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EXHIBIT A-1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into
as of this 14th day of February, 1997 by and between Seragen, Inc., a Delaware
corporation having a usual place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx (the "Seller"), and Trustees of Boston University, a
Massachusetts not-for-profit corporation having a usual place of business at
000 Xxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the "Buyer").
WHEREAS, the Seller is in the business of biotechnical research,
development, design, manufacture, sale and distribution of pharmaceutical and
health care and related products; and WHEREAS, the Seller conducts its
business
in leased premises located in Hopkinton, Massachusetts, as more particularly
described herein; and WHEREAS, the Seller is the owner of all of the right,
title and interest in various physical assets and equipment which it utilizes
in the conduct of its business; and WHEREAS, the Seller is the lessee of
various other physical assets and equipment which it utilizes in the conduct
of its business; and WHEREAS, the above-described physical assets are
primarily utilized in roduct manufacturing, clinical trials, and research
and development activities; and WHEREAS, the Buyer desires to purchase and
acquire from the Seller, and the Seller desires to sell and transfer to the
Buyer, all of the physical assets (except for those assets specifically
excluded) owned by the Seller and used in the conduct of the Seller's
business, on the terms and subject to the conditions set forth n this
Agreement; and WHEREAS, the Buyer desires to take an assignment of the
Seller's equipment eases and the Seller's real estate leases, on the terms
and subject to the conditions set forth in this Agreement; and WHEREAS, in
connection with all of the foregoing, the Buyer desires to utilize the
physical assets so acquired and the equipment and real estate leases
so assigned to operate the product manufacturing, clinical trial and research
and development facilities currently operated by the Seller, both as a
research and development facility for its own use and as a commercial
contract product manufacturing, clinical trial and research and development
facility to third parties, including the Seller (such facility being
referred to herein as the "Biotech Incubator Facility");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows.
ARTICLE I
PURCHASE AND SALE OF ASSETS
SECTION 1.01 Transfer of Assets. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (as hereinafter
defined) theSeller shall transfer to the Buyer, free and clear of all claims,
charges, liens,contracts, rights,options, security interests, mortgages,
encumbrances and restrictions whatsoever(collectively, "Claims"), all of the
tangible physical assets and personal property, including, without limitation,
inventory, raw materials, machines, machinery, warehouse equipment, furniture,
fixtures, vehicles, supplies, packaging and shipping materials, software
(including, without limitation, source codes, object codes and
documentation), property, equipment, licenses and permits pertaining to the
foregoing physical assets, know-how pertaining to the operation of the
foregoing physical assets, computers and computer equipment, that are
currently owned by the Seller free and clear of any Claims and used by Seller
in its business (collectively, the "Unencumbered Assets"). The Unencumbered
Assets are more particularly described in Schedule 1.01U attached hereto
and incorporated by reference herein. In addition, at the Closing (as
hereinafter defined) the Seller shall transfer to the Buyer, subject only to
Claims existing as of the date hereof, all of the tangible physical assets and
personal property including, without imitation, inventory, raw materials,
machines, machinery, warehouse equipment, furniture, fixtures, vehicles,
supplies, packaging and shipping materials, software (including, without
limitation, source codes, object codes and documentation), property,
equipment, licenses and permits pertaining to the foregoing physical assets,
know-how pertaining to the operation of the foregoing physical assets,
computers and computer equipment, that are owned by the Seller subject to
Claims existing as of the date hereof and used by Seller in its business
(collectively, the "Encumbered Assets"). The Encumbered Assets are more
particularly described in Schedule 1.01E attached hereto and incorporated by
reference herein. The Unencumbered Assets, the Encumbered Assets and the
Contracts (as hereinafter defined) are collectively referred to herein as "the
Transferred Assets". Notwithstanding any of the foregoing, the Transferred
Assets shall not include those assets designated as "Excluded Assets" on
Schedule 1.01X attached hereto and incorporated by reference herein. Without
limiting the generality of the foregoing, all tangible assets and physical
property of the Seller located at the facilities listed in Schedule 1.03,
other than Excluded Assets, shall be included in the Transferred Assets.
The Seller shall transfer the Transferred Assets to the Buyer
pursuant to a xxxx of sale substantially in the form of Exhibit 1.01 attached
hereto (the "Xxxx of Sale") and such other documents and instruments as the
Buyer, or its counsel, may reasonably request.
SECTION 1.02 Consideration for the Transferred Assets. In
consideration for the conveyance of the Transferred Assets, upon the terms and
subject to the conditions set forth in this Agreement, on the Closing Date,
the Buyer, in addition to assuming the Assumed Liabilities, will pay to the
Seller an aggregate consideration of Five Million and 00/100 Dollars
($5,000,000.00) (the "Purchase Price"). Upon the execution of this
Agreement, the Buyer shall deposit the sum of Three Million Five Hundred
Thousand and 00/100 Dollars ($3,500,000.00) with the Seller (the "Signing
Deposit"). On March 1, 1997, the Buyer shall deposit the further sum of One
Million and 00/100 Dollars ($1,000,000.00) with the Seller (the "Additional
Deposit"). The Signing Deposit and the Additional Deposit are herein
collectively referred to as the "Deposit." The Deposit shall be secured as
provided in Section 1.08 hereof. The balance of the Purchase Price shall be
paid at Closing. The total consideration paid by the Buyer to the Seller for
the Transferred Assets shall be allocated among the Transferred Assets
pursuant to a written allocation mutually agreed to between the Buyer and the
Seller prior to the Closing. The Buyer and the Seller shall file all
information returns, income tax returns and other similar documents with
appropriate taxing authorities, including the Asset Acquisition Statement on
Form 8594 required by Section 1060 of the Internal Revenue Code of 1986, as
amended, in a manner consistent with such written allocation.
SECTION 1.03 Assignment of Contracts. At the Closing, the Seller
shall assign to the Buyer all of its right, title and interest in and to, and
the Buyer shall take an assignment of and assume the obligations of the Seller
under, those certain equipment leases more particularly described in Schedule
1.03E attached hereto and incorporated by reference herein, those certain
real estate leases more particularly described in Schedule 1.03R attached
hereto and incorporated by reference herein, those certain licenses and
permits described on Schedules 1.01U and 1.01E, and the Service Agreements (as
hereinafter defined) (such equipment leases, real estate leases and Service
Agreements being collectively called the "Contracts"). Notwithstanding the
foregoing, this Agreement shall not constitute an agreement to assign any
Contract if an attempted assignment thereof, without the consent of another
party thereto or any governmental authority, would constitute a breach
of any such Contract or in any way affect the rights of the Seller thereunder
or the Buyer as assignee hereunder. The Seller shall use all reasonable
efforts and the Buyer shall cooperate in all reasonable respects with the
Seller to obtain all consents and waivers and to resolve all impracticalities
of assignments or transfers necessary to assign and convey the Contracts to
the Buyer. If any such consent or waiver are not obtained, or if an attempted
assignment would be ineffective, the Seller shall use all reasonable efforts
to provide the Buyer with the benefits of any such Contract, and the
Seller shall promptly pay to the Buyer when received all moneys received by
the Seller under any such Contract and, to the extent the Buyer is provided
with the benefits of any such Contract, the Buyer shall perform or
discharge on behalf of the Seller all obligations and liabilities under each
such Contract in accordance with the provisions hereof, as fully and
effectually as if such Contract was assigned hereunder.
SECTION 1.04 Assumption of Liabilities. At the Closing, the Buyer
shall assume, and shall thereafter pay, perform and discharge as and when due,
the following liabilities and obligations (collectively, the "Assumed
Liabilities"):
(a) Claims. All liabilities and obligations relating to the
Claims against the Encumbered Assets, as such Claims exist as of the date
hereof;
(b) Contracts. All liabilities and obligations of the Seller
under the Contracts to the extent that such liabilities and obligations arise,
accrue or are otherwise properly attributable to the period commencing on or
after the Closing Date, provided that such Contracts are assigned to
the Buyer as of the Closing Date or the Buyer is receiving the benefits of
such Contracts;
(c) Post-Closing Operation. All obligations, liabilities and
claims which arise out of the Buyer's ownership, operation, use, possession or
sale of the Transferred Assets on and after the Closing Date;
(d) Accrued Vacation; Severance. All liabilities and
obligations of the Seller for accrued vacation and severance expense existing
as of the Closing Date with respect to such of the Seller's employees set
forth on Schedule 2.11 as are employed by the Buyer as of the Closing Date;
and
(e) Certain Other Liabilities. Those additional liabilities
and obligations of the Seller set forth on Schedule 1.04. There shall be no
material default of any contract or other arrangement giving rise to
such obligations and liabilities as of the Closing Date. The Seller shall
duly provide to the satisfaction of the Buyer for the payment of all of its
liabilities due and owing as of the Closing, except for the Assumed
Liabilities, to the extent that the Buyer reasonably determines that failure
to satisfy such liabilities could result in the imposition of liens on any of
the Transferred Assets. Except for the Assumed Liabilities in the amount and
to the extent provided in this Section, the Buyer shall not assume, nor be
responsible for, any liabilities or obligations which relate in any
manner to the Seller or the operation of its business or any of its equipment,
property or real estate.
SECTION 1.05 Closing. Subject to the satisfaction or waiver of
each of the conditions set forth in Articles VI an VII of this Agreement, the
closing of the transactions contemplated by this Agreement (the "Closing")
shall take place at the offices of Boston University, 000 Xxxxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx at 10 o'clock a.m., on June 2, 1997, or such other
location, date and time as the Buyer and the Seller shall agree upon in
writing (such date and time being called the "Closing Date"). Time is of the
essence hereof. At the Closing:
A. The Seller shall deliver or cause to be delivered to the Buyer
the following:
(i) The Xxxx of Sale conveying the Transferred Assets to the
Buyer;
(ii) The certificates required by Sections 6.02 and 6.03;
(iii) A copy of resolutions of the board of directors and
shareholders of the Seller, certified by its Secretary or
Assistant Secretary, authorizing and approving the
execution, delivery and performance of this Agreement and
the transactions contemplated hereby and the acts of the
officers and employees of the Seller in carrying out the
terms and provisions hereof; and
(iv) Such written consents and written approvals of third
parties, real estate lessors, equipment lessors, and
their respective mortgagees, lenders and secured parties
as shall be required under any leases or financing
documents so as to permit the transfer of all material
Transferred Assets and the assignment of all material
Contracts in connection with the transactions
contemplated hereby.
B. The Buyer shall deliver or cause to be delivered to the Seller
the following:
(i) A copy of the resolutions of the board of directors or
other governing board of the Buyer (or its Nominee
pursuant to Section 1.06 hereof) certified by
its Secretary or Clerk, authorizing and approving the
performance of this Agreement and the transactions
contemplated hereby and the acts of the officers and
employees of the Buyer (or its Nominee) in carrying out
the terms and provisions hereof;
(ii) The UCC-3 Termination Statements contemplated by Section
1.03 hereof; and
(iii) The balance of the Purchase Price by wire transfer of
immediately available funds to such bank account as the
Seller shall designate.
C. The Buyer and the Seller shall deliver, or cause to be
delivered, as appropriate:
(i) An Instrument of Assumption of Liabilities substantially
in the form of Exhibit 1.05(C)(i) attached hereto,
pursuant to which the Buyer shall assume the Assumed
Liabilities;
(ii) An Assignment of Leases in form and substance satisfactory
to the Buyer assigning all right, title and interest of
the Seller in and to those certain Leases for real
property set forth in Schedule 1.03R hereof, together with
the consents of the lessors of such premises and any
mortgagees or secured parties of such lessors required
hereunder, and pursuant to which Assignment the
Buyer shall assume all obligations of the tenant
thereunder.
(iii) An Assignment of Equipment Leases in form and substance
satisfactory to the Buyer assigning all right, title and
interest of the Seller in and to all material equipment
leases set forth in Schedule 1.03E hereof, together with
the consents of the lessors of all material equipment and
any mortgagees or secured parties of such lessors required
hereunder, and pursuant to which Assignment the Buyer
shall assume all obligations of the Seller thereunder;
(iv) A Sublease in form and substance satisfactory to the
Seller and the Buyer pursuant to which the Buyer shall
Sublease to the Seller the premises described in
Schedule 1.05 hereof for the Seller's general office
purposes, all on such terms and conditions and
at the rents (pro rated as necessary on the basis of
square footage) as are applicable to the Buyer under its
lease(s) for such space, subject to any consent
or approval of any lessor(s) or mortgagee or secured party
of such lessor(s) required to effectuate such Sublease;
(v) Such further documents, resolutions, certificates and
instruments as any party or its counsel reasonably
requests to facilitate the consummation of the ransactions
contemplated hereby.
SECTION 1.06 Nomination by the Buyer. Notwithstanding any other
provision hereof to the contrary, it is understood and agreed that the Buyer
shall have the option at all times of consummating the transactions
contemplated hereby by and through a corporation, limited liability company or
other entity of its choosing, which is created by and wholly owned, directly
or indirectly, by the Buyer as of the Closing Date (as the context requires, a
or the "Nominee"). If the Buyer shall elect to consummate the transactions
contemplated hereby through a Nominee, the Buyer shall give written notice to
the Seller of such nomination and designation not less than seven (7) days
prior to the Closing Date hereunder, and the Nominee shall, at such time,
deliver to the Seller an instrument assuming all of the Buyer's obligations
and liabilities hereunder, such instrument to be in form and substance
reasonably satisfactory to the Seller. Upon such nomination, this Agreement
shall be deemed to be assigned to the Nominee, and the Nominee shall be deemed
to be the Buyer hereunder for all purposes, completely and effectively as if
the Nominee were the Buyer named herein. In the event that such Nominee shall
be an entity whose sole assets are or will be the Transferred Assets or that
otherwise has insufficient net assets to provide commercially reasonable
credit-worthiness for its obligations set forth herein, a subsidiary of the
Buyer with assets sufficient to provide commercially reasonable
credit-worthiness shall execute and deliver at the Closing a guarantee of the
Nominee's obligations hereunder, such guarantee to be in form and substance
reasonably satisfactory to the Buyer and the Seller.
SECTION 1.07 Further Assurances. At any time and from time to time
after the Closing Date, at the request of the Buyer and without further
consideration, the Seller will execute and deliver such other instruments of
sale, transfer, conveyance, assignment and confirmation as may be requested
in order to more effectively transfer, convey and assign to the Buyer and to
confirm the Buyer's title to the Transferred Assets and the assignment of the
equipment leases and real estate leases hereunder. At any time and from time
to time after the Closing Date, at the request of the Seller and without
further consideration, the Buyer shall execute and deliver such other
instruments of assumption as may be requested in order to more effectively
confirm the Buyer's assumption of, and obligation to fulfill and discharge,
the Assumed Liabilities.
SECTION 1.08 Deposit. At the Closing, the Deposit (or so much
thereof as has been paid by the Buyer) shall be applied to the payment of the
Purchase Price. In the event that the transactions contemplated hereby
are not consummated on or before the Closing Date, time being of the essence,
as a result of (i) material default by the Seller of its obligations hereunder
or any of its covenants or agreements hereunder or material breach by
the Seller of any of its representations or warranties hereunder; or (ii) the
failure of the Office of the Attorney General of the Commonwealth of
Massachusetts, Public Charities Division, to approve the transactions
contemplated by this Agreement; or (iii) the failure of a majority of the
disinterested stockholders of the Seller in attendance, in person or by proxy,
at a meeting of stockholders of the Seller to consider the transactions
contemplated by this Agreement to approve the transactions contemplated by
this Agreement; or (iv) the failure of any third party, lessor, mortgagee,
secured party, or other person or entity whose approval or consent is required
pursuant to the terms hereof as a condition to the obligation of the parties
hereunder to consummate the transactions contemplated hereby to so approve or
consent to the transactions contemplated hereby; then, in any such event, the
Deposit (or so much thereof as has been paid by the Buyer) shall be forthwith
refunded by the Seller to the Buyer. The foregoing shall not be deemed to be
in limitation of any right or remedy otherwise available to the Buyer, at law
or in equity, in the event of a default by the Seller hereunder.
To secure the Seller's obligation to return the Deposit in the event
that the transactions contemplated hereby are not consummated in a timely
manner for any of the reasons set forth in the foregoing provisions of this
Section 1.08, the Seller does hereby grant to the Buyer a security interest in
and to all of the Unencumbered Assets, together with all proceeds from and
substitutions therefor, with all of the rights of a secured party under the
Massachusetts Uniform Commercial Code. In connection therewith, the Seller
shall, contemporaneously with the execution of this Agreement, execute and
deliver so-called UCC-1 Financing Statements for filing in the appropriate
state and local offices. In the event that the Deposit is returned
by the Seller to the Buyer in accordance with the provisions of this Section
1.08, or upon the Closing hereunder, the Buyer shall promptly execute and
deliver so-called UCC-3 Termination Statements acknowledging its release of
the security interests created hereby.
In the event that the Buyer shall be entitled to a return of the
Deposit hereunder, said Deposit shall be refunded together with interest
thereon at the annual rate of ten percent (10%). In the event that the
Deposit is applied to the Purchase Price hereunder, the Buyer shall not be
entitled to the payment of or any credit for interest on the Deposit.
SECTION 1.09 Prorations. Utility charges, rent with respect to
real or personal property, personal property taxes, and other similar
proratable items which are attributable to the Transferred Assets
shall be apportioned between the Buyer and the Seller as of the Closing Date.
Any such item which relates to the period on or prior to the Closing Date
shall be apportioned to the Seller and any such item which relates
to the period after the Closing Date shall be apportioned to the Buyer.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, the Seller hereby represents
and warrants to the Buyer as follows:
SECTION 2.01 Organization and Qualification. The Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Seller has the corporate power
and authority to own and hold its properties and to carry on its business as
currently conducted.
SECTION 2.02 Corporate Power and Authority. The Seller has the
corporate powerand authority to execute, deliver and perform this Agreement
and the other documents and instruments contemplated hereby.
The execution, delivery and performance of this Agreement and the documents
contemplated hereby and the consummation of the transactions contemplated
hereby and thereby have been duly authorized and approved by the Seller's
Board of Directors, subject to approval of Seller's stockholders as
contemplated herein. Subject only to such stockholder approval, this
Agreement, and each of the other agreements, documents and
instruments to be executed and delivered by the Seller have been duly executed
and delivered by, and constitute the valid and binding obligation of the
Seller, enforceable against the Seller in accordance with their terms,
subject to the effect of bankruptcy, insolvency, reorganization, arrangement,
moratorium and other similar laws now or hereafter in effect, as well as
limitations imposed by general principles of equity upon the specific
enforceability of any of the remedies, covenants or other provisions and the
availability of injunctive relief or other equitable remedies.
SECTION 2.03 Validity, Etc. Subject in all respects to the
approval of the Seller's stockholders as contemplated hereby, neither the
execution and delivery of this Agreement and the other documents and
instruments contemplated hereby, the consummation of the transactions
contemplated hereby or thereby, nor the performance of this Agreement and such
other agreements in compliance with the terms and conditions hereof and
thereof will, except as set forth on Schedule 2.03, (i) conflict with or
result in any breach of any trust agreement, articles of organization or
by-law of the Seller, (ii) require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or
regulatory authority, (iii) result in a breach of or default (or give rise to
any right of termination, cancellation or acceleration) under any law, rule or
regulation or any judgment, decree, order, governmental permit (other than
permits set forth in a Schedule hereto which are not transferable), license or
order or any of the terms, conditions or provisions of any mortgage,
indenture, note, license, agreement or other instrument or obligation to which
the Seller is a party or by which the Seller or its property is bound, or (iv)
result in the creation of any Claim upon the Transferred Assets.
SECTION 2.04 Absence of Undisclosed Liabilities. Except as and to
the extent specifically reflected in Schedule 1.01E or Schedule 1.04, or, with
respect to the Contracts, except as specifically set forth on the face
thereof, the Transferred Assets are not encumbered by any liabilities,
obligations or Claims and there are no liabilities, obligations or Claims with
respect thereto.
SECTION 2.05 Taxes. Except as set forth on Schedule 2.05, all
Federal, state, local and foreign tax returns and tax reports required to be
filed by the Seller or its affiliates on or before the date hereof have been
timely filed with the appropriate governmental agencies in all jurisdictions
in which such returns and reports are required to be filed and all amounts
shown as owing thereon have been paid. All taxes (including, without
limitation, income, accumulated earnings, property, sales, use, franchise,
value added, fuel, employees' income withholding and social security taxes)
which have become due or payable or required to be collected by the Seller or
its affiliates or as otherwise attributable to any periods ending
on or before the date hereof and the Closing Date and all interest and
penalties thereon, whether disputed or not, have been paid or will be paid in
full on or prior to the Closing Date, except where the Seller has
a reasonable basis for determining that the taxes are not then due and
payable. All deposits required by law to be made by the Seller or its
affiliates with respect to employees' withholding taxes have been duly
made, and, as of the Closing Date, all such deposits will have been made. The
Seller is not, on the date hereof, and will not, on the Closing Date, be
liable for the payment of any taxes, and the Buyer shall have no liability for
any taxes related to the ownership or operation of the Transferred Assets
or the Biotech ncubator Facility prior to the Closing Date. The Seller is
not presently under, has not received notice of an, nor to the Seller's
knowledge is there any contemplated, investigation or audit by the
Internal Revenue Service or any state tax agency. The Seller has not taken or
failed to take any action which could create any tax lien on any of the
Transferred Assets.
SECTION 2.06 Litigation. Except as set forth on Schedule 2.06,
there is no action, suit, claim, proceeding, arbitration proceeding or
investigation with respect to which the Seller has received notice
pending or, to the Seller's knowledge, threatened against or materially
affecting the Seller (whether or not the Seller is a party or a prospective
party), at law or in equity, or before or by any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign. The Seller has not received any written
opinion or memorandum or legal advice from legal counsel to the effect that it
is exposed, from a legal standpoint, to any liability or disadvantage to the
business, prospects, financial condition, operations, property or affairs of
the Biotech Incubator Facility. There are no outstanding orders, writs,
injunctions or decrees of any court, governmental agency or arbitration
tribunal against, or materially affecting, the Seller of which the Seller has
received notice, and to the Seller's knowledge, there are no facts or
circumstances which could reasonably be expected to result in institution
of any action, suit, claim or legal, administrative or arbitration proceeding
or investigation against, involving or affecting the Seller or the
transactions contemplated hereby. The Seller is not in default with respect to
any order, writ, injunction or decree known to or served upon it from any
court or of any Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign.
SECTION 2.07 Certain Practices. The Seller has not, directly or
indirectly, given or agreed to give any significant rebate, gift or similar
benefit to any supplier, customer, governmental employee or other person who
was, is or may be in a position to help or hinder the Seller (or assist in
connection with any actual or proposed transaction) which (i) could subject
the Seller or the Buyer to any damage or penalty in any civil, criminal or
governmental litigation or proceeding, or (ii) if not continued in the
future, could have a material adverse effect on the Biotech Incubator
Facility.
SECTION 2.08 Compliance with Law. The Seller is not subject to any
judgment, order, writ, injunction, or decree that adversely affects,
individually or in the aggregate, the Biotech Incubator Facility, or its
operations, properties, assets or condition (financial or otherwise).
The Seller has complied with all laws, rules, regulations and orders
applicable to it in relation to its ownership and operation of the Biotech
Incubator Facility. The Seller is not aware of any existing law, rule,
regulation or order, or of any proposed law, rule, regulation or order
currently pending before any governmental body or agency, whether Federal or
state, which would prohibit or restrict the Buyer from, or otherwise adversely
affect the Buyer in, owning and operating the Biotech Incubator Facility as
presently owned and operated by the Seller.
SECTION 2.09 Licenses and Permits. Schedule 2.09 lists all
licenses, permits, pending applications, consents, approvals and
authorizations held by the Seller of or from any public or governmental
agency, used or useable in or otherwise necessary to the operation of the
Biotech Incubator Facility (collectively, the "Permits"). Except as noted on
Schedule 2.09, the Permits will be duly and validly transferred to the Buyer.
The Seller has complied with all conditions and requirements imposed by
the Permits and the Seller has not received any notice, and has no reason to
believe, that any appropriate authority intends to cancel or terminate any of
the Permits or that valid grounds for such cancellation or termination exist.
Except as set forth on Schedule 2.09, to the Seller's knowledge no other
permits are necessary to operate the Biotech Incubator Facility. The Seller
owns or has the right to use the Permits in accordance with the terms thereof
without any conflict or alleged conflict or infringement with the rights of
others and subject to no Claim, and each Permit is in full force and effect.
Except as noted on Schedule 2.09, no Permit will be terminated or adversely
affected by the transactions contemplated hereby.
SECTION 2.10 Labor and Employee Relations. The Seller is not a
party to or bound by any collective bargaining agreement with any labor
organization, group or association covering any of its employees, and the
Seller has no knowledge of any attempt to organize any of its employees
by any person, unit or group seeking to act as their bargaining agent. Except
as set forth on Schedule 2.06, there are no pending or, to the Seller's
knowledge, threatened charges (by employees, their representatives or
governmental authorities) of unfair labor practices or of employment
discrimination or of any other wrongful action with respect to any aspect of
employment of any person employed or formerly employed by the Seller. No
union representation elections relating to employees of the Seller have been
scheduled by any governmental agency or authority, no organizational effort is
being made with respect to any of such employees, and there is no
investigation of the Seller's employment policies or practices by any
governmental agency or authority pending or, to the Seller's knowledge,
threatened. The Seller is not currently, and has not within the last three
years been, involved in labor negotiations with any unit or group seeking to
become the bargaining unit for any employees of the Seller's employees. The
Seller has not experienced any work stoppages during the last three years, and
to the Seller's knowledge, no work stoppage has been threatened or is
planned.
SECTION 2.11 Certain Employees. Set forth on Schedule 2.11 is a
list of the names of the Seller's employees and consultants as of the date
hereof involved in the management and operation of the Biotech Incubator
Facility, together with the title or job classification of each such
person and the total compensation (with wages and bonuses, if any, separately
detailed) paid in 1996 and the current rate of pay for each such person on the
Closing Date. None of such persons has an employment agreement or
understanding, whether oral or written, with the Seller which is not
terminable on notice by the Seller without cost or other liability to the
Seller. As of the date hereof, no person listed on Schedule 2.11 has
indicated to the Seller that he or she intends to terminate his or her
employment with the Seller or seek a material change in his or her duties or
status.
SECTION 2.12 Employee Benefits. Set forth on Schedule 2.12 is a
list of all pension, profit sharing, retirement, deferred compensation, stock
purchase, stock option, incentive, vacation, severance, disability,
hospitalization, medical insurance, life insurance, fringe benefit, welfare
and other employee benefit plans, programs or arrangements to which employees
of the Seller may be entitled.
The Seller will maintain the benefits listed on Schedule 2.12 in
full force and effect through the Closing Date, and, except as noted on
Schedule 2.12, thereafter with respect to events occurring on or prior
to the Closing. Except as otherwise expressly set forth herein, the Buyer
shall not have any obligation of any kind or nature for any compensation or
benefits of any kind or nature to the employees or consultants of the Seller
for services rendered prior to the Closing Date.
Each "Employee Welfare Benefit Plan" (as defined in Section 3(1) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")),
covering any present or former employee of the Seller subject to the
requirements of the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA") complies with all requirements for continuation coverage under
group health benefit plans under COBRA and there are no claims against the
Seller for a failure or alleged failure to comply with the COBRA continuation
requirements.
Each employee plan which is subject to ERISA conforms to, and its
operation and administration are in compliance with, all applicable
requirements of ERISA. There are no actions, suits or claims pending
(other than routine claims for benefits) or threatened against any employee
plan or against the assets of any employee plan.
SECTION 2.13 Tangible Properties. Schedule 1.01E and Schedule
1.01U set forth a true and complete list of all tangible personal property
owned by the Seller with an original purchase price in excess of
$1,500.00 and used or useable in the Biotech Incubator Facility. The tangible
personal property included in the Transferred Assets will be, at the Closing,
all of the tangible personal property currently owned by the Seller and used
or useable in the Biotech Incubator Facility. The Seller is the owner of all
of the right, title and interest in and to, and has good and marketable title,
free and clear of all Claims, to the Unencumbered Assets listed on Schedule
1.01U. The Seller is the owner of all of the right, title and interest in and
to, and has good and marketable title to, the Encumbered Assets, subject only
to those Claims described in Schedule 1.01E. Schedule 1.03E sets forth a true
and complete list of all tangible personal property leased by the Seller as
lessee and used or useable in the Biotech Incubator Facility. With respect to
such equipment leased by the Seller, all leases, conditional sale contracts,
franchises or licenses pursuant to which the Seller may hold or use (or permit
others to hold or use) such equipment or property are valid and in full force
and effect, and there is not, under any of such instruments, any existing
default or event of default or event which with notice or lapse of time or
both would constitute such a default. The Seller's possession and use of such
property has not been disturbed and no claim has been asserted against the
Seller adverse to its rights in such leasehold interests. All Transferred
Assets, equipment and property being sold, transferred or assigned hereunder
is adequate and usable for the purposes for which it is currently used and is
in good operating condition and repair, ordinary wear and tear excepted.
SECTION 2.14 Premises. Schedule 1.03R sets forth a true and
complete list and description of each parcel of real property leased by the
Seller and used in the Biotech Incubator Facility (the "Leased Premises").
Each lease covering a Leased Premises is in full force and effect
(there existing no default under any such lease which, with the lapse of time
or notice or otherwise, would entitle the lessor to terminate the same),
conveys the leased real estate purported to be conveyed thereunder and is
enforceable by the Seller. The Seller has the right to use the Leased
Premises in accordance with the terms of such leases free and clear of all
Claims or other interests or rights of third parties, except those which do
not or would not have an adverse effect on the Leased Premises as
used in the operation of the Biotech Incubator Facility. Seller has not
received notice of any pending or threatened condemnation or similar
proceedings or assessments affecting any of the Leased Premises,
nor to the Seller's knowledge is any such condemnation or assessment
contemplated by any governmental authority.
SECTION 2.15 Insurance. Schedule 2.15 correctly describes (by
type, carrier, policy number, limits, premium, and expiration date) the
insurance coverages carried by the Seller.
SECTION 2.16 Outstanding Commitments. Schedule 2.16 sets forth a
description of all existing material contracts, agreements, commitments,
licenses and franchises (other than those which can be canceled upon not more
than 30 days notice without penalty to the Seller), whether written
or oral, relating to the ownership or operation of the Biotech Incubator
Facility (collectively "Service Agreements"). The Seller has delivered or
made available to the Buyer true, correct and complete copies
of all of the Service Agreements specified on Schedule 2.16 which are in
writing, and Schedule 2.16 contains an accurate and complete description of
all Service Agreements which are not in writing. Except as otherwise
disclosed on Schedule 2.16, the Seller has paid in full all amounts due as of
the date hereof under each Service Agreement identified on Schedule 2.16 and
as of the Closing Date will have satisfied in full all of its liabilities and
obligations thereunder due in the ordinary course of business prior to the
Closing. All of the Service Agreements described on Schedule 2.16 are in full
force and effect. The Seller and each other party thereto have substantially
performed all the obligations required to be performed by them under such
Agreements to date, performance of which has not been waived, have received
no notice of default and are not in default (with due notice or lapse of time
or both) under any such Agreement. The Seller has no present expectation or
intention of not fully performing all its obligations under each Agreement,
and the Seller has no knowledge of any breach or anticipated breach
by the other party to any contract or commitment to which the Seller is a
party. None of such Service Agreements has beenterminated, no notice has been
given by any party thereto of any alleged default by any party thereunder,
and the Seller is not aware of any intention or right of any party to default
another party to any such Service Agreement. There exists no actual or, to
the knowledge of the Seller, threatened termination, cancellation or
limitation of the business relationship of the Seller with any party to
any such Service Agreement.
SECTION 2.17 Proprietary Information of Third Parties. No third
party has claimed or, to the Seller's knowledge, has reason to claim that any
person employed by or affiliated with the Seller in connection with its
ownership and operation of the Biotech Incubator Facility has (a) violated or
may be violating any of the terms or conditions of such person's employment,
non-competition or non-disclosure agreement with such third party, (b)
disclosed or may be disclosing or utilized or may be utilizing any trade
secret or proprietary information or documentation of such third party, or (c)
interfered or may be interfering in the employment relationship between such
third party and any of its present or former employees. No third party has
requested information from the Seller which suggests that such a claim might
be contemplated. To the Seller's knowledge, no person employed by or
affiliated with the Seller in connection with the operation of the Biotech
Incubator Facility has employed or proposes to employ any trade secret
or any information or documentation proprietary to any former employer and no
person employed by or affiliated with the Seller in connection with the
operation of the Biotech Incubator Facility has violated any confidential
relationship which such person may have had with any third party, in
connection with the development, manufacture or sale of any product or
proposed product or the development or sale of any service or proposed service
of the Biotech Incubator Facility, and the Seller has no reason to believe
there will be any such employment or violation.
SECTION 2.18 Governmental Approvals. No registration or filing
with, or consent or approval of or other action by, any Federal, state or
other governmental agency or instrumentality is or will be necessary for the
valid execution, delivery and performance by the Seller of this Agreement.
SECTION 2.19 Environmental Liability.
(a) Environmental Substance Liability. To the Seller's knowledge,
no event has occurred or condition exists or operating practice is being
employed that could give rise to material liability on the part of the Seller
under existing law for any losses, liabilities, damages (whether consequential
or otherwise), settlements, penalties, interest and expenses, including
closure expenses, costs of assessment, containment, or removal (other than
transportation or disposal of materials required to be transported or disposed
of in the ordinary course of business, remedial work, or monitoring) arising
under any presently enacted Federal, state, or local statute, or any
regulation that has been promulgated pursuant thereto, or common law, as a
result of or in connection with, or alleged to be a result of or in connection
with, the following:
(i) the handling, storage, use, transportation or disposal of
any Substances (as hereinafter defined) in or near or from
the Biotech Incubator Facility, by the Seller or any owner
of any property used or owned by the Seller;
(ii) the handling, storage, use, transportation or disposal of
any Substances by the Seller which Substances were a
product, by-product or otherwise resulted from
the operations conducted by or on behalf of the Seller;
(iii) any intentional or unintentional emission, discharge or
release of any Substances in, from or near facilities or
plants into or upon the air, surface water, ground water
or land or any disposal, handling, manufacturing,
processing, distribution, use, treatment, or transport of
such Substances in, from or near the Biotech Incubator
Facility; or
(iv) the presence of any toxic or hazardous building materials
(including but not limited to asbestos or similar
substances) in the Biotech Incubator Facility, including
but not limited to the inclusion of such materials in the
exterior and interior walls, floors, ceilings, tile,
insulation or any other portion of building structures.
As used in this Section 2.19, the term "Substances" shall mean any
pollutant, hazardous substance, hazardous material, hazardous waste or toxic
waste, as defined in any presently enacted Federal, state or local statute or
any regulation that has been promulgated pursuant thereto.
(b) Environmental Permits. To the Seller's knowledge it has
obtained and holds all registrations, permits, licenses, and approvals issued
by or on behalf of any Federal, state or local government body or agency
("Environmental Permits"), that are required in connection with the
discharge or emission of Substances (as hereinabove defined) from the Biotech
Incubator Facility or the generation, treatment, storage, transportation or
disposal of any such Substances. Such Environmental Permits, which are
described in Schedule 2.19, are currently effective and sufficient for the
ownership and operation of the plants and facilities as currently conducted,
used or owned by the Seller.
SECTION 2.20 Disclosure. Neither this Agreement, nor any Schedule
or Exhibit to this Agreement contains any untrue statement of a material fact,
taken together with all other statements made in this Agreement or any
Schedule or Exhibit to this Agreement, or omits a material fact necessary
to make the statements contained herein or therein, in light of the
circumstances in which made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Seller as follows:
SECTION 3.01 Organization. Buyer is duly incorporated, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts.
SECTION 3.02 Buyer Power and Authority. Buyer has the corporate
power and authority to execute, deliver and perform this Agreement and the
other documents and instruments contemplated hereby. The execution, delivery
and performance of this Agreement and the documents contemplated hereby and
the consummation of the transactions contemplated hereby and thereby have been
duly authorized and approved by the Buyer, subject only to final approval by
the Oversight Committee referred to in Section 6.04 hereof. This Agreement,
and each of the other agreements, documents and instruments to be executed
and delivered by the Buyer have been duly executed and delivered by, and
constitute the valid and binding obligation of the Buyer enforceable against
the Buyer in accordance with their terms subject to the effect of bankruptcy,
insolvency, reorganization, arrangements, moratorium, and other similar
laws now or hereafter in effect, as well as limitations imposed by general
principles of equity upon the specific enforceability of any of the remedies,
covenants or other provisions, and the availability of injunctive relief or
other equitable remedies.
SECTION 3.03 Validity, Etc. Except for the consent or approval of
the Office of the Attorney General of the Commonwealth of Massachusetts,
Public Charities Division, none of the execution and delivery of this
Agreement and the other documents and instruments contemplated hereby,
the consummation of the transactions contemplated hereby or thereby, or the
performance of this Agreement and such other agreements in compliance with the
terms and conditions hereof and thereof will (i) conflict with or result in
any breach of any trust agreement, articles of organization, by-law,
judgment, decree, order, statute or regulation applicable to the Buyer (ii)
require anyconsent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, (iii) result in a
breach of or default (or give rise to any right of termination, cancellation
or acceleration) under any law, rule or regulation or any judgment, decree,
order, governmental permit, license or order or any of the terms, conditions
or provisions of any mortgage, indenture, note, license, agreement or other
instrument to which the Buyer is a party by which the Buyer or its property is
bound, or (iv) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Buyer.
SECTION 3.04 No Violation of Laws or Contracts. Provided that the
Office of the Attorney General of the Commonwealth of Massachusetts, Public
Charities Division, consents or approves the transactions contemplated hereby,
neither the execution and performance of this Agreement or the other
agreements executed by the Buyer in accordance with the terms hereof, nor the
consummation of the transactions contemplated hereby and thereby, will violate
any provisions of law, any order of any court or other agency or government,
or any ordinance, indenture or agreement to which the Buyer is a party,
or by which the Buyer or its property is bound, which would materially impair
the Buyer's ability to consummate the transactions contemplated hereby, nor is
the Buyer aware of any existing law, rule, regulation or order, or proposed
law, rule, regulation or order currently pending before any governmental body
or agency, whether Federal or state, which would prohibit or restrict
the Buyer from, or otherwise adversely affect the Buyer in, owning and
operating the Biotech Incubator Facility as presently owned and operated by
the Seller.
SECTION 3.05 Governmental Approvals. Except for the consent or
approval of the Office of the Attorney General of the Commonwealth of
Massachusetts, Public Charities Division, of the transactions contemplated
hereby, no registration or filing with, or consent or approval of or other
action by, any Federal, state or other governmental agency or instrumentality
is or will be necessary for the valid execution, delivery and performance by
the Buyer of this Agreement.
SECTION 3.06 Buyer's Nominee. Any Nominee designated by the Buyer
shall be deemed to have made the representations and warranties set forth in
this Article III, with such changes as the context shall require in the event
that the Nominee is an entity other than a corporation (e.g., a limited
liability company); provided, however, that if the Nominee is other than
a corporation, it shall be deemed to represent and warrant that it is duly
organized, validly existing and with the appropriate power and authority to
consummate the transactions contemplated hereby, all as set forth in this
Article III, but subject to all of the express limitations set forth in this
Article III.
ARTICLE IV
COVENANTS OF SELLER
The Seller covenants and agrees with the Buyer as follows:
SECTION 4.01 Cooperation. The Seller shall use its commercially
reasonable efforts to perform and fulfill all conditions and obligations to be
fulfilled or performed by it hereunder, to the end that the transactions
contemplated hereby will be fully and timely consummated.
SECTION 4.02 Access. Until the Closing, the Seller shall give the
Buyer, its attorneys, accountants and other authorized representatives
reasonable access, upon reasonable notice and at reasonable times, to the
Biotech Incubator Facility and suppliers, employees, products, technology,
business and financial records, contracts, business plans, budgets and
projections, agreements and commitments relating to the operation of the
Biotech Incubator Facility. The Buyer agrees that, prior to the Closing, it
shall not contact or otherwise communicate with the Seller's customers,
suppliers or other third parties with whom the Seller has a relationship in
connection with the Seller's operation of the Biotech Incubator Facility,
without in each case obtaining the prior approval of the Seller, which
approval shall not be unreasonably withheld, delayed or conditioned.
SECTION 4.03 Insurance. The Seller shall maintain its existing
insurance policies relating to the ownership and operation of the Biotech
Incubator Facility through the Closing.
SECTION 4.04 Compliance with Laws. The Seller shall operate the
Biotech Incubator Facility in compliance with all applicable laws, rules,
regulations and orders, except for minor failures to be in compliance with
applicable laws, rules, regulation and orders that would not, individually or
in the aggregate, have a material adverse effect on the Transferred Assets
or the operation or condition (financial or otherwise) or prospects of the
Biotech Incubator Facility.
SECTION 4.05 Keeping of Books and Records. The Seller shall
continue to keep adequate records and books of account, in which complete
entries will be made in accordance with its existing accounting principles
consistently applied, reflecting all financial transactions and in
which all proper reserves for depreciation, depletion, obsolescence,
amortization, taxes, bad debts and other purposes in connection with its
ownership and operation of the Biotech Incubator Facility.
SECTION 4.06 Actions Prior to Closing. The Seller shall operate
the Biotech Incubator Facility, pending the Closing, only in the ordinary and
usual course of its usual business. Without limiting the generality of the
foregoing, the Seller will not, except in the ordinary and usual course of
business, without the prior written consent of the Buyer, (i) make any
disposition of any Transferred Asset, (ii) enter into any contract or release
or relinquish any contract or other right with respect to the ownership or
operation of the Biotech Incubator Facility, or (iii) enter into or
renew any employment agreement with any employees or consultants or grant any
increases in the compensation or benefits to, or agree to pay any bonus,
severance or termination payment or other special compensation to, any
employees or consultants involved in the operation of the Biotech Incubator
Facility.
SECTION 4.07 Litigation. The Seller will promptly notify the Buyer
of any lawsuits, claims, proceedings or investigations which are commenced or,
to the Seller's knowledge, threatened against the Seller, or against any
employee, consultant or director of the Seller, involving in any way the
ownership or operation of the Biotech Incubator Facility or which may
threaten the consummation by Seller of the transactions contemplated hereby.
SECTION 4.08 Continued Effectiveness of Representations and
Warranties. From the date hereof up to and including the Closing Date, (i)
the Seller will continue to operate the Biotech Incubator Facility in such
manner that the representations and warranties contained herein shall continue
to be true and correct on and as of the Closing Date as if made on and as of
the Closing Date, except for changes and the consequences of events arising in
the ordinary and usual course of business after the date hereof none of which
would have a material adverse effect on the Transferred Assets or the
operation or condition (financial or otherwise) or prospects of the Biotech
Incubator Facility; and (ii) the Seller will advise the Buyer promptly in
writing of any condition or circumstance occurring from the date hereof up to
and including the Closing Date which could cause any representation or
warranty of the Seller to become untrue in any material respect.
SECTION 4.09 Tax Returns. The Seller shall cause to be prepared
and timely filed all of its required tax returns for all periods up to and
including the Closing Date.
ARTICLE V
COVENANTS OF BUYER
The Buyer covenants and agrees with the Seller as follows:
SECTION 5.01 Cooperation. The Buyer shall use its commercially
reasonable efforts to perform and fulfill all conditions and obligations to be
fulfilled or performed by it hereunder to the end that the transactions
contemplated hereby will be fully and timely consummated.
SECTION 5.02 Litigation. The Buyer will promptly notify the Seller
of any lawsuits, claims, proceedings or investigations which are threatened or
commenced against the Buyer, or against any employee, consultant or director
of the Buyer, involving in any way the ability of the Buyer to purchase, own
or operate the Biotech Incubator Facility or which may threaten the
consummation by the Buyer of the transactions contemplated hereby.
ARTICLE VI
CONDITIONS TO BUYER'S OBLIGATIONS
The obligation of the Buyer to pay the Purchase Price on the Closing
Date and to consummate the other transactions contemplated hereby is subject
to the satisfaction, on or before the Closing Date, of the following
conditions, each of which may be waived by the Buyer in its sole discretion:
SECTION 6.01 Consents. All requisite governmental approvals and
consents of third parties identified as required to be received to prevent any
material lease, license, permit or agreement relating to the ownership and
operation of the Biotech Incubator Facility from terminating prior to its
scheduled termination, as a result of the consummation of the transactions
contemplated hereby, shall have been obtained, or the Seller shall have
provided the Buyer with the benefit of any such material lease, license,
permit or agreement to which such approvals or consents have not been obtained
as contemplated by Section 1.03 hereof.
SECTION 6.02 Representations and Warranties True. All of the
representations and warranties of the Seller contained in this Agreement or in
any Schedules or other documents attached hereto or referred to herein or
delivered pursuant hereto or in connection with the transactions contemplated
hereby shall be true, correct and complete in all material respects on and as
of the date hereof and on and as of the Closing Date, as if made on and as of
the Closing Date. On the Closing Date, the Seller shall have executed and
delivered to the Buyer a certificate, in form and substance satisfactory to
the Buyer and its counsel, to such effect.
SECTION 6.03 Performance. The Seller shall have performed and
complied in allmaterial respects with all covenants and agreements contained
herein required to be performed or complied with by it prior to or at the
Closing Date. The Seller shall have executed and delivered to the Buyer a
certificate, in form and substance satisfactory to the Buyer and its
counsel, in writing to such effect and to the further effect that all of the
conditions set forth in this Article VI have been satisfied.
SECTION 6.04 Approval of Oversight Committee. The Oversight
Committee, a committee of the Board of Trustees of Buyer, shall have approved
the transactions contemplated hereby.
SECTION 6.05 Approval of Attorney General. The Office of the
Attorney General of the Commonwealth of Massachusetts, Public Charities
Division, shall have approved the transactions contemplated hereby to the
satisfaction of the Buyer and its counsel.
SECTION 6.06 No Actions, Suits or Proceedings. As of the Closing
Date, no action, suit, investigation or proceeding brought by any person,
corporation, governmental agency or other entity, other than the Buyer or its
affiliates, shall be pending or, to the knowledge of the parties to this
Agreement, threatened, before any court or governmental body (i) to restrain,
prohibit, restrict or delay, or to obtain damages in respect of, this
Agreement or the consummation of the transactions contemplated hereby, or (ii)
which has had or may have an adverse effect on the condition (financial or
other) or prospects of the Seller. No order, decree or judgment of any
court or governmental body shall have been issued restraining, prohibiting,
restricting or delaying, the consummation of the transactions contemplated by
this Agreement. No insolvency proceeding of any character including without
limitation, bankruptcy, receivership, reorganization, dissolution or
arrangement with creditors, voluntary or involuntary, affecting the Seller
shall be pending, and the Seller shall not have taken any action in
contemplation of, or which would constitute the basis for, the institution of
any such proceedings.
SECTION 6.07 Closing Documents. The Seller shall have delivered
all of the resolutions, certificates, documents and instruments required by
this Agreement.
SECTION 6.08 Approval of the Buyer and Its Counsel. All actions,
proceedings, consents, instruments and documents required to be delivered by,
or at the behest or direction of, the Seller hereunder or incident to its
performance hereunder, and all other related matters, shall be reasonably
satisfactory as to form and substance to the Buyer and its counsel.
ARTICLE VII
CONDITIONS TO THE SELLER'S OBLIGATIONS
The obligation of the Seller to transfer the Transferred Assets to
the Buyer and to consummate the other transactions contemplated hereby is
subject to the satisfaction, on or before the Closing Date, of the following
conditions, each of which may be waived by the Seller in its sole discretion:
SECTION 7.01 Representations and Warranties to be True and Correct.
The representations and warranties of the Buyer contained in this Agreement or
any Schedule or other document referred to herein, or delivered pursuant
hereto in connection with the transactions contemplated hereby, shall
be true, complete and correct, on and as of the date hereof and as of the
Closing Date, as if made on and as of such date. On the Closing Date, the
Buyer shall have delivered to the Seller a certificate, in form and substance
satisfactory to the Seller and its counsel, to such effect.
SECTION 7.02 Performance. The Buyer shall have performed and
complied with all agreements contained herein required to be performed or
complied with by it prior to or at the Closing Date, and the Buyer shall have
delivered a certificate to the Seller, in form and substance satisfactory to
the Seller and its counsel to such effect.
SECTION 7.03 Stockholder Approval. The Seller shall have received
the approval of the transactions contemplated hereby by a majority of the
disinterested stockholders of the Seller in attendance, by person or proxy, at
a meeting of stockholders to consider the transactions contemplated by this
Agreement.
SECTION 7.04 Closing Documents. The Buyer shall have delivered the
Purchase Price and shall have made any other payment required to be made by
the Buyer hereunder or under any other agreement, instrument or document
executed and delivered in connection herewith, including, without limitation,
the Facility Service Agreement (hereafter defined), and the Buyer shall have
executed and delivered all of the resolutions, certificates, documents and
instruments required by this Agreement.
SECTION 7.05 Approval of the Seller and Its Counsel. All actions,
proceedings, consents, instruments and documents required to be delivered by,
or at the behest or direction of, the Buyer hereunder or incident to its
performance hereunder, and all other related matters, shall be reasonably
satisfactory as to form and substance to the Seller and its counsel.
SECTION 7.06 No Actions, Suits or Proceedings. As of the Closing
Date, no action, suit, investigation or proceeding brought by any person,
corporation, governmental agency or other entity, other than the Seller, shall
be pending or, to the knowledge of the parties to this Agreement, threatened,
before any court or governmental body to restrain, prohibit, restrict or
delay, or to obtain damages in respect of, this Agreement or the consummation
of the transactions contemplated hereby. No order, decree or judgment of any
court or governmental body shall have been issued restraining, prohibiting,
restricting or delaying, the consummation of the transactions contemplated
by this Agreement. No insolvency proceeding of any character, including
without limitation, bankruptcy, receivership, reorganization, dissolution or
arrangement with creditors, voluntary or involuntary, affecting the Buyer or
any Nominee shall be pending, and neither the Buyer nor any Nominee
shall have taken any action in contemplation of, or which would constitute the
basis for, the institution of any such proceedings.
SECTION 7.07 Guaranty. In the event that the Buyer shall nominate
a Nominee hereunder, and shall have assigned its interest in the Facility
Service Agreement (as hereafter defined) to such Nominee, and delegated its
duties and responsibilities under the Facility Service Agreement to such
Nominee, the Nominee shall deliver the guaranty contemplated by Section 1.06
hereof. Such guaranty shall include a guaranty of the Nominee's obligations
under the Facility Service Agreement.
SECTION 7.08 Buyer's Offer to Employ Seller's Employees. As of the
Closing Date, and effective thereon, the Buyer shall have offered employment
to such of the Seller's employees listed on Schedule 2.11 hereto who are then
employed by Seller. In connection therewith, it is understood and agreed that
Buyer shall not assume, as a part of the Assumed Liabilities, any liability
for accrued vacation or severance with respect to any of such employees who
choose to decline employment with the Buyer from and after the Closing Date.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 Survival. All representations and warranties by the
Seller and the Buyer in this Agreement, or in any instrument or document
furnished in connection with this Agreement or the transactions contemplated
hereby, shall survive the Closing and any investigation at any time made by or
on behalf of any party for a period of one (1) year. All such representations
and warranties shall expire on the first anniversary of the Closing Date,
except that claims, if any, asserted in writing prior to such first
anniversary identified as a claim for indemnification pursuant to this Article
VIII shall survive until finally resolved and satisfied in full.
SECTION 8.02 Indemnification.
(a) The Seller shall indemnify, defend, and hold the Buyer and its
officers, directors, employees, and their successors and assigns harmless
from, against and with respect to any claim, liability, obligation, loss,
damage, assessment, judgment, cost and expense (including, without limitation,
reasonable attorneys' and accountants' fees and costs and expenses reasonably
incurred in investigating, preparing, defending against or prosecuting any
litigation or claim, action, suit, proceeding or demand) of any kind or
character asserted or made by a party or parties other than the Buyer or the
Seller (the "Damages") against the Buyer, arising out of or in any manner
incident, relating or attributable to:
(i) Any inaccuracy in any representation or breach of warranty
of the Seller contained in this Agreement or in any
certificate, instrument of transfer or other document or
agreement executed by the Seller in connection with
this Agreement;
(ii) Any failure by the Seller or its affiliates to perform or
observe, or to have performed or observed, in full, any
covenant, agreement or condition to be performed or
observed by them under this Agreement or under any
certificates or other documents or agreements
executed by the Seller or its affiliates in connection
with this Agreement, except for those expressly waived by
the Buyer; and
(iii) Liabilities or obligations of, or claims against, the
Buyer (whether absolute, accrued, contingent or
otherwise) relating to, or arising out of, the operation
of the Biotech Incubator Facility prior to the
Closing Date which are not expressly assumed by the Buyer
pursuant to this Agreement.
(b) The Buyer shall indemnify, defend, and hold the Seller and its
officers, directors, employees, and their successors and assigns harmless
from, against and with respect to any Damages against the Seller arising out
of or in any manner incident, relating or attributable to:
(i) Any inaccuracy in any representation or breach of warranty
of the Buyer contained in this Agreement or in any
certificate, instrument of transfer or other document or
agreement executed by the Buyer in connection with this
Agreement;
(ii) Any failure by the Buyer or its affiliates to perform or
observe, or to have performed or observed, in full, any
covenant, agreement or condition to be performed or
observed by them under this Agreement or under any
certificates or other documents or agreements executed by
the Buyer or its affiliates in connection with this
Agreement, except for those expressly waived by
the Seller; and
(iii) Liabilities or obligations of, or claims against, the
Seller (whether absolute, accrued, contingent or
otherwise) relating to, or arising out of, the
operation of the Biotech Incubator Facility after the
Closing Date which are not expressly assumed by the Seller
pursuant to this Agreement.
SECTION 8.03 Limitations on Liability. Notwithstanding the
foregoing provisions of this Article VIII, neither party shall be liable to
the other party for any breach of its representations or warranties hereunder,
nor shall either party be liable under its indemnity to the other party,
unless and until the cumulative amount of any party's claims in respect of the
foregoing shall exceed the sum of $50,000 in the aggregate, and then only to
the extent of the cumulative excess of such claims and Damages over the sum of
$50,000.
SECTION 8.04 Notice and Defense of Claims.
(a) Notice of Claims. Any party entitled to indemnification under
this Article VIII or otherwise under this Agreement (the "Indemnified Party")
shall give the party from whom indemnification is sought (the "Indemnifying
Party") prompt written notice of the claim and, when known, the facts
constituting the basis for such claim. In the event of any claim for
indemnification made hereunder resulting from or in connection with any claim
or legal proceedings by a person or party who is not a party to this
Agreement, the notice to the Indemnifying Party shall specify, if known, the
amount or an estimate of the amount of the liability arising therefrom.
Except as provided in Section 8.04(c) hereof, the Indemnified Party shall not
settle or compromise any claim by a third party for which it is entitled to
indemnification hereunder without the prior written consent of the
Indemnifying Party, unless suit shall have been instituted against it and the
Indemnifying Party shall not have taken control of such suit after
notification thereof as provided in Section 8.04(b) hereof.
(b) Defense of Claims. In connection with any claim giving rise to
indemnity hereunder resulting from or arising out of any claim or legal
proceeding by a person or party who is not a party to this Agreement, the
Indemnifying Party at its sole cost and expense may (but shall not
be required to), upon written notice to the Indemnified Party, assume the
defense of any such claim or legal proceeding if it acknowledges to the
Indemnified Party in writing its obligation to indemnify the Indemnified Party
with respect to such claim. The Indemnified Party shall be entitled to
participate in (but not control) the defense of any such action, with its own
counsel and at its own expense. If the Indemnifying Party does not assume the
defense of any such claim or litigation resulting therefrom, (i) the
Indemnified Party may defend against such claim or litigation, in such
manner as it may deem appropriate, including, but not limited to, settling
such claim or litigation (after giving notice of the same to the Indemnifying
Party) on such terms as the Indemnified Party may deem appropriate, and (ii)
the Indemnifying Party shall be entitled to participate in (but not control)
the defense of such action, with its own counsel and at its own expense.
(c) Restrictions on Indemnifying Party's Defense of Claims.
Anything in this Section 8.04 to the contrary notwithstanding, (i) if there is
a substantial probability in the Indemnified Party's reasonable judgment that
a claim may materially and adversely affect the Indemnified Party
or its subsidiaries, affiliates, directors, officers or employees against whom
such claim is asserted, other than as a result of money damages or other money
payments, the Indemnified Party shall have the right (A) to defend or
co-defend such claim and (B) to compromise or settle such claim with the
Indemnifying Party's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, and (ii) if the Indemnified
Party has notified the Indemnifying Party that the Indemnified Party is
invoking its rights under this Section 8.04(c) with regard to a claim, the
Indemnifying Party shall not, without the prior written consent of
the Indemnified Party, settle or compromise any such claim or consent to entry
of any judgment relating to any such claim, which settlement, compromise or
judgment does not include as an unconditional term thereof the giving by the
claimant to the Indemnified Party, or its subsidiaries, affiliates, directors,
officers or employees against whom such claim is asserted, a release from all
liability in respect of such claim.
(d) Access to Records. The Indemnifying Party and the
Indemnified Party shall each provide the other with access to all records and
documents in their possession relating to any claim indemnifiable hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telex, telecopy or facsimile transmission, (iii) sent by
recognized overnight courier, or (iv) sent by registered or certified mail,
return receipt requested, postage prepaid.
If to the Buyer:
Trustees of Boston University
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Treasurer
With copies to:
Xxxxxxx X. Xxxxxxxx, Esq.
Office of the General Counsel
Boston University
000 Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
and
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxx
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
If to the Seller:
Seragen, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
All notices, requests, consents and other communications hereunder shall be
deemed to have been received (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
or certified mail, on the 5th business day following the day such mailing is
made.
SECTION 9.02 Entire Agreement. This Agreement, together with the
Exhibits and Schedules hereto and the other documents executed in connection
herewith (together, the "Documents"), embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation,
warranty, covenant or agreement of any kind not expressly set forth in the
Documents shall affect, or be used to interpret, change or restrict, the
expressed terms and provisions of this Agreement.
SECTION 9.03 Modifications and Amendments. The terms and
provisions of this Agreement may be modified or amended only by written
agreement executed by all parties hereto.
SECTION 9.04 Waivers and Consents. No failure or delay by a party
hereto in exercising any right, power or remedy under this Agreement, and no
course of dealing between the parties hereto, shall operate as a waiver of any
such right, power or remedy of the party. No single or partial exercise of
any right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The election
of any remedy by a party hereto shall not constitute a waiver of the right of
such party to pursue other available remedies. No notice to or demand on a
party not expressly required under this Agreement shall entitle the party
receiving such notice or demand to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
party giving such notice or demand to any other or further action in any
circumstances without such notice or demand. The terms and provisions of this
Agreement may be waived, or consent for the departure therefrom granted, only
by written document executed by the party entitled to the benefits of such
terms or provisions. No such waiver or consent shall be deemed to be or shall
constitute a waiver or consent with respect to any other terms or provisions
of this Agreement, whether or not similar. Each such waiver or consent shall
be effective only in the specific instance and for the purpose for which it
was given, and shall not constitute a continuing waiver or consent.
SECTION 9.05 Assignment. Neither this Agreement, nor any right
hereunder, may be assigned by any of the parties hereto without the prior
written consent of the other parties. Notwithstanding the foregoing, the
Buyer shall have the right to designate a Nominee in accordance with the
provisions of Section 1.06 hereof.
SECTION 9.06 Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and their permitted
assigns, and nothing in this Agreement, expressed or implied, is intended to
confer upon any other person any rights or remedies of any nature whatsoever
under or by reason of this Agreement. Nothing in this Agreement shall be
construed to create any rights or obligations except among the parties
hereto, and no person or entity shall be regarded as a third-party beneficiary
of this Agreement.
SECTION 9.07 Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be construed in accordance with and
governed by the internal laws of The Commonwealth of Massachusetts, without
giving effect to the conflict of law principles thereof.
SECTION 9.08 Jurisdiction and Service of Process. Any legal action
or proceeding with respect to this Agreement may be brought in the courts of
The Commonwealth of Massachusetts or of the United States of America for the
District of Massachusetts. By execution and delivery of this Agreement, each
of the parties hereto accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
parties hereby irrevocably waive any objection or defense that they may now or
hereafter have to the assertion of personal jurisdiction by any such court in
any such action or to the laying of the venue of any such action in any such
court, and hereby waive, to the extent not prohibited by law, and agree not to
assert, by way of motion, as a defense, or otherwise, in any such proceeding,
any claim that it is not subject to the jurisdiction of the above-named courts
for such proceedings. Each of the parties hereto irrevocably consents to the
service of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered mail, postage
prepaid, to the party at its address set forth in Section 11.01 hereof and
irrevocably waive any objection or defense that it may now or hereafter have
to the sufficiency of any such service of process in any such action. Nothing
in this Section 11.08 shall affect the rights of the parties to commence any
such action in any other forum or to serve process in any such action in any
other manner permitted by law.
SECTION 9.09 Severability. In the event that any court of
competent jurisdiction shall finally determine that any provision, or any
portion thereof, contained in this Agreement shall be void or unenforceable in
any respect, then such provision shall be deemed limited to the extent that
such court determines it enforceable, and as so limited shall remain in
full force and effect. In the event that such court shall determine any such
provision, or portion thereof, wholly unenforceable, the remaining provisions
of this Agreement shall nevertheless remain in full force and effect.
SECTION 9.10 Interpretation. The parties hereto acknowledge and
agree that:(i) each party and its counsel reviewed and negotiated the terms
and provisions of this Agreement and have contributed to its revision; (ii)
the rule of construction to the effect that any ambiguities are resolved
against the drafting party shall not be employed in the interpretation of this
Agreement; and (iii) the terms and provisions of this Agreement shall be
construed fairly as to all parties hereto and not in favor of or against any
party, regardless of which party was generally responsible for the preparation
of this Agreement.
SECTION 9.11 Headings and Captions. The headings and captions of
the various subdivisions of this Agreement are for convenience of reference
only and shall in no way modify, or affect, or be considered in construing or
interpreting the meaning or construction of any of the terms or provisions
hereof.
SECTION 9.12 Enforcement. Each of the parties hereto acknowledges
and agrees that the rights acquired by each party hereunder are unique and
that irreparable damage would occur in the event that any of the provisions of
this Agreement to be performed by the other party were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
in addition to any other remedy to which the parties hereto are entitled at
law or in equity, each party hereto shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement by the other party and to
enforce specifically the terms and provisions hereof in any Federal or state
court to which the parties have agreed hereunder to submit to jurisdiction.
SECTION 9.13 Reliance. The parties hereto agree that,
notwithstanding any right of any party to this Agreement to investigate the
affairs of any other party to this Agreement, the party having such right to
investigate shall have the right to rely fully upon the representations and
warranties of the other party expressly contained in this Agreement and on the
accuracy of any schedule or other document attached hereto or referred to
herein or delivered by such other party or pursuant to this Agreement.
SECTION 9.14 Expenses. Each of the parties hereto shall pay its
own fees and expenses (including the fees of any attorneys, accountants or
others engaged by such party) in connection with this Agreement and the
transactions contemplated hereby whether or not the transactions contemplated
hereby are consummated.
SECTION 9.15 No Broker or Finder. Each of the parties hereto
represents and warrants to the other that no broker, finder or other financial
consultant has acted on its behalf in connection with this Agreement or the
transactions contemplated hereby in such a way as to create any liability on
the other, except that the Buyer has previously disclosed to the Seller that
it will be liable to a certain third party for a finder's fee in connection
with the consummation of this transaction. Each of the parties hereto agrees
to indemnify and save the other harmless from any claim or demand for
commission or other compensation by any broker, finder, financial consultant
or similar agent claiming to have been employed by or on behalf of such party
and to bear the cost of legal expenses incurred in defending against any such
claim.
SECTION 9.16 Confidentiality. Each party acknowledges and agrees
that any information or data it has acquired from the other party, not
otherwise properly in the public domain, was received in confidence. Each
party hereto agrees not to divulge, communicate or disclose, except as may be
required by law or for the performance of this Agreement (including obtaining
financing and conducting due diligence), or use to the detriment of the
disclosing party or for the benefit of any other person or persons,
or misuse in any way, any confidential information of the disclosing party
concerning the subject matter hereof, including any trade or business secrets
of the disclosing party and any technical or business materials that are
treated by the disclosing party as confidential or proprietary, including
without limitation information (whether in written, oral or machine
readable form) concerning: general business operations; methods of doing
business, servicing clients, client relations, and of pricing and making
charge for services and products; financial information, including costs,
profits and sales; marketing strategies; business forms developed by or for
the disclosing party; names of suppliers, personnel, customers, clients and
potential clients; negotiations or other business contacts with suppliers,
personnel, customers, clients and potential clients; form and content of bids,
proposals and contracts; the disclosing party's internal reporting methods;
technical and business data, documentation and drawings; software programs,
however embodied; manufacturing processes; inventions; and information
obtained by or given to the disclosing party about or belonging to
third parties.
SECTION 9.17 Counterparts. This Agreement may be executed in one or
more counterparts, and by different parties hereto on separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
ARTICLE X
PRE-CLOSING OPERATION OF BIOTECH INCUBATOR FACILITY
SECTION 10.1 Facility Service Agreement. Contemporaneously with
the execution and delivery of this Agreement, the parties hereto have executed
and delivered that certain Service Agreement (the "Facility Service
Agreement") pursuant to which the Buyer has agreed to perform and provide
services to the Seller at the Biotech Incubator Facility, all for
the payments by the Seller and other consideration and on the terms and
conditions more particularly set forth therein.
SECTION 10.2 Access to Facilities. In order to permit the Buyer to
perform its obligations under the Facility Service Agreement from and after
the date of the execution of this Agreement, the Seller shall, and does hereby
grant to the Buyer, full access to, and possession and use of the Transferred
Assets, including, without limitation, the real property leased by the Seller
and described in Schedule 1.03R hereof (except the premises described in
Schedule 1.05 hereof) and the equipment leased by the Seller and described
in Schedule 1.03E hereof, all as fully and effectively as if the Closing
hereunder had occurred on the date of the execution of this Agreement. In
connection therewith, the Seller shall provide the services of those employees
of the Seller listed on Schedule 2.11 hereof.
SECTION 10.3 Payments by the Buyer. In connection with the
foregoing provisions of this Article X, the Buyer shall pay, for or on behalf
of the Seller, all of the payments required under Contracts and all
liabilities and obligations relating to the Claims against the Encumbered
Assets (as such Claims exist as of the date hereof), when and as the same
become due and payable. Such payments shall be made, where possible and
practicable, directly by the Buyer to the applicable lessor, vendor or other
party entitled to such payments for the account of and on behalf of the
Seller. Where such direct payments to lessors, vendors or such other parties
are not possible or practicable, the Seller shall make such payments and the
Buyer shall reimburse the Seller therefor. In addition to the foregoing, the
Buyer shall reimburse the Seller for the wages and benefits (including accrued
vacation and severance payments, as applicable) of those employees listed
on Schedule 2.11 hereof whose services are provided by the Seller to the Buyer
pursuant to Section 10.02 hereof. Reimbursement by the Buyer for items paid
by the Seller shall commence on the fourteenth (14th) day after the date of
execution of this Agreement and shall be made each fourteenth (14th) day
thereafter, with a final reimbursement payment to be made at the Closing.
Each such reimbursement payment shall be made in respect of the period ending
seven (7) days prior to the date on which the payment is to be made. Not less
than three (3) days prior to each such reimbursement payment date, the Seller
shall provide the Buyer with a statement setting forth the amount due to be
paid by the Buyer to the Seller as reimbursement hereunder and setting forth
in reasonable detail the calculation of such amount. The Seller shall keep
books and records adequate to establish the amount of any reimbursement
payments hereunder and shall make the same available for inspection and audit
by the Buyer or its representatives at all reasonable times.
SECTION 10.04 Termination. In the event that, prior to the Closing
hereunder, the Facility Services Agreement shall be terminated by the Buyer as
a result of (i) breach by the Seller of covenants and obligations thereunder,
or (ii) exercise by the Buyer of its option to terminate pursuant to Section
7.03 thereof, then, in such event, this Agreement shall automatically
terminate and, in addition to return of the Deposit pursuant to Section 1.08
hereof, the Seller shall reimburse the Buyer for all payments made by the
Buyer under this Article X, together with interest on any and all such
payments at the annual rate of ten percent (10%).
IN WITNESS WHEREOF, the Buyer and the Seller have executed this
Agreement as an instrument under seal on this 14th day of February, all as of
the day and year first above written.
SERAGEN, INC.
By: \s\ Reed R. Prior
Reed R. Prior, Chairman and CEO
TRUSTEES OF BOSTON UNIVERSITY
By: \s\ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Treasurer
