ALPHA RIGHTS ACQUISITION AGREEMENT
Alpha 1 Biomedicals, Inc. as Seller
and
SciClone Pharmaceuticals, Inc.
as Buyer
Dated: December 17, 1997
TABLE OF CONTENTS
Page
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RECITALS .......................................................................................................1
1. PURCHASE AND SALE......................................................................................3
2. PURCHASE PRICE AND PAYMENT ............................................................................3
3. LOAN ADVANCES..........................................................................................5
4. REPRESENTATIONS AND WARRANTIES BY ALPHA ..............................................................7
5. REPRESENTATIONS AND WARRANTIES BY SCICLONE ..........................................................7
6. PRE-CLOSING MATTERS....................................................................................7
7. CLOSING................................................................................................8
8. COVENANTS.............................................................................................12
8.1 Assumed and Retained Liabilities. ...........................................................12
8.2 Confidentiality..............................................................................13
8.3 Cooperation and Additional Documents; Omitted Items. ........................................15
8.4 Access and Full Disclosure...................................................................15
8.5 Normal Course of Business....................................................................16
8.6 Covenant Not to Compete......................................................................16
8.7 Bankruptcy. ................................................................................17
9. TERMINATION AND DEFAULT...............................................................................18
9.1 Termination. ...............................................................................18
9.2 Default. ....................................................................................18
9.3 Effect of Termination........................................................................18
10. SURVIVAL OF REPRESENTATION AND WARRANTIES ............................................................19
11. INDEMNIFICATION BY ALPHA..............................................................................19
12. INDEMNIFICATION BY SCICLONE...........................................................................21
13. TERMINATION OF 1994 AGREEMENT. .......................................................................22
14. GENERAL PROVISIONS....................................................................................23
14.1 Expenses. ..................................................................................23
14.2 Brokers. ....................................................................................24
14.3 Entire Agreement. ..........................................................................24
14.4 Assignment. .................................................................................24
14.5 Notices. ....................................................................................24
14.6 Governing Law. ..............................................................................25
TABLE OF CONTENTS
Page
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14.7 Amendment....................................................................................26
14.8 Counterparts. ...............................................................................26
14.9 Public Disclosure. ..........................................................................26
14.10 Further Assurances. .........................................................................26
14.11 Headings.....................................................................................27
14.12 Waiver. .....................................................................................27
14.13 Parties in Interest. ........................................................................27
14.14 Recovery of Litigation or Arbitration Costs..................................................27
14.15 Severability.................................................................................28
14.16 Time of Essence..............................................................................28
14.17 Arbitration..................................................................................28
ALPHA RIGHTS ACQUISITION AGREEMENT
This Agreement is entered into as of December 17, 1997 (the "Effective
Date") by and among SciClone Pharmaceuticals, Inc., a California corporation,
located in San Mateo, California ("SciClone"), and Alpha 1 Biomedicals, Inc., a
Delaware corporation, located in Bethesda, Maryland ("Alpha").
Recitals
A. Alpha owns or holds a license to certain technology related to the
development, manufacture, use and sale of Thymosin Alpha 1 (or "TA-1").
B. Alpha and SciClone previously have entered into that certain Thymosin
Alpha 1 License Agreement dated as of August 19, 1994 (the "1994 Agreement"),
whereunder Alpha has licensed to SciClone all of its rights with respect to the
development, manufacture, use, sale and distribution of TA-1. The 1994 Agreement
has been amended or supplemented by that certain Amendment No. 1 dated as of
June 7, 1995, and that certain Amendment No. Two dated as of April 7, 1997, and
that certain Prepaid Royalty Agreement dated as of August 5, 1996 (the "1996
Prepaid Royalty Agreement"), and that certain Prepaid Royalty Agreement dated as
of September 3, 1997 (the "1997 Prepaid Royalty Agreement"). All references
herein to the 1994 Agreement shall be deemed to include said Amendments and said
Prepaid Royalty Agreements.
C. Pursuant to the 1994 Agreement, SciClone is obligated to pay certain
royalties to Alpha based upon the Net Sales Revenues (as defined by the 1994
Agreement).
D. Pursuant to the 1994 Agreement, rights licensed by Alpha to SciClone
include specified patent rights owned by Alpha, including issued patents and
pending patent applications (collectively referred to as the "Alpha Owned Patent
Rights"), as described on Exhibit A attached
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hereto, together with certain patent rights which are owned by third parties and
licensed to Alpha, including both issued patents and pending patent applications
(collectively referred to as the "Alpha Licensed Patent Rights"), as described
on Exhibit B attached hereto. The term "Alpha Patent Rights" shall include both
the Alpha Owned Patent Rights and the Alpha Licensed Patent Rights.
E. The Alpha Licensed Patent Rights are granted to Alpha pursuant to
certain agreements which are described on Exhibit C attached hereto, which
agreements as amended are hereinafter referred to as the "Alpha IP Rights
Agreements". As further noted on Exhibit C, the Alpha Licensed Patent Rights
granted pursuant to the Alpha IP Rights Agreements are granted from (i) X.
Xxxxxxxx-XxXxxxx Ltd., a Switzerland corporation, located in Basle, Switzerland
("Roche-Basle"), and (ii) Xxxxxxxx-XxXxxxx, Inc., a New Jersey corporation,
located in Nutley, New Jersey ("Roche-US"). Roche-Basle and Roche-US each are
referred to as a "Third Party Licensor."
F. Alpha is in need of accelerating the timing for Alpha to realize
economic benefits from the future royalty income stream which Alpha contemplates
receiving from SciClone pursuant to the 1994 Agreement, as Net Sales Revenues
are earned by SciClone in the future under the 1994 Agreement. Accordingly,
Alpha and SciClone have negotiated for Alpha to sell to SciClone, and for
SciClone to purchase from Alpha, all of the Alpha Patent Rights, which sale and
purchase shall be affected by means of a modification of the rights and
obligations of Alpha and SciClone under the 1994 Agreement as follows: (i) Alpha
will sell, assign and convey to SciClone all right, title and interest in and to
the Alpha Owned Patent Rights, (ii) the rights and obligations of Alpha with
respect to TA-1 under the Alpha Licensed Patent Rights will be assigned to
SciClone (with the consent of the Third Party Licensor, as necessary ), (iii)
SciClone will be released from its royalty obligations under the 1994 Agreement,
all in consideration for which SciClone will make payments to Alpha provided for
in this Agreement. Said Alpha Patent Rights
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and Alpha's rights with respect to TA-1 under Alpha IP Rights Agreements are
collectively called the "Alpha Rights."
G. SciClone believes there is value to SciClone to acquire fully paid up
rights to utilize the Alpha Rights, rather than to be obligated to pay future
royalties on future Net Sales Revenues.
H. Pursuant to the terms of this Agreement, the 1994 Agreement is to be
terminated except as otherwise provided herein.
WHEREFORE, the parties hereto mutually agree as follows:
1. Purchase and Sale. For and in consideration of the cash to be paid and
loaned and the stock to be issued by SciClone to Alpha pursuant to Section 2
hereof, and the other provisions of this Agreement, and subject to the
conditions and provisions of this Agreement, (i) Alpha hereby agrees to sell,
assign, transfer, convey, quitclaim and deliver to SciClone all of Alpha's
rights, title and interests in and to the Alpha Rights; (ii) SciClone hereby
agrees to purchase and acquire said Alpha Rights from Alpha; and (iii) the
parties agree to terminate the 1994 Agreement, except as otherwise provided in
Section 13 of this Agreement.
2. Purchase Price and Payment The purchase price payable by SciClone to
Alpha for the Alpha Rights shall be as follows:
(a) $130,000 in cash (the "Cash Consideration") payable as follows:
(1) $65,000 immediately on the Effective Date; and
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(2) $65,000 on the business day which is 30 days after the
Effective Date.
(b) A number of shares of SciClone common stock ("SciClone Common
Stock") equal to $1,800,000 divided by the "Initial Average Price." For purposes
of this Agreement, "Initial Average Price" shall mean the average of the closing
sales price per share of SciClone Common Stock, as reported on the Nasdaq
National Market, for the 20 trading days immediately preceding the date that is
three trading days prior to the Effective Date; provided, however, if the
Initial Average Price is less than $3.00, the Initial Average Price shall be
deemed to be $3.00. The shares of SciClone Common Stock issued pursuant to this
Section 2(b) shall be referred to as the "Initial Shares."
(c) SciClone shall issue additional shares of SciClone Common Stock
(the "Additional Shares") on each Lock-up Release Date (as defined in Section 5
of the form of Stock Rights Agreement attached hereto as Exhibit D), the number
of such Additional Shares, if any, issued on such date being equal to:
[($150,000 x A) - (A x (the Initial Shares divided by 12) x B)] - C
--------------------------------------------------------------
B
Where: A = the number of Lock-up Release Dates that have transpired,
including the then-current Lock-up Release Date.
B = the sum of the "Average Prices" for the then-current Lock-up
Release Date and each prior Lock-up Release Date divided by the
number of such Lock-up Release Dates.
C = the aggregate number of Additional Shares previously issued.
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However, in no event shall the sum of the Initial Shares and the Additional
Shares exceed 600,000 shares.
The Initial Shares and the Additional Shares are referred to collectively
as the "Shares." "Average Price" shall mean the average of the closing sales
price per share of SciClone Common Stock, as reported by the Nasdaq National
Market, for the 20 trading days preceding the date that is three trading days
prior to the applicable Lock-up Release Date.
(d) In the event that SciClone effects any consolidation, combination,
stock distribution, stock dividend, stock split, reverse stock split
recapitalization or similar transaction, the provisions of paragraphs (b) and
(c) shall be correspondingly adjusted.
(e) The Shares shall have such registration rights, and shall be
subject to such resale limitations, as are set forth in a Stock Rights Agreement
to be entered into between Alpha and SciClone at the Closing, the form of which
is attached hereto as Exhibit D.
(f) In the event that the Closing does not occur for any reason, then
the 1994 Agreement shall remain in full force and effect, and all of the Cash
Consideration (up to $130,000, less any deduction pursuant to Section 6.3
hereof), paid to Alpha under Section 2(a) hereof shall be treated as a
prepayment of royalties to Alpha under the same terms as the 1997 Prepaid
Royalty Agreement, with the result that the amount of such Cash Consideration
shall be credited at the rate of ten dollars ($10.00) of royalties for each one
dollar ($1.00) of the Cash Consideration paid. These credits against future
royalties will take effect after SciClone or its affiliate have made royalty
payments to Alpha totaling $1,750,000.
3. Loan Advances
5
3.1 SciClone agrees that, on the sixty-first calendar day following the
Effective Date, SciClone shall make a $70,000 loan advance to Alpha. Upon the
Closing, said loan advance shall be treated as a loan advance made pursuant to,
evidenced by, and repayable in accordance with, the Promissory Note and Security
Agreement, in the form attached hereto as Exhibit E, which Alpha shall execute
and deliver to SciClone at the Closing. If for any reason the Closing does not
occur, then said loan advance shall be treated as a prepayment of royalties to
Alpha under the same terms as the 1997 Prepaid Royalty Agreement, with the
result that the amount of such loan advance shall be credited at the rate of ten
dollars ($10.00) of royalties for each one dollar ($1.00) of the loan advance.
This credit shall be taken only after the credits referenced in Section 2(f)
hereof are first utilized and exhausted.
3.2 SciClone agrees, that on the latter to occur of (i) 30 days after
the $70,000 loan advance made pursuant to Section 3.1 hereof, or (ii) the first
business day following the Closing, and on the same business day of each of the
next two (2) months thereafter that is prior to the effective date of the
registration statement contemplated by the Stock Rights Agreement (the "S-3
Effective Date"), SciClone shall make a loan advance of $70,000 per month (each
an "Advance") to Alpha (provided Alpha is not in material breach of this
Agreement) for up to an aggregate of $210,000 of Advances pursuant to this
Section 3.2, which when combined with the $70,000 loan advance made pursuant to
Section 3.1 aggregates to $280,000 of Advances.
3.3 The Advances shall be repaid in accordance with the terms of the
Promissory Note and Security Agreement, in the form attached hereto as Exhibit
E, which Alpha shall execute and deliver to SciClone at the Closing.
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4. Representations and Warranties by Alpha. In order to induce SciClone to
enter into and perform this Agreement, Alpha hereby makes the representations
and warranties set forth in Exhibit F attached hereto, subject to the exceptions
set forth on the Schedule of Exceptions attached hereto as Exhibit G.
5. Representations and Warranties by SciClone. In order to induce Alpha to
enter into and perform this Agreement, SciClone hereby make the representations
and warranties set forth in Exhibit H attached hereto, subject to the exceptions
set forth on the Schedule of Exceptions attached hereto as Exhibit I.
6. Pre-Closing Matters
6.1 Alpha shall use its Best Efforts to file, within twenty (20)
business days after the Effective Date, with the United States Securities and
Exchange Commission ("SEC"), Alpha's proxy statement for a stockholders meeting,
at which meeting Alpha's stockholders will be asked to approve the transactions
contemplated by this Agreement (the "Stockholders Meeting"). Alpha shall use its
Best Efforts to obtain SEC clearance for said proxy statement, and upon
obtaining such clearance, Alpha shall promptly mail said proxy statement to its
stockholders and schedule and hold a stockholders meeting.
6.2 In the proxy statement and at the Stockholders Meeting, Alpha's
Board of Directors shall recommend, to the extent consistent with its fiduciary
duty, that the Alpha stockholders approve the transactions contemplated by this
Agreement, and Alpha shall use its
7
Best Efforts to obtain such approval. Alpha shall notify SciClone in writing
upon obtaining said stockholders approval.
6.3 For the Net Sales (as defined in the 1994 Agreement) under the 1994
Agreement made from and after the Effective Date, no royalties shall be earned
or payable to Alpha (other than those payable to Third Party Licensors), so long
as the Closing ultimately occurs. If for any reason the Closing does not occur,
then any and all royalties as specified in the 1994 Agreement shall become
earned and payable on the Net Sales which occurred from and after the Effective
Date, and said earned royalties shall be deducted from the Cash Consideration
paid by SciClone to Alpha pursuant to Section 2(a) hereof.
6.4 Alpha and SciClone have mutually approved a press release in the
form attached hereto as Exhibit K, which press release shall be issued promptly
after the Effective Date.
7. Closing
7.1 A closing (the "Closing") at which the transactions specified in
this Agreement as occurring at the Closing shall be held at the offices of Xxxx,
Xxxx, Xxxx & Freidenrich, Palo Alto, California, on a date that is mutually
agreed to by Alpha and SciClone that is within five (5) business days after all
of the conditions to the Closing have been satisfied or waived (the "Closing
Date"), or on such other date or at such other location as may be mutually
agreed to by the parties. The Closing conditions and procedure shall be as set
forth in Section 7.2 hereof.
7.2 Closing Conditions and Procedures. Each of the following items
shall be a precondition to the Closing, unless waived by both parties (except
for the conditions of
8
Sections 7.2(d) and 7.2(e) which shall be a condition to the obligation of only
the party that is the beneficiary thereof), and the following procedures shall
be followed to accomplish the Closing:
(a) Consent from Third Party Licensors. Prior to the Closing, Alpha
shall obtain and furnish to SciClone (i) all agreements and consents from each
Third Party Licensor, in form and substance reasonably satisfactory to SciClone,
necessary to effect the assignment of the Alpha Licensed Patent Rights to
SciClone, and (ii) an acknowledgment from each Third Party Licensor, in form and
substance reasonably satisfactory to SciClone, that upon such assignment the
Alpha Licensed Patent Rights will remain in full force and effect, and there are
no outstanding defaults by Alpha with respect to the Alpha Licensed Patent
Rights.
(b) Assignments. At the Closing, Alpha shall deliver to SciClone
assignments of the Alpha Rights, in form and substance reasonably satisfactory
to SciClone.
(c) Government Filings. At the Closing, Alpha shall deliver to SciClone
short form assignments of the Alpha Owned Patent Rights appropriate for SciClone
to file with the United States Patent and Trademark Office, and for SciClone to
file with foreign governmental offices that are identified by SciClone, in a
form and substance reasonably satisfactory to SciClone. Alpha shall also deliver
to SciClone any other appropriate assignments and documents for filing with
governmental regulatory bodies as SciClone reasonably may request to effect the
assignment of Alpha Rights contemplated by this Agreement. All expenses for
filing fees and legal fees to effect the conveyance of the Alpha Rights to
SciClone shall be borne by SciClone, excluding any fees of Alpha's attorneys
(other than if SciClone specially engages Alpha's attorney for certain specified
services).
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(d) Representations and Warranties Remain True and Correct. As of the
Closing Date, all of the representations and warranties by Alpha and SciClone
contained in this Agreement shall be deemed to be restated as of the Closing,
and all of said representations and warranties shall be true and correct in all
material respects as of the Closing Date, and SciClone shall deliver to Alpha,
and Alpha shall deliver to SciClone, a closing certificate confirming the same.
(e) Compliance with Covenants. As of the Closing Date, each party shall
in all material respects have performed and complied with the covenants that are
to be performed and complied with as of the Closing Date, and SciClone shall
deliver to Alpha, and Alpha shall deliver to SciClone, a closing certificate
confirming the same.
(f) Absence of Adverse Events. Prior to the Closing Date, there shall
not have occurred any material adverse event applicable to the Alpha Rights that
is outside of the control of SciClone. Without limiting the generality of the
foregoing, there shall not be any material claim of any invalidity or
infringement with respect to the Alpha Rights, and there shall not be any claim
of any material default relating to TA-1 under the Alpha IP Rights Agreements,
and no creditors of Alpha shall have commenced or threatened to commence any
bankruptcy proceedings or creditor collection proceeding against Alpha that
could have a material adverse effect on the Alpha Rights or on SciClone's rights
under this Agreement. Alpha shall deliver to SciClone a closing certificate
confirming the same.
(g) No Action Commitment from Creditors. Alpha shall cause to be
delivered to SciClone from Alpha's creditors who hold at least 90% of the
aggregate dollar value
10
of Alpha's outstanding financial obligations, a "No Action Commitment,"
substantially in the form attached hereto as Exhibit J, or such other form as
may be mutually approved by Alpha and SciClone.
(h) Stock Issuance. At the Closing, SciClone shall issue to Alpha stock
certificates evidencing the Shares specified in Section 2(b) hereof; and
SciClone shall retain custody of said stock certificates to the extent provided
in the Promissory Note and Security Agreement, in order to perfect SciClone's
security interest therein.
(i) Stock Rights Agreement. At the Closing, SciClone and Alpha shall
execute and deliver the Stock Rights Agreement, in the form attached hereto as
Exhibit D.
(j) Stockholder Approval. At the Closing, Alpha shall furnish to
SciClone a certificate of its corporate secretary certifying that Alpha's
stockholders have duly approved the transactions contemplated by this Agreement.
(k) Promissory Note and Security Agreement. At the Closing, Alpha shall
execute and deliver to SciClone the Promissory Note and Security Agreement, in
the form attached hereto as Exhibit E.
(l) License From Alpha. Prior to the Closing, Alpha shall execute and
deliver to SciClone an assignment of all license agreements, if any, not
previously assigned to SciClone pursuant to which Alpha has granted any rights
to a third party with respect to the Alpha Rights, and Alpha shall provide such
notice of assignment to, or obtain such consent of, any such third party
licensee as is necessary to effect such assignment. Without limiting the
generality of the foregoing, and for avoidance of doubt, the parties hereby
acknowledge and agree
11
that upon the Closing, Alpha shall not be entitled to any further payments
applicable to any agreements with respect to Sclavo, including the April 7, 1997
Amendment No. Two to the 1994 Agreement, except as otherwise provided in Section
13 hereof.
8. Covenants
8.1 Assumed and Retained Liabilities. From and after the Closing,
SciClone hereby assumes all of the liabilities of Alpha, and agrees to perform
all of the covenants and agreements of Alpha, in respect of the Alpha Rights
that accrue as of and after the Closing (the "Assumed Liabilities"). From and
after the Closing, Alpha shall continue to be responsible for all of the
liabilities of Alpha, and shall perform all of the covenants and agreements of
Alpha in respect of, the Alpha Rights accrued as of the Closing, but excluding
all of the liabilities, covenants and agreements of Alpha that SciClone agreed
to assume or perform under the 1994 Agreement (the "Retained Liabilities").
Notwithstanding the foregoing, and in addition to the foregoing, SciClone and
Alpha shall each continue to have and perform the obligations under the 1994
Agreement that are to survive as specified in Section 13 hereof. Alpha shall
indemnify, defend and hold harmless SciClone from and against (i) any and all
liabilities, obligations, and claims arising prior to the Closing Date with
respect to the Retained Liabilities, and (ii) any claims made against SciClone
by creditors of Alpha by reason of the transactions contemplated by this
Agreement (excluding the Assumed Liabilities and excluding any surviving
obligations of SciClone under the 1994 Agreement). SciClone shall indemnify,
defend and hold harmless Alpha
12
from and against any and all liabilities, obligations and claims arising from
and after the Closing Date with respect to the Assumed Liabilities.
8.2 Confidentiality.
(a) Each party agrees that for a period of ten (10) years after the
date of expiration of the last patent included in the Alpha Rights, it will
maintain in confidence, and will not use or disclose, any Confidential
Information disclosed to it by the other party, except that either party may use
and disclose Confidential Information to the extent such disclosure is
reasonably necessary to comply with applicable governmental laws and regulations
(including without limitation the federal securities laws), and SciClone may use
all Confidential Information of Alpha with respect to the Alpha Rights.
(b) "Confidential Information" shall mean, with respect to either
party, any confidential information or data, and any other information relating
to any research project, work in process, future development, scientific,
engineering, manufacturing, marketing, business plan, financial or personnel
matter of such party, its present or future products, sales, suppliers,
customers, employees, investors or businesses whether in oral, written, graphic
or electronic form, that is identified as Confidential Information under this
Agreement in a writing delivered by the disclosing party to the receiving party
contemporaneously with the transfer of the information or, if disclosed orally,
is identified a Confidential Information in a writing delivered by the
disclosing party to the receiving party within twenty (20) business days
following such oral disclosure; provided, however, Confidential Information
shall not include any information that:
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(i) was already known to the receiving party, other than under
an obligation of confidentiality to the disclosing party, at the time of
disclosure to the receiving party;
(ii) was generally available to the public or otherwise part
of the public domain at the time of its disclosure to the receiving party;
(iii) becomes generally available to the public or otherwise
becomes part of the public domain after its disclosure to the receiving party,
other than through any act or omission of the receiving party in breach of this
Agreement;
(iv) was disclosed to the receiving party, other than under an
obligation of confidentiality, by a third party who had no obligation to the
disclosing party not to disclose such information to others; or
(v) was independently developed by the receiving party,
without use of Confidential Information of the disclosing party.
(c) Alpha agrees that for a period of ten (10) years after the date of
expiration of the last patent included in the Alpha Rights, it will maintain in
confidence and not use or disclose the Alpha Technical Information (as defined
by the 1994 Agreement) except that Alpha may disclose Alpha Technical
Information (i) to the extent that the disclosure of such Alpha Technical
Information does not relate to the Alpha Rights, (ii) the disclosure of which is
required by governmental laws or regulations (including without limitation the
federal securities laws), or (iii) the disclosure of which is required to
prosecute or defend any litigation. In the case
14
of any disclosure permitted by subparagraphs (ii) or (iii) above, before any
such disclosure is made, Alpha shall use its best efforts to give SciClone
written notice at least ten (10) business days in advance of the disclosure,
together with a legal opinion that the exception in subparagraph (ii) or (iii)
is satisfied. In any event, any such disclosure shall be only that limited
information which is required to be disclosed, and no more.
8.3 Cooperation and Additional Documents; Omitted Items. Each party
hereby agrees to cooperate with the other party and to execute and deliver any
and all documents and to take any and all actions as might be reasonably
required to carry out the purposes and intentions of this Agreement. Without
limiting the generality of the foregoing, in the event there is any subsequently
discovered or identified TA-1 patent right or agreement owned by or licensed by
or to Alpha which is within the intended scope of the Alpha Rights as identified
on Exhibits A, B, and C attached hereto, but which has inadvertently been
omitted from said exhibits, then said omitted rights or agreements shall
automatically be deemed to be added to said exhibits, and the parties shall
execute and deliver appropriate documentation to so identify said omitted rights
or agreements.
8.4 Access and Full Disclosure.
(a) From and after the date of this Agreement, and continuing for a
period of three (3) years after the Closing, (i) Alpha shall cooperate fully
with SciClone to provide to SciClone copies of and/or access to all relevant
information, files, documents, reports and materials applicable to the Alpha
Patent Rights and the Alpha IP Rights Agreements, and
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(ii) Alpha shall fully disclose to SciClone any new information or newly
identified information which comes to the attention of Alpha concerning the
Alpha Rights.
(b) From and after the date of this Agreement and prior to the Closing
(i) Alpha shall fully disclose to SciClone any new information or newly
identified information concerning any material adverse change in the factual
representations made by Alpha pursuant to this Agreement, and (ii) SciClone
shall fully disclose to Alpha any new information or newly identified
information which comes to the attention of SciClone concerning any material
adverse change in the factual representations made by SciClone pursuant to this
Agreement.
8.5 Normal Course of Business. From the date of this Agreement until
the Closing Date, Alpha shall continue to conduct its business and affairs
related to the Alpha Rights in the normal and ordinary course of business.
Without the prior written consent of SciClone, Alpha shall not take any action,
omit to take any required action, or execute or deliver any agreement with
respect to the Alpha Rights which is not in the ordinary course of business of
Alpha.
8.6 Covenant Not to Compete.
(a) For so long as any patent included in the Alpha Rights remains in
effect in some country, Alpha agrees that it will not, directly or indirectly,
make, have made, use, or sell TA-1 anywhere in the world.
(b) Alpha acknowledges that a remedy at law for any breach or attempted
breach of this Section 8.6 will be inadequate and further agrees that any breach
of this
16
Section 8.6 will result in irreparable harm to SciClone; and Alpha covenants and
agrees not to oppose any demand for specific performance and injunctive and
other equitable relief in case of any such breach or attempted breach. Alpha
acknowledges that this Section 8.6 contains reasonable limitations as to time,
geographical area and scope of activity to be restrained that do not impose a
greater restraint than is necessary to protect the rights of SciClone purchased
from Alpha pursuant to this Agreement. Whenever possible, each provision of this
Section 8.6 shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Section 8.6 shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision whether remaining provisions of
this Section 8.6. If any provision of this Section 8.6 shall, for any reason, be
judged by any court of competent jurisdiction to be invalid or unenforceable,
such judgment shall not affect, impair or invalidate the remainder of this
Section, but shall be confined in its operation to the provision of this Section
8.6 directly involved in the controversy in which such judgment shall have been
rendered. In the event that the provisions of this Section 8.6 should ever be
deemed to exceed the time or geographic limitations permitted by applicable
laws, then such provision shall be reformed to a maximum time or geographic
limitations permitted by applicable law.
8.7 Bankruptcy. Alpha agrees that it will not, within 180 days after
the Closing Date, file for any federal bankruptcy proceeding or any similar
state law proceeding without first giving to SciClone at least thirty (30) days
prior written notice. In the event any federal or state bankruptcy proceeding is
filed against Alpha within such period, Alpha hereby
17
agrees to so notify SciClone in writing within three (3) business days after
Alpha receives notice thereof.
9. Termination and Default
9.1 Termination. If (i) the Closing has not occurred by April 30, 1998,
or (ii) the stockholders of Alpha fail to approve the transactions contemplated
by this Agreement at the Stockholders Meeting, then either Alpha or SciClone, if
it is not then in default of its obligations under this Agreement, may terminate
this Agreement any time thereafter upon delivering to the other party a written
notice of termination. Until any such notice of termination is given, the
parties shall continue to use their reasonable, diligent and good faith efforts
to cause the closing conditions to be satisfied and the Closing to occur as soon
as practical.
9.2 Default. If prior to the Closing any party is in default of its
obligations under this Agreement, and such default is not cured within thirty
(30) days after written notice of default is given to the defaulting party by
the other party to this Agreement, then the non-defaulting party shall be
entitled to terminate this Agreement by delivering to the defaulting party a
written notice of termination.
9.3 Effect of Termination. In the event of any termination of this
Agreement pursuant to Section 9.2, the non-defaulting party shall be entitled to
pursue any and all remedies at law or equity available against the defaulting
party. If this Agreement is terminated pursuant to Section 9.1, then neither
party shall have any further rights or obligations under this Agreement, except
that the provisions in Sections 2(f), 6.3, 8.2, 9.3 and 14 hereof shall survive
such
18
termination of this Agreement and remain in effect as applicable. The provisions
in Section 2(f) shall survive and remain in effect after any termination of this
Agreement for any reason.
10. Survival of Representation and Warranties The representations and
warranties made by the parties in this Agreement shall survive the Closing and
shall in no manner be limited by any investigation of the subject matter thereof
made by or on behalf of either party or by the satisfaction of any condition to
the Closing.
11. Indemnification by Alpha
11.1 Provided the Closing occurs, Alpha shall indemnify and save
harmless SciClone, its stockholders, directors, officers and agents from and
against any and all losses, liabilities, expenses (including, without
limitation, fees and disbursements of counsel and expenses of investigation),
claims, liens or other obligations whatsoever (hereinafter individually a
"Claim" or collectively "Claims") incurred by any such indemnified party as a
result of (i) the breach of any representation or warranty made by Alpha in this
Agreement or otherwise made in writing and delivered by Alpha to SciClone in
connection with the transactions contemplated hereby; and/or (ii) any failure of
Alpha to perform or comply with any of its covenants and agreements set forth
herein or in any other document executed in connection with the transactions
contemplated hereby. No indemnification obligation shall arise hereunder unless
and until the aggregate amount of Claims hereunder exceeds $50,000 (the
"Basket"). In the event that the amount of all Claims exceeds the Basket,
SciClone shall be entitled to collect the full amount of all Claims (including
the Basket Claims).
19
11.2 The following are conditions precedent to any liability of Alpha
under Section 11.1:
(a) SciClone shall give Alpha prompt written notice of any event or
assertion of which it has knowledge concerning any Claims and as to which it may
request indemnification.
(b) SciClone shall cooperate with and assist Alpha in defending or
settling the Claims.
(c) SciClone shall permit Alpha to control the defense or settlement of
the Claims, including selection of counsel to represent SciClone (so long as
such counsel shall be reasonably satisfactory to SciClone and that such counsel
shall diligently and effectively defend the Claim). SciClone may maintain
separate counsel at its own cost and expense in connection with any Claim.
(d) In no event shall SciClone settle a Claim without the prior written
approval of Alpha, which approval shall not be unreasonably withheld.
11.3 The indemnification obligations of Alpha under Section 11.1 shall
apply to any Claim as to which notice has been given pursuant to Section 11.2(a)
prior to the third anniversary of the Closing Date, and shall continue in full
force and effect as to any such Claim until such Claim has been settled by
mutual agreement of the parties concerned, by arbitration in accordance with the
provisions of this Agreement or, in the event of a Claim resulting from legal
action by a third party, by the final order, decree or judgment of a court of
competent jurisdiction
20
in the United States of America (the time for appeal having expired with no
appeal having been taken).
12. Indemnification by SciClone
12.1 Provided the Closing occurs, SciClone shall indemnify and save
harmless Alpha, it stockholders, directors, officers and agent from and against
any and all losses, liabilities, expenses (including, without limitation, fees
and disbursements of counsel and expenses of investigation), claims, liens or
other obligations whatsoever (hereinafter individually a "Claim" or collectively
"Claims") incurred by any such indemnified party as the result of (i) the breach
of any representation or warranty made by SciClone in this Agreement or
otherwise made in writing and delivered by SciClone to Alpha in connection with
the transactions contemplated hereby; and/or (ii) any failure of SciClone to
perform or comply with any of its covenants and agreements set forth herein or
in any other document executed in connection with the transactions contemplated
hereby. No indemnification obligation shall arise hereunder unless and until the
aggregate amount of Claims hereunder exceeds $50,000 (the "Basket"). In the
event that the amount of all Claims exceeds the Basket, Alpha shall be entitled
to collect the full amount of all Claims (including the Basket Claims).
12.2 The following are conditions precedent to any liability of
SciClone under Section 12.1:
21
(a) Alpha shall give SciClone prompt written notice of any event or
assertion of which it has knowledge concerning any Claims and as to which it may
request indemnification.
(b) Alpha shall cooperate with and assist SciClone in defending or
settling the Claims.
(c) Alpha shall permit SciClone to control the defense or settlement of
the Claims, including selection of counsel to represent Alpha (so long as such
counsel shall be reasonably satisfactory to Alpha and that counsel shall
diligently and effectively defend the Claim). Alpha may maintain separate
counsel at its own cost and expense in connection with any Claim.
(d) In no event shall Alpha settle a Claim without the prior written
approval of SciClone, which approval shall not be unreasonably withheld.
12.3 The indemnification obligations of SciClone under Section 12.1
shall apply to any Claim as to which notice has been given pursuant to Section
12.2(a) prior to the third anniversary of the Closing Date, and shall continue
in full force and effect as to any such Claim until such Claim has been settled
by mutual agreement of the parties concerned, by arbitration in accordance with
the provisions of this Agreement or, in the event of a Claim resulting from
legal action by a third party, by the final order, decree or judgment of a court
of competent jurisdiction in the United States of America (the time for appeal
having expired with no appeal having been taken).
13. Termination of 1994 Agreement. Effective as of the time of the Closing
of this Agreement, the 1994 Agreement shall terminate, except that the following
provisions of, or
22
obligations under, the 1994 Agreement shall remain in full force and effect in
accordance with their terms under the 1994 Agreement (except as otherwise
provided in this Article 13) notwithstanding the execution, delivery and
performance of this Agreement.
13.1 Article 1 (Definitions) insofar as such definitions relate to any
of the other surviving provisions of the 1994 Agreement.
13.2 All obligations of SciClone to the extent still applicable, under
Sections 2.5.3, 4.1, 4.2, 4.3, 4.4, 5.3 and 5.4.
13.3 Article 6 (Standstill Agreements), except that Alpha Owned Shares
(as defined by Section 6.3.1 of the 1994 Agreement) shall not include the
Initial Shares or any Additional Shares.
13.4 Article 7 (Mutual Release).
13.5 Article 8 (Confidentiality).
13.6 Section 11.1.1 (Termination).
13.7 Sections 13.3, 13.4, and 13.6 (Indemnification).
13.8 Article 14 (Audit).
13.9 Article 16 (Miscellaneous).
14. General Provisions.
23
14.1 Expenses. Except as otherwise provided in this Agreement and the
Ancillary Documents, the parties will each pay their own legal, accounting and
other professional expenses incurred in connection with the transactions
contemplated hereby.
14.2 Brokers. Each party represents and warrants to the other that no
person has acted as a broker, a finder or in any similar capacity in connection
with the transactions contemplated by this Agreement and the Ancillary
Documents. Each party shall indemnify the other against, and agrees to hold the
other harmless from, all liabilities and expenses (including reasonable
attorneys' fees and expenses) in connection with any claim by anyone against the
other for compensation as a broker, a finder or in any similar capacity, by
reason of services allegedly rendered to the indemnifying party in connection
with the transactions contemplated hereby.
14.3 Entire Agreement. This Agreement (including the Exhibits hereto)
and the Ancillary Documents contain the entire agreement between the parties
with respect to the matters contemplated hereby, and all prior negotiations,
understandings and agreements between them are superseded by this Agreement
(except to the extent otherwise provided herein) and the Ancillary Documents.
14.4 Assignment. Neither this Agreement nor the Ancillary Documents or
any right of any party hereunder or thereunder may be assigned without the prior
written consent of the other party, which consent shall not be unreasonably
withheld; provided, however, that either party may assign its rights under this
Agreement or the Ancillary Documents, without the consent of the other party, to
any entity that acquires such party through a merger, consolidation, or
24
purchase of all or substantially all of its stock or assets. This Agreement and
the Ancillary Documents bind and inure to the benefit of each party's successors
and permitted assigns.
14.5 Notices. Any notice or other communication required or permitted
to be given under this Agreement or the Ancillary Documents shall be in writing
and will be deemed effective (i) when delivered in person, or (ii) when sent by
confirmed facsimile, or (iii) on the fifth day after the day on which mailed by
first class mail from within the United States of America, and addressed as
provided herein, or (iv) on the first business day following delivery to a
national overnight courier service and addressed as provided herein. Any such
notice or other communication sent by mail, courier or facsimile shall be
addressed as follows, unless and until a different address is designated by the
party by notice as provided herein:
If to SciClone SciClone Pharmaceuticals, Inc.
000 Xxxxxxxx Xxxxxx Xxxx. #000
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxx Xxxx Xxxx & Freidenrich
0000 Xxxxxxxxx Xx., Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxx, Esq.
Facsimile No.: (000) 000-0000
If to Alpha: Alpha 1 Biomedicals, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx, Ph.D.
Facsimile No.: (000) 000-0000
25
With a copy to: Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: D. Xxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
14.6 Governing Law. This Agreement and the Ancillary Documents will be
governed by, and construed under, the laws of the State of California.
14.7 Amendment. This Agreement and the Ancillary Documents may be
amended only by a document in writing signed by the parties hereto or thereto.
14.8 Counterparts. This Agreement or any Ancillary Documents may be
executed in two counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same agreement. Signatures may be
transmitted by facsimile, and this Agreement or any Ancillary Documents will be
fully binding once the signatures of both parties have been so transmitted.
14.9 Public Disclosure. No party shall disclose the terms of this
Agreement or any Ancillary Documents without the written consent of the other
party, except as required by law or pursuant to the disclosure obligations under
the rules and regulations of the SEC. SciClone shall file with the SEC a request
for confidential treatment as to various confidential provisions in this
Agreement, and Alpha shall file with the SEC a request for the same confidential
treatment, except to the extent that Alpha's legal counsel opines in writing
that it is legally improper for Alpha to make such a request that such
provisions be given confidential treatment, but subject to any ultimate final
decision made by the SEC as to confidentiality and disclosure. The parties
hereby consent to the disclosure as set forth in the press release attached
hereto as Exhibit L.
26
14.10 Further Assurances. Each party agrees to execute such further
instruments and documents and to do such further acts as may be reasonably
requested by any other party to carry out the transactions contemplated by this
Agreement and such Ancillary Document.
14.11 Headings. Captions and headings used herein are for convenience
of reference only and are not a part of this Agreement or any Ancillary
Documents and shall not be used in constructing this Agreement or any Ancillary
Documents.
14.12 Waiver. No waiver of any provision of this Agreement or any
Ancillary Documents shall be binding unless executed in writing by the party
making the waiver, and no such waiver shall constitute a waiver of any other
provision of this Agreement or any Ancillary Documents, whether or not similar,
nor shall any waiver constitute a continuing waiver unless so stated in any such
writing.
14.13 Parties in Interest. Nothing in this Agreement or any Ancillary
Document, whether express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement or such Ancillary Documents on any
persons other than the parties hereto and thereto and their respective
successors and permitted assigns (and their affiliates and other persons as to
the indemnification specified in Sections 11 and 12) of this Agreement and
Article 2 of the Stock Rights Agreement. Nothing in this Agreement or any
Ancillary Document is intended to relieve or discharge the obligation or
liability of any third person to either party to this Agreement or any Ancillary
Documents, nor shall any provision give any third person any right of
subrogation or action over against either party to this Agreement or any
Ancillary Documents.
27
14.14 Recovery of Litigation or Arbitration Costs. If any legal action,
arbitration or other proceeding is brought for the enforcement of this Agreement
or any Ancillary Documents, or because of an alleged dispute, breach, default,
or misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party shall be entitled to recover from the other
party reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled,
as may be decided by the arbitrators pursuant to Section 14.17 hereof.
14.15 Severability. Each term, covenant, condition or provision of this
Agreement and each Ancillary Documents shall be viewed as separate and distinct,
and in the event that any such term, covenant, condition or provision shall be
held to be invalid by a proper court or in an arbitration proceeding, then the
remaining provisions shall continue in full force and effect, so long as the
essential benefits of this Agreement and each Ancillary Documents will still be
realized by the parties.
14.16 Time of Essence. Time is of the essence in the performance of all
obligations under this Agreement and each Ancillary Documents.
14.17 Arbitration. Any controversy or claim arising out of or relating
to this Agreement or any Ancillary Documents, including without limitation any
breach thereof, and the indemnification provisions hereof, shall be settled by
binding arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"), and the procedures set forth below. In
the event of any inconsistency between the Rules of AAA and the
28
procedures set forth below, the procedures set forth below shall control.
Judgment upon the award rendered by the arbitrators may be enforced in any court
having jurisdiction thereof.
(a) Location. The location of the arbitration (i) shall be in the
County of Santa Clara, California, if the proceeding is initiated by Alpha, and
(ii) shall be in the County of Xxxxxxxxxx, Maryland, if the proceeding is
initiated by SciClone.
(b) Selection of Arbitrators. The arbitration shall be conducted by a
panel of three neutral arbitrators who are independent and disinterested with
respect to the parties, this Agreement, and the outcome of the arbitration. Each
party shall appoint one neutral arbitrator, and the two arbitrators so selected
shall then select the third arbitrator. If one party has given written notice to
the other party as to the identity of the arbitrator appointed by the party, and
the party thereafter makes a written demand on the other party to appoint its
designated arbitrator within the next ten days, and the other party fails to
appoint its designated arbitrator within ten days after receiving said written
demand, then the arbitrator who has already been designated shall appoint the
other two arbitrators.
(c) Discovery. Unless the parties mutually agree in writing to
additional pre-hearing discovery, the only pre-hearing discovery shall be (a)
reasonably limited production of relevant and non-privileged documents, and (b)
the identification of witnesses to be called at the hearing, which
identification shall give the witness' name, general qualifications and
position, and a brief statement as to the general scope of the testimony to be
given by the witness. The arbitrators shall decide any disputes and shall
control the process concerning these
29
pre-hearing discovery matters. Pursuant to the Rules of AAA, the parties may
subpoena witnesses and documents for presentation at the hearing.
(d) Case Management. Prompt resolution of any dispute is important to
both parties; and the parties agree that the arbitration of any dispute shall be
conducted expeditiously. The arbitrators are instructed and directed to assume
case management initiative and control over the arbitration process (including
scheduling of events, pre-hearing discovery and activities, and the conduct of
the hearing), in order to complete the arbitration as expeditiously as is
reasonably practical for obtaining a just resolution of the dispute.
(e) Remedies. The arbitrators shall follow and apply applicable law.
The arbitrators shall grant such legal or equitable remedies and relief in
compliance with applicable law that the arbitrators deem just and equitable, to
the same extent that remedies or relief could be granted by a state or federal
court, provided however, that no punitive damages may be awarded. No court
action may be maintained seeking punitive damages. The decision of any two of
the three arbitrators appointed shall be binding upon the parties and shall be
enforceable in any court of competent jurisdiction.
(f) Expenses. The expenses of the arbitration, including the
arbitrators' fees, expert witness fees, and attorney's fees, may be awarded to
the prevailing party, in the discretion of the arbitrators, or may be
apportioned between the parties in any manner deemed appropriate by the
arbitrators. Unless and until the arbitrators decide that one party is to pay
for all (or a share) of such expenses, both parties shall share equally in the
payment of the arbitrators' fees as and when billed by the arbitrators.
30
(g) Construction. This Agreement and the Ancillary Documents shall be
construed and interpreted in accordance with the plain meaning of the entirety
of the provisions of this Agreement and the Ancillary Documents, consistent with
the overall intent and spirit of the parties and the entire Agreement and the
Ancillary Documents. As both parties and their legal counsel have participated
in the negotiations and the drafting for this Agreement and the Ancillary
Documents, any ambiguity or inconsistency in any of the provisions of this
Agreement and the Ancillary Documents shall not be construed against either
party as the draftsman of this Agreement and the Ancillary Documents.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date set forth above.
SCICLONE:
SciClone Pharmaceuticals, Inc.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
ALPHA:
Alpha 1 Biomedicals, Inc.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
31
INDEX TO EXHIBITS
Exhibit Description
------- -----------
A Alpha Owned Patent Rights
A-1 Owned 100% by Alpha
A-2 Owned Jointly with Others
B Alpha Licensed Patent Rights
C Alpha IP Rights Agreements
D Form of Stock Rights Agreement
E Form of Promissory Note and Security Agreement
F Alpha Representations and Warranties
G Schedule of Exceptions to Alpha Representations and Warranties
H SciClone Representations and Warranties
I Schedule of Exceptions to SciClone Representations and Warranties
J No Action Commitments from Alpha's Creditors
K Press Release
32
EXHIBIT A
Alpha Owned Patent Rights
1. Patent Rights Owned 100% by Alpha:
See Exhibit A-1
2. Patent Rights Owned by Alpha Jointly with Others:
See Exhibit A-2
ExhibitA-1
ALPHA RIGHTS ACQUISITION AGREEMENT
ALPHA OWNED PATENT RIGHTS
(Owned 100% by Alpha)
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
Solid Phase Austria 86302731 E 91 130 B Alpha
Process for Belgium 86302731 0 200 404 Alpha
Synthesizing Canada 506,495 1,271,300 Alpha
Peptides EPO 86302731.4 0200404 Alpha
Germany 86302731 36 88 632 T2 Xxxxx
Xxxxxx 00000 78479 Xxxxx
Xxxxxx 00000 00000 Xxxxx
Xxxxx 86302731 0 200 404 Alpha
Luxembourg 86302731 0 200 404 Alpha
Sweden 86302731 0 200 404 Alpha
United States 06/849,835 4,855,407 Wang
Switzerland 82302731 0 200 404
Germany 86302731 0 200 404
France 86302731 0 200 404
Great Britain 86302731 0 200 404
Hong Kong 0 200 404 10/1977
Xxxxx 00000/00
Xxxxxxxxxxx 86302731 0 200 404
United States 849,835 4,855,407
Solid Phase Process Taiwan 78103481 44023 Alpha
for Synthesizing
Thymosin Alpha 1 Belgium 89304584.9 0 341 935
Switzerland 89304584.9 0 341 935
Germany 89304584.9 P68926178
1
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
European 89304584.9 0 341 935
Great Britain 89304584.9 0 341 935
Xxxxx 000000/00
Xxxxx Xxxxx 00-0000
X.X. 00/000,000 Xxxxxxxxx
Xxxxxx Xxxxxx 07/684,520 5,610,272
United States 08/695,772
Analogs of Thymosin Taiwan 83100771 Alpha
Xxxxx 0 Xxxxxx Xxxxxx 08/188,232 Wang
Argentina 330,747
Canada 2,181,477
Xxxxx 000-00
Xxxxxxxx 95.002.305
European 95907463.4
Indonesia P-950140
Xxxxx 000000/0000
Xxxxxxxx PI 9500180
Peru 259687
Philippines 00000
Xxxxxxxx 025289
Taiwan 83100771
Xxxxxxxxx 000-00
XXX XX00/00000
Xxxxx Xxxxxx 95/0669 95/0669
Thymosin Alpha 1 derivatives China 93119346 Alpha
Columbia 94003132 Alpha
Ecuador 94-1031 PI96-918 Alpha
Indonesia P0940180 Alpha
Malaysia PI9400180 Xxxxx
Xxxxxx 000000 Alpha
PCT 94/01249 (Abandoned) Alpha
Xxxx 000000 Xxxxx
Xxxxxxxxxxx 00000 Xxxxx
Xxxxx Xxxxxx 94/0745 94/0745 Alpha
2
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
Taiwan 82104001 Alpha
Thailand 021377 Alpha
United States (FWC) 08/246572 5,512,656 Wang
United States 08/013,087 ABANDONED
Venezuela 000/00 Xxxxx
Xxxxxxxxx xx Xxxxxx Xxxxxx 917,059 4,148,788 Wang
Thymosin Alpha 1
[Asn2] Thymosin Xxxxx 0 Xxxxxx Xxxxxx 871,563 4,116,951 Wang
and Analogs thereof
3
ExhibitA-2
ALPHA RIGHTS ACQUISITION AGREEMENT
ALPHA OWNED PATENT RIGHTS
(Owned Jointly by Alpha and Others)
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
Composition and South Africa 92/6964 92/6964 Xxxxxxxx
Method of Treating Mutchnick
Hepatitis C Xxxxxxx
Argentina 330,747
Indonesia P-004712 Xxxxxxxx
Xxxxxxxxx
Xxxxxxx
Malaysia PI 9201633 Xxxxxxxx
Xxxxxxxxx
Xxxxxxx
Xxxxxx 000000 Xxxxxxxx
Mutchnick
PCT PCT/US92/07556 Alpha
Xxxxxxxxx
Xxxxxxx
PCT-Australia 26447/92 667327 Alpha
Xxxxxxxxx
Xxxxxxx
PCT-Canada 2119006 Alpha
Xxxxxxxxx
Xxxxxxx
PCT-Czechoslovakia PV551-94 Alpha
Xxxxxxxxx
Xxxxxxx
PCT-EPO* 929119977.6 0603305 Alpha
*(Austria, Belgium, Switzerland, Denmark, Germany, Spain, France, United Kingdom, Mutchnick
Greece, Ireland, Italy, Luxemberg, Netherlands and Lichenstein) Xxxxxxx
4
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
PCT-Finland 941133 Alpha
Xxxxxxxxx
Xxxxxxx
PCT-Hungary P9400758 Alpha
Xxxxxxxxx
Xxxxxxx
PCT-Japan 506083/1993 Alpha
Mutchnick
PCT-Norway P941310 Alpha
(Abandoned) Xxxxxxxxx
Xxxxxxx
PCT-Romania 94-00409 Alpha
Xxxxxxxxx
Xxxxxxx
PCT-Russia Fed. 94022480.14 Alpha
Xxxxxxxxx
Xxxxxxx
PCT-South Korea 94/0700603 Alpha
Xxxxxxxxx
Xxxxxxx
Philippines 44927 Xxxxxxxx
Singapore 9606295-5 Xxxxxxxxx
Xxxxxxx
Taiwan 81101971 NI66154 Xxxxxxxx
Mutchnick
United States 07/759,544 Xxxxxxxx
ABANDONED Mutchnick
Composition and Method United States 08/145,660 Xxxxxxxx
of treating Hepatitis X. Xxxxxxxxx
(Refiling on 11/4/93 of 07/759,544
filed on 9/13/91)
Method and Composition Indonesia P940716 Alpha
for Treatment of Patients Xxxxx State
Having Decompensated Liver Japan 279386/1993 Xxxxxxxx
Disease Mutchnick
Malaysia PI9401152 Alpha
Xxxxx State
5
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
Mexico 943453 Alpha
Xxxxx Xxxxx
XXX XX00/00000 Xxxxx
Xxxxx Xxxxx
Xxxxxxxxxxx 48239 Xxxxx
Xxxxx Xxxxx
Xxxxxxxxx 0000000-0
Xxxxx Xxxxxx 94/3226 (Abandoned) Xxxxxxxx
Mutchnick
Taiwan 82109337 Xxxxxxxx
Mutchnick
U.S. 08/313,160
Xxxxxxxxx 00000/00
Xxxxxx 2,175,337
Europe 94901265.2 (BE, DE, DK, ES, Fr, GB, Gr, It, PT, SE)
Korea 96-702942
Netherlands 94901265.2
Norway P961775
New Zealand 258326
Method of Treating China 931139345.1 Xxxxxxxx
Hepatitis C in Non- Mutchnick
Responders, to Interferon Japan 331601/1993 Alpha
Treatment (CIP of Xxxxx State
07/759,544) Malaysia PI9400381 Alpha
Xxxxx State
Mexico 941675 Alpha
Xxxxx Xxxxx
XXX XX00/00000 Xxxxx
Xxxxx Xxxxx
Xxxxxxxxxxx 47868 Alpha
Xxxxx State
South Africa 94/1499 00/0000 Xxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxxx 08/027,500 Xxxxxxxx
Mutchnick
Xxxxxxxxx 00000/00
Xxxxxx 2,157,479
European 94910226.3
6
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
Finland 954127
Korea 95-703297
Norway P953473
Singapore 9605604-9
Thymosin alpha 1 for the PCT US94/12106
treatment of autoimmune
hepatitis Taiwan 82108901 NI071799 Xxxxxxxx
Mutchnick
United States 08/141,013 5,468,729 Xxxxxxxx
Mutchnick
Indonesia P-941820
Japan
Mexico 9408106
Malaysia PI 9402830
Philippines 49229
Xxxxxxxxx 0000000-0
Xxxxxxxx 024237
South Africa 94/8252 00/0000
Xxxxxxxx Xxxxx 0 Xxx Xxxxxxx 185,519 185,519 Alpha
Texas
South Africa 77/5976 77/5976 Alpha
Texas
7
Exhibit B
ALPHA RIGHTS ACQUISITION AGREEMENT
ALPHA LICENSED PATENT RIGHTS
(Patent Rights Licensed to Alpha)
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
Immunoassay of United States Not Known 4,427,783 Xxxxxx
Thymosin Alpha 1 Nishikawa
ABANDONED Spiegel
Xxxxxxxxx
Process for United States 300,324 4,374,197 Horecker
Thymosin Alpha 0
XXXXXXXXX
Xxxxxxxxxxxxxxxx Xxxxxx Xxxxxx Not Known 4,264,571 Xxxxxxxxx
of Thymosin Alpha 1 XxXxxxx
[Improved] Radio- United States 139,944 4,339,427 Xxxxxxxxx
immunoassay of XxXxxxx
Thymosin Alpha 1 Wang
Thymosin Alpha 1 Argentina 269752 214903 Not Known
Australia 296699/77 514,996 Not Known
Austria A 7658/77 362,493 Not Known
Belgium 182108 860169 Not Known
8
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
Canada 289510 1,101,842 Not Known
Chile 738/77 30,986 Not Known
Xxxxxxx 0000/00 149,094 Not Known
EPO 84103670.0 Not Known Not Known
EPO 84103671.0 Not Known Not Known
Finland 773221 56317 Not Known
France 7732259 7732259 Not Known
Germany P2748213.9 2748213 Not Known
Federal
Republic
Great Britain 45001/77 1,590,457 Not Known
Hungary HO 2021 172,798 Not Known
Iran 23092 21330 Not Known
Ireland 2191/77 45819 Not Known
Israel 53218/77 53218 Not Known
Italy 29020/77 1,195,254 Not Known
Italy Not Known 1113134 Not Known
Japan 127666/77 1,345,074 Not Known
Luxembourg 78395 78395 Not Known
Monaco 1268/77 126878-1167 Not Known
Netherlands 7711814 188,699
New Zealand 185,519 185,519 Not Known
Xxxxxx 0000/00 143,346 Not Known
Xxxx 00000/00 2,001 Not Known
9
APPLICATION PATENT
SUBJECT COUNTRY NUMBER NUMBER APPLICANT(S)
Philippines 20361/77 13,961 Not Known
Portugal 67204 67204 Not Known
Singapore Not Known 1220/93 Not Known
South Africa 5976/77 77/5976 Not Known
South Korea 2475/77 12019 Not Known
Spain 463588 463,588 Not Known
Sweden 7712071-5 7712071 Not Known
Xxxxxxxxxxx 00000/00 633,258 Not Known
United States 766,638 4,079,127 Xxxxxxxxx
Low
Xxx
Xxxx
Uruguay 20517 11,714 Not Known
Xxxxxxxxx 0000/00 Not Known Not Known
Yugoslavia P 2573/77 Not Known Not Known
10
EXHIBIT C
Alpha IP Rights Agreements
1. Commercial Text Agreement, dated September 15, 1982, between Roche-US
and Alpha, as amended by an Amendment to Commercial Text Agreement, effective
August 7, 1984, a letter agreement dated September 18, 1986, a letter agreement
dated September 22, 1986, an Agreement effective December 21, 1989, and an
Agreement effective August 6, 1991, as related to all Thymosin Alpha I
technology and rights; but excluding from the assignment to SciClone all
technology and rights related to Thymosin Beta 3, Thymosin Beta 4 and any other
non-Thymosin Alpha I technology.
2. License Agreement, effective as of August 5, 1986, between Roche-Basle
and Alpha, as amended by a letter agreement date March 4, 1991.
3. License Agreement (Japan), effective as of October 21, 1988, between
Roche-Basle and Alpha, as amended by a letter agreement dated March 4, 1991, and
a letter agreement dated March 5, 1982.
4. License Agreement (Other Countries), effective as of October 28, 1988,
between Roche-Basle and Alpha, as amended by a letter agreement dated March 4,
1991, and a letter agreement dated March 5, 1992.
EXHIBIT D
Stock Rights Agreement
This Agreement, dated as of , 1998, is entered into between Alpha 1
Biomedicals, Inc. ("Alpha") and SciClone Pharmaceuticals, Inc. ("SciClone").
Certain terms used in this Agreement are defined in Section 9 hereof. Terms used
in this Agreement that are not defined herein have the same meaning as defined
in an Acquisition Agreement, dated as of December ___, 1997, between Alpha and
SciClone.
1. Registration Rights.
1.1 Within 30 days following after the Closing Date, SciClone shall
file with the SEC a registration statement (the "Registration Statement") on
Form S-3 (or any successor form to Form S-3) under the Securities Act for a
public resale by Alpha of the SciClone Common Stock acquired by Alpha pursuant
to Section 2 of the Acquisition Agreement (the "Covered Shares"). SciClone shall
use its Best Efforts to cause the Registration Statement to be declared
effective (the "S-3 Effective Date") within 120 days after the Closing Date and
to remain effective for the period (the "Effective Period") ending on the first
to occur of (i) the date the Covered Shares may be sold by Alpha pursuant to the
provisions of paragraph (k) of Rule 144 under the Securities Act, or (ii) the
date Alpha has resold all of the Covered Shares.
1.2 In connection with the registration provided for in Section 1.1,
SciClone shall at its expense:
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(a) Furnish to Alpha at least three (3) business days prior to
the filing thereof, a copy of the Registration Statement, any related
prospectus, and any amendments or supplements thereto, that SciClone proposes to
file with the SEC (including copies of all exhibits thereto). If Alpha shall
reasonably object to the form or substance of any such documents, SciClone shall
not file such document until Alpha's objections have been resolved.
(b) Prepare and file with the SEC such amendments and supplements
to the Registration Statement and each prospectus used in connection with the
Registration Statement, including the filing of all required reports under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition all of the Covered Shares and to keep the prospectus
continuously current for the entire Effective Period;
(c) Furnish Alpha with a copy of the Registration Statement, and
all amendments thereto, as and when filed by SciClone with the SEC.
(d) Furnish to Alpha such number of copies of a prospectus,
including a preliminary prospectus, and any necessary amendments and supplements
thereto, each prepared in conformity with the requirements of the Securities
Act, and such other documents as Alpha may reasonably request in order to
facilitate the disposition of the Covered Shares;
(e) Use Best Efforts to register or otherwise qualify the Covered
Shares for sale under such securities or Blue Sky laws of such jurisdictions as
shall be reasonably requested by Alpha; provided, however, that SciClone shall
not be required in connection
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therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such jurisdictions;
(f) Notify Alpha promptly (but in any event within two business
days) (i) when the Registration Statement, or any post-effective amendment
thereto, has been declared effective by the SEC, (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceeding for such purpose, (iii) of the receipt by
SciClone of any notification with respect to the suspension of the
qualification, or exemption from qualification, of the Covered Shares for sale
in any jurisdiction, and (iv) of the happening of any event, of the existence of
any condition, or of any information becoming known to SciClone that (A) makes
any statement made in the Registration Statement, in any prospectus or
prospectus supplement, or in any document incorporated or deemed to be
incorporated therein by reference, untrue in any material respect or (B)
requires the making of any change in, or amendments or supplements to, the
Registration Statement, any prospectus or prospectus supplement, or any document
incorporated or deemed incorporated therein by reference, so that it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading;
(g) Cause all of the Covered Shares to be listed on each
securities exchange and each quotation system on which securities of the same
class issued by SciClone are then listed;
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(h) Use its Best Efforts to prevent the issuance of any order (i)
suspending the effectiveness of the Registration Statement, (ii) preventing or
suspending the use of any related prospectus or prospectus supplement, or (iii)
suspending the qualification (or exemption from qualification) of any of the
Covered Shares for sale in any jurisdiction, and, if any such order is issued,
use its Best Efforts to obtain the withdrawal of any such order as soon as
practicable; and
(i) Upon the occurrence of any event referred to in Section
1.2(f)(iv), as promptly as practicable (but in no event later than 10 calendar
days) prepare and file with the SEC, (A) a post-effective amendment to the
Registration Statement, (B) a supplement or amendment to any related prospectus
or prospectus supplement or any document incorporated or deemed to be
incorporated therein by reference, or (C) any other required document, so that
the prospectus with respect to the Covered Shares will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
1.3 SciClone shall pay all costs, fees and expenses associated with the
SciClone's performance of or compliance with this Agreement, including without
limitation, all registration fees, the costs of compliance with the state
securities or Blue Sky laws, the fees and disbursements of SciClone's legal
counsel and accountants, and all printing expenses; provided, however, that
SciClone shall not be required to pay any underwriting commissions or similar
charges or the legal fees and disbursements of counsel for Alpha.
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2. Indemnification.
2.1 SciClone agrees to indemnify and hold harmless Alpha, its officers,
directors, agents and employees and each Person, if any, who control any such
Person within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act (a "Control Person"), against all Damages caused by,
arising out of, or based upon (i) any failure of SciClone to comply with any and
all securities laws, rules or regulations, (ii) any breach by SciClone of its
obligations under this Agreement, or (iii) any untrue or alleged untrue
statement of material fact contained in the Registration Statement, any related
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto, or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as any such untrue statement or omission was caused by or
contained in any information furnished in writing to SciClone by Alpha expressly
for use therein or by Alpha's failure to deliver a copy of a current prospectus
(as amended or supplemented) after SciClone has furnished Alpha with a
sufficient number of copies for such purpose.
2.2 Alpha shall furnish to SciClone in writing such information and
affidavits as SciClone reasonably requests for use in connection with the
preparation of the Registration Statement and any related prospectus or
preliminary prospectus, or any amendment thereof or supplement thereto, and
agrees to indemnify SciClone, its directors and officers and each Control Person
of SciClone against all Damages resulting from any untrue or alleged untrue
statement of material fact contained in the Registration Statement any related
prospectus or preliminary prospectus, or any amendment thereof or supplement
thereto, or any omission or alleged omission
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of a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by Alpha expressly for use therein.
2.3 Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified Person's
reasonable judgment a conflict of interest between such indemnified Person and
indemnifying party exists with respect to such claim, permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory
to the indemnified Person. If such defense is assumed, the indemnifying party
will not be subject to any liability for any consent to the entry of any
judgment or any settlement made by the indemnified Person without its consent
(but such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel (other than
local counsel, as necessary) with respect to such claim for all indemnified
Persons, unless in the reasonable judgment of any indemnified Person a conflict
of interest exists between such indemnified Person and any other indemnified
Person with respect to such claim. The indemnifying party shall not, without the
prior written consent of the indemnified Person, effect any settlement or
compromise of any pending or threatened proceeding in respect of which such
indemnified Person is or could have been a party, and indemnity could have been
sought hereunder by such indemnified Person, unless such settlement (i) includes
an unconditional written release of such indemnified Person, in form and
substance reasonably satisfactory to such indemnified Person, from all liability
on the claims that are the subject matter of such settlement,
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(ii) does not include any statement as to an admission of fault, culpability or
failure to act by or on behalf of any indemnified Person, and (iii) the sole
relief provided consists of monetary damages that are paid in full by the
indemnifying party.
2.4 Contribution.
(a) To the extent that the indemnification provided for in this
Section 2 is for any reason unavailable to, or insufficient to hold harmless, an
indemnified Person in respect of any losses, claims, damages or liabilities,
then the indemnifying party, in lieu of indemnifying such indemnified person
hereunder and in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such indemnified Person as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of indemnifying party on the one hand
and the indemnified Person on the other hand in connection with the statements
or omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
fault of the indemnifying party and the indemnified Person shall be determined
by reference to, among other things, whether the untrue statement or a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by SciClone on the one hand or Alpha on the other, their
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances.
(b) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 2 were determined by any method of
allocation that does not take account of the equitable considerations referred
to in paragraph (a). The amount paid or
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payable by an indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (a) shall include all reasonable legal or
other expenses actually incurred by such indemnified Person in connection with
investigating and defending any such action or claim. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(c) The indemnity and contribution agreements contained in this
Section 2 are in addition to any liability that an indemnifying party otherwise
may have to the indemnified Person.
2.5 The indemnification provided for under this Section 2 will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified Person or any officer, director or controlling person of such
indemnified Person and will survive the sale or transfer of the Covered Shares.
3. Current Public Information. During the Effectiveness Period, SciClone
shall timely file all reports required to be filed by it under the Securities
Exchange Act of 1934, as amended, and the rules and regulations adopted by the
SEC thereunder (the "Exchange Act"), and will take such further action as Alpha
may reasonably request, all to the extent required to enable Alpha to sell the
Covered Shares pursuant to Form S-3 (or similar registration form hereafter
adopted by the SEC). Upon written request, SciClone will deliver to Alpha a
written statement confirming that it is in compliance with such requirements.
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4. No Transferability of Registration Rights. The rights under this
Agreement are not transferable other than to the extent and on the same terms as
an assignment of Alpha's rights and obligations are permitted under Section 14.4
of the Acquisition Agreement.
5. Lock-up Agreement. Alpha agrees that, during each consecutive
30-calendar day period (the first day of such period being referred to as a
"Lock-up Release Date") commencing on the effective date of the Registration
Statement, Alpha will limit its resale (i) of Initial Shares to a number that is
equal to one-twelfth (1/12) of the total number of the Initial Shares, and (ii)
of Additional Shares to a sum equal to 50,000 shares minus the number of Initial
Shares resold, unless otherwise approved by SciClone's prior written consent,
which consent shall not be unreasonably withheld. A "resale" of shares shall be
deemed to be made as of the day that the buy and sell orders are given and
accepted, notwithstanding the fact that the closing, payment and delivery does
not occur until several days thereafter.
6. No Inconsistent Agreements. SciClone represents and warrants that as of
the date hereof it has not, and covenants that after the date of this Agreement
it will not, enter into any agreement that is inconsistent with the rights
granted to Alpha under this Agreement or otherwise conflicts with the provisions
hereof.
7. Broker. All sales of Covered Shares pursuant to the Registration
Statement shall be made through Everen Securities or, if Everen is unable for
any reason to execute or effect such sales, through such other broker as shall
be approved in writing by SciClone, such approval not to be unreasonably
withheld or delayed.
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8. Notices. All notices hereunder shall be given in the manner provided
for, and shall be deemed given as provided for in, the Acquisition Agreement.
9. Definitions.
Best Efforts. "Best Efforts" shall mean the efforts that a prudent
person desirous of achieving a result would use in similar circumstances to
ensure that such result is achieved as expeditiously as is reasonably feasible.
Damages. "Damages" shall include any loss, damage, injury, decline in
value, lost opportunity, liability, claim, demand, settlement, judgment, award,
fine, penalty, tax, fee (including reasonable attorneys' fees), charge, costs
(including reasonable costs of investigation) and reasonable expenses of any
nature.
Person. "Person" shall mean any individual, corporation (including any
non-profit corporation), general partnership, limited partnership, limited
liability partnership, joint venture, estate, trust, company (including any
limited liability company or joint stock company), firm or other enterprise,
association, organization or entity.
Securities Act. "Securities Act" shall mean the Securities Act of 1933,
as amended, or any substituted federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
Executed and delivered as of ____________1998.
SciClone Pharmaceuticals, Inc.
By:_____________________________
Alpha I Biomedicals, Inc.
By:_____________________________
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EXHIBIT E
PROMISSORY NOTE
and SECURITY AGREEMENT
$280,000 Maximum Principal ____________, 1998
Bethesda, Maryland
1. Parties; Promise to Pay. Alpha Biomedicals, Inc., a Delaware corporation
("Alpha"), hereby promises to pay, as provided for herein, to the order of
SciClone Pharmaceuticals, Inc., a California corporation ("SciClone"), (i) the
principal amounts of the loan advances made to Alpha by SciClone that are
referred to in Section 2 hereof and (ii) interest on such loan advances to the
extent provided in Section 3 hereof.
2. Acquisition Agreement. Pursuant to the terms and conditions set forth in
Article 3 of that certain Alpha Rights Acquisition Agreement of even date
between Alpha and SciClone (the "Acquisition Agreement"), SciClone has agreed to
make loan advances to Alpha of up to $280,000, in increments of up to $70,000
per month.
3. Interest. No interest shall be payable by Alpha to SciClone on the
outstanding principal owing from time to time on this Note, so long as
installment payments are made as scheduled pursuant to this Note. To the extent
any sum is not paid when due, such delinquent sum shall accrue interest at the
rate of 10% per annum.
4. Repayment. Alpha shall repay the principal balance of this Note and
accrued interest, if any, in monthly installments of $70,000, commencing on the
earlier of (a) the ninth Lock-up Release Date (as defined in a Stock Rights
Agreement of even date between Alpha and SciClone), or (b) the next Lock-up
Release Date following the date when Alpha receives new equity financing of at
least $500,000. In any event, all outstanding principal and accrued interest, if
any, shall become fully due and payable not later than May 31, 1999, if it has
not otherwise previously become fully due and payable pursuant to the foregoing
schedule.
5. Default. In the event of any default by Alpha in making any payment when
due under this Note, SciClone may declare all remaining unpaid balances owing
under this Note immediately due and payable. If Alpha does not pay all sums when
due, Alpha shall, to the extent permitted by law, also pay all costs incurred by
SciClone to enforce and collect this Note and enforce this Agreement, including
attorney's fees and litigation costs.
6. General. Payments owing on this Note shall be made in lawful money of
the United States of America. This Note and Agreement have been executed and
delivered by Alpha in the State of Maryland, but shall be governed by and
construed in accordance with the laws of State of California.
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7. Security.
7.1 As security for the obligations of Alpha under this Note, Alpha
hereby grants to SciClone a security interest in the number of Initial Shares
(as defined by the Acquisition Agreement) issued by SciClone to Alpha pursuant
to Section 2(b) of the Acquisition Agreement that is equal to $280,000 divided
by the Initial Average Price (as defined by the Acquisition Agreement), such
shares being referred to herein as the "Collateral Shares." If, as of the S-3
Effective Date (as defined by the Acquisition Agreement), advances to Alpha
pursuant to Sections 3.1 and 3.2 of the Acquisition Agreement (the "Actual Loan
Amount") are less than $280,000, SciClone's security interest shall
automatically terminate with respect to a percentage of the Collateral Shares
equal to the percentage obtained by dividing the difference between $280,000 and
the Actual Loan Amount by $280,000, such remaining being referred to herein as
the "Remaining Collateral Shares." Upon the payment of a monthly installment as
provided in Section 5 hereof, SciClone's security interest shall automatically
terminate with respect to the percentage of the Remaining Collateral Shares that
is equal to the percentage obtained by dividing the amount of such monthly
installment by the Actual Loan Amount.
7.2 To perfect its security interest in the Collateral Shares, SciClone
shall take possession of the certificates for the Collateral Shares at the
Closing. Upon the release of SciClone's security interest in any of the
Collateral Shares or Remaining Collateral Shares as provided in Section 7.1,
SciClone shall deliver such Collateral Shares or Remaining Collateral Shares to
Alpha or to such other Person or entity as it is directed by Alpha.
7.3 The security interest in the Collateral Shares and the Remaining
Collateral Shares created hereby is intended by SciClone and Alpha to have
priority over any other security interest in the Collateral Shares and the
Remaining Collateral Shares, and Alpha agrees to execute such additional
documents as SciClone shall reasonably request to perfect SciClone's security
interest in the Collateral Shares and the Remaining Collateral Shares.
7.4 In the event of any default in the repayment of this Note, SciClone
shall have such rights with respect to the Collateral Shares and the Remaining
Collateral Shares as are granted to a secured party by the California Commercial
Code.
7.5 So long as no default occurs under this Note, Alpha shall be
entitled to receive all dividends paid or other distributions made on Collateral
Shares and the Remaining Collateral Shares and to vote said Collateral Shares
and the Remaining Collateral Shares in all matters.
8. Effectiveness. This Promissory Note and Security Agreement shall not
become effective, and shall not create any liability or obligation on the part
of either party, unless and until the Closing (as defined by the Acquisition
Agreement) shall occur.
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This Note and Agreement has been executed and delivered as of the date
set forth above.
ALPHA 1 BIOMEDICALS, INC.
By:____________________________________
Xxxxxxx Xxxxxx, Ph.D., CEO
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EXHIBIT F
Alpha Representations and Warranties
Subject only to the exceptions specified in Exhibit G attached hereto,
Alpha hereby represents and warrants to SciClone as follows:
1. Organization. Alpha is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. Authorization. This Agreement has been duly and validly executed and
delivered by Alpha, and constitutes a valid and binding agreement of Alpha
enforceable against Alpha in accordance with its terms, except as limited by
laws affecting creditors' rights generally and except that equitable principals
may limit the right to obtain specific performance or other equitable remedies.
Each of the Stock Rights Agreement and the Promissory Note and Security
Agreement (collectively, the "Ancillary Documents"), upon execution and delivery
at the Closing, will be duly and validly executed and delivered by Alpha and
will constitute valid and binding agreements of Alpha, enforceable against Alpha
in accordance with their terms, except as limited by laws affecting creditors'
rights generally and except that equitable principles may limit the right to
obtain specific performance or other equitable remedies. Alpha has all requisite
corporate power and authority to execute and deliver this Agreement. Upon the
approval of this Agreement by the stockholders of Alpha in accordance with the
applicable provisions of the Delaware General Corporation Law and Alpha's
Certificate of Incorporation and Bylaws ("Stockholder Approval"), Alpha will
have all requisite corporate power and authority to execute and deliver the
Ancillary Documents, and to carry out the transactions contemplated by this
Agreement and the Ancillary Documents. Except for the Stockholder Approval, all
necessary corporate action on the
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part of Alpha has been taken to authorize the execution, delivery and
performance of this Agreement and the Ancillary Documents.
3. No Conflicts; Consents. The execution and the delivery by Alpha of this
Agreement and the Ancillary Documents do not, and, upon Stockholders Approval,
the consummation of the transactions contemplated hereby will not, result in a
breach of, constitute a default (with or without notice or lapse of time, or
both) under or violation of, or result in the creation of any lien, charge or
encumbrance pursuant to any provision of the Certificate of Incorporation or
Bylaws of Alpha, any order, rule, law or regulation of any court or governmental
authority, foreign or domestic, or any provision of any material agreement,
instrument, understanding, order, judgment or decree to which Alpha is a party
or by which Alpha or the Alpha Rights are bound or affected, nor will such
actions give to any other person or entity (other than SciClone) any interests
or rights of any kind, including rights of termination, acceleration or
cancellation, in or with respect to any of the Alpha Rights. Except as
contemplated by this Agreement, no consent of any third party or any
governmental authority is required to be obtained on the part of Alpha to permit
the consummation of the transactions contemplated by this Agreement and the
Ancillary Documents.
4. Litigation. There is no action, suit, proceeding or investigation in
progress or pending before any court or governmental agency, against or relating
to Alpha or its properties, assets or business or to the Alpha Rights, nor, to
the best knowledge of Alpha, any threat thereof or any basis therefor. Alpha is
not a party to any decree, order or arbitration award (or agreement entered into
in any administrative, judicial or arbitration proceeding with any governmental
authority) with respect to or affecting the Alpha Rights.
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5. Compliance with Laws and Regulations; Governmental Permits, Etc. To the
best of Alpha's knowledge, Alpha is in compliance in all material respects with
all statutes, laws, rules and regulations with respect to or affecting the Alpha
Rights. To the best of Alpha's knowledge, Alpha is not subject to any order,
injunction or decree issued by any governmental body, agency, authority or court
which could impair the ability of Alpha to consummate the transactions
contemplated hereby or which could materially and adversely affect SciClone's
use and enjoyment of the Alpha Rights.
6. Taxes. Alpha has timely filed, within the time period for filing or any
extension granted with respect thereto, all Federal, state, local and other
returns and reports relating to any and all taxes or any other governmental
charges, obligations or fees for taxes and any related interest or penalties
("Tax" or "Taxes") required to be filed by it with respect to its business and
the Alpha Rights and such returns and reports are in all material respects true
and correct. Alpha has paid all Taxes, if any, shown to be due and payable on
said returns and reports and has withheld with respect to employees all Federal
and state income Taxes, FICA, FUTA and other Taxes required to be withheld and
has timely paid all sales, use and similar Taxes. There are no pending or, to
the best of Alpha's knowledge, threatened audits, examinations, assessments,
asserted deficiencies or claims for additional Taxes. To the best of Alpha's
knowledge, there are no liens or similar encumbrances relating to or
attributable to Taxes on the Alpha Rights.
7. Accuracy of Material Facts; Copies of Materials. No representation,
warranty or covenant of Alpha contained in this Agreement or in any written
statement delivered by Alpha pursuant hereto or in materials delivered to
SciClone in connection with the transactions contemplated hereby contains any
untrue statement of a material fact known to or believed by Alpha to be untrue
when made, or omits to state material facts known to or reasonably believed by
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Alpha to be necessary in order to make the statement contained therein not
misleading. Alpha has delivered to SciClone true, complete and accurate copies
of each patent, license, contract, agreement and similar document referred to in
any Exhibit hereunder or included in the Alpha Rights.
8. Financial Statements. Alpha has delivered to SciClone copies of Alpha's
balance sheet as of September 30, 1997 (the "Alpha Balance Sheet") and
statements of income, stockholders' equity and cash flows for the nine-month
period then ended. Such financial statements and Alpha Balance Sheet
(collectively, the "Alpha Financial Statements") are complete and in accordance
with the books and records of Alpha, and present fairly the financial position
of Alpha as of their dates. Alpha Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods, except as otherwise noted therein. Since
September 30, 1997, there has been no material adverse change in Alpha's
financial condition or in the operations of its business.
9. Proprietary Rights.
(a) Except as set forth on Exhibit C, there are no agreements pursuant
to which Alpha has acquired (and either holds or has sublicensed) rights with
respect to TA-1. Assuming that SciClone is in full compliance with its
obligations with respect to the Alpha IP Rights Agreements under the 1994
Agreement, (i) Alpha is not in default under or in breach or violation of the
Alpha IP Rights Agreements and (ii) to the knowledge of Alpha, the Alpha IP
Rights Agreements, as they relate to the Alpha Rights, are valid and enforceable
and are in full force and effect.
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(b) Except for SciClone, Alpha has not granted to any third party any
right, option, or right of first refusal to use any of the Alpha Rights other
than pursuant to agreements that have been terminated.
(c) No claims have been asserted against Alpha (and Alpha is not aware
of any claims that are likely to be asserted against Alpha) by any person (i)
challenging the Alpha Rights or (ii) challenging or questioning the validity or
effectiveness of any license or agreement to which Alpha is a party relating to
the Alpha Rights.
(d) Taking into consideration that Alpha, in 1994, licensed to SciClone
all of its rights with respect to TA-1 not previously licensed to SciClone by
Alpha, and SciClone assumed all responsibility for the commercialization of TA-1
worldwide, and that since 1994 Alpha has not been engaged in any activities
whatsoever involving TA-1, Alpha (i) has no knowledge of any foreign or domestic
patent or patent application or other governmentally conferred right that would
restrict SciClone from manufacturing, using or selling TA-1, and (ii) to Alpha's
knowledge, none of the Alpha Patent Rights are subject of any pending
interference, opposition, cancellation or other protest proceeding.
(e) All Alpha Owned Patent Rights listed on Exhibit A-1 describe
inventions that were conceived and reduced to practice solely and exclusively by
employees of Alpha without the assistance of any third party or entity (other
than by third parties who assigned ownership of their rights to Alpha in valid
and enforceable agreements). All Alpha Owned Patent Rights listed on Exhibit A-2
describe inventions which are owned solely by the parties listed on Exhibit A-2.
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(f) Alpha has at all times used commercially reasonable efforts to
treat the Alpha Rights (other than was disclosed in publicly available issued
patents) as containing trade secrets, and Alpha has not disclosed or otherwise
dealt with such items in such a manner as to cause the loss of such trade
secrets by release into the public domain.
(g) All employees of and consultants to Alpha employed or retained
after October 1, 1993, have executed written proprietary information agreements
with respect to the non-disclosure and non-use of the Alpha Rights. To Alpha's
knowledge, no past or current employee of Alpha is in violation of any term of
any employment contract, non-disclosure agreement or any other contract or
agreement relating to the confidentiality of any confidential information
relating to the Alpha Rights.
10. No Bulk Sale Notice. The nature of the Alpha Rights and the nature of
the business of Alpha are such that compliance with Article 5 of the Maryland
Commercial Code (the bulk sale notice law) is not required.
11. Solvency. Immediately following the Closing, the fair value of Alpha's
assets will exceed its liabilities and Alpha will be able to satisfy its
financial obligations as they become due.
12. Fair Value. Alpha believes that the consideration payable by SciClone
to Alpha pursuant to this Agreement is fair and adequate consideration relative
to the rights being sold and relinquished by Alpha.
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EXHIBIT G
Schedule of Exceptions to Alpha Representations and Warranties
NONE
EXHIBIT H
SciClone Representations and Warranties
Subject only to the exceptions specified in Exhibit I attached hereto,
SciClone hereby represents and warrants to Alpha as follows:
1. Organization. SciClone is a corporation duly organized, validly existing
and in good standing under the laws of the State of California.
2. Authorization This Agreement and the Ancillary Documents have been duly
and validly executed and delivered by SciClone and constitute valid and binding
agreements of SciClone, enforceable against SciClone in accordance with their
terms. SciClone has all requisite corporate power and authority to execute and
deliver this Agreement and the Ancillary Documents and to carry out the
transactions contemplated by this Agreement and the Ancillary Documents. All
necessary corporate action on the part of SciClone has been taken to authorize
the execution, delivery and performance of the Agreement and the Ancillary
Documents.
3. Effect of Agreement; Consents. The execution and delivery of this
Agreement and the Ancillary Documents by SciClone do not, and the consummation
of the transactions contemplated hereby and compliance with the provisions
hereof will not, conflict with, result in a breach of, constitute a default
(with or without notice or lapse of time, or both) under or violation of, or
result in the creation of any lien, charge or encumbrance pursuant to any
provision of the Articles of Incorporation or Bylaws of SciClone, any order,
rule, law or regulation of any court or governmental authority, foreign or
domestic, or any provision of any material agreement, instrument, understanding,
order, judgment or decree to which SciClone is a party or by which SciClone is
bound. No consent of any third party or any governmental authority is required
to be obtained on the part of SciClone to permit the consummation of the
transactions contemplated by this Agreement or the Ancillary Documents.
1
4. Compliance With Other Instruments. SciClone is not a party to, or bound
by, any written or oral contract, agreement, license, indenture, mortgage,
debenture, note or other instrument under the terms of which performance by
SciClone according to the terms of this Agreement and the Ancillary Documents
will be a default or an event of acceleration, or whereby timely performance by
SciClone according to the terms of this Agreement and the Ancillary Documents
may be prohibited, prevented or delayed.
5. Accuracy of Material Facts; Copies Materials. No representation,
warranty or covenant of SciClone contained in this Agreement or in any written
statement delivered pursuant hereto or in materials delivered to Alpha in
connection with the transactions contemplated hereby contains or shall contain
any untrue statement of a material fact known or believed to be untrue when
made, or omits to state material facts known or reasonably believed to be
necessary in order to make the statement contained therein not misleading
6. Shares. The Shares to be issued by SciClone to Alpha pursuant to Section
2 of this Agreement will be, when issued, (i) duly authorized and validly issued
to Alpha and (ii) fully paid for and non-assessable. The certificates for the
Shares when delivered to, or at the direction of Alpha, will be free and clear
of all liens or other encumbrances, other than customary securities law
restrictive legends until the Shares become registered with the SEC.
7. Condition of SciClone. SciClone has furnished to Alpha copies of
SciClone's most recent filings with the United States Securities and Exchange
Commission ("SEC"), consisting of its Form 10-K for the year ended December 31,
1996, its Form 10-Q for the quarter ended June 30, 1997 and its proxy statement
for the 1997 Annual Meeting, together with SciClone's annual report to
stockholders for the fiscal year ending December 31, 1996. None of said filings
or the annual report contains any untrue statement of material fact or omits to
state a material fact necessary to make the statements contained therein not
misleading and there
2
has not been a material adverse change in the business, properties, assets,
condition (financial or other), results of operations, or prospects of SciClone
since December 31, 1996.
3
EXHIBIT I
Schedule of Exceptions to SciClone Representations and Warranties
NONE
EXHIBIT J
No Action Commitments from Alpha Creditors
EXHIBIT K
Press Release
[LOGO]
SCICLONE
PHARMACEUTICALS
Contact: Xxxxx X. Xxxxx
Vice President
Corporate Development
and Communications
SciClone Pharmaceuticals, Inc.
650-358-3456
SciClone Pharmaceuticals Acquires Worldwide Rights
to ZADAXIN(R) Thymosin Alpha 1
San Mateo, CA, December 17, 1997 -- SciClone Pharmaceuticals, Inc. (Nasdaq:
SCLN) today announced the signing of an agreement providing for SciClone's
acquisition of worldwide rights to ZADAXIN thymosin alpha 1, SciClone's lead
product, from Alpha 1 Biomedicals (OTC: ALBM). SciClone will no longer be
obligated to pay royalties to Alpha 1 on any of its own or its partners' future
products sales. Previously, SciClone licensed the product from Alpha 1.
Under the agreement, which is subject to approval by Alpha 1's stockholders and
certain other conditions, the aggregate purchase price is $1.93 million,
consisting of $130,000 in cash and $1.8 million of SciClone common stock priced
at $4.05 per share (or approximately 444,000 shares). The acquisition is
expected to close in March 1998.
"Given the extremely positive reception of ZADAXIN by doctors and patients in
our approved markets, this acquisition is a major step in SciClone's strategy to
capitalize on the commercial potential of the drug worldwide," said Xxxxxx
Xxxxxxx, SciClone's President and Chief Executive Officer. "We are now
positioned to more efficiently develop and market ZADAXIN alone and in
partnership with large pharmaceutical companies, such as Schering-Plough K.K.,
our exclusive partner in Japan."
ZADAXIN is an immunomodulator approved and marketed for treatment of chronic
hepatitis B in the People's Republic of China, the Philippines and Singapore.
SciClone has filed for approval to market ZADAXIN for this indication in 16
additional countries.
Chronic hepatitis B is the second most common chronic infectious disease
worldwide. The World Health Organization (WHO) estimates that approximately 350
million individuals worldwide (5% of the world's population) are carriers of the
hepatitis B virus, the majority of whom are in Asia.
SciClone Pharmaceuticals, Inc. is an international biopharmaceutical company
that acquires, develops and commercializes specialist-oriented drugs for
treating chronic and life-threatening diseases for which there are no adequate
treatment modalities, including hepatitis B, hepatitis C, cystic fibrosis,
cancer and immune system disorders. The company's second lead product candidate,
CPX, is in a phase I/II trial for cystic fibrosis.
SciClone Pharmaceuticals Inc.
000 Xxxxxxx'x Xxxxxx Xxxx. x Xxx Xxxxx, XX 00000-0000
Tel: (000) 000-0000 o Fax: (000) 000-0000
SciClone Acquires Worldwide Rights to ZADAXIN Thymosin Alpha 1
December 17, 1997
Page 2 of 2
Press releases and corporate information from SciClone Pharmaceuticals, Inc. are
available on the Internet at xxx.xxxxxxxx.xxx and by fax at 000-000-0000.
The statements made in this press release contain certain forward looking
statements that involve a number of risks and uncertainties, including without
limitation those associated with regulatory approvals in other markets and
market acceptance in those markets where regulatory approvals are obtained.
Actual events or results may differ from the Company's expectations. In addition
to the matters described in this release, future actions by the Food and Drug
Administration or equivalent regulatory authorities in foreign countries,
results of pending or future clinical trials, as well as the risk factors listed
from time to time in the Company's SEC reports, including but not limited to its
Annual Report on Form 10-K, may affect the actual results achieved by the
Company.
# # #
INDEX TO DEFINITIONS
Term Location
---- --------
1994 Agreement Recital B
1996 Prepaid Royalty Agreement Recital B
1997 Prepaid Royalty Agreement Recital B
AAA ss. 14.17
Additional Shares ss. 2(c)
Advances ss. 3.2
Alpha Introduction
Alpha Balance Sheet Exhibit F ss. 8
Alpha Financial Statements Exhibit F ss. 8
Alpha Licensed Patent Rights Recital D;
Exh. B
Alpha IP Rights Agreements Recital E;
Exh. C
Alpha Owned Patent Rights Recital D;
Exh. A
Alpha Patent Rights Recital D
Alpha Rights Recital F
Ancillary Documents Exhibit F ss. 2
Assumed Liabilities ss. 8.1
Average Price ss. 2(c)
Basket ss. 12.1
Best Efforts Exhibit D ss. 9
Cash Consideration ss. 2(a)
Claim(s) ss. 11.1 &
ss. 12.1
Closing ss. 7.1
i
INDEX TO DEFINITIONS
Term Location
---- --------
Closing Date ss. 7.1
Confidential Information ss. 8.2(b)
Covered Shares Exhibit D
ss. 1.1
Damages Exhibit D ss. 9
Effective Date Introduction
Effective Period Exhibit D
ss. 1.1
Exchange Act Exhibit D
ss. 1.2(b)
Initial Average Price ss. 2(b)
Initial Shares ss. 2(b)
Lock-up Release Date Exhibit Dss. 5
Person Exhibit D ss. 9
Registration Statement Exhibit D
ss. 1.1
Retained Liabilities ss. 8.1
Roche-Basle Recital E
Roche-US Recital E
S-3 Effective Date ss. 3.2;
Exhibit D
ss. 1.1
SciClone Introduction
SciClone Common Stock ss. 2(b)
Securities Act Exhibit D ss. 9
SEC ss. 6.1;
Exhibit H
ss. 7
Shares ss. 2(c)
Stockholder Approval Exhibit F ss. 2
Stockholders Meeting 6.1
ii
INDEX TO DEFINITIONS
Term Location
---- --------
Stock Rights Agreement Exhibit D
TA-1 Recital A
Tax or Taxes Exhibit F ss. 6
Third Party Licensor Recital E
iii
