ASSET SALE AGREEMENT
Among
ORTHOVITA, INC.
And
VITA LICENSING, INC.
And
IMPLANT INNOVATIONS, INC.
Dated as of February 10, 2000
TABLE OF CONTENTS
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Page
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RECITALS.................................................... 3
ARTICLE I DEFINITIONS....................................... 3
ARTICLE II SALE OF ASSETS................................... 5
ARTICLE III CONSIDERATION................................... 5
ARTICLE IV CLOSING.......................................... 7
ARTICLE V COVENANTS AND AGREEMENTS.......................... 7
ARTICLE VI REPRESENTATIONS AND WARRANTIES................... 12
ARTICLE VII SURVIVAL OF REPRESENTATIONS; INDEMNITY.......... 16
ARTICLE VIII TERMINATION OF AGREEMENT....................... 19
ARTICLE IX MISCELLANEOUS................................... 20
SCHEDULES
Schedule 1.2 Biogran(R) Know-How
Schedule 1.3 Biogran(R) Patents
Schedule 1.4 Biogran(R) Regulatory Approvals
Schedule 1.5 Biogran(R) Trademarks
Schedule 1.6 Contracts
Schedule 1.7 Equipment
Schedule 1.9 Inventory
Schedule 1.11 Marketing Materials
Schedule 1.14 Specifications
Schedule 3.3.2 Revised Inventory List
Schedule 3.5 Purchase Price Allocation
Schedule 3.7 Current CORTOSS(TM) and ORTHOCOMP(TM) Products
Schedule 4.2A Form of Biogran(R) Patent Assignment
Schedule 4.2B Form of Biogran(R) Regulatory Approval Assignment
Schedule 4.2C Form of Biogran(R) Trademark Assignment
Schedule 4.3.1 Wiring Instructions
Schedule 6.1.5 Pending Actions
Schedule 6.1.10 Suppliers
-i-
Schedule 6.1.14 Studies and Information
EXHIBITS
Exhibit 4.2D Form of Escrow Agreement
Exhibit 4.2E Form of Xxxx of Sale
Exhibit 4.2F Form of Termination Agreement for Distribution Agreement
Exhibit 4.2G Form of Assignment of Contracts
Exhibit 4.2H Form of Legal Opinion of Sellers' Counsel
Exhibit 4.3A Form of Legal Opinion of Purchaser's Counsel
-ii-
ASSET SALE AGREEMENT
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This ASSET SALE AGREEMENT is dated as of February 10, 2000 (the "Signing Date")
among ORTHOVITA, INC., a Pennsylvania corporation ("Orthovita"), and VITA
LICENSING, INC., a Delaware corporation ("Vita Licensing", collectively with
Orthovita, the "Sellers") and IMPLANT INNOVATIONS, INC., a Florida corporation
("Implant Innovations" or "Purchaser").
RECITALS
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WHEREAS, Orthovita and Implant Innovations entered into a Global
Distribution Agreement on April 29, 1998 (the "Distribution Agreement") to
facilitate the global distribution of Finished Product (as defined below) for
dental surgical indications and the parties wish to terminate the Distribution
Agreement in favor of this Asset Sale Agreement; and
WHEREAS, Sellers wish to sell Purchaser the Transferred Assets
(as defined below) and Purchaser desires to purchase from the Sellers the
Transferred Assets necessary for the manufacture and sale of Finished Product;
and
WHEREAS, Vita Licensing is the sole assignee of the Biogran(R)
Patents (as defined below) referred to in Title I of Schedule 1.3, Orthovita is
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the sole assignee of the Biogran(R) Patents referred to in Title II of Schedule
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1.3, and Orthovita is the sole owner of the Biogran(R) Trademarks, the Biogran
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(R) Know-How, the Biogran(R) Regulatory Approvals, the Equipment, the Contracts,
the Marketing Materials, and the Inventory (each as defined below).
NOW, THEREFORE, in consideration of the respective covenants contained herein
and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
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DEFINITIONS
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1.1 "Agreement" shall mean this document and any annex, addendum, exhibit,
attachment, schedule or modification hereto.
1.2 "Biogran(R) Know-How" shall mean all currently existing proprietary
material and information including data, technical information, know-how,
experience, inventions, discoveries, trade secrets, compositions of matter
and methods, whether or not patentable or confidential, solely as they
relate to and are necessary for the manufacture and packaging of Finished
Product, owned by Sellers and described in Schedule 1.2.
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1.3 "Biogran(R) Patents" shall mean the patents and patent applications listed
in Schedule 1.3 and any patents issuing therefrom.
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1.4 "Biogran(R) Regulatory Approvals" shall mean with respect to the United
States and the European Union, all authorizations, licenses or permits
required by the appropriate
governmental entity or entities and necessary for commercial sale of
Finished Product in that territory including, without limitation and where
applicable, approval of labeling, price, reimbursement and manufacturing,
owned by Sellers and listed in Schedule 1.4.
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1.5 "Biogran(R) Trademarks" shall mean the registered and unregistered
trademarks for Finished Product, owned by Sellers and identified in
Schedule 1.5.
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1.6 "Contracts" shall mean all the contracts relating to Finished Product
manufacture, sale, and research, and use of the Transferred Assets, to be
transferred from Sellers to Purchaser, and identified in Schedule 1.6,
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Subsection A.
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1.7 "Equipment" shall mean that equipment used for the manufacture and
packaging of Finished Product and identified in Schedule 1.7.
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1.8 "Finished Product" shall mean Product packaged, labeled and boxed with
instructions for use, and ready for distribution to the customer.
1.9 "Inventory" shall mean all inventories of (a) Finished Product, (b) raw
materials, (c) Packaged Product, and (d) packaging materials used in the
manufacture and packaging of Finished Product that are owned by Sellers and
are in the possession or under the control of Sellers and identified in
Schedule 1.9.
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1.10 "Knowledge" shall mean the knowledge of each corporate officer of the party
or parties. An individual is deemed to have knowledge of a particular fact
or matter if (a) such individual is actually aware of the fact or matter or
(b) a prudent individual could be expected to discover or otherwise become
aware of the fact or matter in the course of performing his or her ordinary
duties in a competent manner.
1.11 "Marketing Materials" shall mean all of the currently existing marketing
materials owned by Sellers and used by Purchaser in relation to Finished
Product distribution and identified in Schedule 1.11.
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1.12 "Packaged Product" shall mean Product packaged, labeled and boxed with
instructions for use, but not ready for distribution to customer.
1.13 "Product" shall mean bioactive glass granules that are formulated for use
as a bone substitute known as Biogran(R) brand bone substitute and are
covered by a claim of a Biogran(R) Patent.
1.14 "Specifications" shall mean the written specifications for the Finished
Product attached as Schedule 1.14, as the same may be amended from time to
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time by Sellers in accordance with U.S. Food and Drug Administration
("FDA") requirements and other regulatory requirements.
ARTICLE II
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SALE OF ASSETS
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2.1 Sale and Purchase of Assets. Subject to and upon the terms and
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conditions set forth in this Agreement, Sellers shall, at the Closing
provided for in Article IV, grant, sell, transfer, convey, assign and
deliver to Purchaser all their respective interests in, and Purchaser
shall purchase, the following assets, properties and rights of every
kind and description, real, personal and mixed, tangible and intangible
(including all causes of action, rights of action, contract rights and
claims against third parties), wherever situated as the same shall exist
on the Closing Date (as defined below) (the assets being purchased from
Sellers are sometimes collectively referred to as the "Transferred
Assets"): (1) the Biogran(R) Patents, Biogran(R) Trademarks, and
Biogran(R) Know-How (collectively, the "Intellectual Property"); (2)
the Biogran(R) Regulatory Approvals; (3) the Equipment; (4) the
Contracts; (5) the Marketing Materials; and (6) the Revised Inventory
(as defined below).
2.2 Liabilities. With the exception of payments due under the Contracts, the
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Transferred Assets are hereby conveyed free and clear of all debts,
taxes, claims, options, liabilities, obligations, liens and
encumbrances. Title to and risk of loss of the Transferred Assets shall
pass to Purchaser as of the Closing (as defined below).
ARTICLE III
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CONSIDERATION
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3.1 Purchase Price. On the Closing Date (as defined below), Purchaser shall
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pay to Sellers as the purchase price for the Transferred Assets sold
hereunder the sum of (a) Three Million Nine Hundred Thousand Dollars
($3,900,000) and (b) the Revised Inventory Amount (as defined below) in
the manner described in Section 4.3. In addition, Purchaser shall pay to
Sellers on the Closing Date the Distribution Agreement Amount (as
defined below) in the manner described in Section 4.3.
3.2 Inventory Amount. Schedule 1.9 sets forth, as of January 21, 2000, a
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true and complete list of all items in Inventory, including (a) the part
number of each item, (b) the quantity of each item, and (c) the location
of each item (the "Inventory List").
3.3 Inspection and Revisions to Inventory List. Prior to the Closing Date
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(as defined below), representative(s) of Purchaser shall meet with
representative(s) of Sellers to inspect jointly the Inventory wherever
located and to update the quantity and location of the items on the
Inventory List. The parties agree and acknowledge that the Purchaser
will not necessarily purchase all of the packaging material referenced
on Schedule 1.9, but shall, prior to Closing, specify the amount of
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packaging material, if any, it wishes to acquire.
3.3.1 Purchaser may reject and deduct from the Inventory List any items
that do not reasonably meet the standards set forth in Section
6.1.12 and cannot reasonably be expected to meet such standards
on or prior to the Closing Date.
3.3.2 Sellers shall then revise the Inventory List to reflect
adjustments made by the parties under this Section 3.3 (the
"Revised Inventory List"). The Revised Inventory List shall
represent the items in the Inventory, including the packaging
material Purchaser wishes to acquire, as of the last business day
before the Closing Date, shall include a calculation of the total
value of the items listed thereon (the "Revised Inventory
Amount") and shall be appended to this Agreement as Schedule
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3.3.2.
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3.3.3 Purchaser shall pay the Revised Inventory Amount to Sellers at
the Closing in the manner set forth in Section 4.3. For the
purposes of calculating the values of the items listed on the
Revised Inventory List, the following criteria shall be employed:
3.3.3.1 Raw Materials shall be valued at documented cost to
Orthovita.
3.3.3.2 Packaging materials shall also be valued at documented
cost to Orthovita.
3.3.3.3 Finished Product shall be valued as follows: (a)
Finished Product which has not been delivered to
Purchaser and is the subject of Implant Innovations
Purchase Order No. 6994 or Purchase Order No. 8374
(calling for the purchase of the quantities set forth in
such purchase orders) shall be valued based on the
number of units multiplied by the unit value as
established under the Distribution Agreement; (b)
Finished Product which has not been delivered to
Purchaser and is the subject of any new Implant
Innovations purchase orders mutually agreed upon and
entered into by the parties after the Signing Date shall
be valued based on the number of units multiplied by the
unit value as established under the Distribution
Agreement; and (c) Finished Product other than the
foregoing, shall be valued based on the number of units
multiplied by the sum of the documented cost per unit
plus fifteen percent (15%) of such documented cost.
3.3.3.4 Any Packaged Product which cannot be converted into
Finished Product prior to the Closing Date shall be
properly disposed of by Purchaser as waste product at
Purchaser"s expense, unless the parties mutually agree
otherwise.
3.4 Distribution Agreement Amount. On the Closing Date (as defined below),
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Purchaser shall pay to Sellers all amounts owed by Purchaser to Sellers,
net of any amount owed by Sellers to Purchaser, under the Distribution
Agreement (the "Distribution Agreement Amount") for Finished Product
purchased by Purchaser and delivered by Sellers in accordance with the
Distribution Agreement. Purchaser shall pay the Distribution Agreement
Amount to Sellers in the manner set forth in Section 4.3.
3.5 Allocation. Sellers and Purchaser agree that the portion of the purchase
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price referred to in Section 3.1(a) shall be allocated to the various
categories of Transferred Assets in
accordance with the attached Schedule 3.5. The parties agree that the
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values assigned to the various categories of the Transferred Assets as
set forth in Schedule 3.5 are fair and reasonable values for such assets
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purchased.
3.6 Technical Assistance. During the period of six (6) months following the
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Closing Date (as defined below), Sellers shall make up to two employees
reasonably available to provide technical support for the manufacture of
the Finished Product at the Purchaser"s reasonable request, at times and
places agreed to by the parties; provided, however, that Purchaser shall
pay (i) all reasonable out-of-pocket costs and expenses (including
travel, lodging and other similar expenses) of such Sellers" employees
incurred in connection with providing such technical support, such
amount not to exceed $10,000 without Purchaser"s prior approval, and
(ii) $850 per day for each of Sellers" employees used in connection with
providing technical support services to Purchaser in excess of twenty
(20) total work days during this six (6) month period.
3.7 Right of First Refusal for New Products. If during the period from the
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Closing Date (as defined below) to April 29, 2003, a Seller develops or
obtains transferable rights to a new product(s) that (a) includes
bioactive glass granules as an active component, except for Orthovita"s
current products trademarked as (i) CORTOSS(TM) and (ii) ORTHOCOMP(TM)
described on Schedule 3.7, and (b) has application in the dental
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surgical field (the "New Product"), Purchaser shall have the right of
first refusal to distribution rights for the New Product in such field.
Such Seller shall provide to Purchaser timely notice that the New
Product is available for distribution (the "New Product Notice") and
Purchaser shall have seven (7) business days from receipt of the New
Product Notice to provide written notice to Seller providing whether it
has an interest or has no interest in the New Product (the "Interest
Notice"). If the Interest Notice provides that the Purchaser has no
interest in the New Product, Seller shall have no further obligation to
provide any rights to Purchaser with respect to the New Product. If the
Interest Notice provides that the Purchaser has an interest in the New
Product, Seller will have seven (7) business days to provide written
notice to Purchaser that describes the terms and conditions under which
such Seller is prepared to grant the rights regarding the New Product to
Purchaser (the "Terms Notice"). Upon Purchaser"s receipt of the Terms
Notice, the parties shall enter into good faith negotiations regarding
the New Product. If the parties are unable to reach a mutually
acceptable arrangement for Purchaser to distribute the new product
within 60 days after Purchaser receives the Terms Notice, Seller may
enter into an agreement with any third party to distribute the New
Product, except that Seller shall not offer the New Product to a third
party on terms that on balance are more favorable to that third party
than the terms offered by Seller to Purchaser.
ARTICLE IV
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CLOSING
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4.1 Location, Date. Unless the parties agree in writing to another date or
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place, the closing of the transactions contemplated by this Agreement
("Closing") shall be held at the offices of Xxxxxx, Xxxxx & Xxxxxxx LLP
in Philadelphia, Pennsylvania, at 10:00 a.m., local time, on the date
(the "Closing Date") that is the earlier of (a) ninety (90) days after
Purchaser receives from Sellers (1) Orthovita"s certificate and written
declaration of conformity for Finished Product and (2) the written
report of TNO (Orthovita"s current Notified Body for the Finished
Product) on the recently performed Design Examinations on Finished
Product or (b) the later of (i) five (5) business days after Purchaser
receives written notification from its Notified Body that the CE
Certificate for the Finished Product will be issued in the Purchaser"s
name or (ii) Sellers' delivery to Purchaser of all quantities of
Finished Product set forth in Purchase Order No. 6994 and Purchase Order
No. 8374.
4.2 Sellers" Obligations. On the Closing Date, Sellers shall deliver to
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Purchaser:
4.2.1 the executed Biogran(R) Patent Assignments in substantially the
form of the attached Schedule 4.2A;
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4.2.2 the executed Biogran(R) Regulatory Approvals Assignments in
substantially the form of the attached Schedule 4.2B;
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4.2.3 the executed Biogran(R) Trademark Assignments in substantially
the form of the attached Schedule 4.2C;
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4.2.4 the executed Escrow Agreement in substantially the form of the
attached Exhibit 4.2D (the "Escrow Agreement");
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4.2.5 the executed Xxxx of Sale in substantially the form of the
attached Exhibit 4.2E;
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4.2.6 the executed Distribution Termination Agreement in
substantially the form of the attached Exhibit 4.2F;
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4.2.7 the executed Assignment of Contracts in substantially the form
of the attached Exhibit 4.2G;
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4.2.8 an opinion dated the date of the Closing in form and substance
satisfactory to Purchaser in substantially the form of the
attached Exhibit 4.2H;
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4.2.9 a copy of the executed Agreement between Orthovita and Vita
Licensing regarding the termination of the Vita Licensing, Inc.
License to Orthovita dated June 28, 1999;
4.2.9 copies of all files and other data and documents pertaining to
the Biogran(R) Know-How, Biogran(R) Trademarks, Biogran(R)
Patents and Biogran(R) Regulatory Approvals (which, if
requested by Purchaser, shall be shipped to a location
designated by Purchaser at Purchaser"s expense); and
4.2.10 the resolutions duly adopted by the Board of Directors of each
Seller evidencing the taking of all corporate action necessary
to authorize the execution, delivery and performance of this
Agreement and the other transaction documents and the
consummation of the transactions contemplated hereby and
thereby.
4.3 Purchaser's Obligations. On the Closing Date, Purchaser shall:
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4.3.1 deliver to Vita Licensing the sum of Three Million Five Hundred
Thousand Dollars ($3,500,000) in the form of a wire transfer
executed in accordance with Vita Licensing wiring instructions
provided by Sellers in Schedule 4.3.1;
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4.3.2 execute and deliver the Escrow Agreement in substantially the
form of Exhibit 4.2D and deliver to Chase Manhattan Trust
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Company, N.A. (the "Escrow Agent") the sum of Four Hundred
Thousand Dollars ($400,000) by a cashier"s check or wire
transfer, which sum shall be held in escrow by the Escrow Agent
pursuant to the Escrow Agreement;
4.3.3 execute and deliver the Distribution Termination Agreement in
substantially the form of the attached Exhibit 4.2F;
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4.3.4 deliver to Sellers an opinion dated the date of the Closing in
form and substance satisfactory to Sellers in substantially the
form of the attached Exhibit 4.3A;
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4.3.5 deliver to Orthovita an amount equal to the Revised Inventory
Amount plus the Distribution Agreement Amount by cashier"s
check or wire transfer executed in accordance with the
Orthovita wiring instructions in Schedule 4.3.1;
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4.3.6 deliver to Sellers proof of filing an amended registration with
the U.S. Food and Drug Administration evidencing the addition
of Finished Product to Purchaser"s registration; and
4.3.7 deliver to Sellers the resolutions duly adopted by the Board of
Directors of Purchaser evidencing the taking of all corporate
action necessary to authorize the execution, delivery and
performance of this Agreement and the other transaction
documents and the consummation of the transactions contemplated
hereby and thereby.
ARTICLE V
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COVENANTS AND AGREEMENTS
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5.1 Cooperation. Prior to the Closing Date, the Purchaser will use
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commercially reasonable efforts to obtain a CE Xxxx for the Finished
Product. Sellers will cooperate in good faith with Purchaser to obtain
such CE Xxxx, including (a) providing to Purchaser or its designee as
soon as reasonably practicable the documents listed in Section 4.1 and
(b) providing to Purchaser or its designee as soon as reasonably
practicable any other documentation required to achieve the same.
Sellers shall provide to Purchaser, Purchaser"s Notified Body for the
Finished Product (mdc, medical device certification GmbH), and
Purchaser"s other regulatory authority representatives reasonable access
to (a) Orthovita's technical files relating to Biogran(R) Regulatory
Approvals, (b) Orthovita"s device history and quality records relating
to the Finished Product and (c) copies of such documents. Sellers shall
retain these records for a period that, after the expiration date of the
last lot of Finished Product manufactured by Orthovita, is the greater
of (i) two years
or (ii) the life of the Finished Product. Except as to the delivery of
documents contemplated by Section 4.1, Purchaser shall reimburse Sellers
for all out-of-pocket costs incurred by Sellers as a result of Sellers"
assistance in connection with Purchaser"s request for assistance with
such CE Xxxx. All regulatory filings for regulatory approvals after the
Closing Date shall be the sole responsibility and at the expense of the
Purchaser.
5.2 Conduct of Business Pending Closing. Prior to the Closing Date, and
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unless Purchaser shall otherwise consent or agree in writing, the
Sellers covenant and agree that:
5.2.1 Sellers will engage in the manufacture of Finished Product in
the ordinary course of business and consistent with past
practice, except that the Sellers shall not be required to take
any action to purchase raw materials or commission manufacture
of Finished Product unless Sellers receive prior written
consent or instruction from Purchaser to do so;
5.2.2 Sellers will not incur, create, assume or suffer to exist any
license (other than the existing license between Orthovita and
Vita Licensing set forth on Schedule 1.6), mortgage, pledge,
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lien, restriction, encumbrance, tenancy, encroachment,
covenant, condition, right-of-way, easement, claim, security
interest, charge or other matter affecting title on any of the
Transferred Assets or waive any right relating to the
Transferred Assets;
5.2.3 Sellers shall not (a) modify, amend, extend, renew or terminate
any of the Contracts or enter into any new contracts relating
to the Transferred Assets or (b) make purchases relating to the
Transferred Assets or the Finished Product in an amount greater
than $25,000, except with respect to consents or instructions
from Purchaser in accordance with Section 5.2.1;
5.2.4 Sellers shall keep the Biogran(R) Regulatory Approvals in full
force and effect and renew any of them that will expire on or
before the Closing Date;
5.2.5 Sellers shall conduct the business in such a manner so that the
representations and warranties contained in Article 6 shall
continue to be true and correct on and as of the Closing Date
as if made on and as of the Closing Date;
5.2.6 Sellers shall make all reasonable efforts to provide
information about the Transferred Assets and Finished Products
to the Purchaser that is reasonably requested;
5.2.7 Sellers shall maintain in force (including necessary renewals)
any existing insurance policies covering the Transferred
Assets, except to the extent that they may be replaced with
equivalent policies appropriate to insure the Transferred
Assets;
5.2.8 Sellers shall inform Purchaser prior to the Closing of any
updates to the Schedules to this Agreement as necessary to
cause the information contained in them to continue to be
accurate up to and including the Closing Date;
5.2.9 Sellers will not take any action or omit to take any action
which will result in a violation of any applicable law or cause
a breach of any agreements, contracts or commitments;
5.2.10 Sellers shall not (a) solicit, initiate or encourage the
submission of a competing proposal to purchase the Transferred
Assets, (b) enter into or agree to enter into any contract to
sell the Transferred Assets, or (c) participate in any
discussions or negotiations that would reasonably be expected
to lead to such a contract; or
5.2.11 Sellers shall not enter into any agreement to do or not to do
any of the foregoing, as the case may be.
5.3 Conditions Precedent to Obligations of Purchaser. The obligations of
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Purchaser to proceed with the Closing under this Agreement are subject
to the fulfillment prior to or at Closing of the following conditions
(any one or more of which may be waived in whole or in part by Purchaser
in Purchaser's sole discretion):
5.3.1 Bringdown of Representations and Warranties. Sellers"
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representations and warranties contained in this Agreement
shall be true and correct on and as of the time of Closing,
with the same force and effect as though such representations
and warranties had been made on, as of and with reference to
such time, and Purchaser shall have received a certificate to
such effect signed by each Seller.
5.3.2 Performance and Compliance. The Sellers shall have performed
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all of the covenants and complied with all of the provisions
required by this Agreement to be performed or complied with by
them on or before the Closing.
5.3.3 Satisfactory Instruments. All instruments and documents
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required on the Sellers' part to effectuate and consummate the
transactions contemplated hereby shall have been delivered to
Purchaser and shall be in form and substance reasonably
satisfactory to Purchaser and its counsel.
5.4 Conditions Precedent to Obligations of Sellers. The obligations of
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Sellers to proceed with the Closing under this Agreement are subject to
the fulfillment prior to or at Closing of the following conditions (any
one or more of which may be waived in whole or in part by Sellers in
Sellers" sole discretion):
5.4.1 Bringdown of Representations and Warranties. Purchaser"s
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representations and warranties contained in this Agreement
shall be true and correct on and as of the time of Closing,
with the same force and effect as though such representations
and warranties had been made on, as of and with reference to
such time, and Sellers shall have received a certificate to
such effect signed by Purchaser.
5.4.2 Performance and Compliance. The Purchaser shall have performed
all of the covenants and complied with all of the provisions
required by this Agreement to be performed or complied with by
it on or before the Closing Date.
5.4.3 Satisfactory Instruments. All instruments and documents
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required on the Purchaser"s part to effectuate and consummate
the transactions contemplated hereby shall have been delivered
to Sellers and shall be in form and substance reasonably
satisfactory to Sellers and their counsel.
5.5 Finished Product Complaints; Recalls. The Sellers shall cooperate in
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good faith with the Purchaser in matters regarding traceability of the
Finished Product, complaints regarding the Finished Product, the
vigilance system regarding the Finished Product and recalls (whether
mandatory or voluntary) regarding the Finished Product. Each party shall
provide information and data as reasonably required by the other party
with respect to such matters and shall cooperate fully with the other
party in order to permit the other party to meet its reporting
requirements under applicable law.
5.5.1 The decision to conduct a recall belongs solely to Sellers as
it relates to Finished Product manufactured by Sellers prior to
and on the Closing Date.
5.5.2 The decision to conduct a recall belongs solely to Purchaser as
it relates to Finished Product manufactured by Purchaser after
the Closing Date.
5.5.3 The parties will cooperate fully with each other in effecting
any recall of the Finished Product pursuant to this Section
5.5, including communications with any purchasers or users of
the Finished Product.
5.5.4 Sellers shall bear all costs and expenses of any recall of the
Finished Product manufactured by Sellers on or before the
Closing Date and Purchaser shall bear all costs and expenses of
any recall of the Finished Product manufactured by Purchaser
after the Closing Date.
5.6 Sale of Product. After the Closing Date, Sellers agree that they shall
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not make, use, or sell any Finished Product until the expiration date of
the last to expire of the Biogran" Patents.
5.7 Packaging and Labeling. If Purchaser, despite commercially reasonable
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efforts, is unable to obtain packaging materials without Sellers' name
and/or logo prior to the Closing Date, Sellers agree to allow Purchaser
to use, for a reasonable period of time, Sellers' packaging materials
with Sellers' name and/or logo in connection with its manufacture and
sale of the Finished Product, provided that Purchaser places Purchaser's
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label (a) securely and completely over the Sellers' name and/or logo
(other than the packaging trays embossed with Sellers' name and/or logo)
and (b) does so in compliance with all applicable regulatory
requirements until Purchaser is able to obtain packaging materials
without Sellers' name and/or logo.
5.8 Exchange of Information and Confidentiality. This Agreement contemplates
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the exchange of certain confidential and proprietary information
relating to the Finished Product and the Transferred Assets by one party
(the "Disclosing Party") to the other party (the "Receiving
Party") in the negotiations leading up to this Agreement and in the
period between the Signing Date and the Closing Date.
5.8.1 During the period between the Signing Date and the Closing
Date, with respect to the Confidential Information of the
Disclosing Party, each party, shall (a) use the respective
Confidential Information only for the purpose of performing
its duties or exercising its rights under this Agreement
and for no other purpose, subject to the terms and
conditions of this Agreement; (b) safeguard the respective
Confidential Information against disclosure to others with
the same degree of care as it exercises with its own data
of a similar nature; and (c) not disclose the respective
Confidential Information to others (except to those who are
bound by a like obligation of confidentiality and
restriction on use) without the express written consent of
the other party.
5.8.2 The obligations of Section 5.8.1 shall not apply to that
Confidential Information of the Disclosing Party which: (a)
the Receiving Party can demonstrate by written records was
previously known to it; (b) is now, or in the future
becomes, public knowledge other than through the acts or
omissions of the Receiving Party; and (c) the Receiving
Party is required to disclose by law or pursuant to the
direction of a court or government agency, provided the
Disclosing Party is first given a reasonable opportunity to
contest such disclosure.
5.8.3 Nothing contained herein is intended to prevent either
party from using the Confidential Information to obtain
necessary or appropriate regulatory approvals, to execute
or obtain patent rights in connection with the Transferred
Assets, or to use such Confidential Information in
disclosure instruments prepared by the parties to comply
with applicable securities laws.
5.8.4 Except as otherwise set forth in this Agreement, the
furnishing of the Confidential Information of the
Disclosing Party to the Receiving Party shall not
constitute any grant or license to the Receiving Party
under any legal rights now or hereinafter held by the
Disclosing Party.
5.8.5 The obligations of this Section 5.8 shall survive the
termination of this Agreement.
5.9 Marketing Materials. Purchaser shall be required to make its own
-------------------
determination whether the Marketing Materials are appropriate and
suitable for Purchaser's use in connection with the sale and
marketing of the Finished Product after the Closing Date.
5.9 CE Xxxx. Purchaser has in place valid certifications for ISO-9001 and
-------
EN-46001 and will maintain such certifications up to and including
the Closing Date in order to facilitate obtaining Purchaser's CE Xxxx
for the Finished Product.
5.10 Trademark Use. Other than as set forth in Section 5.7 and Purchaser"s
-------------
use and ownership of the Biogran(R) Trademarks, neither party shall,
without written permission from the other,
use in any manner any trademark, trade name, design, symbol, logo
styles, service xxxx, emblem or other xxxx owned by the other party;
except as packaging of certain of the Inventory manufactured by
Sellers and transferred hereunder may currently have such trademark,
trade name, design, symbol, logo styles, service xxxx, emblem or
other xxxx affixed to it as of the Closing Date.
5.11 Covenant Not To Xxx. Sellers hereby agree to grant Purchaser,
-------------------
effective on the Closing Date, a covenant not to xxx Purchaser with
respect to its manufacture, distribution or sale of Finished Product
for infringement of any issued patents or patent applications owned
by Sellers.
5.12 Product Liability Insurance. After the Closing Date, Sellers shall
---------------------------
maintain tail coverage with respect to its product liability
insurance with coverage of at least $1 million per claim and $3
million in the aggregate to cover any product liability claims
arising from Finished Product manufactured by Sellers. Sellers shall
provide, as soon as reasonably practicable, a copy of the certificate
of insurance related to such insurance coverage and shall provide
prompt notice to Purchaser of any change in such insurance.
5.13 Taxes and Unemployment Compensation. Sellers hereby agree to pay all
-----------------------------------
taxes and unemployment compensation contributions due for all periods
prior to the Closing.
ARTICLE VI
----------
REPRESENTATIONS AND WARRANTIES
------------------------------
6.1 Representations and Warranties of Sellers. Sellers, jointly and
-----------------------------------------
severally, hereby represent and warrant to Purchaser that, as of the
Signing Date:
6.1.1 Corporate Status of Orthovita. Orthovita is a corporation
-----------------------------
duly incorporated and in good standing under the laws of the
Commonwealth of Pennsylvania, and has all requisite power and
authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby.
6.1.2 Corporate Status of Vita Licensing. Vita Licensing is a
----------------------------------
corporation duly incorporated and in good standing under the
laws of the State of Delaware, and has all requisite power and
authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby.
6.1.3 Authority Relative to Agreement. The execution, delivery
-------------------------------
and performance of this Agreement by Sellers and the
consummation by Sellers of the transactions contemplated
hereby have been duly authorized by all necessary corporate
action, and this Agreement constitutes the legal, valid and
binding obligation of Sellers, enforceable against Sellers in
accordance with its terms, except as limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting
creditors' rights, and (ii) equitable principles generally and
limitations on the availability of equitable remedies.
6.1.4 Brokers and Finders. Neither Sellers nor any person, firm
-------------------
or corporation acting on
their respective behalf has employed any broker, agent or
finder or incurred any liability for any brokerage fees,
agents' commissions or finders' fees in connection with the
transactions contemplated herein.
6.1.5 Pending Actions. Except as disclosed in Schedule 6.1.5,
--------------- --------------
there are no claims, actions, proceedings, or investigations
pending or, to Sellers' Knowledge, threatened, against or
relating to the Transferred Assets or the Finished Product,
before any court, tribunal or regulatory body.
6.1.6 Title to Properties; Encumbrances. Sellers have good and
---------------------------------
marketable title in the Transferred Assets free and clear of
any and all liens, pledges, claims, charges, security
interests or other encumbrances. Vita Licensing and Orthovita
are the assignees of the Biogran(R) Patents, and Orthovita is
the owner of the Biogran(R) Know-How, the Biogran(R)
Trademarks, the Biogran(R) Regulatory Approvals, the Equipment
and the Inventory.
6.1.7 Equipment. To Orthovita's Knowledge, the Equipment is in
---------
good operating condition and repair (ordinary wear and tear
excepted), is not in need of any repair or maintenance (other
than normal and routine repair and maintenance) and it is
suitable and appropriate for the current use thereof made by
Orthovita in connection with manufacturing Finished Product.
ORTHOVITA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES
WITH RESPECT TO THE EQUIPMENT, EXPRESS OR IMPLIED. ORTHOVITA
SHALL NOT HAVE ANY LIABILITY TO PURCHASER, ITS CUSTOMERS,
FINISHED PRODUCT END-USERS OR ANY OTHER PERSON OR ENTITY FOR
ANY DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF THE USE OR PERFORMANCE OF THE EQUIPMENT ON OR
AFTER THE CLOSING DATE.
6.1.8 Liabilities. Other than listed in Schedule 1.6 and
-----------
Schedule 6.1.5, Sellers have no outstanding claims,
liabilities or indebtedness, contingent or otherwise, relating
to the Transferred Assets.
6.1.9 Transferred Assets Complete. The Transferred Assets
---------------------------
constitute all of the material assets and rights owned by the
Sellers relating to the manufacture, marketing and sale of the
Finished Product. Upon the transfer of the Transferred Assets
(other than any required regulatory approvals, Biogran(R)
Know-How and Biogran(R) Patents) to the Purchaser, the
Purchaser will have all of the material assets and rights
necessary to manufacture, market and sell Finished Product.
Upon the transfer of the Biogran(R) Regulatory Approvals to
the Purchaser, the Purchaser will have all of the material
assets and rights necessary to manufacture, market and sell
Finished Product in the United States and the European Union.
To Sellers" Knowledge, upon the transfer of the Biogran(R)
Know-How and Biogran(R) Patents to the Purchaser, the
Purchaser will own all of the intellectual property rights
necessary to manufacture, market and sell the Finished
Product.
6.1.10 Suppliers. The relationships of Orthovita with its
---------
suppliers currently used to manufacture and package the
Finished Product, identified in Schedule 6.1.10, are good
---------------
commercial working relationships and (i) none of these
suppliers have within the last 12 months threatened to cancel
or otherwise terminate, or to the Knowledge of Orthovita,
intend to cancel or terminate, the relationship of such
supplier with Orthovita, (ii) none of these suppliers have
during the last 12 months decreased materially or threatened
to decrease or limit materially any supply to Orthovita, or to
the Knowledge of Orthovita, intend to modify materially its
relationship with the Orthovita in connection with the
Finished Product or any of the Transferred Assets, (iii) none
of these suppliers have informed Orthovita of regulatory
matters that would preclude the continued manufacture of
Finished Product, and (iv) to the Knowledge of Orthovita, the
consummation of the transactions contemplated hereby will not
materially affect the ability of any of these suppliers to
provide supplies related to Finished Product. Vita Licensing
does not have a relationship with any of the suppliers set
forth in Schedule 6.1.10.
---------------
6.1.11 Compliance with Laws. Sellers are in compliance, and have
--------------------
not received any notice of any alleged violation, of any
applicable federal, state or local law, ordinance, regulation,
order, judgment or other requirement of any governmental or
regulatory body, court or arbitrator, which violation could
have a material adverse effect on the condition of the
Transferred Assets or the Finished Product. Orthovita
currently has all Biogran(R) Regulatory Approvals necessary to
manufacture, market and sell the Finished Product in the
United States and the European Union and such regulatory
approvals have not been withdrawn or revoked. No material
violations exist in respect of any Biogran(R) Regulatory
Approval and no proceeding is pending or, to Sellers"
Knowledge, threatened, to revoke or limit any Biogran(R)
Regulatory Approval.
6.1.12 Inventory. The Finished Product described on Schedule 3.3.2
--------- --------------
manufactured by Orthovita or its designee has been
manufactured, stored, packaged, and labeled by Orthovita or
its designee in accordance with applicable warranties and
Specifications. The Finished Product is of merchantable
quality, fit for the purpose intended and free of defects in
design and manufacture. The raw material described on the list
of Inventory is suitable for use in and in condition for the
manufacture of Finished Product in conformity with applicable
warranties and Specifications. The list of Inventory, listed
on Schedule 3.3.2, is true and correct in all material
--------------
respects. To Orthovita's Knowledge, there are no adverse
conditions materially affecting the supply of items of
Inventory. EXCEPT FOR THE FOREGOING AND THE REPRESENTATIONS
AND WARRANTIES OF ORTHOVITA SET FORTH IN THIS SECTION 6.1,
ORTHOVITA MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO
INVENTORY, EITHER EXPRESS OR IMPLIED, BY FACT OR LAW, OTHER
THAN ORTHOVITA'S IMPLIED WARRANTIES OF TITLE, FREEDOM FROM
ENCUMBRANCE, AND RIGHT TO TRANSFER SAME.
6.1.13 Tax Matters. Sellers have filed all federal, state, county,
-----------
local and other tax returns, reports and forms that each
Seller is required to file with respect to the
Transferred Assets. There are no present disputes as to taxes
of any nature payable by Sellers with respect to the
Transferred Assets.
6.1.14 Studies and Information. All written information provided
-----------------------
by Sellers to Purchaser regarding the safety and efficacy of
the Finished Product, identified in Schedule 6.1.14, is true
---------------
and accurate in all material respects.
6.1.15 Full Disclosure. The material documents and other papers
---------------
delivered by or on behalf of Sellers in connection with this
Agreement are true, complete and authentic. None of the
Sellers' representations or warranties contained in this
Agreement contain an untrue statement of a material fact or
omit to state a material fact necessary to prevent the
statements, in the context in which made, from being
materially false or misleading. There are no material facts
that were not disclosed to the Purchaser in writing that would
have a material adverse effect on the condition of the
Transferred Assets or the ability of the Sellers to perform
their material obligations under this Agreement.
6.1.16 No Breach. The execution, delivery and performance of this
---------
Agreement by the Sellers and the consummation of the
transactions contemplated hereby by the Sellers will not (a)
violate, conflict with or result in the breach of any
provision of the Articles of Incorporation or Bylaws of each
Seller; (b) violate or result in the material breach of any of
the terms of any material contract to which a Seller is a
party or to which it or any of the Transferred Assets may be
bound or subject; (c) violate any statute, law or regulation
of any jurisdiction; or (d) violate or result in the
revocation, invalidity or suspension of any Biogran(R)
Regulatory Approval.
6.1.17 No Third Party Rights. To Sellers' Knowledge, no third
---------------------
party rights are required to manufacture, market or sell the
Finished Product under the Biogran(R) Patents or Biogran(R)
Know-How assigned to Purchaser hereunder. Sellers have not
entered into any arrangements with third parties which would
allow them to circumvent this Agreement and continue to make,
use and sell Finished Product under the Biogran(R) Patents.
6.1.18 Intellectual Property. To Sellers' Knowledge, all
---------------------
Biogran(R) Patents, Biogran(R) Trademarks, and Biogran(R)
Know-How that are used with or incorporated into the Finished
Product are owned exclusively by Sellers, free and clear of
claims or rights of any other person or entity. To Sellers'
Knowledge, the use, development, manufacture, or sale of
Finished Product by the Purchasers will not infringe a valid
claim of any third party patent. Sellers have not communicated
with any third party to the effect that the actions or
products of that third party may conflict with or infringe any
rights of the Sellers under the Biogran(R) Patents, Biogran(R)
Trademarks, or Biogran(R) Know-How. Except as set forth in
Schedule 6.1.5, no claim is pending regarding the Intellectual
--------------
Property. Except as set forth in Schedule 6.1.5, Sellers have
--------------
not received notice from any third party to the effect that
the Finished Product, Biogran(R) Patents, Biogran(R)
Trademarks, or Biogran(R) Know-How infringes upon, may
infringe upon, or conflicts with the rights of the third party
or any other persons
and, to Sellers' Knowledge, there is no basis for any such
claim (whether or not pending or threatened). Except as set
forth in Schedule 6.1.5, Sellers have not received any written
--------------
communication from any third party to the effect that any of
the Biogran(R) Patents or Biogran(R) Trademarks may be invalid
or unenforceable and to Sellers' Knowledge, there is no basis
for any such claim (whether or not pending or threatened).
6.1.19 Consents. No consents are required of any third party for
--------
the Sellers to enter into this Agreement or sell the
Transferred Assets.
6.1.20 Contracts and Other Agreements. Schedule 1.6, Subsection B
------------------------------ --------------------------
sets forth all of the material contracts, oral agreements, and
other commitments relating to the manufacture and sale of the
Finished Product and use of the Transferred Assets to which
the Sellers are a party or by or to which any of the
Transferred Assets are bound. Neither Seller is in default
under any Contract, nor is any other party to any Contract in
default, nor does any condition exist that with notice or
lapse of time or both would constitute a default under any
Contract. Schedule 1.6, Subsection B also lists and describes
--------------------------
the status of all Contracts currently in negotiation or
proposed by each Seller relating to the Finished Product or
the Transferred Assets that would be required to be listed on
Schedule 1.6, Subsection B if entered into by a Seller.
--------------------------
6.2 Representations and Warranties of Purchaser. Purchaser hereby
-------------------------------------------
represents and warrants to Sellers that, as of the Signing Date:
6.2.1 Corporate Status of Purchaser. Purchaser is a corporation duly
-----------------------------
incorporated, validly existing and in good standing under the
laws of Florida, and has all requisite power and authority to
enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated
hereby.
6.2.2 Authority Relative to Agreement. The execution, delivery and
-------------------------------
performance of this Agreement by Purchaser and the
consummation by Purchaser of the transactions contemplated
hereby have been duly authorized by all necessary corporate
action, and this Agreement constitutes the legal, valid and
binding obligation of Purchaser, enforceable in accordance
with its terms, except as limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting
creditors' rights, and (ii) equitable principles generally and
limitations on the availability of equitable remedies.
6.2.3 Brokers and Finders. Neither Purchaser nor any person, firm or
-------------------
corporation acting on its behalf has employed any broker,
agent or finder or incurred any liability for any brokerage
fees, agents' commissions or finders' fees in connection with
the transactions contemplated herein.
6.2.4 CE Xxxx. To Purchaser's Knowledge, Purchaser should receive in
-------
a timely manner the written notification from its Notified
Body that the CE Certificate for the Finished Product will be
issued in the Purchaser"s name, provided that Purchaser
receives in a
timely manner the documents Sellers are required to deliver
under Section 4.1.
6.2.5 No Breach. The execution, delivery and performance of this
---------
Agreement by the Purchaser and the consummation of the
transactions contemplated hereby by the Purchaser will not (a)
violate, conflict with or result in the breach of any
provision of the Articles of Incorporation or Bylaws of the
Purchaser; (b) violate or result in the material breach of any
of the terms of any material contract to which Purchaser is a
party; or (c) violate any statute, law or regulation of any
jurisdiction.
6.2.6 Consents. No consents are required of any third party for the
--------
Purchaser to enter into this Agreement and purchase the
Transferred Assets.
ARTICLE VII
-----------
SURVIVAL OF REPRESENTATIONS; INDEMNITY
--------------------------------------
7.1 Survival of Representations. The respective representations and
---------------------------
warranties of the parties contained in this Agreement and the
obligations to indemnify and hold harmless pursuant to this Article
shall survive the consummation of the transactions contemplated hereby.
7.2 Sellers' Indemnifications. Sellers, jointly and severally, agree to
-------------------------
indemnify and hold harmless Purchaser and each of its affiliates,
officers, directors, employees, agents, successors and assigns
(collectively with Purchaser, "Purchaser's Indemnified Persons") from,
against and in respect of all damages, losses or expenses suffered or
paid, directly or indirectly, as a result of any and all third party
claims, demands, suits, causes of action, proceedings, judgments and
liabilities, including reasonable counsel fees and expenses incurred in
litigation or otherwise, assessed, incurred or sustained by or against
Purchaser's Indemnified Persons with respect to or arising out of (i)
each of the actions listed in Schedule 6.1.5; (ii) any sales, use,
--------------
excise or transfer taxes which may be imposed in connection with the
Transferred Assets on or before the Closing Date; (iii) Sellers'
operation of the Transferred Assets on or before the Closing Date; (iv)
any Finished Product manufactured by Orthovita or its designee on or
before the Closing Date; (v) any infringement of third party rights
resulting from Sellers' manufacture or sale of Finished Product on or
before the Closing Date; and (vi) Sellers' promotion, distribution,
marketing or sale of the Finished Product on or before the Closing
Date.
7.3 Purchaser's Indemnifications. Purchaser agrees to indemnify and hold
----------------------------
harmless Sellers and each of their affiliates, officers, directors,
employees, agents, successors and assigns (collectively with Sellers,
"Sellers' Indemnified Persons") from, against and in respect of all
damages, losses or expenses suffered or paid, directly or indirectly,
as a result of any and all third party claims, demands, suits, causes
of action, proceedings, judgments and liabilities, including reasonable
counsel fees and expenses incurred in litigation or otherwise,
assessed, incurred or sustained by or against Sellers' Indemnified
Persons with respect to or arising out of (i) any Finished Product
manufactured by Purchaser or its designee after the Closing Date; (ii)
any sales, use, excise or transfer taxes which
may be imposed for operating the Transferred Assets after the Closing
Date; (iii) Purchaser's operation of the Transferred Assets after the
Closing Date; (iv) except as to matters identified in Schedule 6.1.5 or
--------------
matters relating to a breach of a representation or warranty of Sellers
relating to intellectual property under Section 6.1.18 of this
Agreement, any infringement of third party rights resulting from
Purchaser's manufacture or sale of Finished Product after the Closing
Date; and (v) Purchaser's promotion, distribution, marketing or sale of
the Finished Product after the Closing Date.
7.4 Mutual Indemnifications. Each party agrees to indemnify and hold
-----------------------
harmless Sellers' Indemnified Persons or Purchaser's Indemnified
Persons, as the case may be, from, against and in respect of all
damages, losses or expenses suffered or paid, directly or indirectly,
as a result of any and all claims, demands, suits, causes of action,
proceedings, judgments and liabilities, including reasonable counsel
fees and expenses incurred in litigation or otherwise, assessed,
incurred or sustained by or against the other with respect to or
arising out of (a) any breach of a covenant or agreement in this
Agreement by that party or (b) the failure of any representation or
warranty made by such party in this Agreement to be true and correct in
all respects as of the Closing Date.
7.5 Deductible. Except as set forth in the second sentence of this Section
----------
7.5, if the Purchaser seeks indemnification under Section 7.2 or 7.4,
it may not make any claim for such indemnification under this Article
against Sellers unless and until the aggregate amount of all such
claims against such Sellers exceed $200,000 (the "Deductible"),
whereupon the Purchaser may claim indemnification for the amount of all
such claims, excluding the Deductible. This Section 7.5 (Deductible)
shall not apply to the actions listed in Schedule 6.1.5 nor shall it
--------------
apply to Seller's breach of its covenant in Section 5.13.
7.6 Procedure for Indemnification.
-----------------------------
7.6.1 In the case of any claim, demand, action or proceeding for
which indemnification is sought pursuant to Sections 7.2, 7.3
or 7.4, the party or parties seeking indemnification (the
"Indemnitee") shall promptly notify the party or parties from
whom indemnification is sought (the "Indemnitor") in writing
of the existence and nature of such claim, demand, action or
proceeding specifying the nature of such claim or demand and
the amount or the estimated amount thereof to the extent then
feasible, which estimate shall not be conclusive of the final
amount of such claim or demand (the "Claim Notice"). No
failure or delay by the Indemnitee in the performance of the
foregoing shall reduce or otherwise affect the obligation of
the Indemnitor to indemnify and hold the Indemnitee harmless.
The Indemnitor shall have ten (10) business days from the date
of delivery of the Claim Notice (the "Notice Period") to
notify the Indemnitee whether or not the Indemnitor disputes
its liability to the Indemnitee hereunder with respect to such
claim or demand and, notwithstanding any such dispute, whether
or not it desires, at its sole cost and expense, to defend the
Indemnitee against any such claim or demand.
7.6.2 If such claim, demand, action or proceeding is by a third
party (a "Claim"), the Indemnitee hereby agrees that it shall
give the Indemnitor a reasonable opportunity to defend the
same or prosecute such action to conclusion or settlement
satisfactory to the Indemnitor at its sole cost and expense
and with counsel of its own selection (who shall be approved
by the Indemnitee, which approval shall not be unreasonably
withheld) and the Indemnitor shall pay any resulting
settlements, judgments or decrees. If the Indemnitor controls
the defense of any such claim, allegation, suit or proceeding,
the Indemnitor shall vigorously defend such claim, allegation,
suit or proceeding. The Indemnitee shall at all times also
have the right fully to participate in the defense at
Indemnitee's sole costs and expense so long as such
participation occurs without hindering or impairing the
defense of the Indemnitor. If the Claim is one that cannot by
its nature be defended solely by the Indemnitor, the
Indemnitee shall make available all information and assistance
that the Indemnitor may reasonably request; provided, however,
-------- -------
that any associated out-of-pocket expenses shall be paid by
the Indemnitor.
7.6.3 With respect to the matter described as European Patent
Office, Opposition, Number T-0307/99-332 on Schedule 6.1.5 to
--------------
this Agreement (the "Existing Matter"), Purchaser shall
control the prosecution and defense of the Existing Matter,
provided that Purchaser (a) retains Sellers' existing counsel
Xxxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxx & Xxxxxx LLP and Ablett &
Stebbing ("Existing Counsel") in connection with such Existing
Matter, (b) shall within seven (7) business days promptly
submit all invoices relating to costs of defense of the
Existing Matter to Sellers (in which case, Sellers shall,
within thirty (30) days of receipt, remit its payment to
Purchaser), and (c) provides Sellers the opportunity to
participate in settlement discussions, if any, with respect to
the Existing Matter. Any settlement of the Existing Matter
shall be subject to Sellers' prior written consent, not to be
unreasonably withheld. If Purchaser does not retain the
Existing Counsel, Purchaser may control the prosecution and
defense of the Existing Matter but Sellers shall only be
required to pay up to $25,000 for legal costs and expenses
with respect to the Existing Matter.
7.6.4 If the Indemnitor elects not to defend the Indemnitee against
a claim or demand, either by written notice or by failure to
respond within the Notice Period, then Indemnitee may defend
such claim or demand at its sole cost and expense. If any
Indemnitor desires to participate in, but not control, any
such defense it may do so at its sole cost and expense.
Indemnitor shall reimburse Indemnitee for its reasonable costs
and expenses and the amount of any resulting judgment or
settlement.
7.6.5 Prior to the termination of the Escrow Agreement, upon the
determination of a Purchaser's Indemnified Person's right to
indemnification under this Agreement, the Indemnitor and the
Indemnitee shall execute and deliver a joint written
instruction to the Escrow Agent setting forth the amount of
Escrow Funds to be disbursed to the Purchaser's Indemnified
Person.
7.6.6 The indemnification rights under this Section are independent
of and in addition to such rights and remedies as the parties
may have at law or in equity or otherwise for any
misrepresentation, breach of warranty or failure to fulfill
any agreement or covenant hereunder on the part of any party
hereto including, without limitation, the right to seek
specific performance, rescission or restitution, none of which
rights or remedies shall be affected or diminished hereby.
ARTICLE VIII
------------
TERMINATION OF AGREEMENT.
------------------------
8.1 Termination. This Agreement may be terminated prior to the Closing
-----------
Date as follows:
8.1.1 at the election of Purchaser or Sellers, as the case may be,
if the other party has not fulfilled any one or more of the
conditions to its respective obligations to close by the
Closing Date fixed by this Agreement;
8.1.2 at the election of Purchaser or Sellers, as the case may be,
if the other party has breached any material representation,
warranty, covenant or agreement contained in this Agreement
which breach cannot be or is not cured by the Closing Date;
8.1.3 at the election of Purchaser or Sellers, if any legal
proceeding is commenced or threatened by any governmental or
regulatory body or other person directed against the
consummation of the Closing and either Purchaser or Sellers,
as the case may be, reasonably and in good xxxxx xxxxx it
impractical or inadvisable to proceed in view of such legal
proceeding or threat thereof; or
8.1.4 at any time on or prior to the Closing Date, by mutual written
agreement of the Sellers and the Buyer.
8.2 Survival. If this Agreement is terminated in accordance with its
--------
terms and the transactions contemplated hereby are not consummated as
described above, this Agreement shall become void and of no further
force and effect, except for the provisions of Sections 5.8, 8, 9.4
and 9.11.
ARTICLE IX
----------
MISCELLANEOUS
-------------
9.1 Execution in Counterparts. For the convenience of the parties, this
-------------------------
Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same document.
9.2 Notices. All notices which are required or may be given pursuant to
-------
the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered or
mailed by registered mail, certified mail, or express courier,
postage prepaid, or if sent by telex or telefax (in each case
promptly confirmed by registered or certified mail postage prepaid)
as follows:
If to Sellers, to:
Orthovita, Inc.
00 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Chief Operating Officer and
President
Vita Licensing, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000, 9th Floor
MC " DE5403
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Vice President
With a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esquire
If to Purchaser, to:
Implant Innovations, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: President
With a copy to:
Steel, Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. O"Brien, III, Esquire
or such other address as a party hereto shall have designated by notice
in writing to the other parties hereto. Unless otherwise provided
herein, all notices, demands and requests sent in
the manner provided herein shall be effective upon the earlier of
delivery thereof or three days after the mailing thereof by
registered or certified mail.
9.3 Waivers. Either party hereto may, by written notice executed by an
-------
authorized representative and provided to the other party hereto, (a)
extend the time for the performance of any of the obligations or
other actions of the other under this Agreement; (b) waive any
inaccuracies in the representations or warranties of the other party
contained in this Agreement or in any document delivered pursuant to
this Agreement; (c) waive compliance with any of the conditions to
its obligations contained in this Agreement; or (d) waive or modify
performance of any of the obligations of the other party under this
Agreement. Except as provided in the preceding sentence, no action
taken pursuant to this Agreement shall be deemed to constitute a
waiver, by either party taking such action, of compliance with any
representation, warranty, covenant or agreement contained in this
Agreement. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
9.4 Publicity. The parties hereto will consult with each other before
---------
issuing any press release or making any public statement with respect
to this Agreement and the transactions contemplated by this
Agreement, and, except as may be required by applicable law or any
stock exchange regulations, no party shall issue any such press
release or make any such public statement without the consent of the
other parties hereto, which consent shall not be unreasonably
withheld.
9.5 Entire Agreement. This Agreement, together with the Exhibits and
----------------
Schedules hereto, constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof and supersedes all
prior representations, agreements and understandings, oral or
written, by or among the parties hereto with respect to the subject
matter hereof.
9.6 Applicable Law. This Agreement and the legal relations between the
--------------
parties hereto shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
9.7 Jurisdiction. Any judicial proceeding brought against either party to
------------
this Agreement in connection with any dispute arising out of this
Agreement or any matter related hereto may be brought in the federal
or state courts of the Commonwealth of Pennsylvania and, by execution
and delivery of this Agreement, each of the parties to this Agreement
accepts for itself the exclusive jurisdiction of the aforesaid
courts, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement.
9.8 Binding Effect; Benefits. This Agreement shall inure to the benefit
------------------------
of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than
the parties hereto or their respective successors and permitted
assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
9.9 Assignability. Neither this Agreement nor any of the parties' rights
-------------
hereunder shall be assignable by either party hereto without the
prior written consent of the other party hereto.
9.10 U.S. Dollars. Any and all references herein to the word "Dollars" or
------------
the symbol "$" is a reference to United States Dollars.
9.11 Expenses. Each party agrees to pay its transfer, excise or related
--------
taxes payable by reason of the consummation of the transactions
contemplated in this Agreement. Each party shall pay its own legal
fees and disbursements and other expenses incurred in connection with
this Agreement.
9.12 Rights of Third Parties. Nothing in this Agreement shall be construed
-----------------------
as giving any person, firm, corporation or other entity, other than
the parties hereto and their respective successors and permitted
assigns, any right, remedy or claim under or in respect of this
Agreement or any provision hereof.
9.13 Captions; Language. The Article and Section captions used herein are
------------------
for reference purposes only, and shall not in any way affect the
meaning or interpretation of this Agreement. In this Agreement,
unless the context otherwise requires, the singular includes the
plural, the plural, the singular, and the word "or" is used in the
inclusive sense.
9.14 Amendments. This Agreement may not be changed orally, but only by an
----------
agreement in writing signed by Sellers and Purchaser and making
specific reference to this Agreement and Section. Any provision of
this Agreement can be waived, amended, supplemented or modified by
the written agreement of Sellers and Purchaser.
9.15 Severability. In case any provision in this Agreement shall be held
------------
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way
be affected or impaired thereby.
9.16 Cross References; Exhibits. References in this Agreement to Articles,
--------------------------
Sections, Schedules and Exhibits are references to Articles and
Sections of this Agreement and to Schedules and Exhibits attached to
this Agreement. The Schedules and Exhibits are hereby made a part of
this Agreement.
9.17 Further Assurances. At any time and from time to time, each party
------------------
hereto, without further consideration, shall cooperate, take such
further action and execute and deliver such further instruments and
documents as may be reasonably requested by any other party in order
to carry out the provisions and purposes of this Agreement and to
transfer possession of and good title to the Transferred Assets to
Purchaser. This obligation shall survive the consummation of the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their duly authorized officers as of the date first
above written.
IMPLANT INNOVATIONS, INC.
By: /s/ Xxxxxx Xxxxx
Title: Vice President, Finance and Administration
ORTHOVITA, INC.
By: /s/ Xxxxx X. Xxxxxxx
Title: President and Chief Operating Officer
VITA LICENSING, INC.
By: /s/ Xxxxxx X. Xxxxx
Title: Vice President
FEBRUARY 10, 2000 -- SCHEDULES AND EXHIBITS
-------------------------------------------
SCHEDULES
Schedule 1.2 Biogran(R) Know-How
Schedule 1.3 Biogran(R) Patents
Schedule 1.4 Biogran(R) Regulatory Approvals
Schedule 1.5 Biogran(R) Trademarks
Schedule 1.6 Contracts
Schedule 1.7 Equipment
Schedule 1.9 Inventory
Schedule 1.11 Marketing Materials
Schedule 1.14 Specifications
Schedule 3.3.2 Revised Inventory List
Schedule 3.5 Purchase Price Allocation
Schedule 3.7 Current CORTOSS(TM) and ORTHOCOMP(TM) Products
Schedule 4.2A Form of Biogran(R) Patent Assignment
Schedule 4.2B Form of Biogran(R) Regulatory Approval Assignment
Schedule 4.2C Form of Biogran(R) Trademark Assignment
Schedule 4.3.1 Wiring Instructions
Schedule 6.1.5 Pending Actions
Schedule 6.1.10 Suppliers
Schedule 6.1.14 Studies and Information
EXHIBITS
Exhibit 4.2D Form of Escrow Agreement
Exhibit 4.2E Form of Xxxx of Sale
Exhibit 4.2F Form of Termination Agreement for Distribution Agreement
Exhibit 4.2G Form of Assignment of Contracts
Exhibit 4.2H Form of Legal Opinion of Sellers' Counsel
Exhibit 4.3A Form of Legal Opinion of Purchaser"s Counsel
Schedule 1.2
Biogran(R) Know-How
Manufacturing and Packaging of Biogran(R)
MO-SCI Standard Operation Procedure Index
For C1099 Project
SOP # Title Version
------- ----- -------
SOP#C1099-1 Raw Material Inspection & Handling 1.4
SOP#C1099-2 Batching Process 1.5
SOP#C1099-3 Melting and Draining 1.4
SOP#C1099-4 Drying Process 1.2
SOP#C1099-6 Crushing by Hand 1.1
SOP#C1099-9 Daily Log for Hand Crushing 1.1
SOP#C1099-10 Screening for Fibers 1.1
SOP#C1099-11 Engineering Change Order 1.0
SOP#C1099-13 Final Product Release 1.2
SOP#C1099-14 Grinding by Machine 1.3
SOP#C1099-15 Remelting Procedure 1.0
SOP#C1099-17 Furnace Calibration 1.0
SOP#C1099-18 Furnace Maintenance 1.0
SOP#C1099-19 Personnel Responsibility 1.0
SOP#C1099-20 Vorti-Siv Cleaning 1.0
SOP#C1099-21 Precision Screen of Biogran(R) 1.0
Ethox Corporation Device Master Record Index
Ethox Corp Device Master Record for Part Number 2100-0001 (2 pack, 750 mg.
Syringe)
Ethox Corp Device Master Record for Part Number 2100-0002 (7 pack, 750 mg.
Syringe)
Ethox Corp Device Master Record for Part Number 2100-0003 (7 pack, 500 mg. Cup)
Ethox Corp Device Master Record for Part Number 2100-0004 (7 pack, 750 mg. Cup)
Ethox Corp Device Master Record for Part Number 2100-0005 (7 pack, 1550 mg. Cup)
Steris-Isomedix Sterilization Specification
Packaged Product is Gamma sterilized utilizing 25kGy minimum dosage, with
validation performed by Pharmaceutical Systems, Inc., Mundelein, Illinois,
consistent with the recommendations of ANSI/AAMI/ISO 11137, 1994.
Schedule 1.3
Biogran(R) Patents
I. Title: Process for Restoring an Osseous Defect or Deficiency by Filling
with Osseous Tissue
Country Patent No.
-------- ----------
United States 5,204,106
Austria 107519
Belgium 09000433
Canada 2,014,940
German Xxxxxxxxxx Xxxxxxxx 000000
(Former)
Germany EP 394152
European Patent Office 000000
Xxxxx 2,055,386
France 0000000
Xxxxx 1,873,690
Switzerland EP 394152
Denmark EP 394152
Great Britain EP 000000
Xxxxxx 3,012,309
Italy 00000XX/00
Xxxxxxxxxx EP 394152
the Netherlands EP 000000
Xxxxxx EP 394152
II. Title: Bioactive Granules for Bone Tissue Formation
Country Patent or Application No.
------- -------------------------
United States 5,658,332*
European Patent Office 869749
Austria EP 869749
Belgium EP 869749
Denmark EP 000000
Xxxxxx EP 869749
Great Britain EP 000000
Xxxxxxx EP 000000
Xxxxxx EP 869749
Ireland EP 000000
Xxxxx EP 869749
Luxembourg EP 869749
Monaco EP 869749
Netherlands EP 869749
Portugal EP 000000
Xxxxx EP 000000
Xxxxxx EP 000000
Xxxxxxxxxxx EP 000000
Xxxxx 000/XXX/00
Xxxxx 503243/96
*The U.S. patent is the only issued patent in the family; the others are pending
applications.
Schedule 1.4
Biogran(R) Regulatory Approvals
510K--US
--------
K941780, decision date 02/10/95, and
K952922, decision date 12/19/95.
CE XXXX--EU
-----------
CE Certificate, Medical Devices, Class III products, Certificate Number
CE2240.01
EC Design Examination Certificate, Class III products,
Certificate Number XXXXX0000.01
SYSTEMCERTIFICATE, meets ISO9001 and EN46001 requirements,
Certificate Number S97.070A
Note: The CE Xxxx is not transferable. The Purchaser must register for its own
CE Xxxx.
Schedule 1.5
Biogran(R) Trademarks
United States
Xxxx Registration No. Registration Date
---- ---------------- -----------------
BIOGRAN(R) 2,034,186 1/28/97
Argentina
Xxxx Application No. Filing Date
---- --------------- -----------
BIOGRAN(R) 1978993 5/29/95
Brazil
Xxxx Registration No. Registration Date
---- ---------------- -----------------
BIOGRAN(R) 818742259 5/5/98
Chile
Xxxx Registration No. Registration Date
---- ---------------- -----------------
BIOGRAN(R) 465,076 7/30/96
Colombia
Xxxx Registration No. Registration Date
---- ---------------- -----------------
BIOGRAN(R) 181,748 11/29/95
European Community
Xxxx Registration No. Effective Registration Date*
---- ---------------- ---------
BIOGRAN(R) 64725 4/1/96
Mexico
Xxxx Registration No. Effective Registration Date*
---- ---------------- ----------------------------
BIOGRAN(R) 530,711 7/28/95
*This date, actually the filing date, should be used to calculate expiration of
the registration and renewal periods. These periods are measured in 10-year
increments beginning with the filing date. In many countries, such statutory
periods are based on the filing date, although retroactive protection for events
occurring between the filing date and the actual registration date is not
available.
Schedule 1.6
Contracts
A.
Contracts:
-------------------------------------------------------------------- --------------
UNITS Lots of Raw
--------------------------------------------------------------------
Finished Goods Inventory Part Number Material
--------------------------------------------------------------------
2100-0001 2100-0002 2100-0003 2100-0004 2100-0005 Bioglass
--------------------------------------------------------------------
Ethox X.X. 00000000 0 000 0 0 0
Ethox P.O. 99110902 0 0 1,350 0 150
Ethox P.O. 00013108 0 900 0 0 0
Mo-Sci P.O. 00010455
Steris " Isomedix P.O. 00013105 0 5 3 0 1
(Lots) 13
Mo-Sci P.O. 00010437 (space
rental=$3,438/yr)
Quality:
Mo-Sci Corporation cGMP compliance agreement between Orthovita, Inc. and Mo-
Sci Corporation dated November 29, 1999.
Ethox Corporation cGMP compliance agreement between Orthovita, Inc. and
Ethox Corporation dated December 9, 1996.
B.
Contracts:
------------------------------------------------------------------- --------------
UNITS Lots of Raw
-------------------------------------------------------------------
Finished Goods Inventory Part Number Material
-------------------------------------------------------------------
2100-0001 2100-0002 2100-0003 2100-0004 2100-0005 Bioglass
------------------------------------------------------------------- --------------
Ethox X.X. 00000000 0 000 0 0 0
Ethox P.O. 99110902 0 0 1,350 0 150
Ethox P.O. 00013108 0 900 0 0 0
Mo-Sci P.O. 00010455 13
Steris " Isomedix X.X. 00000000 0 0 0 0 0
(Lots)
Mo-Sci P.O. 00010437 (space
rental=$3,438/yr)
Quality:
Mo-Sci Corporation cGMP compliance agreement between Orthovita, Inc. and Mo-
Sci Corporation dated November 29, 1999.
Ethox Corporation cGMP compliance agreement between Orthovita, Inc. and
Ethox Corporation dated December 9, 1996.
Dental Research Studies:
Clinical Research Agreement between New York University and Orthovita, Inc.
dated November 22, 1996; the term of the agreement
has expired.
Principal Investigator: Xxxxxx X. Xxxxx DDS
Total Cost: $55,000.00
Clinical Study Agreement between Texas A&M Research Foundation - Baylor College
of Dentistry and Orthovita, Inc., as amended
February 1999. The term of the agreement and the term of the amendment have
expired.
Principal Investigator: Xx. Xxxxx X. Xxxxxxxxx
Total Cost: $23,017.00
Intellectual Property:
Orthovita, Inc. Patent Assignment to Vita Licensing, Inc. dated May 19, 1999
Vita Licensing, Inc. License to Orthovita, Inc. dated June 28, 1999
Distribution:
Global Distribution Agreement between Orthovita, Inc. and Implant Innovations,
Inc. dated April 29, 1998
Schedule 1.7
Equipment
Description Asset ID Location Qty
Model 69 Granulizer Mill 143-1 MoSci 1
IMD 69 Rolls 189-1 MoSci 1
Crucible, 3L, Platinum-20% Rhodi 334-1 MoSci 1
Despatch LAC Oven 193-1 Ethox 1
Biogran(R) Safety Flange Injection 000-0 Xxxxx 0
Xxxxxxxx Xxxxx Application System 403-1 Ethox 1
Biologival Safety Cabinet 404-1 Ethox 1
Ethox 40 mil Tool Tray 485-1 Ethox 1
Tooling - Cup Tray Kenson Plastics, Inc., 000 Xxxxx Xxxxx Xxxx,
Xxxxxxxxxx, XX 00000
p - (000) 000-0000 f - (000) 000-0000
Tooling - Syringe Tray Crystal Thermoplastics, Inc., X.X. Xxx 0000,
Xxxxxxxxxx, XX
p - (000) 000-0000 f - (000) 000-0000
Note - physical possession of tooling cannot be transferred from the vendors'
location.
Schedule 1.9
Inventory
(as of 1/21/2000)
------------------------------------------------ ------------
QUANTITY UNITS Lots of
Finished Goods Inventory Part Number Raw
------------------------------------------------
ITEM DESCRIPTION LOCATION 2100-0001 2100- 2100- 2100- 2100- Material
0002 0003 0004 0005 Bioglass
------------------------------------------------ ------------
I. Inventory Amount (as of 1/21/2000)
Finished Product Inventory at
Orthovita (Units) Malvern 0 36 557 326 82
Packaged Product In-Transit from
Ethox or Steris, Net In-Transit from 1,150 600 900 0 150
Ethox to Malvern
(Net of retains & samples)
Raw Material Bioglass at Ethox (Lots) Ethox 16
-------- ------- ------- ------ ------ ------
Total Inventory Amount (as of 1/21/2000) 1,150 636 1,457 326 232 16
Note: Miscellaneous packaging materials in unknown quantities located at Ethox.
Schedule 1.11
Marketing Materials
1. From Orthovita - Price List Biogran(R)
2. From Orthovita - Comparison Chart of Biogran(R) & DFDBA
3. From Orthovita - Comparison Chart of Biogran(R) & Xeno-Graft
4. From Orthovita - article - Biogran(R) - "This raises the question whether
Bio-Oss may be regarded as a resorbable material, as previously reported."
5. From Orthovita - article - Biogran(R) - "We showed that different bone bank
preparations of DFDBA even for the same bank, varied considerably in their
ability to induce new bone, suggesting inherent differences in the quality
of the material."
6. From Orthovita - article - Biogran(R) - "Ability of Commercial
Demineralized Freeze-Dried Bone Allograft to Induce New Bone Formation Is
Dependent on Donor Age But Not Gender."
7. From Orthovita - article - Biogran(R) - "Xenogenic bovine bone and DFDBA
did not contribute to bone to microscrew contacts and are not recommended
for enhancement of vital bone to implant contacts".Xenogenic bone and DFDBA
appear to interfere with normal extraction socket healing."
8. From Orthovita - article - Biogran(R) - "Biogran" vs. Bio-Oss Part II
9. Biogran(R) - Compendium of studies - A comprehensive listing of articles.
10. Orthovita Clinical Case Review - "Biogran(R) Case Report: Ridge
Preservation of Edentulated Mandible for Optimal Implant Placements."
11. Orthovita Clinical Case Review - "Biogran(R) Case Report: Regeneration of
Large Extraction Socket Defect Prior to Implant Placement."
12. Orthovita Clinical Case Review - "Biogran(R) Case Report: Salvage of a
Molar Compromised By a Large Infrabony Defect."
13. ART 659 - "What is a Periodontist?"
14. ART 667 - "What is Ridge Preservation?"
15. No ART number - Laminated Ridge Preservation Chart.
16. ART 668 rev 10/99 - "Biogran(R) - Resorbable Synthetic Bone Graft"
information brochure.
17. 1 set of 52 slides for a presentation created by Xxxxx Xxxxx, on Biogran(R)
& Orthovita.
Schedule 1.14
Specifications
Sterile 45S5 glass particles sized to 300-355 microns.
Schedule 3.3.2
Revised Inventory List
To be provided as set forth in Section 3.3.2.
Schedule 3.5
Purchase Price Allocation
Transferred Asset Category Schedule Assigned
Value
Biogran(R) Patents (Title I) Schedule 1.3
United States $2,520,000
All other outside the
United States 1,080,000
Biogran(R) Patents (Title II) Schedule 1.3 50,000
Biogran(R) Trademarks Schedule 1.5 26,500
Biogran(R) Know-How Schedule 1.2 26,500
Contracts Schedule 1.6A 26,500
Biogran(R) Regulatory Approvals Schedule 1.4 26,500
Equipment Schedule 1.7 144,000
$3,900,000
Schedule 3.7
Current CORTOSS(TM) and ORTHOCOMP(TM) Products
CORTOSS Injectable(TM)
CORTOSS Putty(TM)
CORTOSS Implants(TM)
ORTHOCOMP Injectable Cement(TM)
The products listed above are patented, nonresorbable, bone bonding composites
that, subject to the receipt of all required regulatory approvals by
governmental and regulatory authorities, will offer ease of use in delivery and
immediate function to load bearing, bone reinforcement, implant stabilization
and bone grafting applications. The biocompatible nature allows for intimate
conformation to the area of placement and the setting or polymerization reaction
leads to immediate load bearing strength with elastic moduli closely resembling
that of natural bone, as opposed to metal alone. The strength of the composite
material is integrated by the surface grafting and chemical bonding to bone and
tissue surfaces. This interaction leads to improved fracture toughness of the
entire implant system. This composite is ideal for osteoporotic patients and
other patients whose bone vitality is compromised, such as those being treated
for cancer. The specially formulated thermoset resin matrix exhibits a low
exotherm on polymerization and strong 3-dimensional bonding that prohibits
residual monomer leaching.
Schedule 4.2A
Form of Biogran(R) Patent Assignment
(A) WORLDWIDE PATENT ASSIGNMENT
This Patent Assignment is made on this _____ day of ______________ 2000, by
Orthovita, Inc., a corporation formed under Pennsylvania law, and having a place
of business at 00 Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the
"Assignor") in favor of Implant Innovations, Inc., having a place of business at
0000 Xxxxxxxxx Xxxxx, Xxxx Xxxxx Xxxxxxx, Xxxxxxx, a corporation formed under
Florida law ("Assignee").
WHEREAS, Assignor owns all right, title and interest in and to,
or arising under, certain United States and foreign Letters Patent and
applications for Letters Patent set forth on the attached Schedule A; and
WHEREAS, Assignee desires to acquire all right, title, and
interest in and to said United States and foreign Letters Patent and
applications for Letters Patent;
NOW, THEREFORE, for One Dollar ($1) and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Assignor hereby assigns and transfers to Assignee, the entire right, title, and
interest in and to the United States and foreign Letters Patent and applications
for Letters Patent set forth on the attached Schedule A and in and to all
Letters Patent granted on said applications, and hereby agrees to execute all
applications or papers necessary to obtain and maintain said United States and
foreign Letters Patent and applications for Letters Patent in all countries.
by Assignor ORTHOVITA, INC.
By: ___________________________
Name: _________________________
Title: __________________________
State of Pennsylvania
County of :
On this ______ day of ___________, 2000, personally appeared before me a Notary
Public for the State of Pennsylvania; and acknowledged to me that he executed
the same for the uses and purposes therein set forth.
Signature of Notary Public
Seal Residing at: ________________________
_____________________________________
My Commission Expires: _____________
SCHEDULE A
I. Title: Process for Restoring an Osseous Defect or Deficiency by Filling with
Osseous Tissue
Country Patent No.
-------- ----------
United States 5,204,106
Austria 107519
Belgium 09000433
Canada 2,014,940
German Xxxxxxxxxx Xxxxxxxx 000000
(Former)
Germany EP 394152
European Patent Office 000000
Xxxxx 2,055,386
France 0000000
Xxxxx 1,873,690
Switzerland EP 394152
Denmark EP 394152
Great Britain EP 000000
Xxxxxx 3,012,309
Italy 00000XX/00
Xxxxxxxxxx EP 394152
the Netherlands EP 000000
Xxxxxx EP 394152
II. Title: Bioactive Granules for Bone Tissue Formation
Country Patent or Application No.
------- -------------------------
United States 5,658,332*
European Patent Office 869749
Austria EP 869749
Belgium EP 869749
Denmark EP 000000
Xxxxxx EP 869749
Great Britain EP 000000
Xxxxxxx EP 000000
Xxxxxx EP 869749
Ireland EP 000000
Xxxxx EP 869749
Luxembourg EP 869749
Monaco EP 869749
Netherlands EP 869749
Portugal EP 000000
Xxxxx EP 000000
Xxxxxx EP 000000
Xxxxxxxxxxx EP 000000
Xxxxx 000/XXX/00
Xxxxx 503243/96
*The U.S. patent is the only issued patent in the family; the others are pending
applications.
Schedule 4.2B
Form of Biogran(R) Regulatory Approval Assignment
______________, 2000
Document Mail Center (HFZ-401)
Center for Devices and Radiological Health
Food and Drug Administration
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Re: K941780, decision date 02/10/95, and
K952922, decision date 12/19/95.
Dear Sir/Madam:
This is to inform you that, effective ____, 2000, ownership of K941780, decision
date 02/10/95, and K952922, decision date 12/19/95, was transferred from
Orthovita, Inc. to:
Implant Innovations, Inc.,
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx
Fax: (000) 000-0000
Please include a copy of this letter each of the files for K941780 and K952922.
Thank you for your attention to this matter.
Sincerely,
Orthovita, Inc.
_________________________________
By:
Title:
Schedule 4.2C
Form of Biogran(R) Trademark Assignment
TRADEMARK ASSIGNMENT
--------------------
This Trademark Assignment is made on this _____ day of
______________ 2000, by Orthovita, Inc., a corporation formed under Pennsylvania
law, and by Vita Licensing, Inc., a corporation formed under Delaware law
(collectively the "Assignors") in favor of Implant Innovations, Inc., a
corporation formed under Florida law ("Assignee").
WHEREAS, Assignors own all right, title and interest in and to,
or arising under, certain United States and foreign trademarks, together with
all registrations or applications therefor, set forth on the attached Schedule A
("Marks"), and the goodwill of the business developed through the use of the
Marks; and
WHEREAS, Assignee desires to acquire all right, title, and
interest in and to the Marks and the goodwill developed through the use of the
Marks; and
WHEREAS, Assignee is a successor to a portion of the business of
Assignors to which the Marks pertain and such business is ongoing and existing.
NOW, THEREFORE, for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Assignors hereby assign and
transfer to Assignee, the entire right, title, and interest in and to the Marks
and the goodwill of the business symbolized by the Marks. All rights and
privileges, including the right to xxx for and receive all damages from past
infringements of the Marks, will be held and enjoyed by the Assignee, its
successors, or future assigns, and other legal representatives.
by Assignor ORTHOVITA, INC.
By: ___________________________
Name: _________________________
Title: __________________________
State of Pennsylvania
County of :
On this ______ day of ___________, 2000, personally appeared before me a Notary
Public for the State of Pennsylvania; and acknowledged to me that he executed
the same for the uses and purposes therein set forth.
Signature of Notary Public
Seal Residing at:_______________________
_________________________________
My Commission Expires: ____________
Assignor VITA LICENSING, INC.
By: ___________________________
Name: _________________________
Title: __________________________
State of Delaware
County of :
On this ______ day of ___________, 2000, personally appeared before me a Notary
Public for the State of Delaware; and acknowledged to me that he executed the
same for the uses and purposes therein set forth.
Signature of Notary Public
Seal Residing at: _______________________
_________________________________
My Commission Expires: ____________
by Assignee IMPLANT INNOVATION, INC.
By: ___________________________
Name: _________________________
Title: __________________________
State of Florida
County of :
On this ______ day of ___________, 2000, personally appeared before me a Notary
Public for the State of Delaware; and acknowledged to me that he executed the
same for the uses and purposes therein set forth.
Signature of Notary Public
Seal Residing at: _______________________
_________________________________
My Commission Expires: ____________
SCHEDULE A
United States
Xxxx Registration No. Registration Date
---- ---------------- -----------------
BIOGRAN(R) 2,034,186 1/28/97
Argentina
Xxxx Application No. Filing Date
---- --------------- -----------
BIOGRAN(R) 1978993 5/29/95
Brazil
Xxxx Registration No. Registration Date
---- ---------------- -----------------
BIOGRAN(R) 818742259 5/5/98
Chile
Xxxx Registration No. Registration Date
---- ---------------- -----------------
BIOGRAN(R) 465,076 7/30/96
Colombia
Xxxx Registration No. Registration Date
---- ---------------- -----------------
BIOGRAN(R) 181,748 11/29/95
European Community
Xxxx Registration No. Effective Registration Date*
---- ---------------- ----------------------------
BIOGRAN(R) 64725 4/1/96
Mexico
Xxxx Registration No. Effective Registration Date*
---- ---------------- ----------------------------
BIOGRAN(R) 530,711 7/28/95
*This date, actually the filing date, should be used to calculate expiration of
the registration and renewal periods. These periods are measured in 10-year
increments beginning with the filing date. In many countries, such statutory
periods are based on the filing date, although retroactive protection for events
occurring between the filing date and the actual registration date is not
available.
Schedule 4.3.1
Wiring Instructions
VITA LICENSING WIRING INSTRUCTIONS:
First Union National Bank
ABA 000000000
Trust Operations Account #5000000016439
FBO: Vita Licensing, Inc.
Account #6728013862
Attention DTCM fax (000) 000-0000
ORTHOVITA WIRING INSTRUCTIONS:
Progress Bank
ABA 000000000
Account #1050-00988
FBO: Orthovita, Inc.
Attention: Xxxxxx Xxxxxx
Schedule 6.1.5
Pending Actions
1. Court of Appeals for the Federal Circuit Docket No. 99-1071, 99-1072;
Status: affirmed without opinion, deadline for appeal to Supreme Court has
passed.
2. European Patent Office, Opposition, Number T-0307/99-332.
Schedule 6.1.10
Suppliers
Mo-Sci Corporation
0000 Xxxxxxxxxx Xxxxx
X.X. Xxx 0
Xxxxx, Xxxxxxxx 00000-0000
p - (000) 000-0000
f - (000) 000-0000
Ethox Corporation
000 Xxxxxx Xxxxxx Xxxxxxx,
Xxx Xxxx 00000-0000
p - (000) 000-0000
f - (000) 000-0000
Steris-Isomedix Services
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
p - (000) 000-0000
f - (000) 000-0000
Schedule 6.1.14
Studies and Information
Compendium of Studies
March 1999
-----------------------------------------------------------------------------------------------------------------------------
Title/Reference Study Design Status/Results
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx, 25 patients received subantral Histologies confirmed excellent
Osteoconductive properties and efficacy of augmentation with Biogran(R). At 7 bone growth inside and surrounding
resorbable bioactive glass as a bone months, biopsies were taken and implants excavated granules. Transformed
grafting material, Implant Dentistry, Vol placed. Histological, micromechanical, Biogran(R) is the same hardness as
-----------------
6, Num 2, 1997, 93-101. and chemical analysis were performed. natural bone. Silica was nearly
absent at the 7 month time point.
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx, E, XxXxxxxx, M, Xxxxxxxx, P, and Biogran(R) compared to dense and porous HA The paper which documented
Kempeneers, R, Bioactive glass particles in Beagle mandible. Histologies at 1, Biogran(R)'s unique osteostimulatory
as a filler for bone lesions, J Oral 2, 3, 6, and 12 months. effect on bone tissue formation.
------
Rehabilitation, 1991, 18:439-52. Phenomenon not seen with other
--------------
materials.
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx, X. Xxxxxxxx, P. Bioactive glass Original dog study extended for 24 This is the study that documents
particles of narrow size range for months. Additional comparisons with the criticality and superiority of
treatment of oral bone defects: A 1-24 212-300, 425-800, and 100-710um particle 300-355 um bioactive glass particle
month experiment with several materials sizes. size range for stimulating bone
and particle sizes and size ranges. J. growth.
---
Oral Rehabilitation, 1997, 24: 171-181.
-------------------
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx, E, Xxxxxxxx, P, Bioactive glass Clinical evaluation of Biogran(R) in Biogran(R) was found effective for
particles of limited size range: a new extraction sites, ridge augmentations, the treatment of a variety of oral
material for the repair of bone defects, cystic defects, and apical defects. 86 bone defects with no incidence of
Implant Dentistry, Vol 2, Num 3, 1993, patients with 106 defect sites. 3 year material failure.
-----------------
151-156. follow up.
-----------------------------------------------------------------------------------------------------------------------------
X. Xxxxxxxx and X. Xxxxxxxx, Long term Clinical evaluation of Biogran" in This study documents that the
clinical evaluation of bioactive glass extraction sites, ridge augmentations, excellent results evident in the
particles of narrow size range, cystic defects, and apical defects. Implant Dentistry article after two
Bioceramics, Vol 9, 99-102, 1996. 119 patients with 139 defect sites. 5 years of follow up, are maintained
year follow up. for at least 5 years.
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
Title/Reference Study Design Status/Results
-----------------------------------------------------------------------------------------------------------------------------
AM Xxxxx, Glass corrosion layers on Biogran(R) was placed in the jaws, muscle, These two animal models confirmed
bioactive glass granules of uniform size and skin of rabbits and sheep. the osteostimulatory effect of
affect cellular function, Bioceramics, Vol Biogran(R) in bony sites. Biogran(R)
-----------
6, 1993, 395-400 placed in non osseous sites would
excavate without bone growth.
-----------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxx, Lieven Xxxxxxx, Xxxx Implants are placed into Biogran(R) Quantification of bone growth
Xxxxxxxx, Implant placement enhanced by treated or ungrafted extraction sockets reveals much greater bone formation
bioactive glass particles of narrow size after 3 months of healing in the beagle in the extraction sockets treated
range, Int Journal of Oral and mandible. Implants are allowed to with Biogran(R). Also, there was
Maxillofacial Implants, 1998; 13:655-665 osseointegrate for 3 additional months, better osseointegration of the
and are then loaded for 2 months. All implants placed into Biogran(R)
sites are evaluated histologically. treated sites than control sites
for both before and after loading
of the implants. Presented at
Congress of Preprosthetic Surgery,
Copenhagen, Denmark, June 1997
-----------------------------------------------------------------------------------------------------------------------------
X. Xxx, X. Xxxxxxxx, X. Xxxxxx, Removal 5 rabbits received 1500 mg (equivalent Resorbed silica gel is harmlessly
pathway of silicon released from bioactive to 30 cc in human) Biogran(R) and 4 excreted in soluble form through
glass granules, in vivo, Bioceramics, 1998 control rabbits. Urine and blood urine. No accumulation in distal
samples collected daily and weekly, organs (appendix, brain, kidney,
respectively. Distal organs examined at liver, heart, and lung).
6 weeks.
-----------------------------------------------------------------------------------------------------------------------------
Xxxx Xxx, DMD, Xxxxx X. Xxxxxxxxx, DMD, 12 patients with paired interproximal The Biogran(R) treated sites
Bioactive glass particles of narrow size defects. Biogran(R) vs. ungrafted significantly (P0.0001)
range for the repair of human control. 6 months reentry to measure outperformed the control sites for
interproximal periodontal defects bone height gain. both bone height gain and clinical
attachment level gain. Presented
at AAP New Orleans, Oct. 1996.
-----------------------------------------------------------------------------------------------------------------------------
X. Xxxxxxx, X.X. Xxxxxx, X. Xxxxxxx Socket 17 patients with bilateral extractions Ridge Preservation with Biogran(R)
----------
preservation with Biogran(R) and calcium were treated. Primary closure was not was statistically significantly
sulfate barrier for closure, UCLA and attempted. Capset was used to contain better than controls. Final
University of Belgrade Biogran(R). Control sites were not manuscript is in preparation.
grafted. Sites reentered at 6 months. Biopsies undergoing histological
Ridge dimensions are measured pre-op and preparation.
at 6 months.
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
Title/Reference Study Design Status/Results
-----------------------------------------------------------------------------------------------------------------------------
Xxxx X. xxXxxxx, X. X. Xxxxxx, Clinical Patients are treated with different The first group of patients (50-50
and histological evaluation of bone mixture ratios (50-50; 80-20; 100-0; mixture) were biopsied at 3-5
regeneration in atrophic maxillae by the 0-100) of Biogran(R) and autogenous bone months and show very active bone
use of Biogran(R), Dept of Oral Cell taken from the iliac crest. Trephine growth throughout the sinus as
Biology, Academic Center for Dentistry, core biopsies are taken prior to implant evidenced by new woven bone covered
Amsterdam, NETHERLANDS placement. by large bands of osteoid tissue.
Presented at Euro Perio Congress,
Florence, Italy, May 1997.
Submitted by J. Clinical Oral
Implants Research.
-----------------------------------------------------------------------------------------------------------------------------
X. Xxxxxxxx, The clinical application of 50 patients underwent subantral grafting The first biopsies have been
Biogran(R) for sinus augmentation and ridge or ridge splitting with implants. prepared histologically and
splitting augmentations with implant Biopsies are taken at 6 months. confirmed good bone growth.
placements, Mannheim, Germany Presented at the Congress for
Preprosthetic Surgery, Copenhagen,
Denmark, June 1997. Submitted to
Quintessence Jan 99.
-----------------------------------------------------------------------------------------------------------------------------
X. Xxxxxxxx, X. Xxxxxxxxx, The Application 20 patients with bi-lateral impacted 3rd All surgeries were completed. Six
of Biogran(R) for Enhanced Clinical Outcomes molars will be studied. One site is month evaluation completed 6/99.
After 3rd Molar Extractions, Baylor grafted with Biogran(R); other not grafted Reduced pain in Biogran(R) grafted
University as control. Periodontal health distal sites.
to 2nd molar will be charted for one
year.
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx, Xxxxxx Xxxxxx, and Xxxxx Biogran(R) will be compared to DFDBA and All surgeries are completed.
X. Xxxxxxxxx, Comparison of two bone graft ungrafted control for treating Preliminary results presented at 3i
materials for extraction socket repair, extraction sockets. Trephine core International Symposium Jan 99.
Department of Implant Dentistry, New York biopsies will be taken prior to implant Biogran(R) histologies show superior
University College of Dentistry placement at 3 and 6 months. bone density than DFDBA and
controls.
-----------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxx, Xxxxxx van Steenberghe, Histological analysis of treatments for Pilot study showed promising
Periodontal Study in Beagle Dogs, bone loss from chronically inflamed results for regeneration of
Departments of Periodontology and tissues. Four treatment modalities will attachment apparatus in Biogran(R)
Prosthetic Dentistry, Catholic University be compared (Biogran(R); Membrane e-PTFE, treated sites after 3 months.
of Leuven, BELGIUM Perioglas, Control-no material) Study is complete pending histological
evaluation. Data very promising for
Biogran(R).
-----------------------------------------------------------------------------------------------------------------------------
Xxxxx Blijdorp, Sinus elevation Biogran(R) plus autogenous bone 6 patients are entered into the
using bioactive glass granules of (50/50) is compared to Autogenous study. First histologies confirm
narrow size range and autogenous bone extended with HA (80/20). good bone growth.
bone, Dutch Academy of Aesthetic Dentistry,
Arnhem, NETHERLANDS
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
Title/Reference Study Design Status/Results
-----------------------------------------------------------------------------------------------------------------------------
X. Xxxxxxxx, X. Xxxxxxxx, Sinus At least 3 implants are placed 36 implants placed, no failures at
augmentation using Biogran(R) with immediately in each grafted sinus. 15% 2 years. Histologies show active
simultaneous implant placement, Padova, autogenous, 85% Biogran(R) placed in class bone growth. Histomorphometric
ITALY IV sinuses. Biopsies taken at 9 months. data being analyzed.
-----------------------------------------------------------------------------------------------------------------------------
Bercy, Use of Biogran(R) to treat large Twenty four patients with 6mm or greater Excellent stable results at 2
periodontal defects. Academic Hospital, defects with 2 or less bony walls are years. Data being written-up for
St. Luc, Brussels, BELGIUM being entered into the study for submission.
treatment with Biogran(R) without a
membrane. Standardized x-rays and
clinical follow-up will occur at 12
and 24 months post-op.
-----------------------------------------------------------------------------------------------------------------------------
X. Xxxxxx, Grafting of Chin Autogenous 30 consecutive patients to have About 10 patients have been entered
Bone Harvest Sites. autogenous harvest sites in symphysis into study, preliminary results are
filled with Biogran(R) and covered with excellent.
Guidor7 membrane.
-----------------------------------------------------------------------------------------------------------------------------
X.X. Xxxxx, X. Xxxxxxxxxx, Bioactive glass 4 beagles were bilaterally grafted with Biogran(R) was over 95% resorbed.
as a bone graft substitute in a canine Biogran(R) and autogenous bone for 6 Active bone growth with Biogran(R)
metaphyseal bone defect, University of months was nearly indistinguishable
Pennsylvania, Department of Orthopaedic compared to autogenous bone control
Surgery sites.
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxxx, Comparative study of 5 beagles treated for tooth extraction, Study just getting started.
graft materials for filling extraction Biooss, Biogran(R), TCP and autogenous to
sites, School of Dentistry, Tokyo be compared. Implants placed 3 months
after grafting. Histology after 3
months of integration.
-----------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxx, Xxxx Caffessee, Biogran(R) for 1 year human clinical trial. Clinical First histologic sections under
the treatment of periodontal defects, parameters measured preop, and 1 year preparation.
Houston, Texas with surgical reentry. Biopsies of
grafted sites taken at 1 year.
-----------------------------------------------------------------------------------------------------------------------------
Exhibit 4.2D
Form of Escrow Agreement
FORM OF ESCROW AGREEMENT
This ESCROW AGREEMENT ("Escrow Agreement") is made as of __________________
2000, by and among ORTHOVITA, INC., a Pennsylvania corporation, and VITA
LICENSING, INC., a Delaware corporation, (collectively the "Sellers"), CHASE
MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION (the "Escrow Agent") and IMPLANT
INNOVATIONS, INC., a Florida corporation ("Buyer").
Background
----------
The Buyer and the Sellers are parties to that certain Asset Sale Agreement
dated as of even date herewith (the "Asset Sale Agreement"). This Escrow
Agreement is being executed and delivered pursuant to Sections 4.2.4 and 4.3.2
of the Asset Sale Agreement.
Witnesseth
----------
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the mutual covenants herein, hereby
agree as follows:
1. Effect of Asset Sale Agreement
------------------------------
As between the Buyer and the Sellers, the provisions of the Asset Sale
Agreement are incorporated herein by reference, but only as the context of this
Escrow Agreement may require. The Escrow Agent is not a party to the Asset Sale
Agreement and shall, therefore, act only in accordance with the terms and
conditions contained herein. Unless otherwise defined herein, capitalized terms
are used herein as defined in the Asset Sale Agreement.
2. Creation of the Escrow Account.
------------------------------
There is hereby created and established with the Escrow Agent an escrow
account (the "Escrow Account"), to be held in the custody of the Escrow Agent in
accordance with this Escrow Agreement.
3. Escrow Funds.
------------
(a) On the date of this Escrow Agreement, the Buyer is depositing
exclusively with the Escrow Agent the sum of $400,000 (together with any
interest thereon or proceeds therefrom from the
date hereof, the "Escrow Funds"), and the Escrow Agent acknowledges receipt of
the Escrow Funds and deposit thereof into the Escrow Account.
(b) The Escrow Funds shall be continuously invested and reinvested by the
Escrow Agent in short-term United States obligations issued by or guaranteed by
the United States Treasury, or in such other securities or instruments, as may
be approved in writing from time to time by the Sellers and the Buyer. Absent
joint specific written investment directions from such parties, the Escrow Funds
will be invested in the Vista 100% U.S. Treasury Fund, which is a mutual fund
for which the Escrow Agent or an affiliate of the Escrow Agent may serve as
investment manager, administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (i) the Escrow Agent or an affiliate of
the Escrow Agent receives fees from such funds for services rendered, (ii) the
Escrow Agent charges and collects fees for services rendered pursuant to this
Escrow Agreement that are separate from the fees received from such funds, and
(iii) services performed for such funds and pursuant to this Escrow Agreement
may at times duplicate those provided to such funds by the Escrow Agent or its
affiliates. All interest income or other investment proceeds thereon shall
become part of the Escrow Funds.
(c) The Escrow Funds shall not be subject to lien or attachment by any
creditor of any party hereto, and shall be used solely for the purpose set forth
in this Escrow Agreement and the Asset Sale Agreement. Other than as provided
herein, the Escrow Funds shall not be subject to set-off.
(d) Except as provided in Sections 4 or 5 hereof, the Escrow Funds may
only be disbursed from the Escrow Account upon the joint written direction of
the Sellers and the Buyer.
(e) Subject to the remaining provisions contained herein, including
Sections 4 and 5 hereof, any payment of the Escrow Funds (including accrued
interest) shall automatically include payment of the Escrow Agent"s compensation
in accordance with Section 7 below, after which time payment shall be
automatically made to Sellers, without the requirement of any further action by
the parties hereto.
(f) Each of the Buyer and the Sellers, in the notice section of this
Escrow Agreement, are providing the Escrow Agent with its Tax Identification
Number (TIN) as assigned by the Internal Revenue Service.
4. Claims under the Asset Sale Agreement.
-------------------------------------
(a) If at any time during the Escrow Period (as herein defined) the Escrow
Agent receives written notice (a "Claim Notice") from Buyer that it is entitled
to indemnification pursuant to Article VII of the Asset Sale Agreement together
with a certificate from the President and CEO or any Vice President certifying
that (x) the Deductible has been met and the procedures set forth in Article VII
of the Asset Sale Agreement that are applicable to the Buyer have been followed,
and (y) the Buyer has given the Sellers" contemporaneous notice of such claim
for indemnification, then the Escrow Agent shall pay from the Escrow Funds the
amount of damages specified in such notice, unless the Escrow Agent receives a
written objection from the Sellers" (a "Claim Response") to Buyer's claim within
30 days after the date of the Claim Notice.
(b) In the case of a Claim Response, the Escrow Agent shall pay from the
Escrow Funds only such amount as specified:
(i) in a joint written direction of the Buyer and the Sellers, or
(ii) in a final order of a court of competent jurisdiction (a "Final
Order").
5. Escrow Period; Termination of Escrow.
------------------------------------
(a) The period during which the Escrow Funds shall be held in escrow
hereunder (the "Escrow Period") shall commence on the date hereof and shall end
on the date that is the later of (i) the date on which all of the Escrow Funds
have been delivered to the Buyer pursuant to Section 4 hereof and (ii) the first
anniversary of the date hereof (the "Disbursement Date").
(b) If a dispute with respect to a Claim Notice is unresolved on the
Disbursement Date, the Escrow Agent shall (i) hold back and not distribute a
portion of the then remaining Escrow Funds in an amount equal to such unresolved
claim (the "Hold Back Funds"), and (ii) release from escrow and distribute to
the Sellers the remaining Escrow Funds, if any, in accordance with Section 3(d)
hereof. The Hold Back Funds shall continue to be held by the Escrow Agent
pursuant to this Escrow Agreement and the Escrow Agent shall only pay the Hold
Back Funds to the Sellers and/or the Buyer, as the case may be, in accordance
with the provisions of Section 4(b) above. This Escrow Agreement shall terminate
at such time as the Hold Back Funds have been delivered to the Buyer and/or the
Sellers pursuant to the terms of this Escrow Agreement.
6. Duties of the Escrow Agent.
--------------------------
(a) The Escrow Agent shall be liable as a depository only. The duties and
responsibilities of the Escrow Agent hereunder shall be determined solely by the
express provisions of this Escrow Agreement. The Escrow Agent undertakes to
perform only such duties as are expressly set forth herein and no further duties
or responsibilities shall be implied. The Escrow Agent shall have no duty to
solicit any payments that may be due to it hereunder. The Escrow Agent shall not
be liable for any action taken or omitted by it in good faith unless a court of
competent jurisdiction determines that the Escrow Agent's gross negligence or
willful misconduct caused a loss to the Buyer or any Seller. In the
administration of this Escrow Agreement and the Escrow Account hereunder, the
Escrow Agent may execute any of its powers and perform its duties hereunder
directly or through agents or attorneys and may consult with counsel,
accountants and other skilled persons to be selected and retained by it. The
Escrow Agent shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons. The Escrow Agent shall not be liable for
any mistake of fact or error in judgment, or for any act or failure to act of
any kind taken in good faith and believed by it to be authorized or within the
rights or powers conferred by this Escrow Agreement, unless such act or failure
to act has been determined by a court of competent jurisdiction to constitute
willful misconduct or gross negligence that caused a loss to the Buyer or any
Seller, as the case may be.
(b) The Escrow Agent shall not be liable in any respect on account of
identity, authority or rights of persons executing or delivering, or purporting
to execute or deliver, any document, item, or other writing, and may rely
absolutely and be fully protected in acting upon any item, document or other
writing believed by it in good faith to be authentic in performing its duties
hereunder. The Escrow Agent shall have no duty to inquire into or investigate
the validity, accuracy or content of any such document or other writing.
(c) The Buyer, on the one hand, and the Sellers, on the other hand,
jointly and severally, agree to indemnify and hold the Escrow Agent and its
directors, officers, agents and employees (collectively, the "Indemnitees")
harmless from and against any and all claims, liabilities, losses, damages,
fines, penalties, and expenses, including out-of-pocket, incidental expenses,
legal fees and expenses, the allocated costs and expenses of in-house counsel
and legal staff and the costs and expenses of defending or preparing to defend
against any claim ("Losses") that may be imposed on, incurred by, or asserted
against, the Indemnitees or any of them for following any instruction or other
direction upon which the Escrow Agent is authorized to rely pursuant to the
terms of this Escrow Agreement. All Losses hereunder shall be paid 50% by the
Buyer, on the one hand, and 50% by the Sellers, on the other hand. The
provisions of this Section 6(c) shall survive the
termination of this Escrow Agreement and the resignation or removal of the
Escrow Agent for any reason. Anything in this Escrow Agreement to the contrary
notwithstanding, in no event shall the Escrow Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Escrow Agent has been advised of such
loss or damage and regardless of the form of action.
(d) In the event of disagreement between the parties to this Escrow
Agreement, or persons claiming under them, or any of them, the Escrow Agent
reserves the right to hold all Escrow Funds in its possession until a mutual
agreement has been reached between all of said parties, or until delivery is
made to court in any interpleader action, or until as otherwise authorized by
final judgment or decree.
(e) The Escrow Agent may resign and be discharged from its duties under
this Escrow Agreement by giving the Buyer and the Sellers 30 days? prior written
notice thereof.
(f) At any time, the Buyer and the Sellers may discharge the Escrow Agent
by jointly executing and delivering to the Escrow Agent notice of its discharge
as Escrow Agent hereunder and specifying (i) the date when such discharge shall
take effect and (ii) the successor (the "Successor Escrow Agent") is, in which
event the Escrow Agent will be discharged of its duties as of such date and
shall transfer all Escrow Funds then held by the Escrow Agent to the Successor
Escrow Agent. This Agreement shall terminate, and the Escrow Agent shall be
discharged from any further obligations hereunder upon the disbursement of the
Escrow Funds.
(g) If the Escrow Agent shall be dissolved, or if its property or affairs
shall be taken under the control of any state or federal court or administrative
body or agency because of insolvency or bankruptcy, or if for any other reason a
vacancy shall forthwith exist in the office of Escrow Agent, then within a
period of 30 days thereafter, a Successor Escrow Agent shall be appointed by the
mutual agreement of the Buyer and the Sellers. If no agreement has been reached
as aforesaid and no Successor Escrow Agent shall have been so appointed and have
accepted such appointment within such 30-day period, the Buyer shall appoint a
Successor Escrow Agent (which shall be independent of the Buyer).
7. Expenses.
--------
The Escrow Agent shall be entitled to reasonable compensation for its
services and reimbursement for its out-of-pocket expenses set forth on Exhibit A
---------
hereto. All such compensation and reimbursement for out-of-pocket expenses and
fees (including reasonable attorneys' fees) shall be paid out of any payment of
the Escrow Funds (including accrued interest) which shall automatically
be paid to the Escrow Agent under Section 3 hereof without the requirement of
any further action by the parties hereto. The Buyer and the Sellers shall each
bear their own expenses in connection with the resolution of any Claim under
Section 4 hereof.
8. Notices.
-------
Unless expressly specified otherwise herein, all notices or other
communications required or permitted to be given under this Escrow Agreement
shall be in writing and shall be considered sufficiently given in all respects
(a) when personally delivered, (b) when sent by telecopier, with written
confirmation of receipt, (c) the day after being sent by overnight courier
service or (d) three days after being deposited in the United States Certified
Mail, Postage Prepaid, Return Receipt Requested, addressed as follows or in each
case to such other address or facsimile number as shall be designated by notice
duly given pursuant to this Section:
If to Sellers, to:
Orthovita, Inc.
00 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Chief Operating Officer and
President
Telephone: (000) 000-0000
Vita Licensing, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000, 0xx Xxxxx
XX - XX0000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Vice President
Telephone: (000) 000-0000
With a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esquire
Telephone: (000) 000-0000
If to Purchaser, to:
Implant Innovations, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: President
Telephone: (000) 000-0000
With a copy to:
Steel, Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. X'Xxxxx III, Esquire
Telephone: (000) 000-0000
If to the Escrow Agent:
Chase Manhattan Trust Company, National Association
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Capital Market Fiduciary Services
Telephone: (000) 000-0000
9. General Terms.
-------------
(a) This Escrow Agreement shall be construed and enforced in accordance
with the laws of the Commonwealth of Pennsylvania without regard to its
provisions concerning conflict of laws.
(b) This Escrow Agreement shall be binding upon the parties hereto and
their respective successors and assigns. Any corporation or association into
which the Escrow Agent in its individual capacity may be merged or converted or
with which it may be consolidated, or any corporation or association resulting
from any merger, conversion or consolidation to which the Escrow Agent in its
individual capacity shall be a party, or any corporation or association to which
all or substantially all the corporate trust business of the Escrow Agent in its
individual capacity may be sold or otherwise transferred, shall be the successor
to the Escrow Agent hereunder without further act.
(c) This Escrow Agreement and, as between the Buyer and Sellers only, the
Asset Sale Agreement, contain the entire agreement among the parties hereto with
respect to the subject matter hereof. This Escrow Agreement may not be amended
or revised except by a written instrument signed by all the parties hereto.
(d) Unless the context of this Escrow Agreement clearly
requires otherwise, (i) references to the plural include the singular, the
singular the plural, the part the whole, (ii) references to one gender include
all genders, (iii) "including" has the inclusive meaning frequently identified
with the phrase "but not limited to" and (iv) references to "hereunder,"
"herein," "hereto" or "hereof" relate to this Escrow Agreement. The section and
other headings contained in this Escrow Agreement are for reference purposes
only and shall not control or affect the construction of this Escrow Agreement
or the interpretation thereof in any respect. Section, subsection, schedule and
exhibit references are to this Escrow Agreement unless otherwise specified. Each
accounting term used herein that is not specifically defined herein shall have
the meaning given to it under generally accepted accounting principles.
(e) This Escrow Agreement may be executed in two or more counterparts,
each of which shall be binding as of the date first written above. Each such
copy shall be deemed an original, and it shall not be necessary in making proof
of this Escrow Agreement to produce or account for more than one such
counterpart.
(f) In the event funds transfer instructions are given (other than in
writing at the time of execution of this Escrow Agreement), whether in writing,
by facsimile or otherwise, the Escrow Agent shall seek confirmation of such
instructions by telephone call-back to the person or persons designated in
Section 8 hereof, and the Escrow Agent may rely upon the confirmation of anyone
purporting to be the person or persons so designated. The persons and telephone
numbers for call-backs may be changed only in a writing actually received and
acknowledged by the Escrow Agent. The Buyer and the Sellers acknowledge that
such security procedure is commercially reasonable.
(g) It is understood that the Escrow Agent and the beneficiary's bank in
any funds transfer may rely solely upon any account numbers or similar
identifying number provided by either of the other parties hereto to identify
(i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank.
The Escrow Agent may apply any of the Escrow Funds for any payment order it
executes using any such identifying number, even where its use may result in a
person other than the beneficiary being paid, or the transfer of funds to a bank
other than the beneficiary's bank, or an intermediary bank designated.
[THIS SPACE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO ESCROW AGREEMENT]
IN WITNESS WHEREOF, this Escrow Agreement has been executed by the
undersigned as of the day and year first written above.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Escrow Agent
By: ____________________________________
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
IMPLANT INNOVATIONS, INC.
By: ____________________________________
Name:
Title:
ORTHOVITA, INC.
By: ____________________________________
Name:
Title:
VITA LICENSING, INC.
By: ____________________________________
Name:
Title:
EXHIBIT A
Escrow Agent Fees and Expenses
Orthovita, Inc.
Proposed Escrow Agency Agreement Between
Orthovita, Inc. VITA Licensing and Implant Innovations
Chase Manhattan Trust Company, National Association
Proposal to Serve as Escrow Agent
Initial Fee
-----------
To cover the review and negotiation of the draft Escrow Agency Agreement,
establishment of the trust account on our system and communication with the
Working Party.
$500.00
(Payable upon Closing)
Annual Fee
----------
To cover the ongoing administrative functions of the Escrow Agent in accordance
with the terms and conditions of the Escrow Agency Agreement.
$2000.00
(Payable upon Closing and in Advance of Annual Anniversary Dates)
Expenses
--------
Out-of-pocket expenses (capped at 4% of First Year Invoice), fees and
disbursements, and services of an unanticipated or extraordinary nature are not
included in the above schedule.
Exhibit 4.2E
Form of Xxxx of Sale
Orthovita, Inc., a Pennsylvania corporation (hereinafter referred to as the
"Seller"), for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, paid to it by Implant Innovations, Inc., a
Florida corporation (hereinafter referred to as the "Purchaser"), hereby sells,
assigns, and transfers to the Purchaser the assets set forth on Schedules 1.7,
1.9 and 1.11 to the Asset Sale Agreement (referred to below) owned by the Seller
and forming a portion of the Transferred Assets (as defined in the Asset Sale
Agreement referred to below). Nothing in this Xxxx of Sale shall be construed to
be a modification of, or limitation on, any provision of the Asset Sale
Agreement dated as of ________________ ___, 2000 among the Seller, Vita
Licensing, Inc. and the Purchaser, including the representations and warranties
set forth therein.
DATED: ______________
ORTHOVITA, INC.
By: ___________________________________
Title:
Exhibit 4.2F
Form of Termination Agreement for Distribution Agreement
Orthovita, Inc., a Pennsylvania corporation ("Orthovita") and Implant
Innovations, Inc., a Florida corporation ("3i"), are parties to the Global
Distribution Agreement, entered into April 29, 1998 for the purpose of
facilitating the distribution and sale of Biogran" brand bone graft material.
The parties hereby acknowledge and agree to terminate the Distribution Agreement
in favor of the Asset Sale Agreement dated as of ______________. Upon execution
of this Termination Agreement, the parties will cease to have any rights or
obligations under the Global Distribution Agreement, except Sections 5, 6, 7, 8,
9, and 10 of the Global Distribution Agreement that survive under Section 7.3
thereof.
The parties hereby agree that any purchase orders entered into pursuant to the
Global Distribution Agreement shall terminate with the execution of this
Termination Agreement.
ORTHOVITA, INC.
By: ___________________________
Name: _________________________
Title: ________________________
IMPLANT INNOVATION, INC.
By: ___________________________
Name: _________________________
Title: ________________________
Exhibit 4.2G
Form of Assignment of Contracts
This ASSIGNMENT OF CONTRACTS ("Assignment") is entered into this ___
day of _________________, 2000, by and between ORTHOVITA, INC., a Pennsylvania
corporation ("Assignor"), and IMPLANT INNOVATIONS, INC., a Florida corporation
("Assignee"). For valuable consideration, the parties hereto, each intending to
be legally bound and to bind their respective successors and assigns, hereby
covenant and agree as follows.
1. For the purpose of performing the parties' respective obligations
under the Asset Sale Agreement, dated as of ________________ ___, 2000, among
Assignor, Vita Licensing, Inc., a Delaware corporation ("Vita Licensing), and
Assignee (the "Asset Sale Agreement"), the Assignor hereby assigns, transfers
and sets over unto Assignee, and Assignee hereby accepts, all of Assignor's
rights, title and interest in and to the Contracts (as defined in Section 1.6 of
the Asset Sale Agreement).
2. This Assignment shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and assigns.
3. This Assignment shall be governed by and construed according to
the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed by their duly authorized representatives on the date first above
written.
ORTHOVITA, INC.
-----------------------------
By:
Title:
IMPLANT INNOVATIONS, INC.
-----------------------------
By:
Title:
Exhibit 4.2H
Form of Legal Opinion of Sellers" Counsel
February ___, 2000
Implant Innovations, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, XX 00000
Ladies and Gentlemen:
We have acted as counsel to Orthovita, Inc., a Pennsylvania corporation
("Orthovita"), and Vita Licensing, Inc., a Delaware corporation ("Vita",
collectively with Orthovita, the "Sellers") in connection with the Asset Sale
Agreement dated as of _____________ ___, 2000 (the "Asset Purchase Agreement"),
among Orthovita, Vita, and Implant Innovations, Inc., a Florida corporation (the
"Purchaser").
Terms that are defined in the Asset Sale Agreement and also used herein shall
have the definitions set forth in the Asset Sale Agreement unless they are
otherwise defined herein.
This opinion is being delivered pursuant to Section 4.2.8 of the Asset Sale
Agreement. In connection with the opinions expressed below, we have examined and
relied upon executed copies of the Asset Sale Agreement, the certificate or
articles of incorporation and the bylaws of each of Orthovita and Vita. We have
also examined and relied upon such other documents, instruments and certificates
of public officials and made such other investigations of fact and law as we
have deemed necessary.
We have assumed the genuineness of all signatures (other than the signatures of
the applicable officers of the Sellers), the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. We have further assumed
that the Asset Sale Agreement and all other agreements and documents
contemplated by the Asset Sale Agreement (the "Ancillary Documents"), constitute
legal, valid and binding obligations of all parties thereto (other than the
Sellers).
As to certain matters of fact material to this opinion, we have, where such
facts were not independently known to us, relied without independent
investigation upon certificates of officers of the Sellers.
Based upon and subject to the foregoing, and subject to the additional
qualifications set forth below, we are of the opinion that:
1. Orthovita is a corporation validly subsisting under the laws of the
Commonwealth of Pennsylvania. Vita is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware.
2. Each Seller has the requisite corporate power and authority to carry on its
business as, to our knowledge, it is now conducted.
3. Each Seller has all requisite corporate power and authority necessary to
execute, deliver and perform its obligations under the Agreement and the
Ancillary Documents.
4. The Agreement and the Ancillary Documents have been duly executed and
delivered by each Seller.
5. The execution and delivery of the Agreement and the Ancillary Documents,
performance by Sellers of their respective obligations under the Agreement
and the Ancillary Documents and the exercise by Sellers of their respective
rights created by the Agreement and the Ancillary Documents do not (i)
violate the Articles of Incorporation or Bylaws of either Seller, (ii) to
our knowledge, constitute a breach of or a default under any material
agreement or instrument to which either Seller is a party or by which it or
its assets are bound, (iii) to our knowledge, result in the creation of a
mortgage, security interest or other encumbrance upon the assets of either
Seller, (iv) violate any judgment, decree, injunction, writ or order of any
court, arbitration or administrative tribunal, which judgment, decree,
injunction, writ or order, known to us and binding on either Seller or its
assets or (v) to our knowledge, violate any federal or Pennsylvania law,
rule or regulation.
6. Except as disclosed in Schedule 6.1.5, to our knowledge, there is no
action, suit or proceeding pending or threatened against either Seller that
could reasonably be expected to have a material adverse effect on the
applicable Seller or that in any manner draws into question the validity of
the Agreement or the Ancillary Documents.
7. Except as disclosed in the next paragraph, the Agreement and the Ancillary
Documents are valid and binding obligations of each Seller enforceable
against the applicable Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent
conveyance or other laws from time to time in effect that affect creditors'
rights generally and subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
The opinions expressed herein are limited to matters governed by the laws of the
Commonwealth of Pennsylvania, the General Corporation Law of the State of
Delaware, and the federal laws of the United States. To the extent that any
opinion herein relates to matters governed by any laws other than the laws to
which the opinions expressed herein are limited, we have assumed that such laws
are the same in all relevant respects as the laws of the Commonwealth of
Pennsylvania. In addition, our opinions expressed in paragraph 1 above as to the
subsistence of Orthovita and existence in good standing of Vita are based solely
on certificates of valid subsistence or legal existence or good standing issued
by the Secretaries of State of the Commonwealth of Pennsylvania or the State of
Delaware and have the meanings imparted by such certificates.
Wherever we have stated that we have assumed any matter or relied or based our
opinion upon any representation or advice, it is intended to indicate that we
have assumed such matter or relied or based our opinion upon such representation
or advice without making any factual, legal or other inquiry or investigation,
and without expressing any opinion or conclusion of any kind concerning such
matter; no inference as to our knowledge of any matters bearing on the accuracy
of any such statement or opinion should be drawn from the fact of our
representation of the Sellers.
In rendering the foregoing opinions and advice, whenever a statement set forth
herein is qualified to "our knowledge" or limited to matters "known to us" or by
any similar phrase, it is intended to indicate that, during the course of our
representation of the Sellers, no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of those
attorneys in our firm who have rendered legal services in connection with the
transactions contemplated by the Asset Sale Agreement. However, we have not
undertaken any independent investigation to determine the accuracy of such
statement and no inference as to our knowledge of any matters bearing on the
accuracy of any such statement should be drawn from the fact of our
representation of the Sellers.
No opinion is expressed herein with respect to any provisions of the Asset Sale
Agreement or Ancillary Documents that purport to specify certain governing laws,
the jurisdictions in which legal proceedings may be instituted or methods of
resolving disputes. In addition, no opinion is expressed herein as to any of the
topics
listed under Section 19 "Specific Legal Issues" of the Third-Party Legal Opinion
-------------------------
Report, published in 1991 by the Section of Business Law of the American Bar
------
Association.
The opinions expressed herein are solely for the benefit of you in connection
with the Asset Sale Agreement and Ancillary Documents and may not be relied on
in any manner or for any purpose by any other Person; nor may copies be
furnished to any other Person without the prior written consent of this firm.
Very truly yours,
XXXXXX, XXXXX & XXXXXXX LLP
Exhibit 4.3A
Form of Legal Opinion of Purchaser"s Counsel
February ___, 2000
Orthovita, Inc.
00 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Vita Licensing, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000, 0/xx/ Xxxxx
XX-XX0000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
We have acted as counsel to Implant Innovations, Inc., a Florida corporation
(the "Company"), in connection with the Asset Sale Agreement dated as of
February ___, 2000 (the "Agreement") by and among Orthovita, Inc., Vita
Licensing, Inc. and the Company. Except as otherwise indicated herein,
capitalized terms used in this Opinion Letter are defined as set forth in the
Agreement or the Accord (as defined below), as the case may be. We are
delivering this Opinion Letter at the request of our clients pursuant to Section
4.3.4 of the Agreement.
Except as otherwise expressly modified herein to the contrary, this Opinion
Letter is governed by, and shall be interpreted in accordance with, the Legal
Opinion Accord and commentary thereto (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, and this Opinion
Letter should be read in conjunction with the Accord.
In our capacity as counsel to the Company, we have examined signed copies of the
Transaction Documents to which the Company is a party. With respect to various
questions of fact material to this Opinion Letter, we have relied upon (i) the
representations and warranties made by the Company in the Transaction Documents
and (ii) the Certificate of ____________, ___________ of the Company, attached
to this Opinion Letter as Attachment A.
Based upon and subject to the foregoing, and subject to the qualifications that
follow, it is our opinion that:
1. The Company is incorporated under the laws of the State of Florida and its
status is active.
2. To our Knowledge, the Company has the corporate power and authority to
conduct its business as it is now being conducted.
3. The Company has the corporate power and authority to execute and deliver
the Transaction Documents and to perform its obligations under the
Transaction Documents.
4. The Transaction Documents have been executed and delivered by the Company.
5. The execution and delivery of the Transaction Documents, performance by the
Company of its obligations under the Transaction Documents and the exercise
by the Company of the rights created by the Transaction Documents do not
(i) violate the Company's Constituent Documents; (ii) to our Knowledge,
constitute a breach of or default under any material agreement or
instrument to which the Company is a party or by which it or its assets are
bound; (iii) to our Knowledge, result in the creation of a mortgage,
security interest or other encumbrance upon the assets of the Company; (iv)
to our Knowledge, violate any judgment, decree or order of any court or
administrative tribunal, which judgment, decree or order is binding upon
the Company or its assets; or (v) to our Knowledge, violate any Federal or
Florida law, rule or regulation.
6. The Agreement and the Transaction Documents are enforceable against the
Company.
The opinions expressed herein are specifically limited to the Federal Law and
the Laws of the State of Florida.
This opinion is limited to matters expressly set forth herein and no opinion is
to be implied or may be inferred beyond the matters expressly stated herein.
Pursuant to Section 21 of the Accord, the phrase "Primary Lawyer Group," as used
in the Accord is hereby modified. For purposes of applying the Accord to this
Opinion Letter, the Primary Lawyer Group means the lawyers of this firm who have
given substantive legal attention to the representation of the Company in
connection with the Agreement and the transactions contemplated by it.
Subject to the foregoing, this Opinion Letter may be relied upon by you only in
connection with the Agreement and the Transaction Documents and the transactions
contemplated thereby, and may not be used or relied upon by you or any other
person, firm, corporation or entity for any other purpose whatsoever, except to
Orthovita, Inc.
Vita Licensing, Inc.
February ___, 2000
Page 75
the extent authorized in the Accord, without our prior express written consent
in each such instance.
Very truly yours,
STEEL XXXXXX & XXXXX LLP
KAP/TGO/XXX
ATTACHMENT A
CERTIFICATE OF _____________
AS ______________ OF IMPLANT INNOVATIONS, INC.
I am _________ of Implant Innovations, Inc., a Delaware corporation (the
"Company"). I give this Certificate as support for factual matters contained in
the Opinion Letter of Steel Xxxxxx & Xxxxx LLP ("SHD") delivered to Orthovita,
Inc. and Vita Licensing, Inc. (collectively, "Sellers") in connection with the
Asset Sale Agreement (the "Agreement") dated as of February ___, 2000 among
Sellers and the Company. All information in this Certificate is given as of
today. Capitalized terms used in this Certificate are defined as set forth in
the Agreement.
1. A true and correct copy of each of the Company's Articles of Incorporation
and Bylaws as currently in effect has previously been provided to SHD and has
not been rescinded or repealed.
2. The Company has not approved dissolution and has not taken any other steps
leading to its dissolution.
3. The Company has adopted resolutions authorizing the Company to take all
actions required to be taken by it in connection with the transactions
contemplated by the Agreement and the related documents and agreements
(collectively, the "Transaction Documents").
4. The Company has delivered to SHD all of the documents that may affect
authorization of the Agreement. All of the documents delivered are true and
correct and have not been rescinded or repealed.
5. The Company is not a party to any agreement or instrument that may
adversely affect the Transaction Documents and is not subject to any
restrictions, judgments, orders, decrees, actions, claims, investigations or
other proceedings that may adversely affect the transactions contemplated by the
Transaction Documents.
6. The Company's books and records are complete.
Dated: February ___, 2000
__________________________________
----------, ------------
Implant Innovations, Inc.
Orthovita, Inc.
Vita Licensing, Inc.
February ___, 2000
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