Contract
ASSET PURCHASE AGREEMENT This ASSET PURCHASE AGREEMENT (“Agreement”) is made as of the Effective Date by and between Liquidity Services Operations LLC, a Delaware limited liability company with a place of business at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 (“Buyer”), and Tricida, Inc., a Delaware corporation with a place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxx Xxxxxxxxx, XX 00000 (“Seller”, and together with Buyer, the “Parties”). Seller’s entry into this Agreement, and all terms of this Agreement, are subject to the approval of the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). IT IS AGREED AS FOLLOWS: 1. DEFINITIONS AND INTERPRETATION In this Agreement, unless the context otherwise requires, the following words shall have the following meanings: Affiliate means, in relation to a Party, any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such Party; Assets means the items listed in Schedule 1 to this Agreement; Business Day means a day (other than a Saturday, Sunday or holiday) when banks in New York are open for business; Clearance Date means February 28, 2023; Customers means the third party customers of Buyer who express an interest in purchasing or acquiring, or purchase or acquire, the Assets from Buyer; Effective Date means the date on which this Agreement is signed by both Parties; Encumbrance means any charge, lien, equity, third party right, option, right of pre-emption or any other encumbrance, priority or security interest whether legal or equitable, of any third party (or any agreement or commitment to create any such); Expiration Date has the meaning given to it in clause 4.2; Purchase Price has the meaning given to it in clause 2.2; Site means 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxx Xxxxxxxxx, XX 00000; and Transfer Date has the meaning given to it in clause 2.3. 2. AGREEMENT TO SELL AND PURCHASE 2.1 Subject to, and in accordance with, the terms and provisions of this Agreement, Seller hereby sells with full title guarantee and Buyer purchases the Assets free from all Encumbrances of whatsoever nature with effect from the Transfer Date. 2.2 The consideration for the sale of the Assets shall be $235,000.00 (the “Purchase Price”). The Purchase Price shall be paid by Buyer to an account identified by Seller within five (5) business days of the Effective Date, and in any event prior to the removal of Assets from the Site. 2.3 Ownership and risk of loss of the Assets shall pass to Buyer on payment of the Purchase Price (the “Transfer Date”). 3. BUYER’S OBLIGATIONS 3.1 Buyer shall at its own expense remove all Assets from the Site by the Clearance Date, including by arranging transportation and shipment of the Assets to an alternate location. Buyer shall do so during business hours. 3.2 Subject to clause 3.3, Buyer shall leave the Site in an orderly state as of the Clearance Date. Exhibit 10.2
2 3.3 Buyer shall not be responsible for any damage to the Site which may be revealed in the process of removal but was not caused by Xxxxx’s actions. Buyer also shall not be responsible for removing any of Seller’s assets which are not specifically listed on Schedule 1 hereto. 3.4 Buyer shall until all of the Assets have been removed from the Site: (a) oversee the removal of the Assets from the Site; (b) take all necessary precautions to prevent the occurrence of any injury to persons, property or the environment in connection with the removal of the Assets; and (c) comply with any health and safety rules and insurance requirements applicable to the Site of which Buyer is advised by Seller or which Seller’s landlord requires provided Buyer has been made aware of such requirements by Seller or Seller’s landlord. 3.5 Buyer shall obtain all appropriate and customary insurance necessary in connection with removal of the Assets, on terms and amounts as are sufficient and appropriate, naming Seller and the landlord as additional insureds. 3.6 Buyer shall comply with all applicable laws in connection with its actions pursuant to this Agreement. 4. SELLER’S OBLIGATIONS 4.1 Seller shall, through the Clearance Date: (a) at all times provide such assistance as Buyer may reasonably require (at Buyer’s sole cost and expense) in order to market, auction, sell or otherwise dispose of and/or remove the Assets from the Site; (b) ensure that, where applicable, all mains services to the Assets are disconnected; (c) ensure that all Assets are decontaminated, made safe, purged and drained of any and all toxic or potentially hazardous substances and that all such substances are made secure and/or removed from the Site; (d) provide Buyer with all such drawings, manuals, technical records and spare parts as Seller has readily available in relation to the Assets; and (e) maintain the Assets in the condition they are in as of the last date of inspection by Buyer. 4.2 Seller shall until the earlier of (i) the Clearance Date; or (ii) the date on which all Assets have been removed from the Site (the “Expiration Date”): (a) if the Transfer Date is earlier than the Expiration Date, allow Buyer without charge to store any Assets on the Site between the Transfer Date and the Clearance Date; (b) allow Buyer and Buyer’s employees, agents, contractors, sub-contractors and Customers without charge at all reasonable times such access of the Site and any buildings on the Site as Buyer may reasonably require in order to auction, sell or otherwise dispose of and/or remove the Assets from the Site; (c) continue to pay any rents, rates, utility charges and any other outgoings in relation to the Site; and (d) maintain adequate insurance of the Site (and any buildings on the Site) and adequate commercial general liability insurance. 4.3 Seller shall from the Effective Date until the Transfer Date: (a) maintain the Assets in the condition they are in as of the last date of inspection by Buyer; and (b) maintain its existing insurance of the Assets.
3 5. SELLER WARRANTIES 5.1 Seller warrants to Buyer: (a) Subject to approval of the Bankruptcy Court, Seller is authorized to execute and perform this Agreement, and this Agreement constitutes a valid and legally binding obligation of Seller enforceable in accordance with its terms; (b) that Seller has, and will at the Transfer Date have, and can prove on request from Buyer, good and marketable title to each Asset and each Asset is, and will at the Transfer Date be, legally and beneficially owned by Seller; (c) there are no Encumbrances over any of the Assets, nor will there be any Encumbrances over any of the Assets on the Transfer Date, and Seller has not agreed, nor will Seller have agreed at the Transfer Date, to create any Encumbrances over the Assets or any part of them; (d) each Asset is, and will at the Transfer Date be, in the possession or under the control of Seller; (e) to the knowledge of Seller, none of the Assets infringe or violate (or contain any parts or components which infringe or violate) a third party’s copyright, patent, design rights, trademark, trade secrets or other proprietary and/or intellectual property rights; (e) no damage has been done other than through normal wear and tear to any of the Assets and no Assets have left the Site since the date on which they were last inspected by Buyer; (f) except as otherwise notified to Buyer, no hazardous substances are contained in or made a part of any of the Assets and, for the purposes of this Agreement, the term “hazardous substances” shall mean, either individually or collectively, any substance or waste designated pursuant to any laws, statutes, or regulations of governmental, local or other statutory authority as presenting an imminent and substantial danger to the public health or welfare or to the environment, or as otherwise requiring special handling, collection, storage, treatment, disposal or transportation; and (h) it is in material compliance with all laws, rules and regulations applicable to its performance under this Agreement including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010. 6. BUYER WARRANTIES 6.1 Buyer warrants to Seller: (a) Buyer is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. (b) Buyer has full power and authority to execute and deliver and perform its obligations under this Agreement. Buyer has taken all action necessary, to execute and deliver this Agreement and, to consummate the purchase of the Assets and to perform its obligations hereunder and thereunder. The execution and delivery by Buyer of this Agreement and the consummation by Buyer of the purchase of the Assets have been duly authorized by all necessary corporate action. Xxxxx has duly executed and delivered this Agreement, and upon execution and delivery will constitute a legal, valid and binding obligation of the Buyer, enforceable against Buyer in accordance with its terms. (c) No consent, approval, permit or authorization of, or declaration, filing or registration with, any governmental entity is necessary or required to be made or obtained by Buyer in connection with the execution, delivery and performance of this Agreement and the consummation of the purchase of the Assets. (d) Neither the execution, delivery or performance of this Agreement by Buyer nor the consummation by Buyer of the purchase of the Assets will (i) conflict with or result in any violation or breach of any provisions of the certificate of formation, bylaws or other organizational documents of Buyer, (ii) conflict with or violate any order or law applicable to Buyer or its rights or assets, except in each case of the foregoing clauses, for breaches, violations, defaults or terminations that would not reasonably be
4 expected to, individually or in the aggregate, impair or delay Xxxxx’s ability to perform its obligations under this Agreement. 7. DISPOSAL OF THE ASSETS 7.1 Seller acknowledges and agrees that: (a) Buyer may commence marketing the Assets for resale with immediate effect from signing this Agreement; (b) Buyer is entitled to dispose of the Assets by auction or by any other means as it shall in its absolute discretion determine; and (c) there are no restrictions whatsoever as to who can purchase the Assets (other than any restrictions that may be imposed by applicable laws and regulations). 8. LIMITATION OF LIABILITY 8.1 Save as otherwise provided in this Agreement, neither Party shall have any liability to the other Party under this Agreement for any consequential losses, loss of profit and/or damage to goodwill, special damages and indirect losses; loss and/or corruption of data; and/or business interruption, loss of business, contracts, opportunity and/or production. 8.2 Each Party’s total liability to the other Party under this Agreement shall not exceed the aggregate amount actually paid by Xxxxx as the Purchase Price under this Agreement. 8.3 Nothing in this Agreement shall exclude or limit either Party’s liability for any liability which it is not permitted to limit as a matter of law. 9. TERM 9.1 This Agreement shall commence on the Effective Date and shall remain in effect until the Expiration Date at which time it shall terminate automatically (the “Term”). Clause 3, and clauses 5 to 11 inclusive shall survive the termination of this Agreement. 10. CONFIDENTIALITY 10.1 Each Party will, during the term of this Agreement and for a period of two years thereafter, keep confidential, and will not use for any purpose (other than the proper exercise of its rights under this Agreement) nor disclose to any third party except (i) as may be required by any law or any legal or regulatory authority; or (ii) to external legal advisors, auditors, business partners, potential investors or financing parties (provided such parties are bound by confidentiality obligations equivalent to those set out in this Agreement) any information of a confidential nature, whether or not expressly identified as such (including, without limitation, trade secrets, technical information, know-how, buyer lists, and other information of commercial value) which may become known to it as a result of this Agreement and which relates to the other Party or to the other Party’s business unless: (i) that information is public knowledge or already known to that Party at the time of disclosure or subsequently becomes public knowledge in each case other than by a breach of this Agreement; or (ii) subsequently comes lawfully into its possession from a third party. 10.2 Each Party agrees that it will keep the commercial terms of this Agreement confidential and not disclose such terms other than to its professional advisers, business partners or financing parties, or as required by applicable law or regulation, including the rules of any applicable stock exchange. 11. GENERAL 11.1 This Agreement supersedes all prior agreements, understandings or arrangements between the Parties, whether oral or written, which shall all cease to have any further force or effect. Neither Party has entered into this Agreement in reliance upon, nor shall either Party have any claim or remedy in respect of, any statement, representation, warranty, undertaking or assurance made by or on behalf of either Party other than those expressly set out in this Agreement. This clause shall not exclude any liability for, or remedy in respect of, fraudulent misrepresentation.
5 11.2 Neither Party shall, nor shall it purport to, assign, transfer, charge or otherwise deal with all or any of its rights under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. 11.3 This Agreement may not be released, discharged, supplemented, amended, varied or modified except by an instrument in writing signed by or on behalf of each Party. 11.4 No failure or delay by either Party in exercising any right or remedy provided by law or under or pursuant to this Agreement shall impair any such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy. The rights and remedies of the Parties under or pursuant to this Agreement are cumulative, may be exercised as often as the Parties consider appropriate and are in addition to their respective rights and remedies under general law. 11.5 If at any time any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable in any respect that shall not affect or impair the legality, validity or enforceability of any other provision of this Agreement. If at any time any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable in any respect but would be legal, valid or enforceable if some part of the provision were deleted, the provision shall apply with such modification(s) as may be necessary to make it legal, valid or enforceable. 11.6 This Agreement may be executed in any number of counterparts and by the different Parties in different counterparts each of which when executed and delivered is an original but all such counterparts shall be deemed to constitute one and the same instrument. 11.7 A person who is not a Party to this Agreement shall have no rights to enforce or enjoy the benefit of any term of this Agreement. 11.8 Nothing in this Agreement is intended to, or shall operate to, create a partnership between the Parties, or to authorize either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way. 11.9 The laws of the state in which the Bankruptcy Court is located govern the construction of the Agreement and the performance of the Parties under this Agreement without regard to its conflict of law provisions. Any dispute arising under this Agreement will be litigated exclusively in the Bankruptcy Court, and neither Party will contest the personal jurisdiction of that court. 11.10 Each Party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement. [Remainder of Page Intentionally Left Blank; Signature Page Follows]
6 IN WITNESS WHEREOF this Agreement has been signed by or on behalf of the Parties as of the Effective Date. LIQUIDITY SERVICES OPERATIONS LLC Signature Name Title Date TRICIDA, INC. Signature Name Title Date /s/ Xxxx Xxxxxxx
6 Signature IN WITNESS WHEREOF this Agreement has been signed by or on behalf of the Parties as of the Effective Date. LIQUIDITY SERVICES OPERATIONS LLC Signature Name Title Date TRICIDA, INC. Xxxxxx Xxxxxxxx Name Chief Executive Officer Title February 21, 2023 Date [Signature Page to Asset Purchase Agreement (Liquidity Services)] /s/ Xxxxxx Xxxxxxxx
7 Schedule 1 List of Assets Asset Make Model Quantity Binder Vaccum Oven (#1) Xxxxxx XX 53 1 Thermo Lab Line Vacuum oven Thermo model 3608, missing one rubber foot 1 Rotary vacuum pump #1 Xxxxxx Maxima MC6 1 Rotary vacuum pump #2 Xxxxxxx ? 1 Solvent evaporator trap Thermo RVT400-115 + 2 extra flasks + fluid. 1 Rainin LTS manual pipet 1 xX Xxxxxx LTS 4+ Rainin LTS manual pipet 200 uL Rainin LTS 4+ Rainin LTS manual pipet 20 uL Rainin LTS 4+ Water bath sonicator 1 Agilent HS-GCMS + computer Agilent 7697A/7890B/5977A - YOM is 2014, Includes Vac Pump, Computer with OS and Consummables 1 Agilent GC-FID + computer Agilent 7890B w/7693 Autosampler - YOM 2015, with Computer/Software, and Assorted Consummables 1 Thermo Quantis QQQ MS + vac pump + syringe pump Thermo Quantis QQQ, YOM 2017 1 Ultimate HPLC + computer Thermo Ultimate 3000, 2015 YOM, with Computer Setup and Assorted Consummables Included 1 ICS-5000 DP+ + computer(#1) Thermo ICS 5000 DP+ (dual) - 2017, with Computer and Consummables. 1 Agilent GCMS + computer Agilent 7890B/5977/7693 -2018, with Xxxxxxxx Vacuum Pump, Computer OS and Consummables 1 ICS-2100 (shared computer) Thermo ICS-2100 (with EGC) - 2014 YOM, with Computer 1 ICS-5000 DP+ + computer(#1) Thermo ICS 5000 DP+ (dual) - 2014YOM, with Consummables 1 Malvern Mastersizer 3000 + HydroMV + computer Malvern Mastersizer 3000 + hydroMV + feed pump 1 Nikon eclipse microscope + CCD + computer Nikon Eclipse TS100, 5, 10, 20x objectives 1 Xxxxxxx Toledo analytical balance Xxxxxxx Toledo ME204E 1 Vortexer #1 VWR Vortex Genie 2 1 Vortexer #2 Xxxxxx Sci Mini Vortex mixer 1 Ultimate UPLC (dual) + computer Thermo Ultimate 3000 UPLC dual (2014) 1 RI detector ERC RefractoMax520 1 Deli fridge (4C) Thermo IsoTemp (4 ft) 1 neg 80C freezer Thermo Forma 900 1 Julabo recirculating heaters/chillers Julabo F25 HL + 3 more (isotemp) 7+3 6L jacketed reactor ACE glass 6 L jacketed 1 0.5L jacketed reactor ACE glass 0.5 L jacketed 1 Overhead stirrers Caframo BDC3030 or Heidolf, Xxxxxx, etc. 6 Computer (julabo control) Peristaltic Pumps Wheaton Omnispense Elite 3 Moisture balance MX-50 (#1) AND MX-50 1 1L jacketed reactor ACE glass 1+ NIR spectrometer and probe i-Red 1 multiport syringe pump Rxnhub syringe pump 1 Refrigerated centrifuge and rotors Thermo Sorvall Legend XTR 1 centrifuge (small tubes) Eppendorf 5425C 1
8 Vacuum aspirator Vacuubrand BVC control 1 Moisture balance MX-50 (#2) MX-50 1 Xxxxxxx Toledo analytical balance (#2) Xxxxxxx Xxxxxx XX 204T + printer 1 Electric autopipet Rainin LTS 20 xX Xxxxxx 2+ Electric autopipet Rainin LTS 10 xX Xxxxxx 2+ Electric autopipet Rainin LTS 5 xX Xxxxxx 2+ Electric autopipet Rainin LTS 1 xX Xxxxxx 2+ Computer Xxxxxxx Toledo analytical balance (#3) Xxxxxxx Xxxxxx XX 204T + printer 1 Vortexer (plate) VWR Vortex Genie 2 1 vortexer (short) Thermo LP Vortex Mixer 1 Electric crimper Wheaton Crimpenstein 2 Fire sting oxygen sensor (new) FireSting Go2 + Oxsolv probe (new) 1 Turbidity analyzer Hanh TL-2310 1 Plate reader + laptop Molecular Devices Spectromax 384 Plus 1 Oxygen flask combustion chamber EAI 1 Oxygen combustion flasks and platinum baskets EAI with Flask Combustion Unit 3 Titrator and electrodes Xxxxxxx Toledo T50 1 Binder Vaccum Oven (#2) Xxxxxx XX-53 UL 1 Binder Vaccum Oven (#3) Xxxxxx XX-53 UL 1 rotary vacuum pump Xxxxxx Maxima MC6 1 rotary vacuum pump Xxxxxx Maxima MC6 1 Lab oven Thermo Heratherm OMH60 1 Lab oven Binder FP 53 UL 1 Incubator xxxxxxxx Xxxxxx Isotemp incubators model no 6841 2 Orbital shaker IKA AS260.1 1 Incubated orbital shaker IKA KS 3000 iControl 1 Incubated orbital shaker IKA KS 4000 iControl 2 Incubated orbital shaker (220V) IKA KS 4000 iControl 1 Thermo Lab Line Vacuum oven Thermo Lab Line vac oven model 3608 1 Scroll pump Vacuubrand MZ 2 NT pump 1 Binder environmental chamber + water conditioners Binder KBF 115 (one with lamp, one without) + water conditioners 2 MilliQ system Millpore Direct 16 1 Dishwasher Lancer 815 LX 1 Reactor Ready Stand Radleys 1 Hot plates multiple Belly dancer shaker 1 Bio safety cabinet Class II Type A/B3 1 Light box BYK 1 Tap density analyzer Varian 1 Vibratory sieve shaker and 3" sieves Xxxxxx XX-3 2 Soundproof chamber (for sieves) Xxxxxx 1 Thermogravimetric analyzer (TGA) + computer TGAQ500 1 Vacuum heat sealer with compressor Amerivacs CAVN-20 (one is 220V) 2 Balance (low accuracy) Xxxxxxx Toledo PM480 3000 Lyophilizer + pump + try dryer Labconco 7948020 Model 1 Lyophilizer + tray dryer Labconco 1 VWR dishwasher VWR model # 82100-0004 1 pH meters + electrodes (+ conductivity) Orion Versastar + Star A222 portable meter, and conductivity module 3 Homogenizer Brinkmann Polytron PT 3000 1 Cool / Room temp incubator Panasonic MIR-254-PA 1 FBRM probe Xxxxxxx Toledo Particle Track G400 1 Rotovap Buchi R200-B490 1 Thermo Scientific ICS-1600 1
9 Xxxxxxx Toledo Mixer with Xxxxxxx Xxxxxxx 1