EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
for VANIQA(R)
between
WESTWOOD-SQUIBB COLTON HOLDINGS PARTNERSHIP
as Seller,
XXX XXXXXXXX XXXXXXX,
XXXXXXX-XXXXX SQUIBB COMPANY
and
WOMEN FIRST HEALTHCARE, INC.
as Purchaser
Dated as of June 25, 2002
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TABLE OF CONTENTS (continued)
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS AND INTERPRETATION........................................ 5
SECTION 1.01. DEFINED TERMS................................................... 5
SECTION 1.02. OTHER DEFINED TERMS............................................. 7
SECTION 1.03. INTERPRETATION.................................................. 8
SECTION 1.04. SINGULAR; PLURAL; USE OF WORDS.................................. 8
SECTION 2. CONSUMMATION OF TRANSACTION........................................... 9
SECTION 2.01. ACQUIRED ASSETS................................................. 9
SECTION 2.02. ASSUMED LIABILITIES............................................. 10
SECTION 2.03. LICENSE TO RETAINED INFORMATION................................. 11
SECTION 2.04. PURCHASE PRICE.................................................. 11
SECTION 2.05. CLOSING; DELIVERIES............................................. 12
SECTION 2.06. RISK OF LOSS.................................................... 14
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER.............................. 14
SECTION 3.01. ORGANIZATION, ETC............................................... 14
SECTION 3.02. AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY............... 14
SECTION 3.03. CONSENTS AND APPROVALS; NO VIOLATIONS........................... 14
SECTION 3.04. FINANCIAL STATEMENTS AND BOOKS AND RECORDS...................... 15
SECTION 3.05. ABSENCE OF CERTAIN CHANGES...................................... 15
SECTION 3.06. TITLE OF ASSETS................................................. 15
SECTION 3.07. INTELLECTUAL PROPERTY........................................... 15
SECTION 3.08. COMPLIANCE WITH LAW............................................. 17
SECTION 3.09. REGULATORY MATTERS.............................................. 17
SECTION 3.10. INVENTORY....................................................... 18
SECTION 3.11. LITIGATION...................................................... 18
SECTION 3.12. ENVIRONMENTAL CLAIMS............................................ 18
SECTION 3.13. BROKERS OR FINDERS.............................................. 18
SECTION 3.14. CONTRACTS AND COMMITMENTS....................................... 18
SECTION 3.15. NO OTHER SELLER REPRESENTATIONS OR WARRANTIES................... 19
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER .......................... 19
SECTION 4.01. ORGANIZATION, ETC............................................... 19
SECTION 4.02. AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY............... 19
SECTION 4.03. CONSENTS AND APPROVALS; NO VIOLATIONS........................... 19
SECTION 4.04. LITIGATION...................................................... 20
SECTION 4.05. BROKERS OR FINDERS.............................................. 20
SECTION 4.06. NO OTHER PURCHASER REPRESENTATIONS OR WARRANTIES................ 20
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BMS ................................ 20
SECTION 5.01. ORGANIZATION, ETC............................................... 20
SECTION 5.02. AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY............... 21
(i)
TABLE OF CONTENTS (continued)
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SECTION 5.03. CONSENTS AND APPROVALS; NO VIOLATIONS........................... 21
SECTION 5.04. BROKERS OR FINDERS.............................................. 21
SECTION 5.05. LITIGATION...................................................... 21
SECTION 5.06. NO OTHER BMS REPRESENTATIONS OR WARRANTIES...................... 22
SECTION 6. REPRESENTATIONS AND WARRANTIES OF XXXXXXXX ........................... 22
SECTION 6.01. ORGANIZATION, ETC............................................... 22
SECTION 6.02. AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY............... 22
SECTION 6.03. CONSENTS AND APPROVALS; NO VIOLATIONS........................... 22
SECTION 6.04. BROKERS OR FINDERS.............................................. 23
SECTION 6.05. LITIGATION...................................................... 23
SECTION 6.06. NO OTHER XXXXXXXX REPRESENTATIONS OR WARRANTIES................. 23
SECTION 7. COVENANTS ............................................................ 23
SECTION 7.01. TRANSFER OF REGULATORY MATTERS.................................. 23
SECTION 7.02. ACCESS TO INFORMATION........................................... 24
SECTION 7.03. CONFIDENTIALITY................................................. 25
SECTION 7.04. TRANSFER TAX.................................................... 25
SECTION 7.05. FURTHER ASSURANCES.............................................. 25
SECTION 7.06. NO USE OF CERTAIN NAMES......................................... 25
SECTION 7.07. BULK TRANSFER LAWS.............................................. 26
SECTION 7.08. REBATES; RETURNS HANDLING....................................... 26
SECTION 7.09. ADVERSE EVENT REPORTING......................................... 27
SECTION 7.10. CUSTOMER NOTIFICATIONS.......................................... 28
SECTION 7.11. NO ACTIVE SOLICITATION OF RETURNS............................... 28
SECTION 7.12. HANDLING OF INVENTORY........................................... 28
SECTION 7.13. NON-COMPETITION................................................. 29
SECTION 7.14. NON-SOLICITATION................................................ 29
SECTION 7.15. PUBLICITY....................................................... 29
SECTION 8. CONDITIONS TO OBLIGATIONS ............................................ 30
SECTION 8.01. CONDITIONS TO OBLIGATIONS OF PURCHASER.......................... 30
SECTION 8.02. CONDITIONS TO OBLIGATIONS OF SELLER............................. 30
SECTION 8.03. CONDITIONS TO OBLIGATIONS OF ALL PARTIES........................ 30
SECTION 8.04. WAIVER OF CLOSING CONDITIONS.................................... 31
SECTION 9. SURVIVAL; INDEMNIFICATION ............................................ 31
SECTION 9.01. SURVIVAL OF REPRESENTATIONS..................................... 31
SECTION 9.02. INDEMNIFICATION BY SELLER, BMS AND XXXXXXXX..................... 31
SECTION 9.03. INDEMNIFICATION BY PURCHASER.................................... 33
SECTION 9.04. CALCULATION OF LOSSES........................................... 33
SECTION 9.05. PROCEDURES...................................................... 34
SECTION 9.06. SOLE REMEDY; NO ADDITIONAL REPRESENTATIONS...................... 35
SECTION 9.07. LIMITATIONS ON LIABILITY........................................ 35
SECTION 9.08. COOPERATION..................................................... 36
(ii)
TABLE OF CONTENTS (continued)
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SECTION 9.09. INDEMNIFICATION IN CASE OF STRICT LIABILITY OR
INDEMNITEE NEGLIGENCE...................................................... 36
SECTION 10. AMENDMENTS AND WAIVERS............................................... 36
SECTION 11. MISCELLANEOUS ....................................................... 36
SECTION 11.01. NOTICES........................................................ 36
SECTION 11.02. DESCRIPTIVE HEADINGS........................................... 38
SECTION 11.03. COUNTERPARTS................................................... 38
SECTION 11.04. ENTIRE AGREEMENT............................................... 38
SECTION 11.05. FEES AND EXPENSES.............................................. 38
SECTION 11.06. INJUNCTIVE RELIEF.............................................. 38
SECTION 11.07. ASSIGNMENT..................................................... 39
SECTION 11.08. SUCCESSORS AND ASSIGNS......................................... 39
SECTION 11.09. SEVERABILITY................................................... 39
SECTION 11.10. WAIVER OF JURY TRIAL........................................... 39
SECTION 11.11. DISPUTE RESOLUTION............................................. 39
SECTION 11.12. GOVERNING LAW.................................................. 40
SECTION 11.13. SCHEDULES, EXHIBITS AND OTHER AGREEMENTS....................... 40
EXHIBITS
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Exhibit A License Agreement
Exhibit B Supply Agreement
Exhibit C Assignment of BMS Patents
Exhibit D Assignment of Copyrights
Exhibit E Assignment of Internet Names
Exhibit F Assignment of Trademarks
Exhibit G Assumption Agreement
Exhibit H Xxxx of Sale
Exhibit I Seller's Officer's Certificate
Exhibit J BMS' Officer's Certificate
Exhibit K Xxxxxxxx'x Officer's Certificate
Exhibit L Purchaser's Officer's Certificate
SCHEDULES
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Schedule 1.01(a) Inventory
Schedule 1.01(b) Representatives for Knowledge Representations
Schedule 1.01(c) Product Registrations
Schedule 2.04(c) Allocation of Purchase Price
Schedule 2.05(c) Wire Transfer Instructions
Schedule 3.04 Financial Statements
Schedule 3.07(a) Intellectual Property
Schedule 3.09(d) Regulatory Matters
(iii)
TABLE OF CONTENTS (continued)
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Schedule 3.14 Contracts
Schedule 7.14 Employees Subject to Non-Solicitation Provision
Schedule 7.15 Initial Press Release
(iv)
THIS ASSET PURCHASE AGREEMENT (this "Agreement") dated as of June 25, 2002,
(the "Agreement Date") is among Westwood-Squibb Colton Holdings Partnership
("Seller"), a partnership between Colton Research and Development, Inc.
("GSub"), a wholly owned subsidiary of Xxx Xxxxxxxx Xxxxxxx ("Xxxxxxxx"), and
Westwood-Squibb Holdings, Inc. ("BMSub"), a wholly owned subsidiary of
Xxxxxxx-Xxxxx Squibb Company ("BMS"); Xxxxxxxx; BMS; and Women First HealthCare,
Inc. ("Purchaser").
RECITALS
WHEREAS, Seller is engaged in the business, directly or indirectly through
its Affiliates (as defined in Section 1.01), of manufacturing, distributing,
marketing and selling current presentations and formulations of the prescription
form of VANIQA(R) (eflornithine hydrochloride) Cream, 13.9% (the "Product") for
use in the Indication (as defined in Section 1.01) (such business as conducted
on the Closing Date (as defined in Section 2.05(a)) by Seller, the "Business"),
which as of the Agreement Date has been launched in the United States;
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, Seller's right, title and interest in and to the Business;
WHEREAS, Purchaser desires to assume, and Seller desires to have assumed,
the Assumed Liabilities (as defined in Section 2.02);
WHEREAS, in connection with and as a condition to the consummation of the
transactions contemplated by this Agreement, the parties will enter into that
certain License Agreement, in the form attached hereto as Exhibit A, pursuant to
which BMS and Xxxxxxxx will grant certain licenses to their respective
proprietary technology on the terms and conditions set forth therein (the
"License Agreement"); and
WHEREAS, in connection with and as a condition to the consummation of the
transaction contemplated by this Agreement, BMS and Purchaser will enter into
that certain Supply Agreement, in the form attached hereto as Exhibit B,
pursuant to which BMS will agree to supply Purchaser with the Product on the
terms and conditions set forth therein (the "Supply Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
SECTION 1.
DEFINITIONS AND INTERPRETATION
Section 1.01. Defined Terms.
For purposes of this Agreement:
"Accounts Receivable" shall mean all accounts receivable, notes receivable
and other indebtedness due and owed by any Third Party to Seller, BMS, Xxxxxxxx
and their respective Affiliates arising or held in connection with the Business
as of the close of business on the Closing Date other than the Receivable.
"Acquired Assets" shall mean (a) the Intellectual Property, (b) the Books
and Records, (c) the Marketing Materials, (d) the Inventory, (e) the Regulatory
Documentation, (f) the content (including the
design and look and feel) of the web sites having any of the URLs listed on
Schedule 3.07(a) (excluding all Names), (g) the Receivable; and (h) all rights
relating to the foregoing, including all claims, counterclaims, credits, causes
of action, choses in action, rights of recovery and rights of setoff, but
specifically excluding the Excluded Assets.
"Affiliate" shall mean, with respect to any Person, any Person which,
directly or indirectly, controls, is controlled by or is under common control
with, the specified Person. For purposes of this definition, (a) the term
"control" as applied to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management of
that Person, whether through ownership of voting securities or otherwise, and
(b) BMSub, GSub and their respective successors and assigns shall be deemed to
control Seller. For the avoidance of doubt, BMS and its Affiliates and Xxxxxxxx
and its Affiliates shall not be deemed Affiliates of each other.
"Assignment of BMS Patents" shall mean the Assignment of BMS Patents
agreement executed by BMS and Purchaser in substantially the form of Exhibit C.
"Assignment of Copyrights" shall mean the Assignment of Copyrights
agreement executed by Seller, BMS and Purchaser in substantially the form of
Exhibit D.
"Assignment of Internet Names" shall mean the Assignment of Internet
Names agreement executed by Seller, BMS and Purchaser in substantially the form
of Exhibit E.
"Assignment of Trademarks" shall mean the Assignment of Trademarks
agreement executed by Seller, BMS and Purchaser with respect to the Trademarks,
in substantially the form of Exhibit F.
"Assumption Agreement" shall mean the Assumption Agreement executed by
Purchaser in substantially the form of Exhibit G.
"Xxxx of Sale" shall mean the Xxxx of Sale in substantially the form of
Exhibit H.
"BMS Know-How" shall have the meaning set forth in the License
Agreement.
"BMS Patents" shall mean (a) U.S. Patent Application Serial Number
60/315,832 and U.S. Patent Application Serial Number 60/312,657, (b) all
divisionals, continuations, continuations-in-part, reissues, extensions,
reexaminations, or renewal applications related to the foregoing; and (c) all
foreign equivalents to any of the foregoing. All such patents and foreign
equivalents granted or filed as of the date of this Agreement are set forth on
Schedule 3.07(a).
"Books and Records" shall mean (a) all books, records and recorded
information, including customer and supplier lists, held in Seller's name or in
BMS' name on Seller's behalf and in each case exclusively related to the
Business as of the Closing Date and (b) laboratory books, batch records,
stability and clinical studies and regulatory files, if any, exclusively related
to the BMS Patents.
"C.F.R." shall mean the U.S. Code of Federal Regulations.
"Cleanup" shall mean all actions required to (A) cleanup, remove, treat
or remediate Hazardous Materials in the indoor or outdoor environment; (B)
prevent the Release of Hazardous Materials so that they do not migrate, endanger
or threaten to endanger public health or welfare of the indoor or outdoor
environment; (C) perform pre-remedial studies and investigations and
post-remedial monitoring and care; or (D) respond to any government requests for
information or documents in any way relating to cleanup,
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removal, treatment or remediation or potential cleanup, removal, treatment or
remediation of Hazardous Materials in the indoor or outdoor environment.
"Contract" shall mean any agreement, contract, evidence of
indebtedness, purchase order, lease, security or pledge agreement, or license to
which Seller is a party or is bound and which relates to the Business or
Seller's operations of manufacturing, distributing, marketing and selling the
Product, whether oral or written, but excluding all Employee Plans.
"Copyrights" shall mean the copyrights, copyright registrations and
applications held in Seller's name or in BMS' name on Seller's behalf and in
each case set forth on Schedule 3.07(a).
"Default" shall mean (i) a breach of or default under any Contract,
(ii) the occurrence of an event that with the passage of time or the giving of
notice or both would constitute a breach of or default under any Contract, or
(iii) the occurrence of an event that with or without the passage of time or the
giving of notice or both would give rise to a right of termination,
renegotiation or acceleration under any Contract.
"Employee Plan" shall mean each employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), maintained by Seller, BMS or Xxxxxxxx covering any employee of
Seller, BMS or Xxxxxxxx.
"Environmental Claim" shall mean any claim, action, cause of action,
investigation or notice (written or oral) by any Person alleging potential
liability (including, without limitation, potential liability for investigatory
costs, Cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, or penalties) arising out of, based on or
resulting from (A) the presence, or Release into the indoor or outdoor
environment, of any Hazardous Materials at any location, whether or not owned or
operated by Seller, or (B) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Laws. For the sake of clarity, none of
the foregoing shall be included as an Environmental Claim if arising from
circumstances which occur after Seller, has transferred ownership of the Product
to a customer. For the avoidance of doubt, the preceding sentence does not
exclude as an Environmental Claim, any claim, action, cause of action,
investigation or notice relating to a Release in connection with the manufacture
of the Product at the manufacturing facility of Seller or BMS, as the case may
be.
"Environmental Laws" shall mean all federal, state, local and foreign
laws and regulations relating to pollution or protection of human health or the
environment, including without limitation, laws relating to Releases or
threatened Releases of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, Release,
disposal, transport or handling of Hazardous Materials and all laws and
regulations with regard to record keeping, notification, disclosure and
reporting requirements respecting Hazardous Materials, and all laws relating to
endangered or threatened species of fish, wildlife and plants and the management
or use of natural resources.
"Excluded Assets" shall mean all (a) real property, (b) Accounts
Receivable, cash and cash equivalents, (c) Patents and similar instruments
covering the Product or covering any technology incorporated in the Product, (d)
commitments, Contracts, contracts, licenses, leases, purchase orders, loan
agreements, mortgage agreements, indentures, debentures, notes, letters of
credit and other agreements, whether express or oral, (e) inventory, including
raw materials, goods in process, finished goods, goods-in-transit, packaging,
supplies and labels, other than the Inventory, (f) buildings, fixtures,
machinery, tools, dies, furniture, furnishings, plans, office and manufacturing
equipment, vehicles and other fixed assets, (g) the Names, (h) assets,
properties and rights of Seller, BMS and Xxxxxxxx and any of their
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respective Affiliates other than the Acquired Assets, (i) any refund or credit
of Taxes attributable to any Taxes payable by Seller, BMS, Xxxxxxxx or any of
their respective Affiliates for any Pre-Closing Tax Period, (j) Retained
Information and (k) rights relating to the foregoing, including all claims,
counterclaims, credits, causes of action, choses in action, rights of recovery
and rights of setoff.
"FDA" shall mean the United States Food and Drug Administration, or any
successor entity.
"Financial Statements" shall mean an unaudited statement of net sales
and product contribution for the Business as of March 31, 2002 and an audited
statement of net sales and product contribution for the Business for the year
ended December 31, 2001 and the four-month period ended December 31, 2000.
"GAAP" shall mean United States generally accepted accounting
principles as in effect on the Agreement Date.
"Xxxxxxxx Know-How" shall have the meaning set forth in the License
Agreement.
"Xxxxxxxx Patents" shall have the meaning set forth in the License
Agreement.
"Governmental Entity" shall mean any court of competent jurisdiction,
legislature, governmental agency, administrative agency or commission or other
governmental authority or other instrumentality of the United States or any
other country, any state, county, city or other political subdivision.
"Hazardous Materials" shall mean all substances defined as Hazardous
Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous
Substances Pollution Contingency Plan, 40 C.F.R. (S)300.5, or defined as such
by, or regulated as such under, any Environmental Laws.
"Indication" shall mean the treatment of unwanted facial hair in women.
"Intellectual Property" shall mean, collectively, (a) the Know-How, (b)
the Trademarks, (c) the Copyrights, (d) the Trade Dress, (e) the Internet Names;
and (f) the BMS Patents.
"Internet Names" shall mean the web addresses, domain names and phone
numbers held in Seller's name or in BMS' name on Seller's behalf and in each
case set forth in Schedule 3.07(a), and the applications and registrations
therefor.
"Inventory" shall mean the units of finished Product (SKU # 150030),
packaged for commercial sale in the possession of Seller or BMS as of the
Closing Date with an expiration date of June 2003, as set forth on Schedule
1.01(a).
"Know-How" shall mean any and all Manufacturing Know-How, product
specifications, processes, product designs, plans, trade secrets, ideas,
concepts, inventions, manufacturing, engineering and other manuals and drawings,
standard operating procedures, formulae, flow diagrams, chemical,
pharmacological, toxicological, pharmaceutical, physical, analytical, safety,
quality assurance, quality control and clinical data, technical information,
research records, and all other confidential or proprietary technical and
business information that is currently owned by the Seller and used exclusively
in the Business for the sale of the Product as of the Closing Date. For the sake
of clarity, none of the foregoing information shall be included in Know-How to
the extent that such information is covered by any claim of any Patent.
"Knowledge" shall mean (a) with respect to Seller, the actual knowledge
of each of the representatives set forth on Schedule 1.01(b) after due inquiry,
(b) with respect to each of BMS and
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Xxxxxxxx, the actual knowledge of the representatives of such party set forth on
Schedule 1.01(b) after due inquiry, and (c) with respect to any other party, the
actual knowledge of any officer of such party after due inquiry.
"Liability" shall mean any liability, whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become due.
"Lien" shall mean any lien (statutory or otherwise), claim, charge,
option, security interest, pledge, mortgage, restriction, financing statement or
similar encumbrance of any kind or nature whatsoever (including any conditional
sale or other title retention agreement and any lease having substantially the
same effect as any of the foregoing and any assignment or deposit arrangement in
the nature of a security device).
"Manufacturing Know-How" shall mean the percentages and specifications
of ingredients, the manufacturing processes, specifications, technology,
inventions, assays, quality control and testing procedures, know-how and trade
secrets owned by the Seller and used exclusively to manufacture, formulate, test
and package the Product for sale, marketing and distribution as of the Closing
Date. For the sake of clarity, none of the foregoing information shall be
included in Know-How to the extent that such information is covered by any claim
of any Patent.
"Marketing Materials" shall mean all marketing materials, marketing
research data, customer and sales information, product literature, promotional
materials and data, advertising and display materials and all training materials
in whatever medium (e.g., audio, visual or print) held in Seller's name or in
BMS' name on Seller's behalf and exclusively related to the Business or the
Acquired Assets as of the Closing Date.
"Material Adverse Effect" shall mean, with respect to a Person, a
material adverse effect, whether individually or in the aggregate, (a) on the
business, operations, financial condition, assets or properties, Liabilities or
prospects of such Person, or (b) on the ability of such Person to consummate the
transactions contemplated hereby, provided, however, a material adverse effect
shall not include general economic or industry circumstances or events, or
economic or industry trends specific to such Person.
"Names" shall mean "Xxxxxxx-Xxxxx Squibb Company", "Xxxxxxx-Xxxxx
Squibb", "Westwood-Squibb Colton Holdings Partnership", "Xxxxxxx-Xxxxx Product",
"BMS", "B-MS", "Squibb" "X.X. Xxxxxx & Sons", "Xxxxxxxx", "Xxx Xxxxxxxx
Xxxxxxx", "Westwood-Squibb Holdings", "Colton Research and Development",
variations and derivatives thereof, any other logos or trademarks, trade names
or service marks of Seller, BMS, Xxxxxxxx and their respective Affiliates other
than the Trademarks, and any NDC Numbers of Seller, BMS, Xxxxxxxx and their
respective Affiliates.
"NDA" shall mean any new drug application filed pursuant to the
requirements of the FDA, as more fully defined in 21 C.F.R. (S)314.5 et seq.,
and any equivalent application filed with any Governmental Entity.
"NDC Number" shall mean the unique, identifying number assigned to a
drug product, including the labeler code, product code and package code, in
connection with the drug listing requirements of Section 510(j) of the FD&C Act
and applicable FDA rules and regulations.
"Patents" shall mean patents and patent applications, and all
additions, divisions, continuations, continuations-in-part, provisionals,
continued prosecution applications, substitutions, reissues, extensions,
registrations and renewals of any of the foregoing.
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"Permitted Liens" shall mean, collectively (a) Liens for Taxes or
assessments which are not yet due or delinquent or are being contested in good
faith by appropriate proceedings, and (b) statutory mechanics', warehousemen's,
materialmen's, contractors', workmen's, repairmen's and carriers' liens, and
other similar Liens arising in the ordinary course for obligations which are not
delinquent.
"Person" shall mean any individual, group, corporation, partnership or
other organization or entity, including any Governmental Entity.
"Pre-Closing Tax Period" shall mean all taxable periods ending on or
before the Closing Date and the portion ending on the Closing Date of any
taxable period that includes (but does not end on) the Closing Date.
"Product Registrations" shall mean the NDAs (including any marketing
authorization approvals) and comparable regulatory filings and approvals for the
Product held in Seller's name or in BMS' name on Seller's behalf and in each
case as set forth in Schedule 1.01(c).
"Receivable" shall mean that certain account receivable of Seller
relating to invoice number 327911 issued to Quality King in the amount of Two
Hundred Fifty-One Thousand Seven Hundred Eighty-Four Dollars ($251,784.00).
"Registered Intellectual Property" shall mean any Intellectual Property
that is the subject of an application, certificate, filing, registration or
other document issued, filed with or recorded by any Governmental Entity or
other public legal authority.
"Regulatory Documentation" shall mean all (a) regulatory filings and
supporting documents, chemistry, manufacturing and controls data and
documentation, preclinical and clinical studies and tests, (b) records
maintained under record keeping or reporting requirements of the FDA or any
other Governmental Entity including without limitation the drug master file and
Investigational New Drug application, and (c) the complete complaint, adverse
event and medical inquiry filings with respect to the Product; in each case held
in Seller's name or in BMS' name on Seller's behalf and in each case exclusively
related to the Business, including the Product Registrations.
"Related Instruments" shall mean the License Agreement, Supply
Agreement, Confidentiality Agreement, Xxxx of Sale, Assumption Agreement,
Assignment of Trademarks, Assignment of Copyrights, Assignment of BMS Patents,
Assignment of Internet Names, Seller's Officer's Certificate, Purchaser's
Officer's Certificate, BMS' Officer's Certificate, Xxxxxxxx'x Officer's
Certificate and any other agreements entered into in connection with the
transaction contemplated in this Agreement.
"Release" shall mean any release, spill, emission, discharge, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment (including, without limitation,
ambient air, surface water, groundwater and surface or subsurface strata) or
into or out of any property, including the movement of Hazardous Materials
through or in, the air, soil, surface water, groundwater or property, provided
that none of the foregoing shall be included as a Release if arising from
circumstances which occur after Seller or BMS, as applicable, has transferred
ownership of the Product to a customer. For the avoidance of doubt, the
preceding definition does not exclude any such occurrence as a Release at the
manufacturing facility of Seller or BMS, as the case may be, in connection with
the manufacture of the Product.
"Requirements of Laws" means any applicable foreign, federal, state and
local laws, statutes, regulations, rules, codes, ordinances, enforceable
judgments, injunctions, decrees and orders, permits,
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approvals, treaties, enacted, adopted, issued or promulgated by any Governmental
Entity or common law in effect as of the Closing Date.
"Retained Information" shall mean any and all books and records
prepared and maintained by the Seller, BMS, Xxxxxxxx or their respective
Affiliates in connection with the Business (excluding any information or
documents relating to the sale of the Business), including laboratory books,
batch records, stability studies and regulatory files (including correspondence
with regulatory authorities and any memoranda or other documents prepared by the
Seller, BMS, Xxxxxxxx or their respective Affiliates), that do not relate
exclusively to the Business.
"Taxes", or "Tax" in the singular form, shall mean any and all taxes,
levies or other like assessments, including, but not limited to, income,
transfer, gains, gross receipts, excise, inventory, property (real, personal or
intangible), custom duty, sales, use, license, withholding, payroll, employment,
capital stock and franchise taxes, imposed by any Governmental Entity.
"Tax Return" shall mean any report, return or other information filed
with any taxing authority with respect to Taxes imposed upon or attributable to
the operations of the Business.
"Third Party" shall mean a Person who or which is neither a party nor
an Affiliate of a party.
"Trade Dress" shall mean the trade dress and packaging, including
without limitation the registered trade dress set forth on Schedule 3.07(a),
held in Seller's name or in BMS' name on Seller's behalf and in each case
exclusively used in the Business as of the Closing Date, but in any event
excluding the Names.
"Trademarks" shall mean the trade names, logos, common law trademarks
and service marks, trademark and service xxxx registrations and applications
therefor held in Seller's name or in BMS' name on Seller's behalf and in each
case as set forth on Schedule 3.07(a), together with the goodwill associated
therewith.
"United States" or "U.S." shall mean the fifty (50) states of the
United States of America, the District of Columbia, Puerto Rico and all
possessions and territories of the United States of America.
"U.S.C." shall mean the U.S. Code.
Section 1.02. Other Defined Terms.
The following terms have the meanings set forth in the Sections set
forth below:
Term Section
---- -------
Acquiring Party 7.12
Agreement Preamble
Agreement Date Preamble
Assumed Liabilities 2.02(a)
BMS Preamble
BMS' Officer's Certificate 2.05(b)(ii)
BMSub Preamble
Business Recitals
Closing 2.05(a)
Closing Date 2.05(a)
Competitive Activities 7.12
Confidentiality Agreement 7.03(a)
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Term Section
---- -------
Conflict 3.03(a)
Disclosure Schedule Preamble to Section 3
Excluded Liabilities 2.02(b)
FD&C Act 3.08
Xxxxxxxx Preamble
Xxxxxxxx'x Officer's Certificate 2.05(b)(iii)
GSub Preamble
Indemnified Party 9.05(a)
Indemnifying Party 9.05(a)
License Agreement Recitals
Losses 9.02(a)
Manufacturing Liabilities 2.02(b)(ii)
Non-Serious Adverse Event 7.09(c)
Proceedings 3.07(d)
Product Recitals
Purchase Price 2.04(a)(i)
Purchaser Preamble
Purchaser's Officer's Certificate 2.05(c)(ii)
Rebate Programs 7.08(a)
Seller Preamble
Seller's Officer's Certificate 2.05(b)(i)
Serious Adverse Event 7.11(c)
Supply Agreement Recitals
Third Party Claim 9.05(a)
Transfer Tax 7.04
Section 1.03. Interpretation.
In the event of an ambiguity or a question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Agreement.
Section 1.04. Singular; Plural; Use of Words.
The definitions of the terms in this Agreement shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document in this Agreement shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth in this Agreement), (b) any
reference in this Agreement to any Person shall be construed to include the
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision of this Agreement,
and (d) all references in this Agreement to Sections, Exhibits or Schedules
shall be construed to refer to Sections, Exhibits and Schedules of this
Agreement.
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SECTION 2.
CONSUMMATION OF TRANSACTION
Section 2.01. Acquired Assets.
(a) Transfer of Acquired Assets.
(i) On the terms and subject to the conditions of this
Agreement, at the Closing, Seller and BMS shall
sell, assign, transfer, convey and deliver to
Purchaser, and Purchaser shall purchase, acquire
and accept from Seller and BMS, all the right,
title and interest of Seller and BMS as of the
Closing Date in, to and under the Acquired Assets.
(ii) Purchaser acknowledges and agrees that the
Acquired Assets do not include, and none of
Seller, BMS, Xxxxxxxx or their respective
Affiliates are selling or conveying to Purchaser,
(A) any rights in or to any Patents other than the
BMS Patents, (B) any rights in or to any other
intellectual property other than the Intellectual
Property or (C) any rights in or to any Excluded
Assets.
(iii) Notwithstanding anything contained in this
Agreement to the contrary, (A) from and after the
Closing, Seller, BMS, Xxxxxxxx and their
respective Affiliates shall retain all of their
respective rights, title and interest in and to
the Excluded Assets, and (B) Seller and/or BMS may
retain an archival copy of all Books and Records,
Marketing Materials, Regulatory Documentation and
other documents or materials conveyed by Seller
and/or BMS, as the case may be, hereunder.
(b) No Assignment. Notwithstanding anything to the contrary
contained in this Agreement, if the sale, assignment, transfer, conveyance or
delivery or attempted sale, assignment, transfer, conveyance or delivery to
Purchaser of any asset that would be an Acquired Asset is (i) prohibited by any
Requirements of Laws or (ii) would require any authorizations, approvals,
consents or waivers from a Third Party or Governmental Entity and such
authorizations, approvals, consents or waivers shall not have been obtained
prior to the Closing, then in either case the Closing shall proceed without the
sale, assignment, transfer, conveyance or delivery of such asset and this
Agreement shall not constitute a sale, assignment, transfer, conveyance or
delivery of such asset. In the event that the Closing proceeds without the sale,
assignment, transfer, conveyance or delivery of any such asset, then following
the Closing, the parties shall use their all reasonable commercial efforts, and
cooperate with each other in good faith, to obtain promptly such authorizations,
approvals, consents or waivers; provided, however, that Seller shall not be
required to pay any consideration to obtain any such authorization, approval,
consent or waiver. Pending such authorization, approval, consent or waiver, the
parties shall cooperate with each other in good faith in any reasonable and
lawful arrangements that will provide to Purchaser the benefits of use of such
asset and to Seller the benefits, including any indemnities, that, in each case,
it would have obtained had the asset been conveyed to Purchaser at the Closing.
To the extent that Purchaser is provided the benefits of an asset pursuant to
this Section 2.01(b), Purchaser shall (i) perform the obligations of Seller with
respect to such asset, including any payments to be made with respect thereto,
and (ii) shall satisfy any related obligations and Liabilities with respect to
such asset that, but for the lack of an authorization, approval, consent or
waiver to assign such obligations or Liabilities to Purchaser, would be Assumed
Liabilities. If authorization, approval, consent or waiver for the sale,
assignment, transfer, conveyance or delivery of any such asset not sold,
assigned, transferred, conveyed or delivered at the Closing is obtained, Seller
shall assign, transfer, convey and deliver such asset to Purchaser at no
additional cost to Purchaser.
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Section 2.02. Assumed Liabilities.
(a) Upon the terms and subject to the conditions of this
Agreement, Purchaser shall assume, effective as of the Closing Date, and
Purchaser shall pay, perform and discharge when due, the following Liabilities,
obligations and commitments of Seller and its Affiliates (the "Assumed
Liabilities"):
(i) all Liabilities, obligations and commitments that
Purchaser has expressly assumed or agreed to
assume under this Agreement;
(ii) all Liabilities arising out of or relating to any
product liability, breach of warranty or similar
claim for injury to person or property due to the
use or misuse of the Product or the Acquired
Assets, to the extent arising from claims which
are asserted after the Closing Date other than (A)
those Manufacturing Liabilities (defined below)
included as an Excluded Liability pursuant to
Section 2.02(b)(ii), and (B) any Liabilities for
which Purchaser is indemnified pursuant to the
Supply Agreement; and
(iii) all other Liabilities, obligations and commitments
of whatever kind and nature relating to the
Business, the Product, the Acquired Assets, or the
ownership, sale or lease of any of the Acquired
Assets, to the extent arising from claims made
after the Closing Date.
(b) Notwithstanding any other provision of this Agreement, except
for the Assumed Liabilities expressly specified in Section 2.02(a), Purchaser
shall not assume, or otherwise be responsible for, any Liabilities of Seller,
BMS or Xxxxxxxx whether liquidated or unliquidated, or known or unknown, whether
arising out of occurrences prior to, at or after the date hereof ("Excluded
Liabilities"), which Excluded Liabilities include, without limitation:
(i) all Liabilities arising out of or relating to any
product liability, breach of warranty or similar
claim for injury to person or property, whether
based on negligence, breach of warranty, strict
liability, enterprise liability or any other legal
or equitable theory arising from defects in
products, due to the use or misuse of the Product
or the Acquired Assets, to the extent arising from
claims which have been asserted on or prior to the
Closing Date;
(ii) any Liabilities relating to the failure of Seller,
BMS or Xxxxxxxx to manufacture, test, label,
package, store, handle or ship the Product in
accordance with (A) the written specifications for
the Product set forth in the applicable NDA as of
the date of manufacture or (B) cGMP (as defined in
the Supply Agreement) and any other applicable
Requirements of Laws to the extent arising from
Product manufactured by or on behalf of Seller on
or prior to the Closing Date ("Manufacturing
Liabilities");
(iii) any Liability to or in respect of any employees or
former employees of Seller, BMS or Xxxxxxxx,
including without limitation (A) any employment
agreement, whether or not written, between Seller,
BMS or Xxxxxxxx and any Person, (B) any Liability
under any Employee Plan at any time maintained,
contributed to or required to be contributed to by
or with respect to Seller, BMS or Xxxxxxxx or
under which Seller, BMS or
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Xxxxxxxx may incur Liability, or any
contributions, benefits or Liabilities therefor,
or any Liability with respect to Seller's, BMS' or
Xxxxxxxx'x withdrawal or partial withdrawal from
or termination of any Employee Plan and (C) any
claim of an unfair labor practice, or any claim
under any state unemployment compensation or
worker's compensation law or regulation or under
any federal or state employment discrimination law
or regulation, which shall have been asserted on
or prior to the Closing Date or is based on acts
or omissions which occurred on or prior to the
Closing Date;
(iv) any Liability of Seller, BMS or Xxxxxxxx in
respect of any Tax (except as contemplated by
Section 7.04 below); and
(v) Environmental Claims arising from occurrences
prior to the Closing Date.
(c) Purchaser's obligations under this Section 2.02 shall not be
subject to offset or reduction by reason of any actual or alleged breach of any
representation, warranty or covenant contained in this Agreement or any Related
Instrument or any right or alleged right to indemnification under this Agreement
or any Related Instrument.
(d) For the avoidance of doubt, if there is any conflict between
the terms of this Section 2.02 and the Supply Agreement with respect to the
Liabilities arising out of, or directly related to the Product (as such term is
defined in the Supply Agreement) sold by BMS or any of its Affiliates to
Purchaser pursuant to the Supply Agreement, the terms of the Supply Agreement
shall govern.
Section 2.03. License to Retained Information.
In partial consideration of the Purchase Price, each of Seller, BMS and
Xxxxxxxx hereby grant to Purchaser a worldwide, perpetual, royalty-free,
irrevocable, transferable and sublicensable license, under the Retained
Information to make, have made, use, have used, offer for sale, sell, import and
export the Product and Improvements (as defined in the License Agreement)
thereto for the Indication. Such license shall be exclusive (even as to Seller,
BMS and Xxxxxxxx) for a period of ten (10) years following the Closing Date and
non-exclusive thereafter. For the avoidance of doubt, BMS and Xxxxxxxx shall
have the right to use the Retained Information for all purposes other than to
make, have made, use, have used, offer for sale, sell, import and export the
Product and Improvements (as defined in the License Agreement) thereto for the
Indication. The license contemplated by this Section 2.03 includes the exclusive
(even as to Seller, BMS and Xxxxxxxx) right of Purchaser to use the Retained
Information to independently pursue a prescription to over-the-counter switch of
the Product or to independently pursue improved formulations that contain
eflornithine hydrochloride as an active ingredient, prescription or
over-the-counter, of the Product for the Indication. Any rights to the Retained
Information not expressly granted by Seller, BMS or Xxxxxxxx pursuant to the
foregoing are hereby reserved by such party.
Section 2.04. Purchase Price.
(a) Purchase Price. As full and fair consideration for the
Acquired Assets, Purchaser agrees to:
(i) deliver or cause to be delivered at the Closing an
amount equal to Thirty-Eight Million Five
Hundred Thousand Dollars ($38,500,000.00); and
(ii) assume the Assumed Liabilities as of the Closing.
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(b) Determination of Purchase Price. The parties acknowledge
that the Purchase Price has been reduced to take into consideration an
appropriate credit to Purchaser for the amount of excess inventory of Product in
the distribution channels at the wholesaler and retailer levels and Purchaser's
assumption of responsibility for rebates as provided in Section 7.08(a) and for
returns and credits as provided in Section 7.08(b). Therefore, Purchaser shall
have no recourse against any of Seller, BMS and/or Xxxxxxxx with respect to
claims relating to any of the foregoing; subject, however, to Seller's
obligation not to sell or have sold by either BMS or Xxxxxxxx on Seller's behalf
Product during the period from June 1, 2002 through the Closing Date with
aggregate gross sales in excess of $470,000, (excluding the Receivable).
(c) Allocation of Purchase Price. The Purchase Price shall be
allocated among the Acquired Assets in the manner set forth on Schedule 2.04(c),
in accordance with Section 1060 of the Internal Revenue Code of 1986, as
amended, following the Closing Date. Purchaser, Seller, BMS and Xxxxxxxx agree
(i) to report the sale of the Acquired Assets for federal and state Tax purposes
in accordance with the allocations set forth on Schedule 2.04(c), and (ii) not
to take any position inconsistent with such allocations on any of their
respective Tax Returns. All payments made pursuant to Section 2.04(b) and
Section 9 shall be deemed adjustments to the Purchase Price.
Section 2.05. Closing; Deliveries.
(a) Closing. The consummation of the transactions contemplated
by this Agreement (the "Closing") shall take place on the date hereof at the
offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The parties intend for the Closing to occur simultaneously with the execution
and delivery of this Agreement. This Agreement shall not be considered executed
and delivered by the parties until the Closing has occurred. The date on which
the Closing occurs is referred to in this Agreement as the "Closing Date".
(b) Closing Deliveries by Seller, BMS and Xxxxxxxx.
(i) At the Closing, Seller shall deliver or cause to be
delivered four (4) originals or facsimiles (with
originals to follow within forty-eight (48) hours
after the Closing) of each of the following, in each
case duly executed by Seller, (A) this Agreement,
(B) the Xxxx of Sale, (C) the Assignment of
Copyrights, (D) the Assignment of Trademarks, (E)
the Assignment of Internet Names, (F) a certificate,
duly executed by an authorized officer of Seller, in
substantially the form attached hereto as Exhibit I
("Seller's Officer's Certificate"), and (G) a
certified copy of the resolutions of the Executive
Committee of Seller approving the transactions
contemplated hereby.
(ii) At the Closing, BMS shall deliver or cause to be
delivered four (4) originals or facsimiles (with
originals to follow within forty-eight (48) hours
after the Closing) of each of the following, in each
case duly executed by BMS, (A) this Agreement, (B)
the Xxxx of Sale, (C) the Assignment of Copyrights,
(D) the Assignment of Trademarks, (E) the Assignment
of BMS Patents, (F) the License Agreement, (G) the
Supply Agreement, (H) the Assignment of Internet
Names, and (I) a certificate, duly executed by an
authorized officer of BMS, in substantially the form
attached hereto as Exhibit J ("BMS' Officer's
Certificate").
(iii) At the Closing, Xxxxxxxx shall deliver or cause to
be delivered four (4) originals or facsimiles (with
originals to follow within forty-eight (48)
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hours after the Closing) of each of the following,
in each case duly executed by Xxxxxxxx, (A) this
Agreement, (B) the License Agreement, and (C) a
certificate, duly executed by an authorized officer
of Xxxxxxxx, in substantially the form attached
hereto as Exhibit K ("Xxxxxxxx'x Officer's
Certificate").
(c) Closing Deliveries by Purchaser. At the Closing, Purchaser
shall deliver or cause to be delivered:
(i) to Seller, the Purchase Price, in immediately
available U.S. dollars, by electronic funds
transfer, in the amounts and to the accounts of such
entities as are designated by Seller on Schedule
2.05(c) (to the relevant account numbers of the
accounts of such entities to which such transfers
should be made, as such entities shall have
designated to Purchaser in writing prior to the
Closing).
(ii) four (4) originals or facsimiles (with originals to
follow within forty-eight (48) hours after the
Closing) of each of the following, in each case duly
executed by Purchaser, (A) this Agreement, (B) the
Assignment of Copyrights, (C) the Assignment of
Trademarks, (D) the Assignment of BMS Patents, (E)
the License Agreement, (F) the Supply Agreement, (G)
the Assignment of Internet Names, (H) the Assumption
Agreement, (I) a certificate, duly executed by an
authorized officer of Purchaser, in substantially
the form attached hereto as Exhibit L ("Purchaser's
Officer's Certificate"), and (J) a certified copy of
the resolutions of the Board of Directors of
Purchaser approving the transactions contemplated
hereby.
(d) Delivery of Documents. All documents delivered at the
Closing by the parties pursuant to Sections 2.05(b) and (c)(ii) shall be dated
as of the Closing Date. At the Closing, one (1) original of each of the
foregoing documents shall be delivered to each of Seller, BMS, Xxxxxxxx and
Purchaser.
(e) Delivery of Certain Acquired Assets. On the Closing Date,
title to the Inventory, the Regulatory Documentation, the Books and Records and
the Marketing Materials shall be transferred to Purchaser. Immediately following
the Closing, Seller, BMS or their respective Affiliates will make the Inventory
available for pick-up by Purchaser or its common carrier. In addition, promptly,
but in no event later than ten (10) days following the Closing Date, Seller, BMS
or their respective Affiliates will deliver to Purchaser that portion of the
Regulatory Documentation comprised of the complete complaint, adverse event and
medical inquiry filings with respect to the Product. Promptly, but in no event
later than thirty (30) days following the Closing Date, Seller, BMS or their
respective Affiliates will deliver the Books and Records, the Marketing
Materials and the balance of the Regulatory Documentation to Purchaser. Seller
shall bear the risk of loss to the Inventory, the Regulatory Documentation, the
Books and Records and the Marketing Materials until they have been delivered to
Purchaser or its common carrier; thereafter, Purchaser shall bear all risk of
loss associated with such Acquired Assets and shall be solely responsible for
procuring adequate insurance to protect against such loss. Seller shall continue
to maintain adequate insurance against loss associated with the Acquired Assets
until they have been delivered to Purchaser or its common carrier. Seller shall
provide, or shall cause to be provided, to Purchaser (i) upon delivery of the
Inventory, Seller's standard certificate of analysis for each batch of Product
and (ii) within ten (10) business days of the initial delivery of the Inventory,
a complete copy of one (1) representative batch record for the Inventory.
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Section 2.06. Risk of Loss.
Except as otherwise provided in Section 2.05(e), (a) until the Closing,
any loss of or damage to the Acquired Assets from fire, casualty or any other
occurrence shall be the sole responsibility of Seller and (b) at the Closing,
title to the Acquired Assets shall be transferred to Purchaser and Purchaser
shall thereafter bear all risk of loss associated with the Acquired Assets
including, without limitation, any loss from an environmental impact arising
from the Release or consumption of the Product after the Closing, and shall be
solely responsible for procuring adequate insurance to protect the Acquired
Assets against any such loss.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller, and/or where expressly indicated, BMS and/or Xxxxxxxx, as the
case may be, represent and warrant to Purchaser, as of the Closing Date (except
as otherwise expressly provided herein), subject to such exceptions as are
specifically disclosed in the disclosure schedule (referencing the appropriate
Sections hereof) supplied by Seller and dated as of the Closing Date (the
"Disclosure Schedule"), which Disclosure Schedule shall be deemed to be
representations and warranties of Seller as if made herein, as follows:
Section 3.01. Organization, Etc.
Seller is a general partnership duly organized, validly existing and in
good standing under the laws of the State of Delaware. Seller is duly authorized
to conduct its business and is in good standing in each jurisdiction where such
qualification is required except for any jurisdiction where failure to so
qualify would not have a Material Adverse Effect on Seller. Seller has full
power and authority, and holds all permits and authorizations, to carry on its
business, including the Business, and to own and use the assets and properties
owned and used by it, including the Acquired Assets, except where the failure to
have such power and authority or to hold such permits or authorizations would
not have a Material Adverse Effect on Seller.
Section 3.02. Authority; Execution and Delivery; Enforceability.
Seller has all requisite power and authority and has taken all actions
necessary to execute and deliver this Agreement and all Related Instruments to
be executed and delivered by Seller, to consummate the transactions contemplated
hereby and thereby and to perform its obligations hereunder and thereunder, and
no other proceedings on the part of Seller are necessary to authorize this
Agreement or any Related Instrument to be executed and delivered by Seller or to
consummate the transactions contemplated hereby or thereby. This Agreement has
been duly and validly executed and delivered by Seller and, assuming that this
Agreement has been duly authorized, executed and delivered by Purchaser, BMS and
Xxxxxxxx, constitutes, and each Related Instrument that is to be executed and
delivered by Seller will constitute when executed and delivered by Seller,
assuming that such Related Instrument has been duly authorized, executed and
delivered by Purchaser, BMS and Xxxxxxxx, if and as applicable, a valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (b) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies.
Section 3.03. Consents and Approvals; No Violations.
(a) The execution and delivery by Seller of this Agreement and
any Related Instruments, and the performance by Seller of its obligations under
this Agreement and any Related Instrument to be
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executed and delivered by Seller and the consummation of the transactions
contemplated hereby and thereby will not: (i) conflict with or violate or breach
any of the terms, conditions or provisions of any organizational document of
Seller, (ii) materially conflict with or result in a material violation or
breach of, or constitute a material default (or an event which, with notice or
lapse of time or both, would constitute a material breach or default) under, or
result in the termination of, or accelerate the performance required by, or
cause the acceleration of the maturity of any debt or obligation pursuant to,
any Contract to which Seller is a party or by which Seller or any of the
Acquired Assets is bound, or result in the creation or imposition of any Lien
upon any of the Acquired Assets, or (iii) violate or conflict with any
Requirements of Laws applicable to Seller or the Acquired Assets, except in the
case of clauses (ii) or (iii) for violations, breaches or defaults which would
not result in a Material Adverse Effect with respect to Seller (any of (i), (ii)
and (iii), a "Conflict").
(b) No permit, consent, approval, or registration, declaration
or filing with, any Person (so as not to trigger any Conflict) is necessary for
the execution and delivery of this Agreement or any Related Instrument by Seller
or the consummation by Seller of the transactions contemplated by this Agreement
or any Related Instrument to be executed and delivered by Seller, except for
those filings, permits, consents, approvals, registrations or declarations the
failure of which to be made or obtained would not result in a Material Adverse
Effect with respect to Seller.
Section 3.04. Financial Statements and Books and Records.
The Financial Statements, copies of which are attached hereto as
Schedule 3.04, (a) are true and correct, (b) have been prepared in accordance
with Seller's accounting policies applied on a consistent basis, which are in
accordance with GAAP, and fairly present, in all material respects, as of the
dates thereof and for the periods then ended, the Business, and (c) relate
solely to the Business and no other business, division or assets of Seller, BMS
or Xxxxxxxx. To the Knowledge of Seller, the Books and Records are all of the
books, records and recorded information exclusively related to the Business.
Section 3.05. Absence of Certain Changes.
Since January 1, 2002 and through the Closing Date, there has not been
any Material Adverse Effect on the Business. Since January 1, 2002, (a) Seller
has caused the Business to be conducted in the ordinary course, and (b) Seller
has not: (i) mortgaged, pledged or subjected to any Lien (other than Permitted
Liens) any Acquired Asset, (ii) transferred or granted any rights or options in
or to any of the Acquired Assets except for the transfer of inventory in the
ordinary course of business, (iii) transferred to any Third Party any rights
under any licenses, sublicenses or other agreements with respect to any
Intellectual Property, or (iv) engaged in special promotions of the Product or
established any tie-ins of the Product with Seller's other products.
Section 3.06. Title of Assets.
Upon the consummation of the transactions contemplated herein,
Purchaser shall acquire good and marketable title to, and all right, title and
interest of (a) Seller in and to, the Acquired Assets, free and clear of all
Liens, other than Permitted Liens, and (b) BMS in and to, the BMS Patents and
any of the Acquired Assets held in the name of BMS on the behalf of Seller, free
and clear of all Liens, other than Permitted Liens.
Section 3.07. Intellectual Property.
(a) Schedule 3.07(a) sets forth the BMS Patents, Copyrights,
Internet Names and Trademarks, as well as any other Intellectual Property that
is Registered Intellectual Property.
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(b) To the Knowledge of the Seller, BMS and Xxxxxxxx, each item
of Registered Intellectual Property is valid and subsisting, all necessary
registration, maintenance and renewal fees in connection with such Registered
Intellectual Property have been paid.
(c) To the Knowledge of Xxxxxxxx, each Xxxxxxxx Patent is valid
and subsisting, all necessary registration, maintenance and renewal fees in
connection with each Xxxxxxxx Patent have been paid. To the Knowledge of BMS,
each BMS Patent is valid and subsisting, all necessary registration, maintenance
and renewal fees in connection with each BMS Patent have been paid.
(d) There are no claims, actions, suits, proceedings,
arbitrations, orders, inquiries, hearings or assessments before any court,
tribunal (including the United States Patent and Trademark Office or equivalent
authority anywhere in the world) or other Governmental Entity other than
proceedings related to usual and customary patent prosecutions in the ordinary
course of business ("Proceedings") relating to any Intellectual Property, BMS
Know-How, Xxxxxxxx Patent or Xxxxxxxx Know-How and no Intellectual Property, BMS
Know-How, Xxxxxxxx Patent or Xxxxxxxx Know-How is subject to any outstanding
decree, order, judgment, agreement or stipulation restricting in any manner the
use, transfer or licensing thereof or that may affect the validity, use or
enforceability of the Intellectual Property or any BMS Know-How, Xxxxxxxx Patent
or Xxxxxxxx Know-How.
(e) To the Knowledge of Seller and BMS, no Person has infringed
or misappropriated, or is infringing or misappropriating, the Intellectual
Property. Seller has not received notice from any Person and has no Knowledge
that the use of the Intellectual Property has infringed or misappropriated, or
does or will infringe or misappropriate, the intellectual property of any Person
or has constituted or does or will constitute unfair competition or trade
practices under the laws of any jurisdiction.
(f) To the Knowledge of BMS, no Person has infringed or
misappropriated, or is infringing or misappropriating, the BMS Patents or the
BMS Know-How. BMS has not received notice from any Person and has no Knowledge
that the use of the BMS Patents or the BMS Know-How has infringed or
misappropriated, or does or will infringe or misappropriate, the intellectual
property of any Person or has constituted or does or will constitute unfair
competition or trade practices under the laws of any jurisdiction.
(g) To the Knowledge of Xxxxxxxx, no Person has infringed or
misappropriated, or is infringing or misappropriating, the Xxxxxxxx Patents or
the Xxxxxxxx Know-How. Xxxxxxxx has not received notice from any Person and has
no Knowledge that the use of the Xxxxxxxx Patents or the Xxxxxxxx Know-How has
infringed or misappropriated, or does or will infringe or misappropriate, the
intellectual property of any Person or has constituted or does or will
constitute unfair competition or trade practices under the laws of any
jurisdiction.
(h) No present or former employee or consultant of Seller, BMS
or Xxxxxxxx and no other Person owns or has any proprietary financial or other
interest, direct or indirect, in the Intellectual Property, the BMS Know-How,
the Xxxxxxxx Patents or the Xxxxxxxx Know-How.
(i) The Intellectual Property, together with the license rights
under Section 2.03 of this Agreement and the License Agreement, constitute all
of the intellectual property rights owned or controlled by Seller, BMS and
Xxxxxxxx that are used exclusively in the Business as conducted as of the
Closing Date or are otherwise necessary for the conduct of the Business as
conducted as of the Closing Date.
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Section 3.08. Compliance with Law.
Except to the extent that it could not reasonably be expected to have a
Material Adverse Effect, the Business is conducted in compliance with all
applicable permits, government licenses, registrations, approvals, concessions,
franchises, authorizations, orders, injunctions, decrees, laws, regulations,
guidance and guidelines, including the United States Food, Drug and Cosmetic
Act, as amended from time to time (the "FD&C Act") and the Prescription Drug
Marketing Act, as amended from time to time. Seller has not received any written
notice to the effect that, or otherwise been advised that, it is not in
compliance with any of such permits, government licenses, registrations,
approvals, concessions, franchises, authorizations, orders, injunctions,
decrees, laws, regulations, guidance or guidelines.
Section 3.09. Regulatory Matters.
(a) To its Knowledge, Seller has filed with the FDA all
notices, supplemental applications and annual or other reports or documents,
including adverse experience reports that are material to the conduct of the
Business to the extent required under the FD&C Act, except to the extent failure
to make such filings could not reasonably be expected to have a Material Adverse
Effect.
(b) Except as could not reasonably be expected to have a
Material Adverse Effect on the Business, Seller nor its Affiliates has received
or been subject to: (i) any FDA Form 483's with respect to the Product; (ii) any
FDA Notices of Adverse Findings with respect to the Product; or (iii) any
warning letters or other written correspondence from the FDA or any other
Governmental or Regulatory Authority with respect to the Product during the one
(1) year prior to this Agreement, or at any time prior to this Agreement to the
extent still active or pending, in which the FDA or such other Governmental or
Regulatory Authority asserted that the operations of Seller were not in
compliance with applicable Requirements of Laws, with respect to the Product in
the United States. Except as could not reasonably be expected to have a Material
Adverse Effect on the Business, there has not been any occurrence of any product
recall, market withdrawal or replacement, or post-sale warning conducted by or
on behalf of Seller concerning the Product in the United States or any product
recall, market withdrawal or replacement conducted by or on behalf of any entity
as a result of any alleged defect in the Product in the United States during the
one (1) year prior to this Agreement, or at any time prior to this Agreement to
the extent still active or pending, and Seller has made available to Purchaser
every complaint and notice of alleged defect or adverse reaction with respect to
the Product in the United States that has been received in writing by Seller and
its Affiliates or that has been orally transmitted to and recorded by Seller and
its Affiliates.
(c) The Product Registration in the United States is the only
regulatory approval necessary from the FDA for Seller to conduct the Business as
conducted as of the Closing Date. To its Knowledge, all of the other Product
Registrations held by the Seller, or BMS on the behalf of the Seller, are all of
the regulatory approvals from the relevant regulatory authorities necessary for
Seller to conduct the Business as conducted as of the Closing Date outside of
the United States (it being acknowledged by the Parties that Seller is not
conducting the Business outside of the United States as of the Closing Date).
(d) Seller has fulfilled and performed its obligations under
the Product Registration in the United States and, to its Knowledge, under all
of the other Product Registrations. To Seller's Knowledge, no event has occurred
or condition or state of facts exists which constitutes or, after notice or
lapse of time or both, would constitute a breach or default or violation under
any such Product Registration or which permits or, after notice or lapse of time
or both, would permit revocation or termination of any such Product
Registration, or which might adversely affect in any material respect the rights
of Seller under any such Product Registration; provided, however, post-marketing
studies may be necessary or required by certain Governmental Entities. No notice
of cancellation, of default, of violation or of any material dispute concerning
the Product Registration in the United States or any of the other
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Product Registrations, or of any event, condition or state of facts described in
the preceding clause, has been received by, or is known to, Seller. The Product
Registration in the United States and, to the Knowledge of Seller, BMS and
Xxxxxxxx, each of the other Product Registrations, is valid, subsisting and in
full force and effect, and may, subject to applicable law, be assigned and
transferred to Purchaser in accordance with this Agreement, and will continue in
full force and effect thereafter, in each case so long as the Business is
conducted by Purchaser in the manner currently conducted by Seller without (i)
the occurrence of any breach, default or forfeiture of rights thereunder, or
(ii) the consent, approval or act of, or the making of any filing with, any
Governmental Entity other than as set forth on Schedule 3.09(d); provided,
however, post-marketing studies may be necessary or required by certain
Governmental Entities.
Section 3.10. Inventory.
The Inventory was manufactured in accordance with the applicable
specifications for the Product and otherwise in accordance with current good
manufacturing practices in effect at the time of manufacture. The Inventory,
when delivered in accordance with Section 2.05(e), will not be (a) adulterated,
misbranded or otherwise in violation of the FD&C Act or (b) an article that may
not be introduced into interstate commerce under the provisions of Sections 404,
505 or 512 of the FD&C Act.
Section 3.11. Litigation.
There are no Proceedings pending or, to Seller's Knowledge, threatened
against, relating to, affecting or arising in connection with (i) Seller (in
respect of the Acquired Assets or the Business), the Acquired Assets or the
Business, (ii) this Agreement and any Related Instrument to which it is a party
or (iii) the transactions contemplated by this Agreement or any Related
Instrument to which it is a party.
Section 3.12. Environmental Claims.
To the Knowledge of Seller, no claims have been made by third parties
for any release, spill, emission, discharge, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment (including, without limitation, ambient air, surface
water, groundwater and surface or subsurface strata) or into or out of any
property, including the movement of Hazardous Materials (as defined under
Environmental Laws in effect as of the Closing Date) through or in, the air,
soil, surface water, groundwater or property, relating to the Product arising
from circumstances occurring after Seller transferred ownership of the Product
to a customer.
Section 3.13. Brokers or Finders.
Seller has not retained any agent, broker, investment banker, financial
advisor or other Person that is or will be entitled to any brokers' or finder's
fee or any other commission or similar fee in connection with any of the
transactions contemplated by this Agreement by reason of any action taken by or
on behalf of Seller, and there are no claims for any of the foregoing.
Section 3.14. Contracts and Commitments.
On the Closing Date, Purchaser will not assume any Contracts, including
without limitation any contracts relating to the supply of the Product by Seller
to Third Parties. The foregoing notwithstanding, Schedule 3.14 identifies:
(i) Contracts relating to the supply to Seller of raw
materials used to manufacture the Product;
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(ii) Licenses to Seller, BMS or Xxxxxxxx of any Third
Party technology used in the manufacture,
distribution, marketing or sale of the Product; and
(iii) Contracts relating to the hosting of the web sites
having any of the URLs listed on Schedule 3.07(a).
Section 3.15. No Other Seller Representations or Warranties.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION
3 (INCLUDING THE DISCLOSURE SCHEDULE) AND SELLER'S OFFICER'S CERTIFICATE, AND
THOSE MADE BY BMS AND XXXXXXXX ON THEIR OWN BEHALF IN SECTIONS 5 AND 6,
RESPECTIVELY, NONE OF SELLER, ITS AFFILIATES OR ANY OTHER PERSON MAKES ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ON BEHALF OF
SELLER OR ANY OF ITS AFFILIATES.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to each of the other parties, as of
the Closing Date, as follows:
Section 4.01. Organization, Etc.
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Purchaser has full power and
authority, and holds all permits and authorizations, to carry on its business
and to own and use the assets and properties owned and used by it, except where
the failure to have such power and authority or to hold such permits and
authorizations would not have a Material Adverse Effect on Purchaser.
Section 4.02. Authority; Execution and Delivery; Enforceability.
Purchaser has all requisite corporate power and authority and has taken
all actions necessary to execute and deliver this Agreement and all Related
Instruments to be executed and delivered by Purchaser, to consummate the
transactions contemplated hereby and thereby and to perform its obligations
hereunder and thereunder, and no other proceedings on the part of Purchaser are
necessary to authorize this Agreement or any Related Instrument to be executed
and delivered by Purchaser or to consummate the transactions contemplated hereby
and thereby. This Agreement has been duly and validly executed and delivered by
Purchaser and, assuming that this Agreement has been duly authorized, executed
and delivered by Seller, BMS and Xxxxxxxx, constitutes, and each Related
Instrument that is to be executed and delivered by Purchaser will constitute
when executed and delivered by Purchaser, assuming that such Related Instrument
has been duly authorized, executed and delivered by Seller, BMS and Xxxxxxxx, if
and as applicable, a valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally, and
(b) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
Section 4.03. Consents and Approvals; No Violations.
(a) The execution and delivery by Purchaser of this Agreement
and any Related Instruments, the performance by Purchaser of its obligations
under this Agreement and any Related Instrument to be executed and delivered by
Purchaser, and the consummation of the transactions contemplated hereby and
thereby will not (i) conflict with or violate or breach any of the terms,
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conditions or provisions of the certificate of incorporation, by-laws or other
organizational document of Purchaser, (ii) materially conflict with or result in
a material violation or breach of, or constitute a material default (or an event
which, with notice or lapse of time or both, would constitute a material breach
or default) under, or result in the termination of, or accelerate the
performance required by, or cause the acceleration of the maturity of any debt
or obligation pursuant to, any Contract to which Purchaser is a party or by
which Purchaser or any of its properties or assets are bound or (iii) violate or
conflict with any Requirements of Laws, except in the case of clauses (ii) or
(iii) for violations, breaches or defaults which would not have a Material
Adverse Effect with respect to Purchaser.
(b) No permit, consent, approval or registration, declaration
or filings with, any Person is necessary for the execution and delivery of this
Agreement or any Related Instrument by Purchaser or the consummation by
Purchaser of the transactions contemplated by this Agreement or any Related
Instrument to be executed and delivered by Purchaser, except for those permits,
consents, approvals, registrations, declarations or filings the failure of which
would not result in a Material Adverse Effect with respect to Purchaser.
Section 4.04. Litigation.
There are no Proceedings, pending or, to Purchaser's Knowledge,
threatened in writing against, relating to, affecting or arising in connection
with (a) Purchaser that would result in a Material Adverse Effect with respect
to Purchaser, (b) this Agreement or any Related Instrument to be executed and
delivered by Purchaser or (c) the transactions contemplated by this Agreement or
any Related Instrument to be executed and delivered by Purchaser.
Section 4.05. Brokers or Finders.
Neither Purchaser nor its Affiliates has retained any agent, broker,
investment banker, financial advisor or other firm or Person that is or will be
entitled to any brokers' or finder's fee or any other commission or similar fee
in connection with any of the transactions contemplated by this Agreement by
reason of any action taken by or on behalf of any other party, and there are no
claims for any of the foregoing.
Section 4.06. No Other Purchaser Representations or Warranties.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION
4 AND PURCHASER'S OFFICER'S CERTIFICATE, NONE OF PURCHASER, ITS AFFILIATES OR
ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ORAL
OR WRITTEN, ON BEHALF OF PURCHASER OR ANY OF ITS AFFILIATES.
SECTION 5.
REPRESENTATIONS AND WARRANTIES OF BMS
BMS represents and warrants to Purchaser, as of the Closing Date, as
follows:
Section 5.01. Organization, Etc.
BMS is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. BMS has full power and
authority, and holds all permits and authorizations, to carry on its business
and to own and use the assets and properties owned and used by it, except where
the failure to have such power and authority or to hold such permits and
authorizations would not have a Material Adverse Effect on BMS.
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Section 5.02. Authority; Execution and Delivery; Enforceability.
BMS has all requisite corporate power and authority and has taken all
actions necessary to execute and deliver this Agreement and all Related
Instruments to be executed and delivered by BMS, to consummate the transactions
contemplated hereby and thereby, and to perform its obligations hereunder and
thereunder, and no other proceedings on the part of BMS are necessary to
authorize this Agreement or any Related Instrument to be executed and delivered
by BMS, or to consummate the transactions contemplated hereby or thereby. This
Agreement has been duly and validly executed and delivered by BMS and, assuming
that this Agreement has been duly authorized, executed and delivered by Seller,
Purchaser and Xxxxxxxx, constitutes, and each Related Instrument that is to be
executed and delivered by BMS will constitute when executed and delivered by
BMS, assuming that such Related Instrument has been duly authorized, executed
and delivered by Seller, Purchaser and Xxxxxxxx, if and as applicable, a valid
and binding obligation of BMS, enforceable against BMS in accordance with its
terms except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally, and (b) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies.
Section 5.03. Consents and Approvals; No Violations.
(a) The execution and delivery by BMS of this Agreement and any
Related Instruments, the performance by BMS of its obligations under this
Agreement and any Related Instrument to be executed and delivered by BMS and the
consummation of the transactions contemplated hereby and thereby will not (i)
conflict with or violate or breach any of the terms, conditions or provisions of
the certificate of incorporation, by-laws or other organizational document of
BMS, (ii) materially conflict with or result in a material violation or breach
of, or constitute a material default (or an event which, with notice or lapse of
time or both, would constitute a material breach or default) under, or result in
the termination of, or accelerate the performance required by, or cause the
acceleration of the maturity of any debt or obligation pursuant to, any Contract
to which BMS is a party or by which BMS or any of its properties or assets are
bound or (iii) violate or conflict with any Requirements of Laws, except in the
case of clause (ii) for violations, breaches or defaults which would not have a
Material Adverse Effect with respect to BMS.
(b) No permit, consent, approval or registration, declaration
or filings with, any Person is necessary for the execution and delivery of this
Agreement or any Related Instrument by BMS or the consummation by BMS of the
transactions contemplated by this Agreement or any Related Instrument to be
executed and delivered by BMS, except for those permits, consents, approvals,
registrations, declarations or filings the failure of which to be made or
obtained would not result in a Material Adverse Effect with respect to BMS.
Section 5.04. Brokers or Finders.
Neither BMS nor its Affiliates has retained any agent, broker,
investment banker, financial advisor or other firm or Person that is or will be
entitled to any brokers' or finder's fee or any other commission or similar fee
in connection with any of the transactions contemplated by this Agreement by
reason of any action taken by or on behalf of any other party, and there are no
claims for any of the foregoing.
Section 5.05. Litigation.
There are no Proceedings, pending or, to BMS' Knowledge, threatened in
writing against, relating to, affecting or arising in connection with (a) BMS
that would result in a Material Adverse Effect with respect to BMS, (b) this
Agreement or any Related Instrument to be executed and delivered by BMS,
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or (c) the transactions contemplated by this Agreement or any Related Instrument
to be executed and delivered by BMS.
Section 5.06. No Other BMS Representations or Warranties.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION
5 AND BMS' OFFICER'S CERTIFICATE AND THOSE MADE BY SELLER ON ITS OWN BEHALF IN
SECTION 3 AND IN SELLER'S OFFICER'S CERTIFICATE, NONE OF BMS, ITS AFFILIATES OR
ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ORAL
OR WRITTEN, ON BEHALF OF BMS OR ANY OF ITS AFFILIATES.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF XXXXXXXX
Xxxxxxxx represents and warrants to Purchaser, as of the Closing Date,
as follows:
Section 6.01. Organization, Etc.
Xxxxxxxx is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Xxxxxxxx has full power and
authority, and holds all permits and authorizations, to carry on its business
and to own and use the assets and properties owned and used by it, except where
the failure to have such power and authority or to hold such permits and
authorizations would not have a Material Adverse Effect on Xxxxxxxx.
Section 6.02. Authority; Execution and Delivery; Enforceability.
Xxxxxxxx has all requisite corporate power and authority and has taken
all actions necessary to execute and deliver this Agreement and all Related
Instruments to be executed and delivered by Xxxxxxxx, to consummate the
transactions contemplated hereby and thereby and to perform its obligations
hereunder and thereunder, and no other proceedings on the part of Xxxxxxxx are
necessary to authorize this Agreement or any Related Instrument to be executed
and delivered by Xxxxxxxx or to consummate the transactions contemplated hereby
or thereby. This Agreement has been duly and validly executed and delivered by
Xxxxxxxx and, assuming that this Agreement has been duly authorized, executed
and delivered by Seller, Purchaser and BMS, constitutes, and the Related
Instruments to be executed and delivered by Xxxxxxxx will constitute when
executed and delivered by Xxxxxxxx, assuming that such License Agreement has
been duly authorized, executed and delivered by Seller, Purchaser and BMS, if
and as applicable, a valid and binding obligation of Xxxxxxxx, enforceable
against Xxxxxxxx in accordance with its terms except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally, and
(b) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
Section 6.03. Consents and Approvals; No Violations.
(a) The execution and delivery by Xxxxxxxx of this Agreement
and any Related Instrument, the performance by Xxxxxxxx of its obligations under
this Agreement and any Related Instrument to be executed and delivered by
Xxxxxxxx, and the consummation of the transactions contemplated hereby and
thereby will not (i) conflict with or violate or breach any of the terms,
conditions or provisions of the certificate of incorporation, by-laws or other
organizational document of Xxxxxxxx, (ii) materially conflict with or result in
a material violation or breach of, or constitute a material default (or an event
which, with notice or lapse of time or both, would constitute a material breach
or default) under, or result in the termination of, or accelerate the
performance required by, or cause the
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acceleration of the maturity of any debt or obligation pursuant to, any Contract
to which Xxxxxxxx is a party or by which Xxxxxxxx or any of its properties or
assets are bound or (iii) violate or conflict with any Requirements of Laws,
except in the case of clause (ii) for violations, breaches or defaults which
would not have a Material Adverse Effect with respect to Xxxxxxxx.
(b) No permit, consent, approval or registration, declaration
or filings with, any Person is necessary for the execution and delivery of this
Agreement or any Related Instrument by Xxxxxxxx or the consummation by Xxxxxxxx
of the transactions contemplated by this Agreement or any Related Instrument to
be executed and delivered by Xxxxxxxx, except for those permits, consents,
approvals, registrations, declarations or filings the failure of which to be
made or obtained would not result in a Material Adverse Effect with respect to
Xxxxxxxx.
Section 6.04. Brokers or Finders.
Neither Xxxxxxxx nor its Affiliates has retained any agent, broker,
investment banker, financial advisor or other firm or Person that is or will be
entitled to any brokers' or finder's fee or any other commission or similar fee
in connection with any of the transactions contemplated by this Agreement by
reason of any action taken by or on behalf of any other party, and there are no
claims for any of the foregoing.
Section 6.05. Litigation.
There are no Proceedings, pending or, to Xxxxxxxx'x Knowledge,
threatened in writing against, relating to, affecting or arising in connection
with (a) Xxxxxxxx that would result in a Material Adverse Effect with respect to
Xxxxxxxx, (b) this Agreement or any Related Instrument to be executed and
delivered by Xxxxxxxx, or (c) the transactions contemplated by this Agreement or
any Related Instrument to be executed and delivered by Xxxxxxxx.
Section 6.06. No Other Xxxxxxxx Representations or Warranties.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION
6 AND XXXXXXXX'X OFFICER'S CERTIFICATE AND THOSE MADE BY SELLER ON ITS OWN
BEHALF IN SECTION 3 AND IN SELLER'S OFFICER'S CERTIFICATE, NONE OF XXXXXXXX, ITS
AFFILIATES OR ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, ORAL OR WRITTEN, ON BEHALF OF XXXXXXXX OR ANY OF ITS AFFILIATES.
SECTION 7.
COVENANTS
Section 7.01. Transfer of Regulatory Matters.
(a) Promptly after the Closing and in any event within sixty
(60) days after the Closing, the parties shall file with the FDA the information
required pursuant to 21 C.F.R. Part 314, or any successor regulation thereto, to
transfer the Product Registrations from Seller or BMS, as applicable, to
Purchaser. The parties also agree to use all reasonable commercial efforts, and
in any event within sixty (60) days, to take any and all other actions required
by the FDA, or other Governmental Entity, if any, to effect the transfer of the
Product Registrations from Seller or BMS, as applicable, to Purchaser.
(b) Except as provided in Section 7.01(a), from and after the
Closing, Purchaser, at its cost, shall be solely responsible and liable for (i)
taking all actions, paying all fees and conducting all communication with the
appropriate Governmental Entity required by Requirements of Laws in respect of
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the Product Registrations, including preparing and filing all reports (including
adverse drug experience reports) with the appropriate Governmental Entity, (ii)
taking all actions and conducting all communication with Third Parties in
respect of the Product (whether sold before or after the Closing), including
responding to (A) complaints in respect thereof, including complaints related to
tampering or contamination, and (B) all medical information requests, and (iii)
investigating all complaints and adverse drug experiences in respect of the
Product (whether sold before or after the Closing); provided that for a period
of thirty (30) days following the Closing Date, Seller, BMS and Xxxxxxxx will
cooperate with Purchaser and support Purchaser's efforts in connection with (i)
communicating with Third Parties in respect of the Product (whether sold before
or after the Closing), including responses to complaints and medical information
requests, and (ii) investigating all complaints and adverse drug experiences in
respect of the Product (whether sold before or after the Closing).
Section 7.02. Access to Information.
(a) At any time after the Closing: (i) upon the request of
Seller, upon reasonable written notice, Purchaser shall furnish or cause to be
furnished to each of Seller, BMS and Xxxxxxxx, as promptly as practicable, such
information and assistance (to the extent within the control of the Purchaser)
relating to the Acquired Assets (including access to the Books and Records) as
is reasonably requested for the filing of all Tax Returns, and making of any
election related to Taxes, the preparation for any audit by any taxing
authority, the prosecution or defense of any claim, suit or proceeding related
to any Tax Return, and in connection with any Proceedings, subject to reasonable
rules and regulations imposed by Purchaser and applicable Requirements of Laws;
and (ii) the parties shall cooperate with each other in the conduct of any audit
or other proceeding relating to Taxes involving the Business. Purchaser shall
retain the Books and Records included in the Acquired Assets for a period of
seven (7) years after the Closing. After the end of such seven-year period,
before disposing of such Books and Records, Purchaser shall give notice to such
effect to Seller (or its successors or assigns, as applicable) and shall give
Seller, at Seller's cost and expense, an opportunity to remove and retain all or
any part of such Books or Records as Seller may select.
(b) In addition, on or after the Closing: (i) subject to
Section 7.02(d), for a period of forty-two (42) months after the Closing Date,
unless a longer period is required by law, each of Seller, BMS and Xxxxxxxx
shall xxxxx Purchaser and its employees, attorneys, accountants, officers,
representatives and agents, during normal business hours and upon reasonable
advance written notice, reasonable access to redacted copies of Retained
Information, for review by Purchaser, to the extent practicable, at the
reasonable request of Purchaser; and (ii) each of Seller, BMS and Xxxxxxxx shall
cause their officers, employees, agents, auditors, Affiliates and
representatives to cooperate with the Purchaser, for a period of one hundred and
eighty (180) days after the Closing (or such longer period as otherwise stated
in this Agreement), to ensure the orderly transition of the Business from Seller
to Purchaser and to minimize any disruption to the Business and the other
respective businesses of the parties that might result from the transactions
contemplated hereby. Without limiting the generality of the foregoing, upon
Purchaser's request, BMS shall use commercially reasonable efforts to cause its
officers, employees, agents, auditors, Affiliates and representatives to provide
Purchaser with a reasonable level of support and cooperation in connection with
the transfer of the BMS Patents to Purchaser to enable Purchaser's continued
prosecution of the BMS Patents. Purchaser shall use the Retained Information
only in accordance with the license granted pursuant to Section 2.03 of this
Agreement. For the avoidance of doubt, any Retained Information delivered or
disclosed to Purchaser in accordance with this Section 7.02(b) may be redacted
or withheld by the Seller to the extent such Retained Information is not
relevant to the Business.
(c) Each of the parties shall reimburse the other parties for
reasonable out-of-pocket costs and expenses incurred in assisting the other
pursuant to this Section 7.02. No party shall be required by this Section 7.02
to take any action that would unreasonably interfere with the conduct of its
business or unreasonably disrupt its normal operations (or, in the case of
Purchaser, the Business).
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(d) Nothing in this Section 7.02 or otherwise in this Agreement
shall require the disclosure or access by any party of any documents or
information that would cause such party to forfeit or waive attorney-client
privilege accorded it under applicable Requirements of Laws.
Section 7.03. Confidentiality.
(a) Purchaser acknowledges that the information being provided
to it in connection with the consummation of the transactions contemplated
hereby is subject to the terms of that certain Confidentiality Agreement among
Purchaser, Seller, BMS and Xxxxxxxx dated February 18, 2002 (the
"Confidentiality Agreement"), the terms of which are incorporated in this
Agreement by reference. Effective upon, and only upon, the Closing, Purchaser's
obligations under the Confidentiality Agreement shall terminate with respect to
information included in the Acquired Assets; provided, however, that Purchaser
acknowledges that any and all other information provided to it by Seller, its
Affiliates or any representatives of Seller or its Affiliates concerning Seller
and its Affiliates shall remain subject to the terms and conditions of the
Confidentiality Agreement after the Closing Date.
(b) Each of Purchaser and Seller agrees that the terms of this
Agreement and the Related Instruments shall not be disclosed or otherwise made
available to the public and that copies of this Agreement and the Related
Instruments shall not be publicly filed or otherwise made available to the
public, except where such disclosure, availability or filing is required by
applicable Requirements of Laws and only to the extent required by such
Requirements of Laws. In the event that such disclosure, availability or filing
is required by applicable Requirements of Laws, each of Purchaser and Seller (as
applicable) agrees to use all reasonable commercial efforts to obtain
"confidential treatment" of this Agreement with the U.S. Securities and Exchange
Commission (or the equivalent treatment by any other Governmental Entity) and to
redact such terms of this Agreement and the Related Instruments as the other
parties thereto shall reasonably request.
Section 7.04. Transfer Tax.
Except as otherwise provided in this Agreement, any excise, sales, use,
transfer, value added or similar taxes (the "Transfer Taxes") required to be
made to any Governmental Entity in connection with the transfer of Acquired
Assets and the other transactions contemplated and pursuant to the terms of this
Agreement shall be paid one hundred percent (100%) by the Purchaser. Seller and
Purchaser shall cooperate in the timely making and filing of all filings, Tax
Returns, reports and forms as may be required with respect to the Transfer Taxes
payable in connection with the transfer of the Acquired Assets. Seller shall
accept from Purchaser any certificates or other documentation reasonably
required by the Purchaser to avoid or reduce any transfer taxes pursuant to this
provision. Promptly after the Closing, Purchaser shall provide to Seller, and
Seller shall file with the appropriate Governmental Entity, sales tax exemption
certificates with respect to Inventory located in Indiana and New Jersey sold to
Purchaser hereunder.
Section 7.05. Further Assurances.
Each party shall from time to time after the Closing, without
additional consideration, execute and deliver such further instruments and take
such other action as may be reasonably requested by any other party to make
effective the transactions contemplated by this Agreement and each Related
Instrument.
Section 7.06. No Use of Certain Names.
(a) Except as set forth in this Section 7.06, following the
Closing, Purchaser shall not have any rights by virtue of this Agreement or any
of the transactions or agreements contemplated hereby to any Names.
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(b) Purchaser shall promptly, and in any event within six (6)
months after the Closing, complete the revision of all product literature
relating to the Product, including, without limitation, by deleting all
references (i) to the Names and (ii) to Seller's or its Affiliates' customer
service address or phone number. For a period of six (6) months from the Closing
Date, Purchaser may continue to distribute product literature that uses any
Names, addresses or phone numbers to the extent that such literature exists on
the Closing Date, and Seller hereby grants to Purchaser rights under any
copyrights and other intellectual property owned by Seller to the extent
necessary to allow Purchaser to so use such product literature during such
period; provided, however, that (i) Purchaser shall institute appropriate
procedures (which procedures may be tracking of lot number information) to
ensure that the Product finished or sold by, or on behalf of Purchaser, can be
distinguished from the Product finished or sold by, or on behalf of, Seller
prior to the Closing Date and (ii) Purchaser shall be solely responsible for
ensuring that the content, use and distribution of such product literature
complies and is conducted in accordance with applicable Requirements of Laws.
(c) Seller, BMS and Xxxxxxxx hereby grant permission to
Purchaser under the Names to the extent necessary to allow Purchaser and its
Affiliates and their designees to market, distribute and sell the Inventory; and
none of Seller, BMS or Xxxxxxxx shall revoke such permission prior to the
completion of Purchaser's marketing, distribution, and sale of the Inventory.
(d) In no event shall Purchaser use any Names after the Closing
Date in any manner or for any purpose different from the use of such Names by
the Seller during the ninety (90)-day period preceding the Closing Date.
(e) Purchaser shall use all reasonable commercial efforts to
obtain its own NDC Numbers for the Product as soon as practicable after the
Closing and in any event within ninety (90) days thereafter.
Section 7.07. Bulk Transfer Laws.
Purchaser hereby waives compliance by Seller with the provisions of any
so-called "bulk transfer law" of any jurisdiction in
connection with the sale of the Acquired Assets to Purchaser.
Section 7.08. Rebates; Returns Handling.
(a) Rebates; Chargebacks. Seller agrees to be responsible for
all chargebacks and rebates which arose or accrued due to the sale of Products
which occurred on or prior to the Closing Date ("Rebate Programs"). Seller is
obligated to pay pursuant to any Rebate Programs for amounts charged to Seller's
NDC Numbers for the Product and invoiced by such Rebate Programs within forty
five (45) days after the Closing Date. Purchaser shall be responsible for all
chargebacks and rebates which arose or accrued due to the sale of Products which
occurred after the Closing Date, as well as all Rebate Program amounts charged
to Purchaser's NDC Numbers for the Product and for all Rebate Program amounts
charged to Seller's NDC Numbers for the Product and invoiced by such Rebate
Programs more than forty five (45) days after the Closing Date. All payments due
under this Section 7.08(a) for which Purchaser is responsible shall be made
promptly to Seller upon submission to Purchaser of invoices that describe the
requested payments in reasonable detail. In the event Seller or Purchaser
disputes an amount owed under any Rebate Program, each of them shall provide to
the other copies of any documents and records evidencing original rebate claims
and any resubmissions of such claims and data relating to unit rebate
calculations in order to enable the responsible party to resolve such disputed
amount.
(b) Returns; Credits. Following the Closing, Seller and
Purchaser will jointly issue a letter to customers of the Product, advising such
customers of Purchaser's and Seller's respective responsibilities in connection
with returns and credits. Purchaser shall be responsible for handling the
returns and credits for all Product which accrue on or after the Closing Date,
regardless of whether the
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Product was shipped to a Third Party prior to, on or after the Closing Date.
Seller shall be responsible for all credits which have accrued prior to the
Closing Date. Credits shall be deemed to accrue upon the issuance of a credit
memo to a Third Party. In the event that any returns for which Purchaser is
responsible are delivered to Seller, such returns shall be shipped by Seller to
Purchaser, and Purchaser shall reimburse Seller for the shipping costs incurred.
In the case of returns of Seller-labeled Products, Seller, BMS and Xxxxxxxx will
cooperate with Purchaser to minimize any disruption of supply and to promote
positive trade relations concerning the Product.
(c) Reimbursement. Purchaser and Seller each agree to reimburse
the other, U.S. dollar for U.S. dollar, in the event that any of its or its
respective Affiliates' customers offset, against accounts payable by such
customer to Seller or Purchaser or its respective Affiliates, the cost of the
Product returned by such customer, in each case which are the responsibility of
the other pursuant to Section 7.08(b). Seller and Purchaser agree to, and to
cause their respective Affiliates to, provide notice to one another of any such
offset for which such party or its Affiliate is entitled to be reimbursed
pursuant to Section 7.08(b). Payment shall be made promptly following receipt of
notice of any such offset by a customer (together with supporting
documentation). Seller and Purchaser shall cooperate to ensure that a customer
does not offset returns of the Product against both Seller (or any of its
Affiliates) and Purchaser.
Section 7.09. Adverse Event Reporting.
Each of Purchaser and Xxxxxxxx shall promptly notify the other
of any significant adverse events that relate to the Product or are required in
accordance with any Requirements of Law, including adverse drug experiences and
governmental inquiries, and each of Purchaser and Xxxxxxxx shall cooperate with
the other in connection therewith as reasonably requested by the other party and
as follows:
(a) Serious Adverse Events related to the Product of which
Xxxxxxxx becomes aware shall be submitted to Purchaser within three (3) business
days but no more than four (4) calendar days from the date Xxxxxxxx first
becomes aware of such Serious Adverse Event. Non-Serious Adverse Events for the
Product that are reported to Xxxxxxxx shall be submitted to Purchaser no more
than one (1) month from the date received by Xxxxxxxx; provided, however, that
medical and scientific judgment should be exercised in deciding whether
expedited reporting is appropriate in other situations, such as important
medical events that may not be immediately life-threatening or result in death
or hospitalization but may jeopardize the patient or may require intervention to
prevent a Serious Adverse Event outcome. In no event, shall Xxxxxxxx submit to
Purchaser any adverse event report or similar information that does not relate
to the Product.
(b) Serious Adverse Events related to the Product of which
Purchaser becomes aware shall be submitted to Xxxxxxxx within three (3) business
days but no more than four (4) calendar days from the date Purchaser first
became aware of such Serious Adverse Event. Upon the request of Xxxxxxxx,
Purchaser shall submit to Xxxxxxxx any Non-Serious Adverse Events for the
Product.
(c) Until the reporting procedures referenced in Section
7.09 (e) herein have been instituted by Purchaser and Xxxxxxxx, a "Serious
Adverse Event" for the Product shall have the meaning set forth in 21 C.F.R. (S)
314.80(a), as amended from time to time, and a "Non-Serious Adverse Event" for
the Product is defined as an untoward medical occurrence at any dose of the
Product that is not a Serious Adverse Event.
(d) As provided in Section 7.01(b) above, Purchaser shall be
solely responsible for reporting adverse events to Governmental Entities to the
extent required by applicable Requirements of Law. Xxxxxxxx shall report all
Serious Adverse Events and all Non-Serious Adverse Events involving the Product
learned by it to:
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Women First HealthCare, Inc.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx Xxxxx
A CIOMS-I form or a form that contains the data elements of a
CIOMS-I form is recommended.
(e) As soon as reasonably practicable after the Closing Date,
Purchaser and Xxxxxxxx shall discuss and develop mutually acceptable guidelines
and procedures for the receipt, recordation, reporting, communication (as
between the parties) and exchange of Serious Adverse Event and Non-Serious
Adverse Event information, as applicable, to the other party; provided that
Purchaser shall have exclusive responsibility for communications with
Governmental Entities concerning the Product and related Serious Adverse Event
and Non-Serious Adverse Event information. The parties shall bear their
respective costs incurred in connection with receiving, recording, reviewing,
reporting, communicating and exchanging with each other regarding and, as
applicable, reporting and responding to Adverse Events.
(f) At the request of Xxxxxxxx, Purchaser shall cease reporting
all Serious Adverse Events involving the Product to Xxxxxxxx. Xxxxxxxx shall
continue to make reports of Serious Adverse Events and Non-Serious Adverse
Events to Purchaser in accordance with this Section 7.09.
Section 7.10. Customer Notifications.
Promptly after the Closing Date, Purchaser and Seller shall notify all
wholesale distributors of the Product of the transfer of the Acquired Assets to
Purchaser and that all purchase orders for Product should be sent to Purchaser
at Xxxxx Xxxxxxxxx, Women First HealthCare, Inc., 00000 Xx Xxxxxx Xxxx, Xxxxx
000, Xxx Xxxxx, XX 00000, telephone: (000) 000-0000; facsimile: (000) 000-0000.
Section 7.11. No Active Solicitation of Returns.
To the extent that any Product does not have any safety or efficacy
issues, Purchaser agrees that it will not actively solicit customers to return
Product with a more than six-month shelf life that was sold by Seller, and
Seller agrees that it will not actively solicit customers to return Product with
a more than six-month shelf life that was sold by Seller or Purchaser.
Section 7.12. Handling of Inventory.
From and after the Closing Date, Purchaser shall hold, store, and ship
any Inventory in compliance in all material respects with (a) all applicable
Requirements of Laws, (b) current good manufacturing practices, (c) the Product
Registrations, and (d) applicable analytical methods and procedures, material
specifications, master batch records and stability protocols.
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Section 7.13. Non-Competition.
Except as contemplated by the Supply Agreement, Seller, BMS
and Xxxxxxxx each agree, on their own behalf and for the benefit of Purchaser,
that for a period commencing on the Closing Date and ending ten (10) years
later, neither they nor any of their respective Affiliates shall manufacture,
market, distribute or sell a product, either for prescription or
over-the-counter sale, containing eflornithine hydrochloride, for use in the
Indication anywhere in the world ("Competitive Activities"). Without limiting
the foregoing covenant, in the event Seller, BMS or Xxxxxxxx proposes to acquire
any business (or assets) that includes Competitive Activities which represent
10% or more of the net sales of the acquired business or are otherwise material
to the acquired business, Seller, BMS or Xxxxxxxx, as the case may be (the
"Acquiring Party"), must divest the business with respect to any such
competitive product promptly (and not less than six (6) months from the
acquisition). Purchaser shall have the right of first refusal to acquire any
such competitive product in the required divestiture. In the event the Acquiring
Party and Purchaser fail to agree on the purchase of the competitive product,
the Acquiring Party shall be permitted to divest the competitive product to a
third party on terms no more favorable to the third party than those offered by
the Acquiring Party to Purchaser. The covenant not to compete is inapplicable to
a situation in which Seller, BMS or Xxxxxxxx, as the case may be, undergoes a
change of control which would otherwise result in a breach of this covenant as a
result of pre-existing business; provided that the division, subsidiary or
business group of the surviving party in such change of control that pursues
such pre-existing business shall not have access to, and shall not refer to,
rely upon or use in any manner, any materials, literature, technical data,
contracts, records, regulatory filings or other recorded information developed
by Seller, BMS, Xxxxxxxx or Purchaser related to the Product. Each of the
parties hereto recognizes that the restrictions contained in, and the terms of,
this Section 7.13 are properly required for the adequate protection of the
Acquired Assets and Purchaser's right to manufacture, distribute, market and
sell the Product and agree that if any provision in this Section 7.13 is
determined by any court to be unenforceable by reason of its extending for too
great a period of time or over too great a geographic area, or by reason of its
being too extensive in any other respect, such covenant shall be interpreted to
extend only for the longest period of time and over the greatest geographic
area, and to otherwise have the broadest application as shall be enforceable.
Section 7.14. Non-Solicitation.
For a period of three (3) years following the Closing Date,
Purchaser covenants that neither it nor its Affiliates shall, directly or
indirectly, (a) induce, encourage or solicit any officer or employee of Seller,
Xxxxxxxx, BMS, GSub, BMSub listed on Schedule 7.14 to leave such employment or
to accept any other position or employment with Purchaser or (b) assist any
Affiliate or representative in hiring such employee.
Section 7.15. Publicity.
The content of the initial press release to be issued by
Purchaser relating to this Agreement and the transaction contemplated hereunder
is attached hereto as Schedule 7.15. The form and content of any subsequent
public announcement to be made by Purchaser regarding this Agreement, or the
subject matter contained herein, shall be subject to the prior written consent
of the other parties (which consent may not be unreasonably withheld), except as
may be required by applicable law (including disclosure requirements of the
Securities and Exchange Commission, the New York Stock Exchange, the Nasdaq
Stock Market, or any other stock exchange) in which event the Purchaser shall
use commercially reasonable efforts to give the other parties reasonable advance
notice and reasonable opportunity to review any such disclosure.
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SECTION 8.
CONDITIONS TO OBLIGATIONS
Section 8.01. Conditions to Obligations of Purchaser.
The obligation of Purchaser to effect the Closing under this Agreement
is subject to the satisfaction or waiver by Purchaser, at or prior to the
Closing, of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Seller, BMS and Xxxxxxxx made in this Agreement shall be true and
correct in all material respects on and as of the Closing Date as though made on
and as of the Closing Date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects, on and as of such earlier date).
(b) Covenants. Seller, Xxxxxxxx, BMS, GSub and BMSub shall have
performed in all material respects all obligations and covenants required to be
performed or complied with by them under this Agreement by the time of the
Closing.
(c) Closing Deliverables. Seller, BMS and Xxxxxxxx shall have
delivered or caused to be delivered to Purchaser each of the documents specified
in Section 2.05(b) of this Agreement.
Section 8.02. Conditions to Obligations of Seller.
The obligation of Seller to effect the Closing under this Agreement is
subject to the satisfaction or waiver by Seller, at or prior to the Closing, of
the following conditions:
(a) Representations and Warranties. The representations and
warranties of Purchaser made in this Agreement shall be true and correct in all
material respects on and as of the Closing Date as though made on and as of the
Closing Date, except to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations and warranties
shall be true and correct in all material respects, on and as of such earlier
date).
(b) Covenants. Purchaser shall have performed in all material
respects all obligations and covenants required to be performed or complied with
by Purchaser under this Agreement by the time of the Closing.
(c) Closing Deliverables. Purchaser shall have delivered or
caused to be delivered to Seller, BMS and Xxxxxxxx, as applicable, each of the
documents and other deliverables specified in Section 2.05(c) of this Agreement.
Section 8.03. Conditions to Obligations of All Parties.
The obligation of all parties to effect the Closing under this
Agreement is subject to the satisfaction or waiver by all parties, at or prior
to the Closing, of the following conditions:
(a) No Proceedings. No Proceedings that question the validity
or legality of the transactions contemplated hereby shall have been instituted
or threatened and not settled or otherwise terminated.
(b) Consents. All consents and approvals of Governmental
Entities necessary to permit the transactions contemplated hereby to be
consummated shall have been obtained.
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Section 8.04. Waiver of Closing Conditions.
Notwithstanding the conditions to the Parties' respective obligations
to effect the Closing set forth in this Section 8, upon the receipt by (a)
Seller of the Purchase Price and the Purchaser's delivery of the other closing
deliveries contemplated by Section 2.05(c), and (b) Purchaser of the closing
deliveries contemplated by Section 2.05 (b), Purchaser, Seller, BMS and Xxxxxxxx
shall be deemed to have waived each of the above conditions set forth in this
Section 8.
SECTION 9.
SURVIVAL; INDEMNIFICATION
Section 9.01. Survival of Representations.
The representations and warranties contained in this Agreement,
Seller's Officer's Certificate, BMS' Officer's Certificate, Xxxxxxxx'x Officer's
Certificate and Purchaser's Officer's Certificate shall survive the Closing and
remain in full force and effect until the first anniversary of the Closing Date;
provided, however, that if notice of any claim for indemnification pursuant to
Section 9.02(a) or Section 9.03(a) shall have been given prior to the first
anniversary of the Closing Date, the relevant representations and warranties
shall survive for purposes of such claim until such time as such claim is
finally resolved.
Section 9.02. Indemnification by Seller, BMS and Xxxxxxxx.
(a) Subject to Sections 9.02(d) and 9.07, from and after the
Closing, Seller shall indemnify Purchaser, its Affiliates and each of their
respective general partners, managers, stockholders, directors, officers,
directors, employees, agents and representatives against, and hold them harmless
from, any loss, liability, claim, damage or expense (including reasonable legal
fees and expenses) ("Losses"), as incurred (payable promptly upon written
request), to the extent arising from or in connection with or otherwise with
respect to:
(i) subject to Section 9.01, any breach of any
representation or warranty of Seller that is
contained in this Agreement or Seller's Officer's
Certificate;
(ii) any breach of any covenant of Seller contained in
this Agreement; and
(iii) the failure by Seller to assume, pay, perform and
discharge any Excluded Liability.
(b) Subject to Sections 9.02(d) and 9.07, from and after the
Closing, BMS shall indemnify Purchaser, its Affiliates and each of their
respective general partners, managers, stockholders, directors, officers,
employees, agents and representatives against, and hold them harmless from, any
Losses, as incurred (payable promptly upon written request), to the extent
arising from or in connection with or otherwise with respect to any breach of
any representation or warranty of BMS set forth in Section 3 or Section 5 of
this Agreement or in BMS' Officer's Certificate, in each case subject to Section
9.01, and any breach of any covenant of BMS contained in this Agreement.
(c) Subject to Sections 9.02(d) and 9.07, from and after the
Closing, Xxxxxxxx shall indemnify Purchaser, its Affiliates and each of their
respective general partners, managers, stockholders, directors, officers,
directors, employees, agents and representatives against, and hold them harmless
from, any Losses, as incurred (payable promptly upon written request), to the
extent arising from or in
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connection with or otherwise with respect to any breach of any representation or
warranty of Xxxxxxxx set forth in Section 3 or Section 6 of this Agreement or in
Xxxxxxxx'x Officer's Certificate, in each case subject to Section 9.01, and any
breach of any covenant of Xxxxxxxx contained in this Agreement.
(d) Seller, BMS and Xxxxxxxx, in the aggregate, shall not be required to
indemnify any Person, and shall not have any liability:
(i) under any of Sections 9.02(a)(i), 9.02(a)(ii), 9.02(b) and
9.02(c) unless the aggregate of all Losses for which Seller,
BMS and/or Xxxxxxxx would, but for this clause (i), be
liable exceeds on a cumulative basis an amount equal to two
percent (2%) of the Purchase Price, and then only to the
extent of any such excess; provided that this limitation
shall not apply to the obligations of Seller, BMS and
Xxxxxxxx to indemnify any Person if the Losses to be
indemnified arise from a breach of the representations and
warranties of Seller set forth at Section 3.01
(Organization, Etc.), 3.02 (Authority; Execution and
Delivery; Enforceability), or 3.13 (Brokers and Finders),
5.01 (Organization, Etc.), 5.02 (Authority; Execution and
Delivery; Enforceability), 5.04 (Brokers and Finders), 6.01
(Organization, Etc.), 6.02 (Authority; Execution and
Delivery; Enforceability) or 6.04 (Brokers and Finders).
(ii) under any of Sections 9.02(a)(i), 9.02(a)(ii), 9.02(b) and
9.02(c) in excess of an aggregate amount equal to 35% of the
Purchase Price or for any individual items where the Loss
relating thereto is less than $25,000.00 in which case such
items shall not be aggregated for purposes for this Section
9.02; provided that this limitation shall not apply to the
obligations of Seller, BMS or Xxxxxxxx, as the case may be,
to indemnify any Person if the Losses to be indemnified
arise from a breach of the representations and warranties of
Seller set forth at Section 3.01 (Organization, Etc.), 3.02
(Authority; Execution and Delivery; Enforceability), 3.06
(Title of Assets), 3.13 (Brokers or Finders), 5.01
(Organization, Etc.), 5.02 (Authority; Execution and
Delivery; Enforceability), 5.04 (Brokers and Finders), 6.01
(Organization, Etc.), 6.02 (Authority; Execution and
Delivery; Enforceability) or 6.04 (Brokers and Finders).
(iii) under any of Sections 9.02(a)(i), 9.02(a)(ii), 9.02(b) and
9.02(c) in excess of an aggregate amount equal to 100% of
the Purchase Price solely with respect to the obligations of
Seller, BMS or Xxxxxxxx, as the case may be, to indemnify
any Person if the Losses to be indemnified arise from a
breach of the representations and warranties of Seller set
forth at Section 3.06 (Title of Assets).
(e) For the avoidance of doubt, Seller, BMS and Xxxxxxxx, in the aggregate,
shall not be required to indemnify any Person, and shall not have any liability
under any of Sections 9.02(a)(i), 9.02(a)(ii), 9.02(b) and 9.02(c), for any
Losses:
(i) unless the aggregate of such Losses exceeds the limitations
set forth in Section 9.02(d)(i); and
(ii) in excess of the aggregate limitations set forth in Section
9.02(d)(ii) for Losses to which such Section applies; and
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(iii) in excess of the aggregate limitations set forth in Section
9.02(d)(iii) for Losses to which such Section applies; and
(iv) in excess of 100% of the Purchase Price for all Losses
pursuant to Sections 9.02(a)(i), 9.02(a)(ii), 9.02(b) and
9.02(c) of this Agreement.
(f) If, after due notice in accordance with Section 9.05(a), Seller
fails to meet its obligations with respect to any Loss for which it is liable
pursuant to Section 9.02(a), each of BMS and Xxxxxxxx shall be individually, but
not jointly, liable for fifty percent (50%) of such Loss.
Section 9.03. Indemnification by Purchaser.
Subject to Section 9.07, from and after the Closing, Purchaser shall
indemnify Seller, its Affiliates and each of their respective general partners,
managers, stockholders, directors, employees, agents and representatives
against, and hold them harmless from, any Loss, as incurred (payable promptly
upon written request), to the extent arising from or in connection with or
otherwise with respect to:
(i) subject to Section 9.01, any breach of any representation or
warranty of Purchaser that is contained in this Agreement or
Purchaser's Officer's Certificate;
(ii) any breach of any covenant of Purchaser contained in this
Agreement;
(iii) the failure of Purchaser to assume, pay, perform and
discharge any Assumed Liability;
(iv) the ownership and operation of the Acquired Assets after the
Closing;
(v) the inclusion of the Financial Statements in any
registration, report or other submission filed with the U.S.
Securities and Exchange Commission by Purchaser, except to
the extent such Loss arises out of or results from any
untrue statement of a material fact in the Financial
Statements or omission to state in the Financial Statements
any material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading; and
(vi) any regulatory Liability that occurs after the Closing but
before the transfer of the Product Registrations as set
forth in Section 7.01.
Section 9.04. Calculation of Losses.
The amount of any Loss for which indemnification is provided under Section
9.02 or Section 9.03 shall be net of any amounts actually recovered by the
Indemnified Party under insurance policies (after reduction for any costs or
expenses incurred in connection therewith, including, retrospective and
prospective premium adjustments, experience-based premium adjustments) with
respect to such Loss, and shall be reduced to take account of any net Tax
benefit of the Indemnified Party arising from the occurrence or payment of any
such Loss which is actually recognized via a reduction of income Tax liability
that would have otherwise been due in the tax year such Loss is claimed (or, if
applicable, in a prior year as a result of a carryback) on the Indemnified
Party's federal and state income tax returns or within the four (4) succeeding
tax years of the Indemnified Party. In computing the amount of such net Tax
benefit, the Indemnified Party shall be deemed to recognize all other items of
income, gain, loss, deduction or credit before recognizing any item arising from
the receipt or accrual of the right to receive
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any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or
payment of any indemnified Loss. Further, if a net Tax benefit results in a tax
year after the tax year the loss was originally claimed by the Indemnified
Party, the net Tax benefit shall be computed by computing the present value
thereof using a discount rate of ten percent (10%). Any indemnity payment under
Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase
Price for Tax purposes, unless a final determination with respect to the
Indemnified Party or any of its Affiliates causes any such payment not to be
treated as an adjustment to such price for federal income Tax purposes.
Section 9.05. Procedures.
(a) In order for a party (the "Indemnified Party") to be entitled to
any indemnification provided for under this Agreement in respect of, arising out
of or involving a claim made by any Person against the Indemnified Party (a
"Third Party Claim"), such Indemnified Party must notify the indemnifying party
(the "Indemnifying Party") in writing (and in reasonable detail) of the Third
Party Claim within fifteen (15) business days after receipt by such Indemnified
Party of notice of the Third Party Claim; provided, however, that failure to
give such notification shall not affect the indemnification provided under this
Agreement except to the extent the Indemnifying Party shall have been actually
prejudiced as a result of such failure (except that the Indemnifying Party shall
not be liable for any expenses incurred during the period in which the
Indemnified Party failed to give such notice). Thereafter, the Indemnified Party
shall deliver to the Indemnifying Party, within five (5) business days after the
Indemnified Party's receipt thereof, copies of all notices and documents
(including court papers) received by the Indemnified Party relating to the Third
Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the
Indemnifying Party shall be entitled to participate in the defense thereof and,
if it chooses, to assume the defense thereof with counsel selected by the
Indemnifying Party. Should the Indemnifying Party elect to assume the defense of
a Third Party Claim, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof. If the Indemnifying
Party assumes such defense, the Indemnified Party shall have the right to
participate in the defense thereof and to employ counsel, at its own expense,
separate from the counsel employed by the Indemnifying Party, it being
understood that the Indemnifying Party shall control such defense. The
Indemnifying Party shall be liable for the fees and expenses of counsel employed
by the Indemnified Party for any period during which the Indemnifying Party has
not assumed the defense thereof (other than during any period in which the
Indemnified Party shall have failed to give notice of the Third Party Claim as
provided above). If the Indemnifying Party chooses to defend or prosecute a
Third Party Claim, all the Indemnified Parties shall cooperate in the defense or
prosecution thereof. Such cooperation shall include the retention and (upon the
Indemnifying Party's request) the provision to the Indemnifying Party of records
and information that are reasonably relevant to such Third Party Claim, and
making employees available on a mutually convenient basis to provide additional
information and explanation of any material provided under this Agreement.
Whether or not the Indemnifying Party assumes the defense of a Third Party
Claim, the Indemnified Party shall not admit any liability with respect to, or
settle, compromise or discharge, such Third Party Claim without the Indemnifying
Party's prior written consent (which consent shall not be unreasonably
withheld). If the Indemnifying Party assumes the defense of a Third Party Claim,
the Indemnified Party shall agree to any settlement, compromise or discharge of
a Third Party Claim that the Indemnifying Party may recommend and that by its
terms obligates the Indemnifying Party to pay the full amount of the liability
in connection with such Third Party Claim, which releases the Indemnified Party
completely in connection with such Third Party Claim and that would not
otherwise materially adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any
Indemnifying Party under Section 9.02 or 9.03 that does not involve a Third
Party Claim being asserted against or
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sought to be collected from such Indemnified Party, the Indemnified Party shall
deliver notice of such claim with reasonable promptness to the Indemnifying
Party. The failure by any Indemnified Party to notify the Indemnifying Party
shall not relieve the Indemnifying Party from any liability that it may have to
such Indemnified Party under Section 9.02 or 9.03, except to the extent that the
Indemnifying Party demonstrates that it has been prejudiced by such failure. If
the Indemnifying Party disputes its liability with respect to such claim, the
Indemnifying Party and the Indemnified Party shall proceed in good faith to
negotiate a resolution of such dispute and, if not resolved through
negotiations, such dispute shall be resolved by litigation in an appropriate
court of competent jurisdiction.
Section 9.06. Sole Remedy; No Additional Representations.
(a) Except as otherwise specifically provided in this Agreement or in
any Related Instrument, each of the parties acknowledge and agree that its sole
and exclusive remedy after the Closing with respect to any and all claims and
causes of action under or that are reasonably related to this Agreement, the
transactions contemplated hereby, the Business, the Acquired Assets and the
Assumed Liabilities (other than claims of, or causes of action arising from,
fraud, other tortious acts, or relating to breaches of covenants requiring
performance after the Closing Date) shall be pursuant to the indemnification
provisions set forth in this Section 9. In furtherance of the foregoing, each of
the parties hereby waives, from and after the Closing, to the fullest extent
permitted under applicable law, any and all rights, claims and causes of action
under or that are reasonably related to this Agreement, the transactions
contemplated hereby, the Business, the Acquired Assets and the Assumed
Liabilities (other than (i) rights, claims and causes of action under or that
are reasonably related to the Supply Agreement or the License Agreement and (ii)
claims of, or causes of action arising from, fraud, other tortious acts, or
relating to breaches of covenants requiring performance after the Closing Date)
it may have against any other party hereto arising under or based upon any
applicable law or arising under or based upon common law or otherwise (except
pursuant to the indemnification provisions set forth in Section 9.02 or Section
9.03, as applicable).
(b) Purchaser acknowledges that none of Seller, its Affiliates or any
other Person has made any representation or warranty, expressed or implied, as
to the accuracy or completeness of any information regarding the Acquired Assets
or Seller's operations relating to the Business furnished or made available to
Purchaser and its representatives, except as expressly set forth in this
Agreement or the Related Instruments, and none of Seller, its Affiliates or any
other Person shall have or be subject to any liability to Purchaser or any other
Person resulting from the distribution to Purchaser, or Purchaser's use of, any
such information, documents or material made available to Purchaser in any "data
rooms", management presentations or in any other form in expectation of the
transactions contemplated hereby except to the extent such information,
documents or materials is included in the representations or warranties of
Seller set forth in this Agreement or the Related Instruments.
(c) Purchaser also acknowledges that, should the Closing occur, except
as expressly set forth in the representations and warranties set forth in
Sections 3, 5 or 6 of this Agreement or in the Related Instruments, there are no
representations or warranties by Seller, BMS or Xxxxxxxx of any kind, express or
implied, with respect to the Business or the Acquired Assets, and that Purchaser
is purchasing the Acquired Assets "as is", "where is" and "with all faults".
Without limiting the generality of the foregoing, except as expressly set forth
in the representations and warranties set forth in Sections 3, 5 or 6 of this
Agreement or in the Related Instruments, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
Section 9.07. Limitations on Liability.
EXCEPT WITH RESPECT TO THIRD PARTY CLAIMS, THE INDEMNIFICATION OBLIGATIONS
OF THE PARTIES HERETO SHALL NOT EXTEND TO INDIRECT, INCIDENTAL
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OR CONSEQUENTIAL DAMAGES, INCLUDING BUSINESS INTERRUPTION, LOST PROFITS, loss of
use, damage to goodwill or loss of business.
Section 9.08. Cooperation.
Seller, BMS, Xxxxxxxx and Purchaser shall cooperate with one another in
resolving any claim or liability with respect to which one party is obligated to
indemnify another under this Agreement, including by making all reasonable
commercial efforts to mitigate or resolve any such claim or liability.
Section 9.09. Indemnification in Case of Strict Liability or Indemnitee
Negligence.
THE INDEMNIFICATION PROVISIONS IN THIS SECTION 8 SHALL BE ENFORCEABLE
REGARDLESS OF WHETHER THE LIABILITY IS BASED ON PAST, PRESENT, OR FUTURE ACTS,
CLAIMS OR LEGAL REQUIREMENTS, INCLUDING ANY PAST, PRESENT OR FUTURE BULK SALES
LAW, ENVIRONMENTAL LAW, FRAUDULENT TRANSFER ACT, OCCUPATIONAL SAFETY AND HEALTH
LAW OR PRODUCT LIABILITY, SECURITIES OR OTHER LAWS, AND REGARDLESS OF WHETHER
ANY PERSON (INCLUDING THE PERSON FROM WHOM INDEMNIFICATION IS SOUGHT) ALLEGES OR
PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE
PERSON SEEKING INDEMNIFICATION, OR THE SOLE OR CONCURRENT STRICT LIABILITY
IMPOSED ON THE PERSON SEEKING INDEMNIFICATION; PROVIDED, THAT THE FOREGOING
SHALL NOT BE CONSTRUED TO RESTRICT OR LIMIT ANY DAMAGES, LOSSES, COSTS,
EXPENSES, COMPENSATION, REIMBURSEMENT OR OTHER AMOUNT THAT THE INDEMNIFYING
PARTY MAY BE ENTITLED TO RECOVER FROM THE INDEMNITEE UNDER THIS AGREEMENT OR
APPLICABLE LAW.
SECTION 10.
AMENDMENTS AND WAIVERS
This Agreement may not be amended except by an instrument in writing signed
on behalf of each of the parties hereto. No delay or failure on the part of any
party hereto in exercising any right, power or privilege under this Agreement
shall impair any such right, power or privilege or be construed as a waiver of
any default or any acquiescence therein. No single or partial exercise of any
such right, power or privilege shall preclude the further exercise of such
right, power or privilege, or the exercise of any other right, power or
privilege.
SECTION 11.
MISCELLANEOUS
Section 11.01. Notices.
All notices and other communications under this Agreement shall be in
writing and shall be deemed given upon receipt if delivered personally, or when
sent if mailed by registered or certified mail (return receipt requested) or by
reputable overnight express courier (charges prepaid) or transmitted by
facsimile (with confirmation of transmittal) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to Seller, to:
Westwood-Squibb Colton Holdings Partnership
c/o Xxxxxxx-Xxxxx Squibb Company
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X.X. Xxx 0000
Xxxxx 000 & Province Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000 XXX
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Vice President and Senior Counsel,
Pharmaceutical Research Institute and
Worldwide Franchise Management and
Business Development
and
Xxx Xxxxxxxx Xxxxxxx
Prudential Xxxxx Xxxxxxxx
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Senior Vice President and General Counsel
with a copy to:
Xxxxxxxxx & Xxxxxxx
Xxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
and
Xxxxxxx-Xxxxx Squibb Company
X.X. Xxx 0000
Xxxxx 000 & Province Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000 XXX
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Vice President and Senior Counsel,
Pharmaceutical Research Institute and
Worldwide Franchise Management and
Business Development
with a copy to:
Xxxx Xxxxx LLP
Princeton Xxxxxxxxx Village
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
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(b) if to Purchaser, to:
Women First HealthCare, Inc.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
President and CEO
with a copy to:
Xxxxxx & Xxxxxxx
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Section 11.02. Descriptive Headings.
The descriptive headings in this Agreement are inserted for convenience
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
Section 11.03. Counterparts.
This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective when
one or more such counterparts have been signed by each of the parties and
delivered to the other parties.
Section 11.04. Entire Agreement.
This Agreement and the Related Instruments contain the entire agreement and
understanding between the parties hereto with respect to the subject matter of
this Agreement and supersede all prior agreements and understandings relating to
such subject matter.
Section 11.05. Fees and Expenses.
Regardless of whether or not the transactions contemplated by this
Agreement are consummated, each party shall bear its own fees and expenses
incurred in connection with the transactions contemplated by this Agreement. As
to the Related Instruments, Purchaser shall bear all fees, costs, taxes and
expenses in connection with recording the assignments of Intellectual Property
identified in the Assignment of Trademarks, Assignment of Copyrights, Assignment
of BMS Patents and Assignment of Internet Names
Section 11.06. Injunctive Relief.
Each of the parties agrees that if Sections 7.03 or 7.13 of this Agreement
are not performed in accordance with their specific terms or are otherwise
breached, (a) severe and irreparable damage would occur, (b) no adequate remedy
at law would exist and (c) damages would be difficult to determine. Each of the
parties agrees that, in such case, the injured party or parties shall be
authorized and entitled to obtain from any court of competent jurisdiction
injunctive relief, whether preliminary or permanent, as
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well as any other relief permitted by applicable law, and the breaching party
shall waive any requirement that such party or parties post bond as a condition
for obtaining any such relief.
Section 11.07. Assignment.
Neither this Agreement nor any right, interest or obligation hereunder may
be assigned by any party hereto without the prior written consent of the other
parties hereto and any attempt to do so will be null and void; provided,
however, that Purchaser may: (i) assign its rights and obligations after the
Closing to the successor in interest to its business or a purchaser of all or
substantially all of its assets relating to the Product, and (ii) pledge and
grant a security interest in any of Purchaser's rights and interests in the
Acquired Assets or the Business, including under this Agreement.
Section 11.08. Successors and Assigns.
This Agreement shall be binding upon and inure solely to the benefit of the
parties hereto, their successors and permitted assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person or persons any right, benefits or remedies of any nature whatsoever under
or by reason of this Agreement.
Section 11.09. Severability.
In the event that any one or more of the provisions contained in this
Agreement, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the parties shall
negotiate in good faith with a view to the substitution therefor of a suitable
and equitable solution in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid provision; provided,
however, that the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained in this Agreement
shall not be in any way impaired thereby, it being intended that all of the
rights and privileges of the parties hereto shall be enforceable to the fullest
extent permitted by law.
Section 11.10. Waiver of Jury Trial.
Each party hereto hereby waives to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect to any
litigation directly or indirectly arising out of, under or in connection with
this Agreement or any Related Instrument. Each party hereto (a) certifies that
no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce that foregoing waiver and (b) acknowledges that it
and the other parties hereto have been induced to enter into this Agreement and
the Related Instruments, as applicable, by, among other things, the mutual
waivers and certifications in this Section 11.10.
Section 11.11. Dispute Resolution.
The parties recognize that a bona fide dispute as to certain matters
may from time to time arise which relates to any party's rights and/or
obligations hereunder. Except as otherwise provided in Section 11.06 with
respect to disputes regarding Sections 7.03 and 7.13, in the event of the
occurrence of such a dispute, any party may, by notice to the other parties,
have such dispute referred to their respective officers designated below, or
their successors, for attempted resolution by good faith negotiations within
thirty (30) days after such notice is received. Such designated officers are as
follows:
For Seller: Xxxxxxx Xxxxxxx, Vice President and Senior Counsel,
Pharmaceutical Research Institute and External
Development, of BMS
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For BMS: Xxxxxxx Xxxxxxx, Vice President and Senior Counsel,
Pharmaceutical Research Institute and External
Development
For Xxxxxxxx: Xxxxxxx Xxxxxxx, Senior Vice President and General
Counsel
For Purchaser: Xxxxxx X. Xxxxxx, President and CEO
Except as otherwise provided in Section 11.06 with respect to disputes
regarding Sections 7.03 and 7.13, in the event the officers designated in this
Section 11.11 are not able to resolve a dispute within the applicable thirty
(30) day period, or such other period of time as the parties may mutually agree
in writing, the parties agree to have the dispute finally settled by arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The arbitration shall be governed by the United States Arbitration
Act, 9 U.S.C. (S)(S) 1-16, 201-208. The arbitration shall be held in New York
City. The arbitration proceedings shall be conducted, and the award shall be
rendered, in the English language. If the dispute is between any of Seller, BMS
or Xxxxxxxx, on the one hand, and Purchaser, on the other hand, Seller, BMS
and/or Xxxxxxxx, as applicable, shall jointly select one (1) arbitrator and
Purchaser shall select one (1) arbitrator, who, in each case, shall be an
experienced lawyer and fluent in English. The arbitrators selected by the
parties shall select a third arbitrator from among arbitrators designated by the
American Arbitration Association.
Section 11.12. Governing Law.
All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal laws of the
State of New York, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdiction other than the
State of New York.
Section 11.13. Schedules, Exhibits and Other Agreements.
The Exhibits, Schedules, other agreements, certificates and notices
specifically referred to herein, and delivered pursuant hereto, are an integral
part of this Agreement. Any disclosure that is made in any Schedules or
certificates delivered pursuant to this Agreement shall be deemed responsive to
any other applicable disclosure obligation hereunder.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, the parties hereto have executed this Asset
Purchase Agreement as of the date first written above.
WESTWOOD-SQUIBB COLTON HOLDINGS PARTNERSHIP
BY: WESTWOOD-SQUIBB HOLDINGS, INC.,
its General Partner
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Corporate Secretary
BY: COLTON RESEARCH AND
DEVELOPMENT, INC., its General Partner
By: /s/ Xxxxx X. Taffeiren
-----------------------------------------
Name: Xxxxx X. Taffeiren
Title: Vice President
XXX XXXXXXXX XXXXXXX
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Deputy General Counsel and Assistant
Secretary, as Attorney-in-Fact
XXXXXXX-XXXXX SQUIBB COMPANY
By: /s/ Xxxxxx X. Xxxxx, Xx.
---------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President, Corporate Development
WOMEN FIRST HEALTHCARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
-41-
