
in all other cases, Transcend Stock shall mean a new series of Transcend's
Preferred Stock to be known as Series D Convertible Preferred Stock, $.01 par
value per share ("SERIES D PREFERRED STOCK"), the terms of which shall be
substantially as set forth in the Certificate of Amendment of Restated
Certificate of Incorporation (the "CERTIFICATE OF AMENDMENT") attached hereto as
EXHIBIT A.
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1.2. "PURCHASE PRICE" shall have the following meanings: (a) the
Purchase Price of Common Stock shall be the per-share price to the public in the
IPO, and (b) the Purchase Price of Series D Preferred Stock shall be the Fair
Market Value.
1.3. "FAIR MARKET VALUE" shall be determined by mutual agreement of
Transcend and BI taking into consideration such factors as the progress of
Transcend and the issuance of any debt or equity securities subsequent to the
date hereof, adjusted to reflect stock dividends, stock splits, reverse stock
splits or recapitalizations; PROVIDED, HOWEVER, that the Fair Market Value shall
not be less than $11.75 per share and shall not exceed $20 per share.
2. AUTHORIZATION AND SALE OF SHARES OF TRANSCEND STOCK.
2.1. AUTHORIZATION OF SHARES OF TRANSCEND STOCK. Transcend (i) if
the Shares (as defined in Section 2.2) constitute Common Stock, has duly
authorized the issuance of such number of shares of Common Stock as provided
under Section 2.2, having the rights, restrictions, privileges and preferences
set forth in Transcend's Restated Certificate of Incorporation (the "RESTATED
CERTIFICATE"), and (ii) if the Shares constitute Series D Preferred Stock, shall
have duly authorized the issuance before the Closing (as defined in Section 2.4)
of such number of shares of Series D Preferred Stock as provided under Section
2.2, having the rights, restrictions, privileges and preferences set forth in
the Certificate of Amendment (as defined in Section 1.1).
2.2. SALE OF STOCK. Subject to the terms and conditions of this
Agreement, at the Closing Transcend shall sell and issue to BI, and BI shall
purchase from Transcend, such number of shares of Transcend Stock as is equal to
$5,000,000 (the "AGGREGATE PURCHASE PRICE") divided by the applicable Purchase
Price, payable as set forth in Section 2.3 of this Agreement. Such number of
shares of Transcend Stock (i.e., Common Stock or Series D Preferred Stock, as
the case may be) are hereinafter referred to as the "SHARES."
2.3. IPO NOTICE. Transcend shall keep BI reasonably informed
regarding its progress toward effecting an IPO, and shall provide written notice
to BI concerning the closing of an IPO as far in advance thereof as is
reasonably practicable, and in any event at least three (3) days prior to any
such closing. Transcend shall also provide written notice to BI one day after
the IPO Closing Date in the event that an IPO has not closed on or before the
IPO Closing Date, notifying BI of such fact and setting a date for the Closing
(as defined below), which shall be at least five (5) days after the date of such
notice.
2.4. THE CLOSING. The closing (the "CLOSING") of the sale and
purchase of the Shares shall take place at the offices of Xxxx and Xxxx LLP, 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, at 10:00 a.m., Boston time, (a) if the
Shares constitute Common Stock, concurrently with or prior to the closing of an
IPO, but in any case,
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no later than the IPO Closing Date; (b) if the Shares constitute Series D
Preferred Stock, on the date specified by Transcend in its notice pursuant to
Section 2.3, which shall be on or prior to the fifteenth day after the IPO
Closing Date; or (c) at such other time, date and place as are mutually
agreeable to Transcend and BI. The date of the Closing is hereinafter referred
to as the "CLOSING DATE." At the Closing, Transcend shall deliver to BI a
certificate representing the Shares, registered in the name of BI, against
payment to Transcend of the Aggregate Purchase Price by BI by wire transfer,
certified or cashier's check or other method acceptable to Transcend. If at the
Closing any of the conditions specified in Section 5 of this Agreement shall not
have been fulfilled within 30 days after notice thereof to Transcend, BI shall,
at its election, be relieved of all of its obligations under this Agreement
without thereby waiving any other rights it may have by reason of such failure
or such non-fulfillment. If at the Closing any of the conditions specified in
Section 6 of this Agreement shall not have been fulfilled within 30 days after
notice thereof to BI, Transcend shall, at its election, be relieved of all of
its obligations under this Agreement without thereby waiving any other rights it
may have by reason of such failure or such non-fulfillment.
2.5 EXTENSION OF THE IPO CLOSING DATE BY THE COMPANY.
Notwithstanding anything else to the contrary in this Section 2, Transcend shall
have the right, upon three (3) days' notice to BI, to extend the IPO Closing
Date to a date not later than May 15, 1997. Upon extension, such date shall
thereafter be deemed the IPO Closing Date for all purposes under this Agreement.
3. REPRESENTATIONS OF TRANSCEND. Except as otherwise disclosed on the
schedules to this Section 3, Transcend hereby represents and warrants to BI as
follows:
3.1. ORGANIZATION AND CORPORATE POWER. Transcend is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and is qualified to do business as a foreign corporation in
each jurisdiction in which such qualification is required, except where the
failure to so qualify would not have a material adverse effect on the condition
(financial or otherwise) of Transcend. Transcend has all required corporate
power and authority to own its property, to carry on its business as presently
conducted or contemplated, to enter into and perform this Agreement and the
other agreements, documents and instruments contemplated hereby (collectively,
the "FINANCING DOCUMENTS"), and generally to carry out the transactions
contemplated hereby. The copies of the Restated Certificate and the By-laws of
Transcend, as amended to date, which have been furnished to BI by Transcend, are
correct and complete at the date hereof. Transcend is not in violation of any
term of its Restated Certificate or By-laws, or in violation of any term of any
agreement, instrument, judgment, decree, order, statute, rule or government
regulation applicable to Transcend or to which Transcend is a
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party except where such a violation would not have a material adverse effect on
the condition (financial or otherwise) of Transcend.
3.2. AUTHORIZATION. The Financing Documents are valid and binding
obligations of Transcend, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
applicable to creditors' rights and remedies and to the exercise of judicial
discretion in accordance with general principles of equity. The execution,
delivery and performance of the Financing Documents have been duly authorized by
all necessary corporate or other action of Transcend. The issuance, sale and
delivery of the Shares and the issuance and delivery of shares of Common Stock
issuable upon conversion of shares of Series D Preferred Stock, if any,
purchased hereunder ("CONVERSION SHARES"), have been, or will be prior to the
Closing, duly authorized and reserved for issuance, as the case may be, by all
necessary corporate action on the part of Transcend. The Shares when so issued,
sold and delivered against payment therefor in accordance with the provisions of
this Agreement, and the Conversion Shares when issued upon such conversion, will
be duly and validly issued, fully paid and non-assessable. Except for routine
state securities law filings, no consent, approval or authorization of, or
designation, declaration or filing with, any governmental authority or any other
person or entity is required of Transcend in connection with the execution and
delivery of the Financing Documents, or the issuance and delivery of the Shares
in accordance with the terms of this Agreement or the consummation of any other
transaction contemplated hereby or by the other Financing Documents.
3.3. CAPITALIZATION. Immediately prior to the Closing, the
authorized capital stock of Transcend shall consist of 25,000,000 shares of
Common Stock, of which 787,382 shares are issued and outstanding, 12,991,000
shares of Series A Convertible Preferred Stock, $.01 par value per share (the
"SERIES A PREFERRED STOCK"), 9,916,330 of which are issued and outstanding,
3,000,000 shares of Series B Convertible Preferred Stock, $.01 par value per
share (the "SERIES B PREFERRED STOCK"), 690,775 of which are issued and
outstanding, 4,255,319 shares of Series C Convertible Preferred Stock, $.01 par
value per share (the "SERIES C PREFERRED STOCK"), all of which are issued and
outstanding, if the Shares consist of Series D Preferred Stock, 425,532 shares
of Series D Preferred Stock, none of which are issued and outstanding, and
1,039,000 shares of Non-Convertible Preferred Stock, $.01 par value per share
(the "NON-CONVERTIBLE PREFERRED STOCK"), all of which are issued and
outstanding. All of the issued and outstanding shares of Transcend's capital
stock have been duly authorized and validly issued and are fully paid and
nonassessable and have been issued in compliance with applicable Federal and
state securities laws. Except as set forth on SCHEDULE 3.3 hereto, (i) no
subscription, warrant, option, convertible security or other right (contingent
or otherwise) to purchase or acquire any shares of capital stock of Transcend is
authorized or outstanding, (ii) there is not any commitment or offer of
Transcend to issue any subscription, warrant, option, convertible security or
other such right or to issue or distribute to holders of any shares of its
capital stock
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any evidences of indebtedness or assets of Transcend, (iii) Transcend has no
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any shares of its capital stock or any interest therein or to pay any dividend
or make any other distribution in respect thereof and (iv) there are no
restrictions on the transfer of Transcend's capital stock other than those
arising from securities laws. Except as set forth in SCHEDULE 3.3, no person or
entity is entitled to (i) any preemptive or similar right with respect to the
issuance of any capital stock of Transcend, or (ii) any rights with respect to
the registration of any capital stock of Transcend under the Securities Act.
3.4. STOCKHOLDER LIST AND AGREEMENTS. Included as part of SCHEDULE
3.4 hereto is a complete and accurate list of the stockholders of Transcend as
of the date hereof. Except as set forth on SCHEDULE 3.4 hereto, there are no
agreements, written or oral, between Transcend and any holder of its capital
stock, or, to the best knowledge of Transcend, between or among any holders of
its capital stock, relating to the acquisition, disposition or voting of the
capital stock of Transcend.
3.5. FINANCIAL STATEMENTS. Transcend has furnished to BI the audited
balance sheet of Transcend as of December 31, 1996 (the "BALANCE SHEET DATE")
and the related audited statements of operations, statements of stockholders'
equity and statements of cash flows for the year ending December 31, 1996
(collectively, the "FINANCIAL STATEMENTS"). The Financial Statements (including
the footnotes thereto) were prepared in accordance with generally accepted
accounting principles consistently applied during the period covered thereby,
are correct, complete and in accordance with the books and records of Transcend
in all material respects, and fairly and accurately present the financial
position of Transcend on the dates of such statements and the results of its
operations for the periods covered thereby.
3.6. ABSENCE OF UNDISCLOSED LIABILITIES. Except as and to the extent
expressly disclosed in the Financial Statements, Transcend has no liabilities,
contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to the Balance Sheet Date and (ii) obligations
under contracts and commitments incurred in the ordinary course of business and
not required under generally accepted accounting principles to be reflected in
the Financial Statements which, in both cases, are not material to the financial
condition or operating results of Transcend.
3.7. ABSENCE OF CERTAIN DEVELOPMENTS. Since the Balance Sheet Date,
there has been (i) no material adverse change in the condition (financial or
otherwise) of Transcend or in the assets, liabilities, properties or business of
Transcend, (ii) no declaration, setting aside or payment of any dividend or
other distribution with respect to, or any direct or indirect redemption or
acquisition of, any of the capital stock of Transcend, (iii) no waiver of any
valuable right of Transcend or cancellation
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of any debt or claim held by Transcend, (iv) no loan by Transcend to any
officer, director, employee or stockholder of Transcend, or any agreement or
commitment therefor, (v) no material increase, direct or indirect, in the
compensation paid or payable to any officer, director, employee or agent of
Transcend, (vi) no material loss, destruction or damage to any property of
Transcend whether or not insured, (vii) no labor disputes involving Transcend
and no material change in the personnel of Transcend or the terms and conditions
of their employment, and (viii) no acquisition or disposition of any assets (or
any contract or arrangement therefor), nor any other transaction by Transcend
otherwise than for fair value in the ordinary course of business.
3.8. TITLE TO PROPERTIES. Transcend has good and marketable title to
all of its properties and assets, free and clear of all material liens,
restrictions or encumbrances, except as disclosed in the Financial Statements.
All machinery and equipment included in such properties which is necessary to
the business of Transcend is in good condition and repair, and all leases of
real or personal property to which Transcend is a party are fully effective and
afford Transcend peaceful and undisturbed possession of the subject matter of
the lease. Transcend is not in violation of any zoning, building or safety
ordinance, regulation or requirement or other law or regulation applicable to
the operation of its owned properties; Transcend, in its capacity as lessee, is
not in violation of any zoning, building or safety ordinance, regulation or
requirement or other law or regulation applicable to the operation of its leased
properties, nor has it received any notice of violation with which it has not
complied.
3.9. TAX MATTERS. Transcend has filed all foreign, federal, state
and local income, excise or franchise tax returns, real estate and personal
property tax returns, sales and use tax returns and other tax returns required
to be filed by it and has paid all taxes owed by it, except taxes which have not
yet accrued or otherwise become due. The provision for taxes on the Financial
Statements is sufficient as of its date for the payment of all accrued and
unpaid federal, state, county and local taxes of any nature of Transcend, and
any applicable taxes owing to any foreign jurisdiction, whether or not assessed
or disputed. All taxes and other assessments and levies which Transcend is
required to withhold or collect have been withheld and collected and have been
paid over to the proper governmental authorities. With regard to the income tax
returns of Transcend, Transcend has not received notice of any audit or of any
proposed deficiencies from any taxing authority, and no controversy with respect
to taxes of any type is pending or, to the knowledge of Transcend, threatened.
There are in effect no waivers of applicable statutes of limitations with
respect to any taxes owed by Transcend for any year.
3.10. CONTRACTS AND COMMITMENTS. Included as part of SCHEDULE 3.10
hereto is a list of all agreements of any nature to which Transcend is a party
or by which it or any of its properties is bound, which are material to the
conduct and
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operations of such business and properties including without limitation (a) each
agreement which requires future expenditures by Transcend in excess of $50,000
or which might result in payments to Transcend in excess of $50,000, (b) all
employment and consulting agreements, employee benefit, bonus, pension,
profit-sharing, stock option, stock purchase and similar plans and arrangements,
and distributor and sales representative agreements, (c) any agreement with any
stockholder, officer or director of Transcend, or any "affiliate" or "associate"
of such persons (as such terms are defined in the rules and regulations
promulgated under the Securities Act), including without limitation any
agreement or other arrangement providing for the furnishing of services by,
rental of real or personal property from, or otherwise requiring payments to,
any such person or entity and (d) any agreement relating to the Proprietary
Rights (as defined in Section 3.11). All such agreements are valid, binding and
in full force and effect. Neither Transcend nor, to the best of Transcend's
knowledge, any of its employees, officers or directors, is a party to any oral
or written contract or agreement prohibiting them from freely competing or
engaging in the business or businesses of Transcend and its employees. Transcend
is not in default under any contract, obligation or commitment, and, to the best
knowledge of Transcend, there is no state of facts which upon notice or lapse of
time or both would constitute such a default. To the best of Transcend's
knowledge, no key employee of Transcend is in default under any contract,
obligation or commitment with any of their former employers, and to the best
knowledge of Transcend, there is no state of facts which upon notice or lapse of
time or both would constitute such a default.
3.11. PROPRIETARY RIGHTS; EMPLOYEE RESTRICTIONS. Transcend has
ownership of or license to use all patent, copyright, trademark or other
proprietary rights (collectively, the "PROPRIETARY RIGHTS") used or to be used
in its business as presently conducted or contemplated, and, to Transcend's
knowledge, neither the present nor contemplated business, activities or products
of Transcend infringe any such patent, copyright, trademark or other proprietary
rights of others. Transcend has not received any notice or other claim from any
person asserting that any of Transcend's present or contemplated activities
infringe or may infringe any such rights of such person. Transcend has, to its
knowledge, the right to use, free and clear of claims or rights of others, all
trade secrets, programming processes, software and other information required
for or incident to its products or its business as presently conducted or
contemplated. Transcend has taken all steps required to establish and preserve
its ownership of all copyright, trade secret and other proprietary rights with
respect to its products and technology, except such rights as Transcend has
reasonably determined are not material to Transcend's continuing business
operations. Transcend is not making unlawful use of any confidential information
or trade secrets of any past or present employees of Transcend. Neither
Transcend nor, to the best knowledge of Transcend, any of Transcend's employees,
have any agreements or arrangements with former employers of such employees
relating to confidential information or trade secrets of such employers. The
activities
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of Transcend's employees on behalf of Transcend do not violate any agreements or
arrangements known to Transcend which any such employees have with former
employers.
3.12. EFFECT OF TRANSACTIONS. The execution, delivery and performance
by Transcend of the Financing Documents does not and will not conflict with or
result in any default under any material contract, obligation or commitment of
Transcend, or any charter provision, by-law or corporate restriction of
Transcend or the creation of any lien, charge or encumbrance of any nature upon
any of the properties or assets of Transcend, except pursuant to this Agreement,
or violate any instrument, agreement, judgment, decree, order, statute, rule or
regulation of any federal, state or local government or agency applicable to
Transcend.
3.13. LITIGATION. Except as set forth in SECTION 3.13 of the
Disclosure Schedule, there is no litigation or governmental proceeding or
investigation pending or, to the best of Transcend's knowledge, threatened (a)
against Transcend affecting any of its properties or assets, or (b) against any
officer or key employee of Transcend, or (c) which may adversely affect the
business, properties, assets or financial condition of Transcend or (d) which
may call into question the validity, or materially hinder the enforceability or
performance, of the Financing Documents, nor, to the best of Transcend's
knowledge, has there occurred any event nor does there exist any condition which
could reasonably be expected to be the basis upon which any litigation,
proceeding or investigation might properly be instituted.
3.14. BUSINESS; COMPLIANCE WITH LAWS. Transcend has all material
franchises, permits, licenses and other rights and privileges necessary to
permit it to own its property and to conduct its business as is presently
conducted. Transcend is not in material violation of any law, regulation,
authorization or order of any public authority relevant to the ownership of its
properties or the carrying on of its business as it is presently conducted.
3.15. BOOKS AND RECORDS. The minute books of Transcend contain
complete and accurate records of all meetings and other corporate actions of its
stockholders and its Board of Directors and committees thereof. The stock ledger
of Transcend is complete and reflects all issuances, transfers, repurchases and
cancellations of shares of capital stock of Transcend.
3.16. BROKERAGE. Other than with respect to Vector Securities
International, Inc., there are no claims for and no person is entitled to any
brokerage commissions, finder's fees or similar compensation in connection with
the transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of Transcend.
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3.17. EMPLOYEE BENEFIT PLANS. Except as contemplated by the Financing
Documents or as set forth in SECTION 3.17 of the Disclosure Schedule, Transcend
does not maintain or contribute to any employee benefit plans. Transcend is and
has been in material compliance with the provisions of all laws or rules or
regulations applicable to any employee benefit plan maintained or contributed to
by Transcend for the benefit of its employees and, to the best knowledge of
Transcend, there are no claims pending or threatened with respect to any of such
employee benefit plans. Transcend does not maintain or contribute to, and has
never maintained or contributed to, any qualified retirement plan that is
subject to the minimum funding requirements of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Internal Revenue Code of 1986, as amended. There are no unfunded obligations of
Transcend under any retirement, pension, profit-sharing or deferred compensation
plan or program. Transcend is not required to make any payments or contributions
to any employee benefit plan pursuant to any collective bargaining agreement.
Transcend has never maintained or contributed to any employee benefit plan
providing or promising any health or other non-pension benefits to terminated
employees. For purposes of this Section, the term "Company" includes all
entities that have controlled, have been under the control of, or have been
under common control with, Transcend.
4. REPRESENTATIONS OF BI.
BI represents and warrants to Transcend as follows:
4.1. INVESTMENT REPRESENTATION.
(a) BI has not relied upon the advice of a "purchaser
representative," as defined in Regulation D under the Securities Act, in
evaluating the risks and merits of an investment in the Shares.
(b) BI has had an opportunity to ask questions of and receive
answers from Transcend, or a person or persons acting on Transcend's behalf,
concerning the terms and conditions of the Shares.
(c) BI understands that the Shares have not been registered
under the Securities Act or under the securities laws of any state or other
jurisdiction and have been sold in reliance upon exemptions for private
offerings, and that, while Transcend may in the future register the Shares, it
is under no obligation to do so, except as set forth in the Amended Registration
Rights Agreement (as defined in Section 5.6), and BI further understands that BI
is acquiring the Shares without being furnished any offering literature or
prospectus.
(d) BI represents that the Shares are being acquired solely
for its own account, for investment and not with a current view to or for the
resale,
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distribution, subdivision, or fractionalization thereof. BI has no present plans
to enter into any contract, undertaking, agreement or arrangement relating
thereto.
(e) BI acknowledges and is aware that there are substantial
restrictions on the transferability of the Shares; the Shares cannot be resold
unless such Shares are registered under the Securities Act and any applicable
securities law of any state or other jurisdiction, or an exemption from
registration is available; and except as set forth in the Amended Registration
Rights Agreement, BI has no rights to require that the Shares be registered
under the Securities Act.
(f) BI has such knowledge and experience in financial and
business matters that it is capable of evaluating the relative risks and merits
of an investment in the Shares.
(g) BI is a limited liability company organized under the laws
of the Federal Republic of Germany having its principal place of business at
D-55216 Ingelheim am Rhein Germany.
4.2. AUTHORITY. BI has full power and authority to execute, deliver
and perform this Agreement and each other Financing Document to which BI is a
party in accordance with its terms. BI has not been organized, reorganized or
recapitalized specifically for the purpose of investing in Transcend.
4.3. EXPERIENCE. BI has adequate net worth and means to provide for
its current needs and contingencies and the financial capacity to sustain a
complete loss of its investment in Transcend.
4.4. BROKERAGE. There are no claims for and no person is entitled to
any brokerage commissions, finder's fees or similar compensation in connection
with the transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of BI.
5. CONDITIONS TO THE OBLIGATIONS OF BI.
The obligations of BI under this Agreement are subject to the
fulfillment, or the waiver by BI, of the conditions set forth in this Section 5
on or before the Closing Date.
5.1. ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each representation
and warranty of Transcend contained in this Agreement shall be true in all
material respects on and as of the Closing Date with the same effect as though
such representation and warranty had been made on and as of that date, except
for any representation or warranty made as of a particular date, which shall be
true as of such date.
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5.2. PERFORMANCE. Transcend shall have performed and complied with
all material agreements and conditions contained in this Agreement required to
be performed or complied with by Transcend prior to or at the Closing.
5.3. BLUE SKY APPROVALS. Transcend shall have received all requisite
approvals, if any, of the securities authorities of each jurisdiction in which
such approval is required, and such approvals shall be in full force and effect
on the Closing Date.
5.4. CERTIFICATES AND DOCUMENTS. Transcend shall have delivered to
BI:
(a) A copy of the Restated Certificate, including the
Certificate of Amendment if the Shares constitute Series D Preferred Stock, as
in effect immediately prior to the Closing, certified by the Secretary of State
of the State of Delaware and a certificate, as of recent date, of the Secretary
of State of the State of Delaware as to Transcend's good standing;
(b) A certificate of the Secretary or Assistant Secretary of
Transcend dated as of the Closing Date, certifying as to (i) the incumbency of
officers of Transcend executing the Financing Documents and all other documents
executed and delivered in connection herewith, (ii) a copy of the By-Laws of
Transcend, as in effect on and as of the Closing Date, and (iii) a copy of the
resolutions of the Board of Directors of Transcend authorizing and approving
Transcend's execution, delivery and performance of the Financing Documents, all
matters in connection with the Financing Documents, and the transactions
contemplated thereby;
(c) A stock certificate duly executed by Transcend for the
Shares issued in the name of Boehringer Ingelheim International GmbH.
5.5. COMPLIANCE CERTIFICATE. Transcend shall have delivered to BI a
certificate, executed by the President of Transcend as of the Closing Date,
certifying to the fulfillment of all of the conditions to BI's obligations under
this Agreement, as set forth in this Section 5.
5.6. OTHER AGREEMENTS.
(a) DEVELOPMENT AGREEMENT. Transcend shall have executed and
delivered, and not be in material breach or default with respect to its
obligations under, the Development Agreement.
(b) REGISTRATION RIGHTS AGREEMENT. Transcend shall have
executed and delivered to BI a Third Amended and Restated Registration Rights
Agreement by and among Transcend and the Holders (as defined therein) (the
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"AMENDED REGISTRATION RIGHTS AGREEMENT"), setting forth certain rights and
obligations of BI and Transcend with respect to registration of the Shares under
the Securities Act, which rights and obligations shall be substantially the same
as those of the current Holders (as defined in the Second Amended and Restated
Registration Rights Agreement dated August 21, 1996), except that after
____________, 1998, BI may require the registration of its Shares under terms
otherwise in accordance with such Registration Rights Agreement.
(c) RIGHT OF FIRST REFUSAL AGREEMENT. In the event that the
Shares constitute Series D Preferred Stock, Transcend shall have executed and
delivered to BI an amendment to the Right of First Refusal Agreement dated April
5, 1994, as amended December 22, 1995, by and among Transcend and the Holders
(as defined therein) (the "RIGHT OF FIRST REFUSAL AGREEMENT"), making BI a
Holder as defined therein.
(d) CO-SALE AGREEMENT. In the event that the Shares constitute
Series D Preferred Stock, Transcend shall have executed and delivered to BI an
Amendment to Right of First Refusal and Co-Sale Agreement dated April 5, 1994,
as amended December 22, 1995, by and among Transcend and the Holders (as defined
therein) (the "CO-SALE AGREEMENT"), making BI a Holder as defined therein.
5.7 OPINION OF XXXX AND XXXX LLP. BI shall have received an opinion
of Xxxx and Xxxx LLP, counsel to Transcend, dated the Closing Date addressed to
BI in substantially the form attached hereto as EXHIBIT C.
6. CONDITIONS TO THE OBLIGATIONS OF TRANSCEND.
The obligations of Transcend under this Agreement are subject to the
fulfillment, or the waiver by Transcend, of the conditions set forth in this
Section 6 on or before the Closing Date.
6.1. ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of BI contained in Section 4 shall be true in all material
respects on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of that date, except for
any representation or warranty made as of a particular date, which shall be true
as of such date.
6.2. DELIVERY OF THE AGGREGATE PURCHASE PRICE. BI shall have
delivered, in compliance with Section 2, the Aggregate Purchase Price.
6.3. DEVELOPMENT AGREEMENT. BI shall have executed and delivered,
and not be in material breach or default with respect to its obligations under,
the Development Agreement.
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6.4. LOCK-UP AGREEMENT. In the event that the Shares constitute
Common Stock, BI shall have executed and delivered to Transcend and to the
underwriters of the IPO an agreement, in substantially the form attached hereto
as EXHIBIT B (the "LOCK-UP AGREEMENT"), providing that BI shall not sell or
otherwise transfer the Shares until 360 days after the closing of the IPO.
6.5. CO-SALE AGREEMENT. In the event that the Shares constitute
Series D Preferred Stock, BI shall have executed and delivered to Transcend an
Amendment to the Co-Sale Agreement making BI a Holder as defined therein.
7. CERTAIN COVENANTS OF TRANSCEND.
Transcend covenants and agrees that, if any shares of Series D Preferred
Stock are issued hereunder and for so long as at least 25% of such shares of
Series D Preferred Stock are held by BI, it will perform and observe the
following covenants and provisions:
7.1. FINANCIAL STATEMENTS. Transcend will maintain books of account
in accordance with generally accepted accounting principles applied on a
consistent basis, keep full and complete financial records and furnish to BI the
following reports:
(a) within 90 days after the end of each fiscal year, a copy
of the balance sheet of Transcend as at the end of such year, together with
statements of operations, stockholders' equity and cash flows of Transcend for
such year, audited and certified by Ernst & Young or other independent public
accountants of recognized national standing reasonably satisfactory to BI,
prepared in accordance with generally accepted accounting principles and
practices consistently applied;
(b) within 25 days after the end of each month, an unaudited
balance sheet of Transcend as at the end of such month and unaudited statements
of operations, stockholders' equity, cash flows, summaries of bookings and
backlogs of Transcend for such month;
(c) within 45 days after the end of each quarter, commencing
March 31, 1997 an unaudited balance sheet of Transcend as at the end of such
quarter and for the year to date, and unaudited statements of operations,
stockholders' equity, cash flows, summaries of bookings and backlogs for such
period and for the current fiscal year to the end of such period, each of the
foregoing financial statements described in clauses (a), (b) and (c) hereof to
be prepared on a consolidated basis if Transcend then has any subsidiaries, to
set forth in comparative form the corresponding figures for the prior fiscal
period and the forecasts for such period and to include a brief written
discussion and analysis by the President of such
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annual and quarterly financial statements, including a comparison of the
performance against the operating plan and corresponding periods in prior years;
and
(d) such other financial information, as BI may reasonably
request, including, without limitation, certificates of the principal financial
officer of Transcend concerning compliance with the covenants of Transcend under
this Section 7.
7.2. CONDUCT OF BUSINESS. Transcend will continue to engage
principally in the business now conducted by Transcend. Transcend will keep in
full force and effect its corporate existence and all patents and other
intellectual property rights used or useful in its business (except such rights
as the Board of Directors of Transcend, in its reasonable business judgment, has
determined are not material to Transcend's continuing operations).
7.3. PAYMENT OF TAXES, COMPLIANCE WITH LAWS, ETC. Transcend will pay
and discharge all lawful taxes, assessments and governmental charges or levies
imposed upon it or upon its income or property before the same shall become in
default, as well as all lawful claims for labor, materials and supplies which,
if not paid when due, might become a lien or charge upon its property or any
part thereof; provided, however, that Transcend shall not be required to pay and
discharge any such tax, assessment, charge, levy, or claim so long as the
validity thereof is being contested by Transcend in good faith by appropriate
proceedings and an adequate reserve therefor has been established on its books.
Transcend will use its best efforts to comply with all applicable laws and
regulations in the conduct of its business including, without limitation, all
environmental laws.
7.4. INSURANCE. Transcend will keep its insurable properties
insured, upon reasonable business terms, by financially sound and reputable
insurers against liability, and the perils of casualty, fire and extended
coverage in amounts of coverage sufficient in the reasonable business judgment
of Transcend to protect Transcend. Transcend will also maintain with such
insurers insurance against other hazards and risks and liability to persons and
property which, in the reasonable business judgment of Transcend, is customary
in the industry in which Transcend operates for companies of comparable size.
7.5. KEY MAN LIFE INSURANCE. Transcend will maintain term life
insurance upon the life of the Chief Executive Officer in the amount of
$2,000,000, with the proceeds payable to Transcend.
7.6. MAINTENANCE OF PROPERTIES. Transcend will maintain all
properties used or useful in the conduct of its business in good repair, working
order and condition as is reasonably necessary to permit such business to be
properly and advantageously conducted.
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7.7. AFFILIATED TRANSACTIONS. Except for the Financing Documents and
the documents contemplated by the Financing Documents, all transactions by and
between Transcend and any officer, employee or stockholder of Transcend or
persons controlled by or affiliated with such officer, employee or stockholder,
shall be conducted on an arms-length basis, shall be on terms and conditions no
less favorable to Transcend than could be obtained from non-related persons and
shall be approved by the Board of Directors of Transcend after full disclosure
of the terms thereof, for which purpose the interested party, if a Director, and
any affiliate of the interested party who is a Director, shall not be entitled
to vote.
7.8. INSPECTION. Transcend shall, upon reasonable prior notice to
Transcend, permit authorized representatives of BI to visit and inspect any of
the properties of Transcend including its books of account (and to make copies
thereof and take extracts therefrom), and to discuss the affairs, finances and
accounts of Transcend with its officers and independent accountants, all at the
expense of BI and at such reasonable times and as often as may be reasonably
requested.
7.9. INTEGRATION. Neither Transcend nor any affiliate (as such term
is defined in Rule 501(b) of the Securities Act) of Transcend will offer, sell
or solicit offers to buy or otherwise negotiate in respect of any security (as
such term is defined in the Securities Act) that will be integrated with the
sale of the Shares in a manner that would require the registration of the Shares
under the Securities Act.
7.10. MATERIAL CHANGES AND LITIGATION. Transcend promptly (and, in
any event, not later than the date of release of such information to the public
generally) shall notify BI or their transferees of any material adverse change
in the business, properties, assets, or condition (financial or otherwise) of
Transcend and of any litigation or governmental proceeding or investigation
pending (or, to the best knowledge of Transcend, threatened) against Transcend
or against any officer, director, key employee, or principal stockholder of
Transcend, that materially adversely affects (or if adversely determined, would
be likely to materially adversely affect) its present or proposed business,
properties, assets, or condition (financial or otherwise) taken as a whole.
Transcend will also promptly notify BI or their transferees of any facts which,
if such facts had existed at the Closing, would have constituted a material
breach of the representations and warranties contained herein.
7.11. RESERVATION OF CONVERSION STOCK. Transcend will, upon any
increase in the number of shares of Common Stock issuable upon conversion of the
Series D Preferred Stock, reserve additional shares of Common Stock for issuance
upon such conversion, so that the number of shares of Common Stock so reserved
will not at any time be less than the number of such shares issuable upon such
conversion.
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7.12. USE OF PROCEEDS. Transcend will not use the proceeds from the
sale of the Shares hereunder other than in connection with the development
activities described in the Development Agreement.
8. CERTAIN COVENANTS OF BI.
8.1. STANDSTILL. Except pursuant to the terms of this Agreement, the
Co-Sale Agreement and the Right of First Refusal Agreement, or upon conversion
of the Series D Preferred Stock into Common Stock, BI agrees that until December
31, 2000, BI will not, and will exercise its best efforts to not allow any of
its affiliates or associates (as such terms are used in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), these terms to
have such meaning throughout this Section), from and after the date that such
person becomes an affiliate or associate unless in any such case specifically
invited to do so by the Board of Directors of Transcend, to:
(a) acquire, announce an intention to acquire, offer or
propose to acquire, solicit an offer to sell or agree to acquire by purchase, by
gift, by joining a partnership, limited partnership, syndicate or other "group"
(as such term is used in Section 13(d)(3) of the Exchange Act, such terms to
have such meaning throughout this Section) or otherwise, any (i) material
assets, businesses or properties of Transcend other than in the ordinary course
of business or pursuant to the express terms of the Development Agreement, or
(ii) additional shares of Common Stock, Series D Preferred Stock or any other
securities of Transcend convertible into, exchangeable for or exercisable for
Common Stock (all such securities, collectively, "VOTING SECURITIES");
(b) participate in the formation or encourage the formation of
any "person" (as such term is used in Section 13(d)(3) of the Exchange Act, such
term to have such meaning throughout this Section) which owns or seeks to
acquire beneficial ownership of any Voting Securities, or join or in any way
participate with any such person in such action;
(c) solicit, or participate in any "solicitation" of "proxies"
or become a "participant" in any "election contest" (as such terms are defined
or used in Regulation 14A under the Exchange Act, these terms to have such
meaning throughout this Section) with respect to Transcend;
(d) initiate, propose or otherwise solicit stockholders for
the approval of one or more stockholder proposals with respect to Transcend or
induce any other person to initiate any stockholder proposal which would in any
way be inconsistent with the provisions of this Section 8.1;
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(e) seek to place any representative on the Board of Directors
of Transcend, or seek to have called any meeting of the stockholders of
Transcend;
(f) deposit any Voting Securities in a voting trust or, unless
specifically contemplated by this Agreement, subject them to a voting agreement
or other agreement or arrangement with respect to the voting of such Voting
Securities; or
(g) otherwise act, alone or in concert with others, to (i)
seek to control the management, Board of Directors, policies or affairs of
Transcend or solicit, propose, seek to effect or negotiate with any other person
(including, without limitation, Transcend) with respect to any form of business
combination or other extraordinary transaction with Transcend or any of its
subsidiaries or any restructuring, recapitalization, similar transaction or
other transaction not in the ordinary course of business with respect to
Transcend or any of its subsidiaries; (ii) solicit, make or propose or negotiate
with any other person with respect to, or announce an intent to make, any tender
offer or exchange offer for any securities of Transcend or any of its
subsidiaries; or (iii) publicly disclose an intent, purpose, plan or proposal
with respect to Transcend, any of its subsidiaries or any securities or assets
of Transcend or any of its subsidiaries, that would violate the provisions of
this Section 8.1(g), or assist, participate in, facilitate or solicit any effort
or attempt by any person to do so or seek to do any of the foregoing.
8.2. INTERPRETATION. For all purposes of this Section, the term
Common Stock shall include any securities of any issuer entitled to vote
generally for the election of directors of such issuer which securities the
holders of Transcend Common Stock shall have received or as a matter of right be
entitled to receive as a result of (i) any capital reorganization or
reclassification of the capital stock of Transcend, (ii) any consolidation,
merger or share exchange of Transcend with or into another corporation or (iii)
any sale of all or substantially all the assets of Transcend.
8.3. EQUITABLE REMEDY. BI acknowledges and agrees that irreparable
damage would occur if any of the provisions of this Section were not performed
in accordance with their specific terms or were otherwise materially breached.
Accordingly, Transcend will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically its provisions in
any court of any jurisdiction, this being in addition to any other remedy to
which Transcend may be entitled at law or in equity.
8.4. LOCK-UP AGREEMENT. In the event that the Shares constitute
Common Stock, BI shall execute and deliver to Transcend the Lock-Up Agreement at
the Closing.
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9. TRANSFERS OF CERTAIN RIGHTS.
(a) Subject to the provisions of the Financing Documents, the
rights granted to BI herein may be transferred or succeeded to only by an
assignee of the rights of BI under the Development Agreement, assigned in
compliance with the Development Agreement; PROVIDED, HOWEVER, that Transcend is
given written notice by the assignee at the time of such assignment stating the
name and address of the assignee and identifying the securities with respect to
which such rights are being assigned. Subsequent to the termination of the
Development Agreement, the rights granted to BI may not be assigned by BI
without the prior written consent of Transcend, which shall not be unreasonably
withheld.
(b) A transferee to whom rights are transferred pursuant to
this Section 9 may not again transfer such rights to any other person or entity,
other than in compliance with the Development Agreement and paragraph (a) above.
(c) Notwithstanding anything to the contrary contained in this
Agreement, each certificate representing the Shares shall bear a legend
substantially in the following form and any transfer of the Shares shall be
subject to the restrictions described in that legend and the Financing
Documents:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), or
applicable state securities laws and may not be transferred or
otherwise disposed of unless and until such shares are registered
under the Act and such laws or (1) registration under applicable state
securities is not required and (2) an opinion of counsel satisfactory
to Transcend is furnished to Transcend, to the effect that such
registration under the Act is not required.
10. SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall bind and inure to the benefit
of the respective successors, assigns, heirs, executors, and administrators of
the parties hereto.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations, warranties, covenants, promises and agreements
contained in this Agreement or in any other Financing Documents shall survive
and remain in full force and effect after the Closing, without regard to any
investigation made at any time by BI or on its behalf.
12. NOTICES.
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Any consent, notice or report required or permitted to be given or
made under this Agreement shall be in writing, delivered personally or by
facsimile (and promptly confirmed by telephone, personal delivery or courier) or
courier, postage prepaid (where applicable), addressed as indicated below, or to
such other address as the addressee shall have last furnished in writing to the
addressor and shall be effective upon receipt by the addressee.
If to Transcend: Transcend Therapeutics, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to BI: Boehringer Ingelheim International GmbH
D-55216 Ingelheim am Rhein
Germany
Attention: Corporate Licensing
Telephone: 000 00 00 00 00 00 08
Telecopy: 011 49 61 32 77 35 83
with a copy to: Boehringer Ingelheim International GmbH
D-55216 Ingelheim am Rhein
Germany
Attention: Head of Legal Department
Telephone: 000 00 00 00 00 00 06
Telecopy: 011 49 61 32 77 35 83
13. NO CONDITIONS TO EFFECTIVENESS; ENTIRE AGREEMENT.
There are no conditions to the effectiveness of this Agreement. This
Agreement, together with the instruments and other documents hereby contemplated
to be executed and delivered in connection herewith, contains the entire
agreement and understanding of the parties hereto, and supersedes any prior
agreements or understandings between or among them, with respect to the subject
matter hereof.
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14. FORCE MAJEURE.
Neither Party shall be held liable or responsible to the other Party
nor be deemed to have defaulted under or breached this Agreement for failure or
delay in fulfilling or performing any term of this Agreement when such failure
or delay is caused by or results from causes beyond the reasonable control of
the affected Party, including but not limited to fire, floods, embargoes, war,
acts of war (whether war is declared or not), insurrections, riots, civil
commotions, strikes, lockouts or other labor disturbances, acts of God or acts,
omissions or delays in acting by any governmental authority or the other Party;
PROVIDED, HOWEVER, that the Party so affected shall use reasonable commercial
efforts to avoid or remove such causes of nonperformance, and shall continue
performance hereunder with reasonable dispatch whenever such causes are removed.
Either Party shall provide the other Party with prompt written notice of any
delay or failure to perform that occurs by reason of force majeure. The Parties
shall mutually seek a resolution of the delay or the failure to perform as noted
above.
15. ASSIGNMENT.
This Agreement may not be assigned or otherwise transferred by either
Party without the consent of the other Party; PROVIDED, HOWEVER, that either
Transcend or BI may, without such consent, assign its rights and obligations
under this Agreement (a) in connection with a corporate reorganization, to any
affiliate, all or substantially all of the equity interest of which is owned and
controlled by such Party or its direct or indirect parent corporation, or (b) in
connection with a merger, consolidation or sale of substantially all of such
Party's assets to an unrelated third party; PROVIDED, HOWEVER, that such Party's
rights and obligations under this Agreement shall be assumed by its successor in
interest in any such transaction and shall not be transferred separate from all
or substantially all of its other business assets. Any purported assignment in
violation of the preceding sentence shall be void. Any permitted assignee shall
assume all obligations of its assignor under this Agreement.
16. SEVERABILITY.
Each Party hereby agrees that it does not intend to violate any public
policy, statutory or common laws, rules, regulations, treaty or decision of any
government agency or executive body thereof of any country or community or
association of countries. Should one or more provisions of this Agreement be or
become invalid, the Parties hereto shall substitute, by mutual consent, valid
provisions for such invalid provisions which valid provisions in their economic
effect are sufficiently similar to the invalid provisions that it can be
reasonably assumed that the Parties would have entered into this Agreement with
such valid provisions. In case such valid provisions cannot be agreed upon, the
invalidity of one or several
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provisions of this Agreement shall not affect the validity of this Agreement as
a whole, unless the invalid provisions are of such essential importance to this
Agreement that it is reasonable to assume that the Parties would not have
entered into this Agreement without the invalid provisions.
17. APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without giving effect to the
choice of laws provisions thereof.
18. DISPUTE RESOLUTION; CHOICE OF FORUM.
Any disputes arising between the Parties relating to, arising out of
or in any way connected with this Agreement or any term or condition hereof, or
the performance by either Party of its obligations hereunder shall be settled in
accordance with the procedures set forth in the Development Agreement.
19. ENTIRE AGREEMENT.
This Agreement, together with the appendices hereto and the
Development Agreement, contains the entire understanding of the Parties with
respect to the subject matter hereof and supersedes the Letter Agreement dated
January 13, 1997, between Transcend and BI. All express or implied agreements
and understandings, either oral or written, heretofore made are expressly merged
in and made a part of this Agreement. This Agreement may be amended, or any term
hereof modified, only by a written instrument duly executed by both Parties.
20. HEADINGS.
The captions to the several Articles and Sections hereof are not a
part of this Agreement, but are merely guides or labels to assist in locating
and reading the several Articles and Sections hereof.
21. WAIVER.
The waiver by either Party hereto of any right hereunder or of the
failure to perform or of a breach by the other Party shall not be deemed a
waiver of any other right hereunder or of any other breach or failure by said
other Party whether of a similar nature or otherwise.
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22. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first set forth above.
TRANSCEND THERAPEUTICS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx, M.D., Ph.D.
President and Chief Executive Officer
BOEHRINGER INGELHEIM INTERNATIONAL GmbH
By: /s/ H. Xxxxx Xxxxxxxx By: /s/ Xxxx-Xxxxx Xxxxxx
----------------------------- -----------------------------
Name: /s/ H. Xxxxx Xxxxxxxx Name: /s/ Xxxx-Xxxxx Xxxxxx
----------------------------- -----------------------------
Legal Department
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