EXHIBIT 10.44
ASSET AND LIABILITY TRANSFER AGREEMENT
by and among
GENSIA AUTOMEDICS, INC.,
GENSIA SICOR INC.,
and
GENSIA SICOR PHARMACEUTICALS, INC.
December 23, 1997
ASSET AND LIABILITY TRANSFER AGREEMENT
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THIS ASSET AND LIABILITY TRANSFER AGREEMENT (this "Agreement") is made and
entered into as of the 23rd day of December, 1997, by and among GENSIA
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AUTOMEDICS, INC., a Delaware corporation ("Automedics"), GENSIA SICOR INC., a
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Delaware corporation ("Gensia Sicor"), and GENSIA SICOR PHARMACEUTICALS, INC., a
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Delaware corporation ("GSPI")(Gensia Sicor and GSPI, collectively, "Gensia").
RECITALS:
(a) Subject to the terms and conditions of this Agreement, Gensia wishes to
sell and transfer certain assets and certain liabilities of its business to
Automedics, and Automedics desires to purchase such assets and assume such
liabilities, all as more fully described and defined below.
(b) It is intended by the parties to obtain independent financing of
Automedics simultaneously with the Closing (as defined below) hereunder so that
Automedics will no longer be a wholly-owned subsidiary or affiliate of Gensia
Sicor.
(c) For federal income tax purposes, it is intended that the exchange of
assets and liabilities of Gensia for shares of Subordinated Convertible
Preferred Stock of Automedics (the "Subordinated Preferred Stock") and certain
royalties as described herein, together with the simultaneous purchase of
certain shares of Series A Preferred Stock of Automedics (the "Series A
Preferred Stock") by certain investors for a certain amount in cash, be part of
an exchange qualifying under (S) 351 of the Internal Revenue Code of 1986, as
amended (the "Code"), provided that such shares of Subordinated Preferred Stock
and Series A Preferred Stock will be treated as non-qualified stock under (S)
351 of the Code.
(d) The parties hereto desire to enter into this Agreement for the purpose
of setting forth certain representations, warranties and covenants made to each
other as an inducement to the execution and delivery of this Agreement and the
conditions precedent to the consummation of the asset and liability transfer and
the transactions related thereto.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
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1.1 Purchase and Sale. Subject to the terms and conditions and upon
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satisfaction of the conditions contained in this Agreement (which term shall
include all exhibits and schedules attached hereto) and in reliance upon the
representations, warranties and covenants contained herein, on the Closing Date
(as hereinafter defined), Gensia shall sell, assign, transfer and deliver to
Automedics, and Automedics shall purchase and acquire from Gensia, all of
Gensia's right, title and interest in, to and under all the franchises, rights,
business, properties and other assets, tangible or intangible, real, personal or
mixed, listed below in this Section 1.1 (collectively, the "Assets"), used in or
accrued or accruing to the businesses relating to (a) the sale of the Laryngeal
Mask Airway and all products related thereto that currently are sold by Gensia
(the "Current LMA Products"), (b) the Feedback Controlled Heparin System, (c)
Brevibloc, (d) the GenESA(R) System, (e) analogs of arbutamine, (f) transdermal
delivery technologies developed or licensed by Gensia and (g) closed loop
technologies developed or licensed by Gensia (each individually, a "Transferred
Business," and collectively, the "Transferred Businesses"), free and clear of
Liens (as hereinafter defined), except Permitted Liens (as hereinafter defined):
(a) All personal property (including, without limitation, all
marketable securities, appliances, furniture, fixtures, machinery and equipment
and other tangible personal property) relating to the Transferred Businesses and
listed on Schedule 1.1(a) hereto;
(b) All inventory of every character and description, other than
Current LMA Products, relating to the Transferred Businesses and listed on
Schedule 1.1(b) hereto, subject to adjustments in the ordinary course of
business since September 30, 1997;
(c) Subject to the provisions of Section 4.2 below, all patents,
patent applications, trademarks, service marks, trade names, logos, copyrights
and royalty rights (including, without limitation, any registrations and any
applications for registration with respect thereto) relating to the Transferred
Businesses and listed on Schedule 1.1(c) hereto (collectively, the "Intellectual
Property");
(d) The goodwill of Gensia associated with the Transferred
Businesses, other than the sale of Current LMA Products;
(e) All customer lists, supplier lists and mailing lists and all
materials owned by Gensia and used for mailing list development, which lists and
materials were prepared, created or acquired by Gensia for use solely in the
Transferred Businesses;
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(f) All books, records, files and other data (including without
limitation operating manuals and invoices) prepared, created or acquired by
Gensia for use solely in the Transferred Businesses, including without
limitation, (i) all inventory, maintenance and asset history records solely
regarding the Transferred Businesses, (ii) all sales promotion materials
prepared, created or acquired by Gensia for use solely in the Transferred
Businesses, (iii) all customer and supplier lists, mailing lists, materials used
for mailing list development and telephone numbers with respect to past, present
or prospective customers and suppliers for use solely in the Transferred
Businesses, and (iv) all sales and credit records solely relating to the
Transferred Businesses;
(g) All contracts, commitments, purchase orders from customers and
other agreements with respect to the sale, furnishing, purchase, other
acquisition or delivery of any goods or services by Gensia in the Transferred
Businesses, as amended to date, including without limitation those of a material
nature listed on Schedule 1.1(g) hereto, it being expressly acknowledged by the
parties that the inventory of Current LMA Products, the Receivables relating to
the Current LMA Products, and the contracts, commitments, purchase orders and
other agreements relating thereto are excluded from the Assets;
(h) All computer hardware and software owned and used by Gensia in
the Transferred Businesses and listed on Schedule 1.1(h) hereto, and all rights
under any software licenses held and used by Gensia in the Transferred
Businesses regarding the software listed on Schedule 1.1(h) hereto;
(i) To the extent transferable and relating solely to the Transferred
Businesses, all federal, state, local or foreign governmental licenses, permits
and other authorizations necessary or advisable for the conduct of the
Transferred Businesses and listed on Schedule 1.1(i) hereto;
(j) All leases of real property listed on Schedule 1.1(j) hereto;
(k) All leases of personal property, whether as lessor, lessee,
sublessor or sublessee, relating to the Transferred Businesses and listed on
Schedule 1.1(k) hereto;
(l) All service contracts and all maintenance contracts relating to
any of the Assets and listed on Schedule 1.1(l) hereto;
(m) All other contracts, agreements, commitments, options and other
arrangements of Gensia, of every kind and description, relating to the
Transferred Businesses, other than the sale of Current LMA Products, and listed
on Schedule 1.1(m) hereto, as amended to date;
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(n) All product registrations, approvals and applications therefor of
Gensia, of every kind and description with any governmental entity, relating to
the Transferred Businesses, other than the sale of Current LMA Products, and
listed on Schedule 1.1(n) hereto;
(o) To the extent transferable, all rights and claims under policies
of insurance and warranty, surety, fidelity or other bonding arrangements
relating to the Assets (excluding any rights to refunds of premiums or amounts
paid under such policies of insurance and bonding arrangements) and, all other
claims, demands, judgments, rights, equities, chattel mortgages, security
agreements and choses in action, and the proceeds thereof, relating to the
Assets;
(p) All rights, claims and causes of action against any person
arising out of the disclosure or use, or threatened disclosure or threatened
use, of any proprietary information to the extent relating to any of the Assets
or the Transferred Businesses, including, without limitation, any invention,
process, method, formula, design, treatment, discovery or improvement or
application thereof, or other "know-how," or similar property, or any
compilation of information, list of customers or suppliers, document or record
with respect to any of the foregoing or contained therein;
(q) All shares of the capital stock of Gensia Automedics Limited, a
limited liability company incorporated under the laws of England and Wales
("Gensia Automedics Limited"), and Gensia GmbH, a German corporation ("Gensia
GmbH"), owned by Gensia Sicor;
(r) All accounts, notes, fees, commissions and all other receivables
payable to Gensia in respect of the Transferred Businesses, other than the sale
of Current LMA Products, and listed on Schedule 1.1(r) hereto, subject to
adjustments in the ordinary course of business since September 30, 1997 (the
"Receivables"); and
(s) All cash and cash equivalents on hand at the Closing Date relating
to the Transferred Businesses, other than the sale of Current LMA Products, and
listed on Schedule 1.1(s) hereto, subject to adjustments in the ordinary course
of business since September 30, 1997.
For purposes of this Agreement "Liens" shall mean all title defects,
liens, mortgages, pledges, charges, restrictions, claims, security interests,
rights to acquire title or an interest or other encumbrances of any nature
whatsoever, whether xxxxxx or inchoate. For purposes of this Agreement
"Permitted Liens" shall mean Liens listed on Schedule 1.1(t) hereto, Liens for
current taxes, assessments or governmental charges or levies on property not
yet due and delinquent, or which are being contested in good faith and for which
adequate reserves have been established or any
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Liens subject to which Automedics has specifically agreed in writing with Gensia
to accept relating to any of the Assets.
1.2 Assumption of Disclosed Liabilities.
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(a) As of the Closing Date, Automedics shall accept the Assets subject
to and shall assume and shall pay, perform and discharge (and shall indemnify
Gensia in respect thereof) only those obligations and liabilities relating to
the Transferred Businesses or the Assets, that are disclosed in this Agreement,
in any Schedule to this Agreement or in any item disclosed herein or therein
(the "Disclosed Liabilities").
(b) Without limiting the generality of the foregoing, the Disclosed
Liabilities shall include, and Automedics shall assume, those certain Balance
Sheet Liabilities (as defined below) listed on Schedule 1.2(b-1) and those other
liabilities listed on Schedule 1.2(b-2) hereto. "Balance Sheet Liabilities"
shall mean those certain liabilities of Gensia, Gensia Automedics Limited and
Gensia GmbH relating to the Transferred Businesses payable as of December 19,
1997, that were previously approved by the Chief Financial Officer of Gensia
Sicor, and that appropriately would be classified as liabilities on a balance
sheet prepared in accordance with generally accepted accounting principles. For
purposes of the foregoing definition, a liability for the purchase of any good
or the performance of any service shall be payable as of such date if such goods
were purchased or such services were performed as of such date, whether or not
Gensia received an invoice therefor as of such date. Notwithstanding the
foregoing, liabilities incurred in connection with the transactions contemplated
by the Agreement (and the other agreements contemplated hereby) shall not
constitute Balance Sheet Liabilities, and the payment of which are addressed in
a separate agreement.
(c) Notwithstanding the foregoing, (i) the Disclosed Liabilities shall
not include Balance Sheet Liabilities in an aggregate amount in excess of
$650,000; (ii) Automedics shall not assume Balance Sheet Liabilities in an
aggregate amount in excess of $650,000; and (iii) Gensia Sicor shall pay any
Balance Sheet Liabilities in an aggregate amount in excess of $650,000 on or
before January 31, 1998, and promptly thereafter shall provide Automedics with a
list of the payees of the Balance Sheet Liabilities so paid.
1.3 Purchase Price. In consideration for the purchase of the Assets,
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Automedics shall pay to Gensia Sicor the following:
(a) Stock Issuance at Closing. On the Closing Date, Automedics shall
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issue to Gensia Sicor 1,900,000 shares of Subordinated Preferred Stock with the
rights, preferences and privileges as set forth in the Amended and Restated
Certificate of Incorporation attached hereto as Exhibit A to be filed with the
Secretary of State of the State of Delaware prior to the Closing Date (the
"Restated Certificate") with an aggregate value equal to
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$1,843,000, after giving effect to the transactions contemplated hereby and
consummation of Automedics's proposed private placement of $6,000,000 of Series
A Preferred Stock. The price per share of Subordinated Preferred Stock shall be
$0.97.
(b) Post-Closing Royalties.
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(i) Automedics shall pay to Gensia Sicor royalties equal to two and
one-half percent (2 1/2%) of Net Sales (as defined below) of all products
sold by Automedics, its Affiliates (as defined below) and (sub)licensees on
or after January 1, 2000, payable on a quarterly basis as set forth below.
(ii) Automedics shall pay to Gensia Sicor a milestone payment of up
to $3,000,000, not more than six (6) months after receipt of United States
Food and Drug Administration approval for marketing in the United States of
the Feedback Controlled Heparin System, whether such approval is achieved
by Automedics, its Affiliates or (sub)licensees.
(iii) The obligations of Automedics under subsections (i) and (ii) of
this Section 1.3(b) shall terminate at such time as Automedics has
irrevocably paid to Gensia Sicor under subsections (i) and (ii) of this
Section 1.3(b) the aggregate amount (the "Cap") equal to $10,000,000, plus
interest at the rate of eight percent (8%) per year on the unpaid amount of
such $10,000,000 from the Closing Date, subject to the following
adjustment. If Automedics and its Affiliates fail to attain at least
$40,000,000 of aggregate Heparin/GenESA System revenue for the fiscal year
ending December 31, 1999, then and in such event, the Cap shall be reduced
to an amount (calculated to the nearest cent) determined by multiplying the
Cap (as determined above) by a fraction, the numerator of which shall be
the number of revenue dollars actually reported by Automedics and its
Affiliates and (sub)licensees representing Heparin/GenESA System revenue in
1999, and the denominator of which shall be 40,000,000. For purposes of
this subsection (iii), Heparin/GenESA System revenue shall include all U.S.
sales revenues realized on sales of the GenESA System and any research and
development royalties or similar fees realized in connection with the
Feedback Controlled Heparin System.
(iv) Automedics shall pay to Gensia Sicor royalties equal to thirty
three percent (33%) of LMA EBIT (as defined below), payable on a quarterly
basis as set forth below. The obligations of Automedics under this
subsection (iv) of Section 1.3(b) shall terminate on the earlier of (A) the
date of the termination of the LMA Services Agreement (as defined below),
or (B) December 31, 2000; provided, however, if the compensations
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arrangements to Automedics pursuant to the LMA Services Agreement are
materially modified, then Automedics and Gensia Sicor shall discuss any
mutually acceptable modifications to this subsection (iv) of Section 1.3(b)
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designed to pay Gensia Sicor such amount, on such terms, as is consistent
(to the extent practicable) with the payment provisions described above.
(v) "Affiliate" shall mean, with respect to any person or entity, any
other person or entity which directly or indirectly controls, is controlled
by, or is under common control with, such person or entity. A person or
entity shall be regarded as in control of another person or entity if it
owns, or directly or indirectly controls, at least forty percent (40%) of
the voting stock or other ownership interest of the other person or entity,
or if it directly or indirectly possesses the power to direct or cause the
direction of the management and policies of the other person or entity by
any means whatsoever.
(vi) "LMA EBIT" shall mean, with respect to any calendar quarter, an
amount, which shall not be less than zero, equal to the remainder of (A)(1)
the cumulative gross revenues actually received by Automedics or its
Affiliates pursuant to the LMA Services Agreement during such calendar year
through the end of such calendar quarter, less (2) for the second, third
and fourth calendar quarter of each calendar year, the cumulative gross
revenues actually received by Automedics or its Affiliates pursuant to the
LMA Services Agreement during such calendar year through the end of the
immediately preceding calendar quarter, less (B)(1) the cumulative LMA
Product Sales Expenses (as defined below) during such calendar year through
the end of such calendar quarter, less (2) for the second, third and fourth
calendar quarter of each calendar year, the LMA Product Sales Expenses
during such calendar year through the end of the immediately preceding
calendar quarter. If Automedics or any of its Affiliates is entitled to
receive revenues pursuant to the LMA Services Agreement after termination
of the obligations of Automedics under subsection (iv) of this Section
1.3(b) for goods sold or services performed prior to such termination, then
such earned (but not yet received) revenues additionally shall be included
in the calculation under clause (A)(1) above of the cumulative gross
revenues actually received by Automedics or its Affiliates pursuant to the
LMA Services Agreement for the final calendar quarter of Automedics'
obligation under subsection (iv) of this Section 1.3(b).
(vii) "LMA Product Sales Expenses" shall mean $1,039,000 for each
calendar quarter during 1998, $1,092,000 for each calendar quarter during
1999, and $1,147,000 for each calendar quarter during 2000.
(viii) "LMA Products" shall mean the Laryngeal Mask Airway and all
products related thereto, including without limitation the Current LMA
Products.
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(ix) "LMA Services Agreement" shall mean the Services Agreement dated
December 23, 1997 (as amended, restated, supplemented or otherwise replaced
with a similar or related agreement), between LMA (North America), Inc., a
Delaware corporation ("LMA"), and Automedics, regarding certain services to
be performed by Automedics with respect to the LMA Products.
(x) "Net Sales" shall mean, (A) with respect to any product (other
than LMA Products), the invoiced sales price, or lease or rental charges,
for such product billed to inde pendent customers who are not Affiliates
(and excluding sales to (sub)licensees who are not end users), less to the
extent actually included in the invoiced sales price of such product (1)
credits, allowances, discounts and rebates to, and chargebacks from the
account of, such independent customers for spoiled, damaged, out-dated and
returned product; (2) actual freight and insurance costs incurred in
transporting such product in final form to such customers; (3) cash,
quantity and trade discounts, rebates and other price reduction programs;
(4) sales, value-added and other direct taxes incurred; and (5) customs
duties, surcharges and other governmental charges incurred in connection
with the exportation or importation of such product in final form; plus (B)
the gross revenues to Automedics and its Affiliates reported in connection
with the LMA Services Agreement.
(c) Post-Closing Royalty Reports, Accounting, Etc.
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(i) Payment Terms. All royalties shown to have accrued by each
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royalty report provided for under Section 1.3(c)(v) shall be due and
payable on the date such royalty report is due. Payment of such royalties
in whole or in part may be made in advance of such due date.
(ii) Payment Method. All payments by Automedics to Gensia Sicor
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under the Agreement shall be paid in United States dollars, and all such
payments shall be originated from a United States bank located in the
United States and made by bank wire transfer in immediately available funds
to such account as Gensia Sicor shall designate before such payment is due.
(iii) Exchange Control. If at any time legal restrictions prevent
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the prompt remittance of part or all royalties owing under this Section
1.3(b) with respect to any country where the product is sold, payment shall
be made through such lawful means or methods as Gensia Sicor and Automedics
reasonably shall determine.
(iv) Withholding Taxes. Automedics shall be entitled to deduct the
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amount of any withholding taxes, value-added taxes or other taxes, levies
or charges with respect to such royalties, other than United States taxes,
payable by
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Automedics, its Affiliates or sublicensees, or any taxes required to be
withheld by Automedics, its Affiliates or sublicensees, to the extent
Automedics, its Affiliates or sublicensees pay to the appropriate
governmental authority on behalf of Gensia Sicor such taxes, levies or
charges. Automedics shall use reasonable efforts to minimize any such
taxes, levies or charges required to be withheld on behalf of Gensia Sicor
by Automedics, its Affiliates or sublicensees. Automedics promptly shall
deliver to Gensia Sicor proof of payment of all such taxes, levies and
other charges, together with copies of all communications from or with such
governmental authority with respect thereto.
(v) Reports, Exchange Rates.
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(A) Commencing in 2000, Automedics shall furnish to Gensia Sicor
a quarterly written report showing in reasonably specific detail, on a
product-by-product basis, (1) the gross sales of all products sold by
Automedics, its Affiliates and its (sub)licensees during the reporting
period and the calculation of Net Sales therefrom; (2) the royalties, if
any, which shall have accrued hereunder based upon such Net Sales; (3) the
withholding taxes, if any, required by law to be deducted in respect of
such sales; and (4) the exchange rates used in translating into United
States dollars the gross sales, Net Sales and royalties for gross sales
invoiced in currency other than United States dollars.
(B) Through the earlier of the date of the termination of the LMA
Services Agreement or December 31, 2000, Automedics shall furnish to Gensia
Sicor a quarterly written report showing in reasonably specific detail, (1)
the gross revenues actually received by Automedics or its Affiliates
pursuant to the LMA Services Agreement during such calendar year through
the end of such calendar quarter; (2) the calculation of the LMA EBIT for
such calendar quarter; and (3) the royalties, if any, which shall have
accrued hereunder based upon the LMA EBIT for such calendar quarter.
(C) With respect to sales of products invoiced in United States
dollars, the gross sales, Net Sales and royalties shall be expressed in
United States dollars. With respect to sales of products invoiced in a
currency other than United States dollars, the gross sales, Net Sales and
royalties shall be expressed in the domestic currency of the party making
the sale together with the United States dollar equivalent, calculated
using the average closing buying rate for such currency quoted in the
continental terms method of quoting exchange rates (local currency per
US$1) by Bank of America NT&SA in London, England on each of the last
business day of each month in the quarter prior to the date of payment.
(D) Reports shall be due on the sixtieth (60th) day following
the close of each quarter. Automedics shall keep
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complete and accurate records in sufficient detail to properly reflect all
gross sales and Net Sales and to enable the royalties payable hereunder to
be determined.
(vi) Audits. Upon the written request of Gensia Sicor and not more
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than once in each calendar year, Automedics shall permit an independent
certified public accounting firm of nationally recognized standing,
selected by Gensia Sicor and reasonably acceptable to Automedics, at Gensia
Sicor's expense, to have access during normal business hours to such of the
records of Automedics as may be reasonably necessary to verify the accuracy
of the royalty reports hereunder for any year ending not more than thirty-
six (36) months prior to the date of such request. The accounting firm
shall disclose to Gensia Sicor only whether the reports are correct or not
and the specific details concerning any discrepancies. No other
information shall be shared. If such accounting firm concludes that
additional royalties were owed hereunder during such period, Automedics
shall pay the additional royalties within thirty (30) days of the date
Gensia Sicor delivers to Automedics such accounting firm's written report
so con cluding. The fees charged by such accounting firm shall be paid by
Gensia Sicor; provided, however, if the audit discloses that the royalties
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payable hereunder by Automedics for the audited period are more than one
hundred five percent (105%) of the royalties actually paid hereunder for
such period, then Automedics shall pay the reasonable fees and expenses
charged by such accounting firm. Automedics shall include in each
(sub)license granted by it (excluding (sub)licenses pursuant to
distribution arrangements in existence as of the date hereof) a provision
requiring the (sub)licensee to make reports to Automedics, to keep and
maintain records of sales made pursuant to such (sub)license and to grant
access to such records by Gensia Sicor's independent accountant to the same
extent required of Automedics under the Agreement.
(vii) Confidential Financial Information. Gensia Sicor shall treat
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all financial information subject to review under this Section 1.3(c) as
confidential, and shall cause its accounting firm to retain all such
financial information in confidence.
(d) Payment of Sales or Other Taxes. Any tax (other than taxes
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imposed in respect to the income of Gensia (including, without limitation, gain,
if any, on the sale of Assets)) that may be payable as a result of the execution
of this Agreement or the consummation of the purchase and sale contemplated
hereby, shall be paid by Gensia Sicor. Gensia Sicor shall timely file all tax
returns which may be required in connection with such tax or taxes. Automedics
shall fully reimburse Gensia Sicor for the amount of all such tax or taxes
within thirty (30) days after the payment thereof by Gensia Sicor.
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(e) Allocation of Consideration. The consideration paid by
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Automedics for the Assets pursuant to this Section 1.3 shall be allocated among
the Assets for tax purposes as set forth on Schedule 1.3(e) hereto.
1.4 Grant-Back of Certain Oncology Rights. Automedics hereby grants to
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Gensia Sicor a fully-paid, irrevocable, worldwide nonexclusive right and license
(including the right to grant sublicenses), under the patent applications and
patents listed on Schedule 1.1(c), any and all patents that have issued or in
the future issue from such patent applications, including utility, model and
design patents and certificates of invention, and any and all divisionals,
continuations, continuations-in-part, reissues, renewals, extensions or
additions to any such patent applications and patents, to practice methods and
processes and to conduct research, make, use, offer for sale, sell and import
compositions indicated for use, and materially used, in the diagnosis,
prevention or treatment of cancer.
1.5 Reversion of Certain Assets.
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(a) If Automedics fails to duly exercise the option (the "Partnership
Purchase Option") granted pursuant to Section 3.01(a) of the Partnership
Purchase Option Agreement dated as of June 13, 1991 (as amended from time to
time, the "Partnership Purchase Option Agreement"), between Gensia Sicor, the
limited partners named therein (the "Limited Partners") and Gensia Clinical
Partners, L.P., a Delaware limited partnership (the "Partnership"), not less
than ten (10) days prior to the expiration of the Partnership Purchase Option,
and provided that Gensia Sicor has not defaulted in the performance of its
obligations under Section 4.3(a) hereof, then upon written notice from Gensia to
Automedics and without further action by Automedics or Gensia, at the sole
expense of Automedics, Automedics shall assign, transfer and deliver to Gensia
Sicor all the Assets relating to the GenESA System, together with all other
inventory, contracts, commitments and other agreements, product registrations,
approvals and applications therefor and accounts then owned by Automedics
relating to the GenESA System, free and clear of all Liens other than Permitted
Liens. Upon the request of Gensia Sicor, Automedics shall execute such
documents, instruments and agreements, and take such other actions as may be
necessary or useful to effectuate such assignment, transfer and delivery.
Except as otherwise set forth below in this Section 1.5(a), Automedics shall
have no liability for any liabilities or obligations relating to the GenESA
System that are incurred by Gensia or accrue after such reassignment. If Gensia
Sicor reacquires the GenESA System pursuant to this Section 1.5(b) and receives
a bona fide offer (or enters into an agreement granting Gensia Sicor the right)
to exercise the Partnership Purchase Option on terms and conditions more
favorable to Gensia Sicor than those set forth in the Partnership Purchase
Option Agreement, then before Gensia Sicor may exercise the Partnership Purchase
Option, Gensia Sicor shall offer to Automedics the right to do so on such more
favorable terms, subject to the following
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terms and conditions: (i) Gensia Sicor shall use reasonable efforts to give
such notice to Automedics not less than three (3) days prior to the expiration
of the Partnership Purchase Option; (ii) Automedics shall have the right to
exercise the Partnership Purchase Option on such more favorable terms not less
than one (1) day before expiration thereof; (iii) if Automedics timely exercises
the Partnership Purchase Option pursuant to this sentence, and to consummate the
purchase of the limited partnership interests pursuant thereto, Gensia Sicor
shall reassign, transfer and deliver to Automedics all the Assets relating to
the GenESA System, together with all other inventory, contracts, commitments and
other agreements, product registrations, approvals and applications therefor and
accounts previously reassigned by Automedics to Gensia Sicor relating to the
GenESA System; and (iv) Gensia Sicor shall have no liability for any liabilities
or obligations relating to the GenESA System that are incurred or accrue after
the reassignment from Automedics to Gensia Sicor set forth above.
(b) Except as otherwise set forth in the immediately following
sentence, if Automedics breaches any material obligation owing to Protocol
Systems, Inc., an Oregon corporation ("Protocol"), pursuant to the Development
and Supply Agreement dated January 26, 1990 (as amended, the "Protocol
Agreement"), between Gensia Sicor and Protocol, that with notice or the lapse of
time or both would constitute a default giving rise to a termination right (or
otherwise would give rise to a termination right) thereunder, then upon written
notice from Gensia to Automedics and without further action by Automedics or
Gensia, at the sole expense of Automedics, Automedics shall assign, transfer and
deliver to Gensia Sicor all the Assets relating to the GenESA System, together
with all other inventory, contracts, commitments and other agreements, product
registrations, approvals and applications therefor and accounts then owned by
Automedics relating to the GenESA System, free and clear of all Liens other than
Permitted Liens. Notwithstanding the foregoing, Gensia Sicor shall have no
right to require the reassignment of the GenESA System pursuant to this Section
1.5(b) if (i) Automedics has duly exercised the Partnership Purchase Option not
less than ten (10) days prior to the expiration of the Partnership Purchase
Option, and consummated the purchase of the limited partnership interests
pursuant thereto, and (ii)(A) Automedics has not breached any material
obligation under the Protocol Agreement, other than the obligations set forth in
Sections 3.2(c), 3.2(e), 6.2(a), 6.7, 6.8, 8.2, 8.3, 8.4, 9.4, 9.17 (provided
that, with respect to Section 9.17, Automedics has obtained and maintained
current product liability insurance with policy limits of not less than
$8,000,000) and 9.18 thereof, or (B) Automedics in good faith is contesting a
breach of a material non-monetary obligation under the Protocol Agreement
alleged by Protocol and either (1) has received express written agreement from
Protocol not to terminate the Protocol Agreement, or (2) has obtained an
injunction or other court order precluding Protocol from terminating the
Protocol Agreement, in each instance for the term of such agreement, injunction
or court order. Upon the request of Gensia Sicor, Automedics shall execute
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such documents, instruments and agreements, and take such other actions as my be
necessary or useful to effectuate such assignment, transfer and delivery.
Automedics shall have no liability for any liabilities or obligations relating
to the GenESA System that are incurred by Gensia or accrue after such
reassignment.
(c) Automedics promptly shall provide Gensia Sicor with a copy of each
forecast, projection and order required to be provided to Protocol pursuant to
the Protocol Agreement. Automedics shall provide Gensia Sicor with a quarterly
written report of its accounts payable owing to Protocol, and the aging thereof,
in connection with the Protocol Agreement. If Automedics gives written notice
to Gensia Sicor not less than ten (10) days prior to the date on which a breach
of a payment obligation by Automedics could be declared under the Protocol
Agreement, Gensia Sicor shall pay to Protocol, prior to the due date and on
behalf of Automedics, such amount as requested by Automedics owing to Protocol
under the Protocol Agreement. Automedics shall repay to Gensia Sicor the full
amount of each advance by Gensia Sicor hereunder, together with interest thereon
at the rate of fifteen percent (15%) per annum, within four months after the
date of such advance. Notwithstanding the foregoing, Gensia Sicor shall have no
obligation to make cumulative payments to Protocol pursuant to this Section
1.5(c) in excess of $1,000,000 during the term of the Protocol Agreement, and
shall have no obligation to make any further payments to Protocol pursuant to
this Section 1.5(c) if Automedics has not repaid in full the amount of each
advance by Gensia Sicor hereunder, together with interest thereon, within four
months after the date of such advance. If Automedics fails to repay in full the
amount of any advance by Gensia Sicor hereunder, together with interest thereon,
within four months after the date of such advance, then for purposes of Section
1.5(b) above, Automedics shall be deemed to be in breach of its material
obligations, and Gensia Sicor shall have the right to require the reassignment
of the GenESA System pursuant to Section 1.5(b) above.
(d) Automedics shall provide Gensia Sicor with a quarterly written
report of its accounts payable owing to Xxxxxx Laboratories, an Illinois
corporation ("Abbott"), and the aging thereof, in connection with the
Development Agreement or the Supply Agreement both dated January 16, 1992
(collectively, the "Abbott Agreements"), between Gensia Sicor and Abbott. If,
at any time prior to the due exercise of the Partnership Purchase Option, (i)
Automedics breaches any material obligation owing to Abbott pursuant to the
Abbott Agreements, that with notice or the lapse of time or both would
constitute a default giving rise to a termination right (or otherwise would give
rise to a termination right) thereunder, and (ii) at the time of such breach
Automedics does not own sufficient inventory of arbutamine on hand to satisfy
the reasonably foreseeable worldwide market demand therefor for use with the
GenESA System for the period through at least December 31, 1999 (provided that
any failure to have sufficient inventory on hand at such time is not due solely
to (A) a breach by Abbott of its obligation to supply arbutamine under such
agreements, or
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(B) the negligence, recklessness or willful misconduct of GSPI in the storage of
Automedics' arbutamine inventory), then upon written notice from Gensia to
Automedics and without further action by Automedics or Gensia, at the sole
expense of Automedics, Automedics shall assign, transfer and deliver to Gensia
Sicor all the Assets relating to the GenESA System, together with all other
inventory, contracts, commitments and other agreements, product registrations,
approvals and applications therefor and accounts then owned by Automedics
relating to the GenESA System, free and clear of all Liens other than Permitted
Liens. Notwithstanding the foregoing, Gensia Sicor shall have no right to
require the reassignment of the GenESA System pursuant to this Section 1.5(d) if
(iii) Automedics has duly exercised the Partnership Purchase Option not less
than ten (10) days prior to the expiration of the Partnership Purchase Option,
and consummated the purchase of the limited partnership interests pursuant
thereto, and (iv) Automedics in good faith is contesting a breach of a material
non-monetary obligation under the Abbott Agreements alleged by Abbott and either
(A) has received express written agreement from Abbott not to terminate the
Abbott Agreements, or (B) has obtained an injunction or other court order
precluding Abbott from terminating the Abbott Agreements, in each instance for
the term of such agreement, injunction or court order. Upon the request of
Gensia Sicor, Automedics shall execute such documents, instruments and
agreements, and take such other actions as my be necessary or useful to
effectuate such assignment, transfer and delivery. Automedics shall have no
liability for any liabilities or obligations relating to the GenESA System that
are incurred by Gensia or accrue after such reassignment.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
------------------------------
2.1 General Representations and Warranties. Except as disclosed or
--------------------------------------
excepted in Schedule 2 hereto (the "Disclosure Schedule"), each of Automedics,
Gensia Sicor and GSPI represents and warrants to the other parties as of the
date hereof as follows:
(a) Organization, Good Standing and Qualification. It is a
---------------------------------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted. It is
qualified to transact business and is in good standing in each jurisdiction in
which the failure to so qualify would have a material adverse effect on its
business and properties.
(b) Authorization. All corporate action on its part and on the part
-------------
of its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, and the performance of all obligations
of it hereunder, has been taken or will be taken on or prior to the Closing.
This Agreement constitutes the valid and legally binding obligation of it
except
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(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) to the
extent the indemnification provisions may be limited by applicable federal or
state securities laws.
(c) Governmental Consents. No consent, approval, order or
---------------------
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority on
the part of it is required in connection with the consummation of the
transactions contemplated by this Agreement.
(d) Compliance with Other Instruments. It is not in violation or
---------------------------------
default of any provisions of its Certificate of Incorporation, as amended, or
Bylaws or of any instrument, judg ment, order, writ, decree or contract to which
it is a party or by which it is bound or, to its knowledge, of any provision of
federal or state statute, rule or regulation applicable to it, which violation
or default would be materially adverse to the Transferred Businesses. The
execution, delivery and performance of this Agreement, and the consummation of
the transactions contemplated hereby, will not result in any such violation or
be in conflict with or constitute, with or without the passage of time and
giving of notice, either a default under any such provision, instrument,
judgment, order, writ, decree or contract or an event which results in the
creation of any material lien, charge or encumbrance upon any assets of it or
the suspension, revocation, impairment, forfeiture or non-renewal of a material
permit, license, authorization or approval applicable to it or the Transferred
Businesses.
2.2 Representations and Warranties Regarding the Assets. Except as
---------------------------------------------------
disclosed or excepted in the Disclosure Schedule, Gensia represents and warrants
to Automedics as of the date hereof as follows:
(a) The Assets are owned by Gensia. No person or entity other than
Gensia has any right, title or interest in or to the Assets, other than the
Intellectual Property. To the best knowledge of Gensia, no person or entity
other than Gensia has any right, title or interest in or to the Intellectual
Property.
(b) Except for Permitted Liens, Gensia has, and at the Closing
Automedics will receive, good, valid and marketable title to all of the Assets,
free and clear of any Lien.
(c) The Assets constitute all of the properties and rights, tangible
or intangible, real or personal, owned by Gensia and required for the continued
operation of the Transferred Businesses, other than the sale of Current LMA
Products, in the manner in which they are currently operated, it being
understood
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that on and after the Closing, Automedics intends to engage in the sale of LMA
Products pursuant to the terms of the LMA Services Agreement.
(d) Gensia has not received any communications alleging that Gensia
has violated, by conducting the Transferred Businesses, any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity. To the best of Gensia's
knowledge, the Transferred Businesses as conducted do not infringe or conflict
with the rights of others, including rights under patents, trademarks, service
marks, trade names, copyrights, trade secrets or other proprietary rights.
Gensia has not received any communication that any of the Intellectual Property
is being infringed or compromised by others.
(e) There is no action, suit, proceeding or investigation pending or
currently threatened against Gensia which questions the validity of this
Agreement, or the right of Gensia to enter into this Agreement or to consummate
the transactions contemplated hereby, or which might result, either individually
or in the aggregate, in any material adverse change in the Assets or the
Transferred Businesses, nor is Gensia aware that there is any basis for the
foregoing. The foregoing includes, with respect to the Assets and the
Transferred Businesses only but otherwise without limitation, actions, suits,
proceedings or investigations pending or threatened (or any basis therefor known
to Gensia) involving the prior employment of any of Gensia's employees, their
use in connection with Gensia's business of any information or techniques
allegedly proprietary to any of their former employers, or their obligations
under any agreements with prior employers. Neither Gensia nor, to the best
knowledge of Gensia, anyone acting for or on its behalf has, since September 30,
1995, paid any amount of damages to any third party for injuries to persons or
property, or paid any cash settlements for breach of warranty, arising out of
any alleged defect in quality, materials, workmanship or design of any of its
products (including any products manufactured by others and distributed by
Gensia) and, except for goods returned for repair or replacement pursuant to the
standard terms and conditions of sale relating to such goods, there is no
pending or, to the best knowledge of Gensia, threatened claim against Gensia for
breach of warranty or seeking damages arising out of any alleged defect in
quality, materials, workmanship or design of any of its products and Gensia has
no knowledge of any basis for any such claim. Gensia is not a party or subject
to the provisions of any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by Gensia currently pending or which Gensia intends
to initiate regarding the Assets or the Transferred Businesses.
(f) Automedics will have no income tax liability as a consequence of
having been a member of Gensia Sicor's consolidated group. Gensia has filed all
tax income returns and reports with respect to the Assets and the Transferred
Businesses as required by
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applicable law. These returns and reports are true and correct in all material
respects. Gensia has paid all income taxes and other assessments with respect
to the Assets and the Transferred Businesses due prior to the time penalties
would accrue thereon. The provision for income taxes of Gensia with respect to
the Assets and the Transferred Businesses is adequate for income taxes due or
accrued as of the date thereof. Gensia has not elected pursuant to the Code to
be treated as a Subchapter S corporation or a collapsible corporation pursuant
to section 1362(a) or section 341(f) of the Code, nor has it made any other
elections pursuant to the Code (other than elections that relate solely to
methods of accounting, depreciation or amortization) that would have a material
effect on the Assets or the Transferred Businesses.
(g) To the knowledge of Gensia, the Receivables are valid and
enforceable claims, and constitute bona fide receivables resulting from the sale
of goods and services in the ordinary course of the Transferred Businesses,
other than the sale of Current LMA Products.
(h) Schedule 1.1(b) hereto sets forth a true and complete list of
inventory of the Transferred Businesses, other than the sale of Current LMA
Products, by category as of the date hereof other than changes in the ordinary
course of business.
(i) To the knowledge of Gensia, the contracts assigned to Automedics
pursuant to this Agreement are binding upon the other parties thereto in
accordance with their terms. Gensia has not received written notice of any
default (or alleged default) under any such contract. To the knowledge of
Gensia, there exists no condition that with notice or the lapse of time or both
would constitute a default of a material obligation (or give rise to a
termination right) under any such contract. Gensia has not received written
notice of cancellation or termination of any such contract.
(j) There is no investment banker, broker, finder or other
intermediary which has been retained by or is authorized to act on behalf of
Gensia who would be entitled to any fee or commission from Automedics upon
consummation of the transactions contemplated hereby.
(k) There exist no facts or circumstances that would give rise to a
claim by any third party for damages resulting from bodily injury, death or
property damage attributable to the manufacture, use or sale by Gensia of
products in the course of the Transferred Businesses prior to the Closing Date.
2.3 Representations and Warranties of Automedics Regarding the
----------------------------------------------------------
Subordinated Preferred Stock. Automedics represents and warrants to Gensia
----------------------------
Sicor as of the date hereof as follows:
(a) Subordinated Preferred Stock. The shares of Subordinated
----------------------------
Preferred Stock to be acquired by Gensia Sicor
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pursuant to Section 1.3 hereof (i) have been duly and validly authorized, and
(ii) upon completion of the Closing pursuant to the terms hereof, (A) will be
validly issued to Gensia Sicor and fully paid and nonassessable, (B) based in
part upon the representations of Gensia Sicor in this Agreement, will have been
issued in compli ance with all applicable federal and state securities laws, and
(C) shall be free of all adverse claims and restrictions on transfer other than
restrictions on transfer under this Agreement and under applicable federal and
state securities.
(b) Common Stock. The shares of Common Stock of Automedics issuable
------------
upon conversion of the shares of Subordinated Preferred Stock purchased under
this Agreement (i) have been duly and validly authorized and reserved for
issuance, (ii) upon issuance and in accordance with the terms of the Restated
Certificate, (A) shall be duly and validly issued, fully paid and nonassessable,
(B) based in part upon the representations of Gensia Sicor in this Agreement,
will have been issued in compliance with all applicable federal and state
securities laws, and (C) shall be free of all adverse claims and restrictions on
transfer other than restrictions on transfer under this Agreement and under
applicable federal and state securities.
2.4 Representations and Warranties of Gensia Sicor Regarding the
------------------------------------------------------------
Subordinated Preferred Stock. Gensia Sicor acknowledges that Automedics has
----------------------------
entered into this Agreement in reliance upon Gensia Sicor's representations and
warranties to Automedics, and Gensia Sicor hereby confirms, that:
(a) Purchase Entirely for Own Account. The shares of Subordinated
---------------------------------
Preferred Stock to be acquired by Gensia Sicor pursuant to Section 1.3 hereof
are acquired for investment purposes and for its own account, not as a nominee
or agent, and not with a view to the resale or distribution of any part thereof,
and that Gensia Sicor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, Gensia Sicor further represents that Gensia Sicor does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of such shares of Subordinated Preferred Stock.
(b) Restricted Securities. Gensia Sicor understands that the shares
---------------------
of Subordinated Preferred Stock it is acquiring are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from Automedics in a transaction exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act"), and that such shares
of Subordinated Preferred Stock may be resold without registration under the
Securities Act only in certain limited circumstances. In this connection Gensia
Sicor represents that it is familiar with Rule 144 promulgated under the
Securities Act, as presently in effect, and understands the resale limitations
imposed thereby and by the Securities Act.
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(c) Legends. It is understood that the certificates evidencing the
-------
Securities may bear one or all of the following legends:
(i) "These securities have not been registered under the Securities
Act of 1933, as amended. They may not be sold, offered for sale, pledged
or hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act or an opinion of counsel
satisfactory to Automedics that such registration is not required or unless
sold pursuant to Rule 144 of such Act."
(ii) Any legend required by the laws of the State of California or
other jurisdiction.
(d) Accredited Investor. Gensia Sicor represents and warrants to
-------------------
Automedics that it is an accredited investor as defined in Rule 501(a) of
Regulation D promulgated under the Securities Act.
2.5 Survival of Representations and Warranties.
------------------------------------------
(a) All representations, warranties and covenants contained in this
Agreement (other than the representations and warranties by Gensia pursuant to
Section 2.2(f) hereof) and any certificate or other instrument delivered by or
on behalf of any of the parties pursuant to this Agreement shall survive the
Closing for a period that will terminate on the third anniversary of the Closing
Date.
(b) All representations and warranties by Gensia pursuant to Section
2.2(f) hereof shall survive the Closing for a period that will terminate on the
date of the applicable statute of limitations with respect to claims therefor.
(c) Thereafter, all such representations, warranties and covenants
shall survive with respect to any claim made on or before the applicable
termination date above until such time as such claim has been finally decided,
settled or adjudicated.
ARTICLE 3
INDEMNIFICATION
---------------
3.1 Indemnification.
---------------
(a) Automedics shall indemnify, defend and hold harmless Gensia from
and against any loss, liability, damage and expense (including all reasonable
attorneys' fees and costs), in each instance in excess of $20,000, incurred or
suffered by Gensia to the extent arising from (i) the Disclosed Liabilities, or
(ii) any breach of any representation, warranty or covenant of Automedics
-19-
under this Agreement, except to the extent that Gensia is obligated to indemnify
Automedics pursuant to Section 3.1(b) for any such losses, liabilities, damages
and expenses to the extent arising from any breach of any representation,
warranty or covenant of Gensia under this Agreement. Notwithstanding the
foregoing, Gensia shall not be entitled to indemnification hereunder for any
loss, liability, damage and expense unless and until the aggregate amount of all
such losses, liabilities, damages and expenses exceeds $50,000, and Gensia's
right to indemnification hereunder shall be limited to the amount of such
losses, liabilities, damages and expenses in the aggregate in excess of $50,000.
(b) Gensia shall indemnify, defend and hold harmless Automedics from
and against any loss, liability, damage and expense (including all reasonable
attorneys' fees and costs), in each instance in excess of $20,000, incurred or
suffered by Automedics to the extent arising from any breach of any
representation, warranty or covenant of Gensia under this Agreement.
Notwithstanding the foregoing, Automedics shall not be entitled to
indemnification hereunder for any loss, liability, damage and expense unless and
until the aggregate amount of all such losses, liabilities, damages and expenses
exceeds $50,000, and Automedics' right to indemnification hereunder shall be
limited to the amount of such losses, liabilities, damages and expenses in the
aggregate in excess of $50,000.
3.2 Procedure.
---------
(a) If Automedics or Gensia (the "Indemnitee") intends to claim
indemnification under this Article 3 with respect to any claim, demand, action
or other proceeding by any third party, the Indemnitee promptly shall notify the
other party (the "Indemnitor") thereof, and the Indemnitor shall have the right
to assume the defense thereof with counsel selected by the Indemnitor; provided,
--------
however, that the Indemnitee shall have the right to retain its own counsel,
-------
with the fees and expenses to be paid by the Indemnitor, if representation of
the Indemnitee by the counsel retained by the Indemnitor would be inappropriate
due to actual or potential differing interests between the Indemnitee and any
other party represented by such counsel in such proceedings.
(b) The indemnity obligations under this Article 3 shall not apply to
amounts paid in settlement of any claim, demand, action or other proceeding if
such settlement is effected without the consent of the Indemnitor, which consent
shall not be unreasonably withheld or delayed. The failure to deliver notice to
the Indemnitor within a reasonable time after the commencement of any such
action or other proceeding, if prejudicial to its ability to defend such action,
shall relieve the Indemnitor of any liability to the Indemnitee under this
Article 3, but the omission so to deliver notice to the Indemnitor will not
relieve it of any liability that it may have to the Indemnitee otherwise than
under this Article 3.
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(c) The Indemnitee, its employees and agents, shall reasonably
cooperate with the Indemnitor and its legal representatives in the investigation
of any claim, demand, action or other proceeding covered by this
indemnification.
ARTICLE 4
ADDITIONAL AGREEMENTS
---------------------
4.1 Employee Matters.
----------------
(a) For the period from the Closing Date through and including June
30, 1998, neither Automedics nor any of its directors, officers or employees,
directly or indirectly, shall solicit or encourage any employees of Gensia to
leave its employ.
(b) For the period from the Closing Date through and including June
30, 1998, neither Gensia Sicor, GSPI nor any of their respective directors,
officers or employees, directly or indirectly, shall solicit or encourage any
employees of Automedics to leave its employ.
(c) If Automedics terminates (other than for cause) any employee, who
formerly was an employee of Gensia, at any time prior to the first anniversary
of the Closing Date, Automedics shall offer to such person a severance agreement
on terms and conditions no less favorable to such person than the terms and
conditions of the severance agreement to which such person would have been
entitled (as determined in accordance with Gensia Sicor's severance practices
with respect to the severance of similarly situated employees) if terminated by
Gensia Sicor as of the Closing Date.
(d) If Automedics terminates, or causes the termination of, any
employee(s) of Gensia GmbH (other than for cause) on or before March 31, 1998,
then Gensia Sicor shall reimburse Automedics an amount equal to the amount of
the severance pay actually paid to such terminated employee(s) up to an amount
equal to the greater of (i) the amount of the severance pay to which such person
would have been entitled (as determined in accordance with Gensia Sicor's
severance practices with respect to the severance of similarly situated
employees in its European operations) if terminated as of the Closing Date, or
(ii) the amount of the severance pay to which such person is entitled pursuant
to applicable German law.
4.2 Use of Gensia Name and Xxxx.
---------------------------
(a) On the terms and subject to the conditions of this Section 4.2,
Gensia hereby grants to Automedics a worldwide, nonexclusive license (without
the right to grant sublicenses) to use the name "Gensia" as a part of the
corporate name of Automedics and the corporate name of Gensia Automedics Limited
and Gensia GmbH through December 31, 1998. On or before December 31, 1998,
Automedics shall change its corporate name, shall cause Gensia
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Automedics Limited and Gensia GmbH to change their corporate names, to delete
any reference to the "Gensia" name, and thereafter each shall cease using the
"Gensia" name for any purposes except as required by applicable law or
regulation or as expressly set forth in Section 4.2(b) hereof.
(b) On the terms and subject to the conditions of this Section 4.2,
Gensia hereby grants to Automedics a worldwide, nonexclusive license (with the
right to grant sublicenses solely to its bona fide distributors) to use the name
"Gensia" and the trademark described on Schedule 4.2 hereto (collectively, the
"Gensia Marks") solely in connection with the marketing, sale and distribution
of its products, including the GenESA System, through June 30, 1999.
Thereafter, Automedics shall cease using the Gensia Marks for any purposes
except as required by applicable law or regulation.
(c) The licenses granted to Automedics under this Section 4.2 are
personal to Automedics. Automedics shall not assign, transfer, sublicense or
otherwise convey the license rights granted under this Section 4.2, in whole or
in part, whether voluntarily, by operation of law or otherwise, without the
prior express written consent of Gensia. Any purported assignment, transfer,
sublicense or other conveyance in violation of this Section 4.2(c) shall be
void.
(d) Automedics shall use the Gensia Marks in compliance with all
applicable laws, regulations, rules and practices of each country in which the
Gensia Marks are used, including without limitation the marking with notice of
registration and the registering or recording of Automedics as a registered or
licensed user of the Gensia Marks.
(e) Automedics shall not alter or modify the Gensia Marks. Except as
otherwise expressly authorized by this Agreement, Automedics shall not adopt,
use, register or file any application for registration of the Gensia Marks or
any word, title, phrase, expression, trade name, trademark, service xxxx,
certification xxxx, symbol, designation or marking of any type or in any
language whatsoever, which is confusingly similar to or contains in whole or in
part the Gensia Marks, as part of its corporate name, a business name or
otherwise.
(f) Automedics shall maintain the quality of the products with respect
to which Automedics uses the Gensia Marks at the level that meets or exceeds
industry standards therefor.
(g) Automedics hereby acknowledges that the Gensia Marks constitute
highly valuable assets of Gensia. Automedics shall not use the Gensia Marks in
any manner, and otherwise shall take no action, that derogates from, interferes
with or diminishes Gensia's right, title and interest in the Gensia Marks or the
goodwill associated with the Gensia Marks.
-22-
(h) Automedics hereby acknowledges the validity and exclusive
ownership by Gensia of all right, title and interest in and to the Gensia Marks,
and represents that Automedics owns no right, title or interest in the Gensia
Marks. Any and all right, title and interest that may accrue in the Gensia
Marks (other than the license granted by this Agreement) shall inure solely to
the benefit of Gensia.
4.3 Partnership Purchase Option.
---------------------------
(a) Partnership Purchase Loan. If Automedics duly exercises the
-------------------------
Partnership Purchase Option not less than ten (10) days prior to the expiration
thereof, at the election of Automedics, Gensia Sicor shall fund up to fifty
percent (50%) of the aggregate amount of the payments paid by Automedics to the
Limited Partners to exercise the Partnership Purchase Option as set forth below.
Automedics shall have the right to exercise such election by giving written
notice thereof to Gensia Sicor, not less than ten (10) days prior to the
expiration of the Partnership Purchase Option, stating the aggregate amount of
the payments to paid by Automedics to the Limited Partners to exercise the
Partnership Purchase Option and the funding date (the "Funding Date") fixed
therefor, which shall not be less than forty (40) days, or more than seventy
(70) days, after the date of such notice. If Automedics so elects, Gensia Sicor
shall have the right, at its election, to fund such amounts (i) by paying to
Automedics (in the form of a loan) the amount in cash equal to the lesser of (A)
$11,000,000, or (B) fifty percent (50%) of the amount of the cash payment owing
to the Limited Partners to exercise the Partnership Purchase Option, or (ii) by
issuing to the Limited Partners the number of shares of common stock of Gensia
Sicor equal to the lesser of (A) the number of shares set forth in Section
3.02(b) of the Partnership Purchase Agreement dated June 13, 1991 (the
"Partnership Purchase Agreement"), among Gensia Sicor and each of the Limited
Partners, or (B) the product of (1) the number of shares set forth in Section
3.02(b) of the Partnership Purchase Agreement, times (2) fifty percent (50%) of
the amount of the cash payment owing to the Limited Partners to exercise the
Partnership Purchase Option, divided by $11,000,000. In either event,
Automedics shall execute and deliver to Gensia Sicor a three-year convertible
promissory note, in the original principal amount of the amount in cash paid to
Automedics under clause (i) of this Section 4.3(a), or the aggregate value of
the Gensia Sicor common stock issued to such limited partners under clause (ii)
of this Section 4.3(a), as applicable, bearing interest at the rate of 10% per
annum, in the form attached hereto as Exhibit B (the "Partnership Purchase
Note").
(b) Fixed Share Buyout. If any Limited Partner elects to receive a
------------------
Class A Fixed Share Payment (as defined in the Partnership Purchase Agreement)
upon exercise of the Partnership Purchase Option, Gensia Sicor shall issue to
the Class A Fixed Share Recipients (as defined in the Partnership Purchase
Agreement) the applicable number of shares of common stock of Gensia Sicor
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pursuant to the Partnership Purchase Agreement. On the date of the issuance of
such shares (the "Issuance Date"), Automedics shall execute and deliver to
Gensia Sicor a Partnership Purchase Note, in the original principal amount equal
to (i) $40,000, times (ii) the number of limited partnership interests tendered
for the Class A Fixed Share Payment; provided, however, if Limited Partners
-------- -------
elect to receive Class A Fixed Share Payments for greater than fifty percent
(50%) of the then outstanding limited partnership interests in the Partnership,
then on the Issuance Date, (iii) Automedics shall pay to Gensia Sicor an amount
in cash equal to the product of (A) $40,000, times (B) the remainder of (1) the
number of limited partnership interests tendered for the Class A Fixed Share
Payment, less (2) fifty percent (50%) of the number of limited partnership
interests outstanding immediately prior to the exercise of the Partnership
Purchase Option, and (iv) the principal amount of such Partnership Purchase Note
shall be reduced by a like amount.
(c) Partnership Purchase Security Agreement. Automedics' obligations
---------------------------------------
under the Partnership Purchase Note will be secured by a first priority security
interest in all of Automedics tangible and intangible property pursuant to a
security agreement to be entered into by and between Gensia Sicor and Automedics
as a condition to the funding of such loan in the form attached hereto as
Exhibit C (the "Partnership Purchase Security Agreement").
(d) Cooperation Regarding Partnership Purchase Option. Gensia Sicor
-------------------------------------------------
shall use all reasonable efforts to cooperate with Automedics in connection with
the exercise of the Partnership Purchase Option, and any and all negotiations of
(and attempts to negotiate) more favorable terms of the Partnership Purchase
Option with the Partnership, Gensia Development Corporation, a Delaware
corporation ("GDC"), PaineWebber R&D Partners III, L.P., a Delaware limited
partnership (or its affiliates), or any Limited Partner. If Automedics duly and
timely exercises the Partnership Purchase Option, then upon consummation of the
purchase by Automedics of the limited partnership interests purchased pursuant
thereto, Automedics shall pay to Gensia Sicor an amount in cash equal to twenty
percent (20%) of the remainder, if any, of (i) $22,000,000, less (ii) the
aggregate amount of the cash payment (or fair market value of any equity
security or other non-cash consideration) owing to the Limited Partners to
exercise the Partnership Purchase Option. Such fair market value shall be
determined by the mutual agreement of the parties, or if the parties are unable
to agree, by the determination of an independent appraisal firm mutually
acceptable to the parties, based upon such assumptions and criteria as such
appraisal firm determines reasonable and appropriate. If the cash payments or
other non-cash consideration to exercise the Partnership Purchase Option is
payable to the Limited Partners in more than one installment, then Automedics
shall pay the amount, if any, owing to Gensia Sicor pursuant to the preceding
sentence in proportionate installments at the time of each payment to the
Limited Partners.
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(e) Exercise of Partnership Purchase Option. Upon Automedics' due
---------------------------------------
exercise of the Partnership Purchase Option in accordance with this Section 4.3,
Gensia Sicor shall transfer to Automedics all of its right, title and interest
in and to the limited partnership interests purchased pursuant to the
Partnership Purchase Option.
4.4 Interim Agreement regarding Assigned Contracts. Until such time as
----------------------------------------------
the parties shall have obtained all consents or approvals required from third
parties relating to any contract, agreement, license, lease and other instrument
constituting an Asset, Gensia hereby grants to Automedics an exclusive
subcontract, sublicense or sublease under such contract, agreement, license,
lease and other instrument, and subject to the provisions of Article 3 hereof,
Automedics shall indemnify Gensia for all liabilities and obligations thereunder
after the Closing Date.
4.5 Adverse Events. Automedics and Gensia each shall notify the other
--------------
immediately of any information concerning any serious or unexpected side effect,
injury, toxicity or sensitivity reaction, or any unexpected incidence, and the
severity thereof, associated with the clinical uses, studies, investigations,
tests and marketing of a product existing as of the Closing Date relating to the
of the Transferred Businesses. For purposes of this Section 4.5, "serious"
shall mean an experience which (a) results in the death, permanent or
substantial disability, in-patient hospitalization or prolongation of
hospitalization, or (b) is a congenital anomaly, cancer, the result of an
overdoes or life threatening. For purposes of this Section 4.5, "unexpected"
shall mean (x) for a non-marketed product, an experience that is not identified
in nature, severity or frequency in the current clinical investigator's
confidential information brochure, and (y) for a marketed product, an experience
which is not listed in the current labeling for such product, and includes an
event that may be symptomatically and pathophysiologically related to an event
listed in the labeling but differs from the event because of increased frequency
or greater severity or specificity. Each party further shall immediately notify
the other of any information received regarding any threatened or pending action
by an agency which may affect the safety and efficacy claims of a product. Upon
receipt of any such information, the parties shall consult with each other in an
effort to arrive at a mutually acceptable procedure for taking appropriate
action; provided, however, that nothing contained herein shall be construed as
-------- -------
restricting either party's right to make a timely report of such matter to any
government agency or take other action that it deems to be appropriate or
required by applicable law or regulation.
4.6 Gensia Development Corporation.
------------------------------
(a) On the Closing Date and at each meeting of the stockholders of GDC
thereafter for the purpose of electing persons to the Board of Directors of GDC,
for such period as Gensia Sicor owns at least a majority of the outstanding
shares of GDC and
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Automedics owns the Assets relating to the GenESA System, Gensia Sicor shall
cause to be nominated and shall vote its shares in favor of the election of one
person (the "Automedics Director") nominated by Automedics and reasonably
acceptable to Gensia Sicor, provided that such person shall have executed and
delivered to Gensia Sicor a confidentiality agreement in the form customarily
used by Gensia Sicor.
(b) Gensia Sicor and Automedics shall cause the Automedics Director
and the other directors of GDC, other than the Automedics Director and the Fund
Directors (as defined in the Voting Agreement dated as of June 13, 1991, between
Gensia Sicor and PaineWebber R&D Partners III, L.P., a Delaware limited
partnership) (the "Gensia Directors"), to vote on all matters for the vote of
the directors in such manner as they mutually agree, and to abstain from voting
on such matters as they fail to mutually agree.
(c) Gensia Sicor shall cause the Gensia Directors to vote on the
adoption of each marketing program in such manner as the Automedics Director
votes, unless to do so would be inconsistent with the fiduciary obligations of
the Gensia Director, GDC or Gensia Sicor.
4.7 Xxxxxxx Loan. On January 1, 1998, Gensia Sicor shall forgive the
------------
outstanding principal indebtedness of Xxxxxx X. Xxxxxxx in the amount of
$20,000, together with the outstanding interest accrued thereon, owing to Gensia
Sicor pursuant to that certain Second Amended and Restated Promissory Note dated
May 31, 1995, in the original principal amount of $80,000. Promptly thereafter,
Gensia Sicor shall cancel and return such note to Xx. Xxxxxxx, release its
security interest in the remaining shares of Gensia Sicor common stock securing
such indebtedness, and return to Xx. Xxxxxxx the certificate(s) evidencing such
pledged shares which were not previously returned.
4.8 Partnership Reporting Obligations. Automedics shall assume
---------------------------------
responsibility for reporting on the Partnership effective as of the Closing
Date. Gensia Sicor shall continue to be responsible for reporting on GDC.
Automedics and Gensia Sicor shall, and Gensia Sicor shall cause GDC to,
reasonably cooperate with the others, and provide such information as controlled
by Automedics, Gensia Sicor or GDC (as applicable) and reasonably necessary to
enable Automedics, Gensia Sicor and GDC to satisfy their respective reporting
obligations owing to the Partnership and the Limited Partners.
4.9 Automedics Financial Reports. For so long as Gensia Sicor owns shares
----------------------------
of capital stock of Automedics, Automedics shall provide the following financial
reports to Gensia Sicor:
(a) as soon as practicable, but in any event within 90 days after the
end of each fiscal year of Automedics, a statement of operations for such fiscal
year, a balance sheet of
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Automedics as of the end of such year, and a statement of cash flows for such
year, such year-end financial reports to be in reasonable detail, prepared in
accordance with generally accepted accounting principles ("GAAP"), and audited
and certified by independent public accountants of nationally recognized
standing selected by Automedics;
(b) as soon as practicable after the end of each of the first three
quarters of each fiscal year, but in any event within 30 days after the end of
each such quarter, Automedics' unaudited statement of operations, statement of
cash flows and balance sheet for and as of the end of such quarter; and
(c) as soon as practicable after the end of each month but in any
event within 30 days of the end of each month, an unaudited statement of
operations, statement of cash flows and bal ance sheet for and as of the end of
such month, in reasonable detail; such monthly statements shall also contain the
foregoing information on a year-to-date basis and shall also compare actual
performance to budget; and
(d) by January 31 of each year (provided that the operating budget
for fiscal year 1998 will be delivered on or before February 16, 1998), a
comprehensive operating budget for the next fiscal year forecasting Automedics'
revenues, expenses and cash position, prepared on a monthly basis, including
balance sheets and sources and applications of funds statements for such months
and, promptly following approval by the Board of Directors, any other
comprehensive operating budgets or revised such budgets prepared by Automedics.
(e) The covenants set forth in this Section 4.9 shall terminate and be
of no further force or effect when the sale of securities pursuant to a
registration statement filed by Automedics under the Securities Act in
connection with the firm commitment underwritten offering of its securities to
the general public is consummated, or when Automedics first becomes subject to
the periodic reporting requirements of section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended, whichever event shall first occur.
ARTICLE 5
CONDITIONS PRECEDENT
--------------------
5.1 Conditions to Each Party's Obligation to Effect the Asset Sale. The
--------------------------------------------------------------
respective obligations of each of the parties to effect the Asset Sale and the
transactions contemplated by this Agreement shall be subject to the fulfillment
at or prior to the Closing of the following conditions unless waived by each of
Automedics and Gensia or otherwise provided in Section 5.2 below:
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(a) Government Approvals. All authorizations, consents, orders or
--------------------
approvals of, or declarations or filings with, any governmental entity deemed
necessary or appropriate by Automedics, or Gensia for the consummation of the
transactions contemplated by this Agreement including, but not limited to, the
Federal Trade Commission, the Department of Justice, applicable federal or state
securities law regulatory bodies, shall have been filed, occurred or been
obtained, in each case subject to no term, condition or restriction unacceptable
to Automedics or Gensia. Automedics and Gensia agree to cooperate with each
other to the fullest extent practicable in satisfying all applicable federal and
state filing requirements, and in obtaining all applicable federal and state
regulatory approvals.
(b) Legal Action. No temporary restraining order, preliminary
------------
injunction or permanent injunction or other order preventing the consummation of
the asset and liability transfer shall have been issued by any federal or state
court and remain in effect, and no litigation seeking the issuance of such an
order or injunction, shall be pending which, in the good faith judgment of
Gensia or Automedics, has a reasonable probability of resulting in such order,
injunction or damages. In the event any such order or injunction shall have
been issued, each party agrees to use its reasonable efforts to have any such
injunction lifted.
(c) Statutes. No statute, rule or regulation shall have been enacted
--------
by the government of the United States or any state or agency thereof which
would make the consummation of the asset and liability transfer illegal.
(d) Third-Party Approvals. Any and all consents or approvals
---------------------
required from third parties relating to contracts, agreements, licenses, leases
and other instruments constituting the Assets shall have been obtained.
(e) Services and Related Agreements. Automedics, Gensia Sicor and
-------------------------------
GSPI (as applicable) shall have duly executed and delivered the following
agreements:
(i) the Transition Services Agreement between Gensia Sicor and
Automedics;
(ii) the Contract Manufacturing Agreement between Automedics and GSPI
relating to Arbutamine; and
(iii) the Sublease Agreement between Gensia Sicor and Automedics.
(f) LMA Services Agreement. LMA and Automedics shall have duly
----------------------
executed and delivered the LMA Services Agreement.
(g) Legal Opinions. Automedics shall have received the legal
--------------
opinion(s) of counsel to Gensia, Gensia Automedics Limited,
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and Gensia GmbH in such form(s) as reasonably acceptable to Automedics.
(h) Employee Termination Agreements and Releases. Gensia Sicor and
--------------------------------------------
each of Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxx and Xxxxxxx X. Xxxxxx, shall have duly
executed and delivered a termination agreement and release of Gensia Sicor with
respect to their respective severance agreements with Gensia Sicor in such form
as reasonably acceptable to Gensia Sicor.
(i) Restated Certificate. The Restated Certificate shall have been
--------------------
duly filed with the Secretary of State of the State of Delaware.
(j) Automedics Financing; Other Transactions. Automedics shall have
----------------------------------------
received financing necessary to complete the asset and liability transfer and
the related transactions on terms and conditions satisfactory to it in its sole
discretion and the remaining transactions necessary for the (S) 351 transaction
contemplated by Automedics shall be ready to close concurrently with the
Closing.
5.2 Further Consents. If, notwithstanding the best efforts of the parties
----------------
to fully satisfy the conditions precedent set forth in Section 5.1(d) above, (a)
the requirement to obtain any consents or approvals described in Section 5.1(d)
above which are not obtained as of the Closing Date shall be waived, and (b) the
parties shall use their best efforts to obtain all consents and approvals
described in Section 5.1(d) above which are not obtained as of the Closing Date
as soon as reasonably practicable after the Closing Date.
5.3 Further Assurances. As soon as reasonably practicable after the
------------------
Closing Date, Gensia shall duly execute and deliver to Automedics all further
documents, instruments and agreements as reasonably requested by Automedics or
otherwise required to transfer any of the Assets to Automedics, including
without limitation, (a) assignments and assumptions of contracts assigning to
Automedics Gensia's interest and rights in contracts regarding the Transferred
Businesses; (b) assignments of the Intellectual Property; and (c) assignments of
real and personal property leases under the leases and subleases referred to in
Sections 1.1(j) and 1.1(k) hereof.
5.4 Capitalization of Subsidiary Debt. All net advances to Gensia
---------------------------------
Automedics Limited and Gensia GmbH, or other indebtedness of such foreign
subsidiaries to Gensia Sicor or its Affiliates, shall have been contributed to
the capital of such foreign subsidiaries effective prior to the Closing. Gensia
Sicor shall be responsible for any tax liability under German or United Kingdom
tax laws, incurred by Automedics or such foreign subsidiaries, arising out of or
on account of such capital contributions.
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ARTICLE 6
CLOSING
-------
6.1 Closing Date. The Closing under this Agreement (the "Closing") shall
------------
be on the date hereof or such later date as the parties mutually agree. Such
date on which the Closing is to be held is herein referred to as the "Closing
Date." The Closing shall be held at the offices of Pillsbury Madison & Sutro
LLP, 000 Xxxx Xxxxxxxx, Xxxxx 0000, Xxx Xxxxx, Xxxxxxxxxx 00000, at 9:00 A.M. on
such date, or at such other time and place as Automedics and Gensia may agree
upon in writing.
6.2 Deliveries at Closing.
---------------------
(a) Deliveries by Gensia. At the Closing, Gensia shall deliver to
--------------------
Automedics:
(i) the original xxxx of sale, duly executed by Gensia, conveying to
Automedics the personal property Assets; and
(ii) such other instruments and documents as may be reasonably
requested by Automedics or otherwise required to transfer any of the Assets
to Automedics; and
(iii) such other instruments and documents as may be reasonably
requested by Automedics prior to the Closing.
(b) Delivery by Automedics. At the Closing, Automedics shall deliver
----------------------
to Gensia Sicor:
(i) the original xxxx of sale, duly executed by Automedics, assuming
the Disclosed Liabilities; and
(ii) a share certificate evidencing 1,900,000 shares of Subordinated
Preferred Stock in accordance with Section 1.3(a) above; and
(iii) such other instruments and documents as may be reasonably
requested by Gensia prior to the Closing.
ARTICLE 7
GENERAL
-------
7.1 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of California applicable to contracts
between California residents entered into and to be performed entirely within
the State of California.
7.2 Successors and Assigns. No part of this Agreement or any rights,
----------------------
duties or obligations described herein shall be assigned or delegated without
the express written consent of the other parties
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hereto, except that a party may assign its rights, obligations and
responsibilities hereunder only in connection with the transfer or sale of all
or substantially all of its business, or in the event of its merger,
consolidation, change in control or similar transaction. Except as otherwise
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors and assigns of the parties hereto.
7.3 Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement among the parties with regard to the subject hereof
and supersedes all prior agreements and understandings, both written and oral.
7.4 Amendment. This Agreement may not be amended except by an instrument
---------
in writing signed on behalf of each of the parties hereto.
7.5 Notices. All notices and other communications hereunder shall be in
-------
writing and shall be deemed given if delivered personally or mailed by
registered or certified mail or commercial overnight courier (e.g., Federal
Express, Network Courier, etc.), return receipt or confirmation of delivery
requested, or by facsimile transmission with voice confirmation of receipt, to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to Automedics:
Gensia Automedics, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
Attention: President
(b) If to Gensia Sicor to:
Gensia Sicor Inc.
00 Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Chief Financial Officer
(c) If to GSPI to:
Gensia Sicor Pharmaceuticals, Inc.
00 Xxxxxx
Xxxxxx, XX 00000-0000
Attention: President
7.6 Interpretation. The headings contained in this Agreement are for
--------------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.7 Third Party Beneficiaries. The parties hereto acknowledge that it is
-------------------------
their specific intention and agreement that each of Xxxxx Partners III, L.P.,
Xxxxx Partners International III,
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L.P., Xxxxx Employee Fund III, L.P., and The Wellcome Trust Ltd., as Trustee of
The Wellcome Trust be accorded the rights of third party beneficiaries with
respect to the representations and warranties made by Gensia pursuant to Section
2.2 hereof, and each them shall be entitled to rely upon and independently
enforce any rights derived therefrom in accordance with the provisions of
Article 3 hereof to the same extent as if each of them were a party to this
Agreement.
7.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which may be executed by less than all of the parties,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
first above written.
GENSIA AUTOMEDICS, INC.
By /s/ Xxxxxx X. Xxxxxxx
---------------------
Title President
---------
GENSIA SICOR INC.
By /s/ Xxxx Xxxxxxx
----------------
Title V.P. Finance, CFO & Treasurer
-----------------------------
GENSIA SICOR PHARMACEUTICALS, INC.
By /s/ Xxxx Xxxxxxx
----------------
Title V.P. Finance
------------
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LIST OF EXHIBITS
----------------
A Amended and Restated Certificate of Incorporation
B Partnership Purchase Note
C Partnership Purchase Security Agreement
LIST OF SCHEDULES
-----------------
1.1(a) Personal Property
1.1(b) Inventory
1.1(c) Intellectual Property
1.1(g) Contracts Regarding Goods and Services
1.1(h) Computer Hardware and Software
1.1(i) Licenses
1.1(j) Real Property Leases
1.1(k) Personal Property Leases
1.1(l) Service Contracts
1.1(m) Other Contracts
1.1(n) Product Registrations
1.1(r) Receivables
1.1(s) Bank Accounts
1.1(t) Permitted Liens
1.2(b-1) Assumed Balance Sheet Liabilities
1.2(b-2) Certain Other Assumed Liabilities
1.3 Allocation of Purchase Price
2 Disclosure Schedule
4.2 Licensed Gensia Marks
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