PATENT AND EXCLUSIVE LICENSE PURCHASE AGREEMENT
BY AND BETWEEN
PHARMACEUTICAL PARTNERS, L.L.C.
and
XOMA CORPORATION
Dated as of December 30, 1997
ARTICLE I - DEFINITIONS
1.01. Definitions........................................................1
ARTICLE II - PURCHASE AND SALE...............................................2
2.01. Purchase and Sale..................................................2
2.02. Assumption of License Obligations..................................3
2.03. Excluded Liabilities and Obligations...............................3
2.04. Assignment of Contracts and Rights.................................3
2.05. Purchase Price.....................................................3
2.06. Closing............................................................3
ARTICLE III - REPRESENTATIONS AND
WARRANTIES OF SELLER AND STOCKHOLDERS
3.01. Corporate Existence and Power......................................4
3.02. Corporate Authorization............................................4
3.03. Governmental Authorization.........................................4
3.04. Non-Contravention..................................................4
3.05. Title to Purchased Assets..........................................4
3.06. No Undisclosed Material Liabilities................................5
3.07. Litigation.........................................................5
3.08. Compliance with Laws...............................................5
3.09. Intellectual Property..............................................5
3.10. Deposits and Prepayments; Prepaid Expenses.........................6
3.11. Finders' Fees......................................................6
3.12. Other Information..................................................6
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF BUYER
4.01. Organization and Existence.........................................7
4.02. Corporate Authorization; Etc.......................................7
4.03. Governmental Authorization.........................................7
4.04. Non-Contravention..................................................7
4.05. Finders' Fees......................................................7
4.06. Financing..........................................................7
4.07. Litigation.........................................................7
ARTICLE V COVENANTS
5.01. Preservation of Purchased Assets...................................8
5.02. Access to Information..............................................8
5.03. Notices of Certain Events..........................................8
5.04. Confidentiality....................................................9
5.05. Best Efforts; Further Assurances...................................9
5.06. Public Announcement...............................................10
5.07. Cash Received After Closing.......................................10
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ARTICLE VI - TAX MATTERS
6.01. Tax Definitions...................................................10
6.02. Tax Matters.......................................................10
ARTICLE VII CONDITIONS TO CLOSING...........................................11
7.01. Conditions to the Obligations of Each Party.......................11
7.02. Conditions to Obligation of Buyer.................................11
7.03. Conditions to Obligations of Owners and Stockholders..............12
ARTICLE VIII - SURVIVAL; INDEMNIFICATION
8.01. Survival..........................................................12
8.02. Indemnification...................................................13
8.03. Procedures; No Waiver; Exclusivity................................13
ARTICLE IX - TERMINATION
9.01. Grounds for Termination...........................................14
9.02. Effect of Termination.............................................14
ARTICLE X - MISCELLANEOUS
10.01. Notices..........................................................14
10.02. Amendments; No Waivers...........................................15
10.03. Expenses.........................................................16
10.04. Successors and Assigns...........................................16
10.05. Governing Law; Jurisdiction......................................16
10.06. Counterparts; Effectiveness......................................16
10.07. Entire Agreement.................................................16
10.09. Captions.........................................................16
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Exhibits
--------
Exhibit A Xxxx of Sale
Exhibit B Assignment of U.S. Patents
Exhibit C Assignment of Australian Patent
Exhibit D Assignment of Canadian Patent
Exhibit E Assignment of New Zealand Patent
Exhibit F Assignment of South African Patent
Schedules
---------
Schedule 2.01 Patents
Schedule 3.09 Agreements Relating to Patents (including copy of
Genentech License)
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PATENT AND EXCLUSIVE LICENSE PURCHASE AGREEMENT
AGREEMENT dated as of December 30, 1997 between Pharmaceutical
Partners, L.L.C., a Delaware limited liability company (including each of its
successors, assigns and legal representatives, "Buyer") and XOMA Corporation, a
Delaware corporation ("Seller").
W I T N E S S E T H :
WHEREAS, Buyer desires to purchase certain assets of Seller from
Seller, and Seller desires to sell, assign and transfer such assets to Buyer,
upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. (a) The following terms, as used herein, have the
following meanings:
"AFFILIATE" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with such other
Person.
"CONVEYANCE DOCUMENTS" means the Assignment of U.S. Xxx. No. 5,500,362,
U.S. Xxx. No. 5,667,180, and U.S. Xxx. Appln. Ser. No. 08/471,984; the
Assignment of Australian Xxx. No. 606,653; the Assignment of Canadian Xxx. No.
1,336,826; the Assignment of New Zealand Xxx. No. 223,120; and the Assignment of
South African Xxx. No. 88/0091, and attached hereto as EXHIBITS B, C, D, E, AND
F, respectively.
"CLOSING DATE" means December 30, 1997.
"GOVERNMENTAL AUTHORITY" means any government, court, regulatory or
administrative agency or commission, or other governmental authority, agency or
instrumentality, whether federal, state or local (domestic or foreign),
including, without limitation, the U.S. Patent and Trademark Office (the "PTO")
and the U.S. National Institutes of Health.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
TERM SECTION
---- -------
Assumed License Obligations 2.02
Excluded Liabilities and Obligations 2.03
Genentech 2.01
Genentech License 2.01
Patents 2.01
Prepayments 2.01
Purchase Price 2.05
Purchased Assets 2.01
ARTICLE II
PURCHASE AND SALE
2.01. PURCHASE AND SALE. Upon the terms and subject to the conditions
of this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to
sell, transfer, assign and deliver, or cause to be sold, transferred, assigned
and delivered, to Buyer at Closing, free and clear of all Liens, Seller's entire
right, title and interest in and throughout the United States of America, its
territories and all foreign countries, in and to (i) U.S. Patent 5,500,362, U.S.
Xxx. No. 5,667,180, and U.S. Xxx. Appln. Ser. No. 08/471,984, all entitled
"Chimeric Antibody with Specificity to Human B Cell Surface Antigen", Australian
Xxx. No. 606,653, Canadian Xxx. No. 1,336,826, New Zealand Xxx. No. 223,120, and
South African Xxx. No. 88/0091, and any and all related patents, patent
applications and patent disclosures, any and all related continuation,
continuation-in-part, divisional, extension, reissue, re-examination, renewal,
substitution, any other proprietary rights related to any of the foregoing
(including without limitation remedies against infringements thereof and rights
of protection of an interest therein under the laws of all jurisdictions) and
any and all foreign counterparts of any of the foregoing, including, but not
limited to, each of the items listed on SCHEDULE 2.01 hereto (collectively, the
"PATENTS"), (ii) the License Agreement, effective as of May 15, 1996, between
Seller and Genentech, Inc., a Delaware corporation ("GENENTECH"), including the
right to receive all payments from Genentech under such License Agreement for
the quarter ended December 31, 1997 and each quarter or period thereafter (the
"GENENTECH LICENSE") and (iii) any and all accounts receivable, deposits or
prepayments (other than the initial fee paid to Seller by Genentech in 1996)
relating to the Genentech License (the "PREPAYMENTS"). The Patents, the
Genentech License and the Prepayments are sometimes collectively referred to
herein as the "PURCHASED ASSETS".
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2.02. ASSUMPTION OF LICENSE OBLIGATIONS. Upon the terms and subject to
the conditions of this Agreement, Buyer assumes, effective at the time of
Closing, all obligations under the Genentech License (other than liabilities or
obligations attributable to any failure by Seller to comply with the terms
thereof prior to the date hereof) (the "ASSUMED LICENSE OBLIGATIONS").
2.03. EXCLUDED LIABILITIES AND OBLIGATIONS. Notwithstanding any
provision in this Agreement or any other writing to the contrary, Buyer is
assuming only the Assumed License Obligations and is not assuming any other
liability or obligation of Seller (or any predecessor owner of all or part of
its business and assets) of whatever nature, whether presently in existence or
arising or asserted hereafter. All such other liabilities and obligations shall
be retained by and remain obligations and liabilities of Seller (or any
predecessor owner of all or part of its business and assets) (all such
liabilities and obligations not being assumed being herein referred to as the
"EXCLUDED LIABILITIES AND OBLIGATIONS").
2.04. ASSIGNMENT OF CONTRACTS AND RIGHTS. Anything in this Agreement to
the contrary notwithstanding, this Agreement shall not constitute an agreement
to sell, transfer or assign any Purchased Asset or any claim or right or any
benefit arising thereunder or resulting therefrom if an attempted sale, transfer
or assignment thereof, without consent of a third party thereto, would
constitute a breach or other contravention thereof or in any way adversely
affect the rights of Buyer or Seller thereunder. Seller will use its
commercially reasonable efforts to obtain the consent of the other parties to
any such Purchased Asset or claim or right or any benefit arising thereunder for
the assignment thereof to Buyer.
2.05. PURCHASE PRICE. The purchase price for the Purchased Assets is
$17,000,000 in cash (the "PURCHASE PRICE").
2.06. CLOSING. The closing (the "CLOSING") of the purchase and sale of
the Purchased Assets hereunder shall take place at the offices of Xxxxx, Xxxxxxx
& Xxxxxxxxx, LLP, High Street Tower, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 on or before December 31, 1997, or at such other time or place as Buyer
and Seller may agree. At the Closing,
(a) Buyer shall pay the Purchase Price by wire transfer to an
account designated by Seller.
(b) Each of Seller and Buyer shall execute the Conveyance
Documents to which each is a party.
(c) Seller and Buyer shall also execute and deliver all such
instruments, documents and certificates as may be reasonably requested by the
other party that are necessary for the consummation at the Closing of the
transactions contemplated by this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that:
3.01. CORPORATE EXISTENCE AND POWER. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, and has all corporate powers and all licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
3.02. CORPORATE AUTHORIZATION. The execution, delivery and performance
by Seller of this Agreement and the Conveyance Documents, and the consummation
by Seller of the transactions contemplated hereby and thereby, are within
Seller's corporate powers and have been duly authorized by all necessary
corporate action on the part of Seller. This Agreement and the Conveyance
Documents have been duly executed and delivered and constitute valid and binding
agreements of Seller.
3.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Seller of this Agreement and each of the Conveyance Documents
does not require any notice to, action or consent by or in respect of, or filing
with, any Governmental Authority (other than the filing of patent assignments
with the PTO and any other applicable Governmental Authority).
3.04. NON-CONTRAVENTION. The execution, delivery and performance by
Seller of this Agreement and each of the Conveyance Documents does not and will
not (i) contravene or conflict with the corporate charter or bylaws of Seller,
(ii) contravene or conflict with or constitute a violation of any provision of
any law or regulation binding upon or applicable to Seller or the Purchased
Assets which contravention, conflict or violation would have a material adverse
effect on the Purchased Assets or their intended use; (iii) contravene or
conflict with or constitute a violation of any judgment, injunction, order or
decree binding upon or applicable to either of Seller or the Purchased Assets
which contravention, conflict or violation would have a material adverse effect
on the Purchased Assets or their intended use; (iv) assuming the receipt of
Genentech's consent to the assignment of the Genentech License, constitute a
default under or give rise to any right of termination, cancellation or
acceleration of any right or obligation of Seller or to a loss of any benefit
relating to the Purchased Assets to which Seller is entitled under any Purchased
Asset which default, termination, cancellation or acceleration or loss of
benefit would have a material adverse effect on Seller's ability to exercise its
rights with respect to the Purchased Assets, or (v) result in the creation or
imposition of any Lien on any Purchased Asset.
3.05. TITLE TO PURCHASED ASSETS. Upon consummation of the transactions
contemplated hereby and assuming Buyer does not have actual knowledge of any
adverse claim, Buyer will have acquired good and marketable title in and to each
of the Purchased Assets, free and clear of all Liens.
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3.06. NO UNDISCLOSED MATERIAL LIABILITIES. There are no material
liabilities related to the Purchased Assets of any kind whatsoever, whether
accrued, contingent, absolute, determined, determinable or otherwise, and there
is no existing condition, situation or set of circumstances which could
reasonably be expected to result in such a liability.
3.07. LITIGATION. There is no action, suit, investigation or proceeding
(or any basis therefor), of which Seller has received notice, pending or, to the
knowledge of Seller, threatened, before any Governmental Authority or arbitrator
that has or could materially affect any Purchased Asset. There have been no
claims made by any Person with respect to, and no actions, suits or other
proceedings relating to, any Purchased Assets which would have a material
adverse effect on the proposed or intended use of the Purchased Assets.
3.08. COMPLIANCE WITH LAWS. Seller is not in violation of, has not
violated, and to the knowledge of Seller, is not under investigation with
respect to and has not been threatened to be charged with or given notice of any
violation of, any law, rule, ordinance or regulation, or judgment, order or
decree entered by any Governmental Authority applicable to the Purchased Assets
which would have a material adverse effect on the proposed or intended use of
the Purchased Assets.
3.09. INTELLECTUAL PROPERTY. (a) SCHEDULE 2.01 sets forth a true and
complete list of the Patents specifying as to each, as applicable (i) the owner
of such Patent; and (ii) the jurisdictions by or in which each Patent has issued
or an application for patent has been filed, including the respective patent or
application numbers. SCHEDULE 3.09 contains a list of licenses, sublicenses or
other agreements relating to any Patent and a true and complete copy of the
Genentech License as currently in effect.
(b) Seller has taken all material measures required to protect the
value of the Patents.
(c) Seller has clear title to the Patents. To its knowledge, Seller
and each inventor of the Patents has complied with the PTO duty of candor and
good faith in dealing with the PTO, including the duty to disclose to the PTO
all information known to be material to the patentability of each of the U.S.
Patents. All assignments from each inventor to, as the case may be, Seller or to
a predecessor in interest to Seller, have been executed and recorded with the
PTO for each of the U.S. Patents. To its knowledge, and with the exception of
the rights of Genentech under the Genentech License, Seller does not lack any
material rights or licenses to use the Patents or to make, have made, use, sell,
or offer for sale the claimed subject matter of the Patents. To the knowledge of
Seller, there are no facts which would form a basis for a finding that any of
the claims of the Patents is unpatentable, unenforceable or invalid. To the
knowledge of Seller without independent investigation, there are no pending U.S.
or foreign patent applications which, if issued, would limit or prohibit the
ability of Seller or Genentech to make, have made, use, sell, or offer for sale
the claimed subject matter of the Patents. To the knowledge of Seller without
independent investigation, there are no patents of others which are or would be
infringed by making, having made, using, selling, or offering for sale the
claimed subject matter of the Patents. There is no pending or, to the knowledge
of Seller, threatened action, suit, proceeding or claim by others that Seller or
Genentech is infringing or would
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infringe any patent of others by making, having made, using, selling, or
offering for sale the claimed subject matter of the Patents. To the knowledge of
Seller, the Patents have not been, and are not being, infringed by any third
parties.
(d) Each of Seller and, to the knowledge of Seller, Genentech is in
material compliance with the Genentech License and is not in breach of its
obligations with respect thereto which breach would have a material adverse
effect on its rights thereunder. Seller has no reason to believe that Genentech
does not intend to comply with its obligations pursuant to the Genentech
License, including its obligations to pay royalties on Licensed Products as
defined therein including without limitation the IDEC C2B8 Monoclonal Antibody.
Except for the Genentech License, Seller has not granted any licenses or other
rights and has no obligations to grant licenses or other rights with respect to
the Purchased Assets, and, except for Genentech License, there are no other
contracts, arrangements, understandings or other documents relating to any
Purchased Asset.
(e) Seller has taken all reasonable actions under all applicable
foreign jurisdictions to protect its ownership interests in the Patents in each
such jurisdiction.
3.10. PREPAYMENTS. There are no Prepayments.
3.11. FINDERS' FEES. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Seller who might be entitled to any fee or commission from Buyer or any of
its Affiliates upon consummation of the transactions contemplated by this
Agreement.
3.12. OTHER INFORMATION. Neither this Agreement nor any of the exhibits
and schedules appended hereto contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller that:
4.01. ORGANIZATION AND EXISTENCE. Buyer is a limited liability company
duly organized, validly existing and in good standing under the laws of Delaware
and has all applicable powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
4.02. CORPORATE AUTHORIZATION. The execution, delivery and performance
by Buyer of this Agreement and each of the Conveyance Documents to which it is a
party and the consummation by Buyer of the transactions contemplated hereby and
thereby are within the
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powers of Buyer and have been duly authorized by all necessary action on the
part of Buyer. This Agreement constitutes a valid and binding agreement of
Buyer.
4.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Buyer of this Agreement and each of the Conveyance Documents to
which it is a party does not require any action by or in respect of, or filing
with, any Governmental Authority (other than the filing of patent assignments
with the PTO).
4.04. NON-CONTRAVENTION. The execution, delivery and performance by
Buyer of this Agreement and each of the Conveyance Documents to which it is a
party does not and will not (i) contravene or conflict with the organizational
documents of Buyer, (ii) contravene or conflict with or constitute a violation
of any provision of any law or regulation binding upon or applicable to Buyer;
or (iii) contravene or conflict with or constitute a violation of any judgment,
injunction, order or decree binding upon or applicable to Buyer.
4.05. FINDERS' FEES. There is no investment banker, broker, finder or
other intermediary that has been retained by or is authorized to act on behalf
of Buyer who might be entitled to any fee or commission from Seller upon
consummation of the transactions contemplated by this Agreement.
4.06. FINANCING. On the Closing Date, Buyer will have sufficient funds
available to purchase the Purchased Assets.
4.07. LITIGATION. There is no action, suit, investigation or proceeding
pending against, or to the knowledge of Buyer threatened against or affecting,
Buyer before any court or arbitrator or any governmental body, agency or
official which in any matter challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated hereby.
ARTICLE V
COVENANTS
Buyer and Seller agree that:
5.01 PRESERVATION OF PURCHASED ASSETS. From the date hereof until the
Closing Date, Seller shall use reasonable commercial efforts to preserve intact
the Purchased Assets and Seller's relationship with Genentech as set forth in
the Genentech License. Without limiting the generality of the foregoing, from
the date hereof until the Closing Date, Seller will not:
(a) sell, lease, license, assign, transfer or otherwise dispose of any
Purchased Asset or agree or commit to do any of the foregoing; or
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(b) take or agree or commit to take any action that would make any
representation and warranty of Seller hereunder inaccurate in any material
respect at, or as of any time prior to, the Closing Date; or
(c) omit or agree or commit to omit to take any action necessary to
prevent any representation and warranty of Seller hereunder from being
inaccurate in any material respect at, or as of any time prior to, the Closing
Date.
5.02. ACCESS TO INFORMATION. From the date hereof until the Closing
Date, Seller (a) will give Buyer, its counsel and other authorized
representatives (collectively, "BUYER'S CONSULTANTS") reasonable commercial
access during normal business hours to the offices, properties, books and
records of Seller related to the Purchased Assets; (b) will furnish to Buyer and
Buyer's Consultants such information relating to the Purchased Assets as such
Persons may reasonably request; and (c) will instruct the employees, counsel and
other authorized representatives of Seller to cooperate with Buyer in its
investigation of the Purchased Assets; PROVIDED that no investigation pursuant
to this Section shall affect any representation or warranty given by Seller
hereunder; and PROVIDED FURTHER that any investigation pursuant to this Section
shall be conducted in such manner as not to interfere unreasonably with the
conduct of the business of Seller.
5.03 NOTICES OF CERTAIN EVENTS. From the date hereof until the Closing
Date, Seller shall promptly notify Buyer of:
(a) any notice or other communication from any Person other than
Genentech alleging that the consent of such Person is or may be required in
connection with the transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings commenced
or, to its knowledge threatened against, relating to or involving or otherwise
affecting the Purchased Assets.
5.04. CONFIDENTIALITY. After the Closing Date, Seller will hold, and
will use reasonable commercial efforts to cause its officers, directors,
employees, accountants, counsel, consultants, advisors and agents to hold, in
confidence, unless compelled to disclose by judicial or administrative process
or by other requirements of law, all confidential documents and information
concerning Buyer or the Purchased Assets.
5.05. EFFORTS; FURTHER ASSURANCES. (a) Subject to the terms and
conditions of this Agreement, each party will use its commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary under applicable laws and regulations to consummate
the transactions contemplated by this Agreement; PROVIDED that Buyer shall not
be obligated to pay any amount of money or deliver any goods or services to
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Seller or Genentech except the payment of the Purchase Price at the Closing
(subject to the terms and conditions hereof). Seller and Buyer agree to execute
and deliver such other documents, certificates, agreements and other writings
and to take such other actions as may be necessary in order to consummate or
implement expeditiously the transactions contemplated by this Agreement and to
vest in Buyer good and marketable title to the Purchased Assets. In particular,
Seller agrees to use its commercially reasonably efforts to obtain the written
consent of Genentech referred to in Section 7.02(c).
(b) Without limiting the foregoing, Seller further agrees for itself
and its successors and assigns to execute upon request any other lawful
documents and likewise to perform any other lawful acts which may be necessary
or desirable to secure fully for Buyer all right, title and interest in and to
each of the Purchased Assets, including, but not limited to, the execution of
substitution, reissue, divisional or continuation patent applications; and
preliminary or other statement or the giving of testimony in any interference or
other proceeding in which the Purchased Assets or any application or patent
directed thereto or derived therefrom may be involved.
(c) Seller hereby constitutes and appoints, effective as of the Closing
upon payment of the Purchase Price, Buyer and its successors and assigns as the
true and lawful attorney of Seller with full power of substitution in the name
of Buyer or in the name of Seller, but for the benefit of Buyer (i) to collect
for the account of Buyer any items of Purchased Assets and (ii) to institute and
prosecute all proceedings consistent with the Genentech License which Buyer may
in its sole discretion deem proper in order to assert or enforce any right,
title or interest in, to or under the Purchased Assets, and to defend or
compromise any and all actions, suits or proceedings in respect of the Purchased
Assets. Buyer shall be entitled to retain for its account any amounts collected
pursuant to the foregoing powers, including any amounts payable as interest in
respect thereof.
5.06. PUBLIC ANNOUNCEMENT. The parties agree to consult with each other
before issuing any press release or making any public statement with respect to
Buyer's acquisition of the Purchased Assets. Such press release or public
statement shall, to the extent possible, be a joint release.
5.07. CASH RECEIVED AFTER CLOSING. Seller shall pay over to Buyer any
and all amounts relating to the Purchased Assets, including, but not limited to,
any amounts received from Genentech in respect of the Genentech License,
received by Seller after the Closing Date.
ARTICLE VI
TAX MATTERS
6.01. TAX DEFINITIONS. The following terms, as used herein, have the
following meanings:
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"PRE-CLOSING TAX PERIOD" means any Tax period (or portion thereof)
ending on or before the close of business on the date preceding the Closing
Date.
"POST-CLOSING TAX PERIOD" means any Tax period (or portion thereof)
ending on or after the Closing Date.
"TAX" means any net income, alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, franchise, capital, paid-up
capital, profits, greenmail, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profit tax, custom, duty or other tax, governmental fee or other like assessment
or charge of any kind whatsoever, together with any interest or any penalty,
addition to tax or additional amount imposed by any Governmental Authority
responsible for the imposition of any such tax.
6.02. TAX MATTERS. Seller hereby separately represents and warrants to
Buyer that:
(a) Seller has timely paid all Taxes, and all interest and penalties
due thereon and payable by it, for the Pre-Closing Tax Period which will have
been required to be paid on or prior to the Closing Date, the non-payment of
which would result in a Lien on any Purchased Asset or would result in Buyer
becoming liable or responsible therefor.
(b) Seller has established adequate reserves for the payment of, and
will timely pay all Tax liabilities, assessments, interest and penalties which
arise from or with respect to the Purchased Assets and are incurred in or
attributable to the Pre-Closing Tax Period, the non-payment of which would
result in a Lien on any Purchased Asset or would result in Buyer becoming liable
or responsible therefor.
(c) In connection with the foregoing representations, no state of facts
exists or has existed that would constitute grounds for the assessment against
Buyer, whether by reason of transferee liability or otherwise, of any liability
for Tax relating to the income, assets or operations of Seller, or arising out
of the transactions set forth in this Agreement.
(d) Any United States Taxes assessed upon or with respect to the
transfer of the Purchased Assets pursuant hereto shall be the responsibility of
Seller.
ARTICLE VII
CONDITIONS TO CLOSING
7.01 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of
Buyer and Seller to consummate the Closing are subject to the satisfaction of
the following conditions:
(a) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the Closing.
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(b) Each other party to each respective Conveyance Document shall have
executed and delivered each such agreement, in each case substantially in the
form attached as an Exhibit to this Agreement.
7.02 CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer to
consummate the Closing is subject to the satisfaction of the following further
conditions:
(a)(i) Seller shall have performed all of its obligations hereunder
required to be performed by it at or prior to the Closing Date and (ii) the
representations and warranties of Seller contained in this Agreement as of the
date hereof shall be true and correct at and as of the Closing Date as if made
at and as of such date.
(b) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall restrain, prohibit or otherwise interfere with
the effective enjoyment by Buyer of all or any material portion of the Purchased
Assets.
(c) Seller shall have received the written consent of Genentech to the
assignment of the Genentech License, in form and substance satisfactory to Buyer
in its sole discretion, and such consent shall not have been withdrawn.
(d) No event shall have occurred that could reasonably be expected to
have a material adverse effect on the Purchased Assets.
(e) Buyer shall have received a certificate signed by the Secretary of
Seller as to Seller's current charter and by-laws, and incumbency of officers,
and a certificate of good standing from the Secretary of State of the State of
Delaware as to Seller's corporate good standing in the State of Delaware, each
in form and substance reasonably satisfactory to Buyer.
(f) Buyer shall have received an opinion of Seller's outside counsel,
in form and substance reasonably satisfactory to Buyer, covering the first
sentence of Section 3.02 hereof.
7.03. CONDITIONS TO OBLIGATIONS OF SELLER. The obligation of Seller to
consummate the Closing is subject to the satisfaction of the following further
conditions:
(a)(i) Buyer shall have performed all of its obligations hereunder
required to be performed by it at or prior to the Closing Date and (ii) the
representations and warranties of Buyer contained in this Agreement as of the
date hereof and in any certificate or other writing delivered by Buyer pursuant
hereto shall be true and correct at and as of the Closing Date, as if made at
and as of such date.
(b) Seller shall have received a certificate signed by an authorized
member or officer of Buyer as to Buyer's current constitutional documents and
incumbency of authorized members and officers, and a certificate of good
standing from the Secretary of State of the State of
-11-
Delaware as to Buyer's good standing in the State of Delaware, each in form and
substance reasonably satisfactory to Seller.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.01. SURVIVAL. The representations and warranties of the parties
hereto contained in this Agreement or in any certificate or other writing
delivered pursuant hereto or in connection herewith shall survive the Closing
for a period of two years; PROVIDED that (i) the representation and warranty in
Section 3.09 and the agreements in Article II, Article IX and Section 10.03
shall survive the Closing indefinitely; (ii) each of the covenants and
agreements in Article V shall survive for the period of time stated in such
covenant or agreement or, if no such period is specified, indefinitely; and
(iii) the covenants, agreements, representations and warranties contained in
Article VI shall survive until expiration of the applicable statutory period of
limitations (giving effect to any waiver, mitigation or extension thereof), if
later. Notwithstanding the preceding sentence, any covenant, agreement,
representation or warranty in respect of which indemnity may be sought under
Section 8.02 shall survive the time at which it would otherwise terminate
pursuant to the preceding sentence, if notice of the inaccuracy or breach
thereof giving rise to such right to indemnity shall have been given to the
party against whom such indemnity may be sought prior to such time.
8.02. INDEMNIFICATION. (a) Seller hereby indemnifies Buyer and its
Affiliates against and agrees to hold each of them harmless from any and all
damage, loss, liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any action, suit or proceeding) (collectively, "LOSS") incurred
or suffered by Buyer or any of its Affiliates arising out of:
(i) any misrepresentation or breach of warranty, covenant or
agreement made or to be performed by Seller pursuant to this Agreement;
or
(ii) the failure of Seller to assume or maintain full
responsibility for the Excluded Liabilities and Obligations.
(b) Buyer hereby indemnifies Seller and any of its Affiliates against
and agrees to hold each of them harmless from any and all Loss incurred or
suffered by Seller or any of its Affiliates arising out of any misrepresentation
or breach of warranty, covenant or agreement made or to be performed by Buyer
pursuant to this Agreement.
8.03. PROCEDURES; NO WAIVER; EXCLUSIVITY. (a) The party seeking
indemnification under Section 8.02 (the "INDEMNIFIED PARTY") agrees to give
prompt notice to the party against whom indemnity is sought (the "INDEMNIFYING
PARTY") of the assertion of any claim, or the commencement of any suit, action
or proceeding in respect of which indemnity may be sought under such Section;
PROVIDED that the failure to give such notice shall not affect the Indemnified
-12-
Party's rights hereunder except to the extent the Indemnifying Party is
materially prejudiced by such failure. The Indemnifying Party may, and at the
request of the Indemnified Party shall, participate in and control the defense
of any such third party suit, action or proceeding at its own expense. The
Indemnifying Party shall not be liable under Section 8.02 for any settlement
effected without its prior consent of any claim, litigation or proceeding in
respect of which indemnity may be sought hereunder; PROVIDED that such consent
may not be unreasonably withheld.
(b) No investigation by Buyer of the Purchased Assets shall limit
Buyer's rights to indemnification hereunder.
(c) After the Closing, Section 8.02 will provide the exclusive remedy
for any misrepresentation, breach of warranty, covenant or other agreement or
other claim arising out of this Agreement or the transactions contemplated
hereby.
ARTICLE IX
TERMINATION
9.01. GROUNDS FOR TERMINATION. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual written agreement of all parties hereto;
(b) by Seller or Buyer if the Closing shall not have been consummated
on or before June 30, 1998 due to non-satisfaction of a condition that has not
been waived by the party for whose benefit the condition exists; or
(c) by Seller or Buyer if consummation of the transactions contemplated
hereby would violate any nonappealable final order, decree or judgment of any
court or governmental body having competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses (b)
or (c) shall give notice of such termination to the other party.
9.02. EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 9.01, such termination shall be without liability of any
party (or any stockholder, director, officer, employee, agent, consultant or
representative of such party) to any other party to this Agreement; PROVIDED
that if such termination shall result from the willful failure of a party to
fulfill a condition to the performance of the obligations of another party or to
perform a covenant of this Agreement or from a willful breach by any party to
this Agreement, such party shall be fully liable for any and all Losses incurred
or suffered by the other party as a result of such failure or breach.; and
FURTHER PROVIDED that: (i) if this Agreement is terminated as permitted by
Section 9.01(b) due to the nonsatisfaction of the condition set forth in Section
7.02(c); and (ii) if
-13-
Seller has used its commercially reasonable efforts to satisfy such condition.
No termination of this Agreement, at a time when a fee is reasonably expected to
be payable pursuant to this Section 9.02 following termination of this Agreement
shall be effective until such fee is paid. The provisions of Section 9.02,
Section 10.03 and, to the extent set forth therein, each covenant, shall survive
any termination hereof pursuant to Section 9.01.
ARTICLE X
MISCELLANEOUS
10.01. NOTICES. All notices, requests and other communications to
either party hereunder shall be in writing (including telex, telecopy or similar
writing) and shall be given,
(a) if to Buyer, to:
Pharmaceutical Partners, L.L.C.
00 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Xxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: F. Xxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
(b) if to Seller, to:
Xoma Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
-14-
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt. All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by fax prior to 4:00 p.m. EST of or on the
date five business days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 10.01.
10.02. AMENDMENTS; NO WAIVERS. (a) Any provisions of this Agreement may
be amended or waived prior to the Closing Date if, and only if, such amendment
or waiver is in writing and signed, in the case of an amendment, by Buyer and
Seller, or in the case of a waiver, by the party against whom the waiver is to
be effective.
(b) No failure or delay by either party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
10.03. EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
10.04. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Without limiting the generality of the
foregoing, nothing herein shall prohibit or restrict Buyer from assigning its
rights and obligations hereunder to any Affiliate of Buyer (but no such
assignment shall relieve Buyer of its obligations hereunder).
10.05. GOVERNING LAW; JURISDICTION. This Agreement shall be construed
in accordance with and governed by the law of the State of New York. Process in
any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court.
10.06. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto.
10.07. ENTIRE AGREEMENT. This Agreement, the Schedules hereto and the
Conveyance Documents constitute the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings and negotiations, both written and oral, between the parties with
respect to the subject matter of this Agreement. No representation,
-15-
inducement, promise, understanding, condition or warranty not set forth herein
has been made or relied upon by either party hereto. None of this Agreement, nor
any provision hereof, is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
10.09. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]
-16-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
PHARMACEUTICAL PARTNERS, L.L.C.
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XOMA CORPORATION
By:
-----------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------------
Title: Vice President, Finance and
Chief Financial Officer
-17-
EXHIBIT A
XXXX OF SALE
XXXX OF SALE, dated as of December 30, 1997, between XOMA Corporation,
a Delaware corporation ("Seller"), and Pharmaceutical Partners, L.L.C., a
Delaware limited liability company ("BUYER").
W I T N E S S E T H
WHEREAS, Buyer and Seller have concurrently herewith consummated the
purchase by Buyer of the Purchased Assets pursuant to the terms and conditions
of the Patent and Exclusive License Purchase Agreement dated December 30, 1997
between Buyer and Seller (the "PURCHASE AGREEMENT"); terms defined in the
Purchase Agreement and not otherwise defined herein being used herein as therein
defined);
NOW, THEREFORE, in consideration of the sale of the Purchase Assets and
in accordance with the terms of the Purchase Agreement, Buyer and Seller agree
as follows:
1. Seller does hereby sell, transfer, assign and deliver to Buyer all
of the right, title and interest of Seller in, to and under the Purchased Assets
TO HAVE AND TO HOLD the Purchased Assets unto the Buyer and its successors and
assigns, to and for its or their use forever; PROVIDED that no sale, transfer,
assignment or delivery shall be made or any or any material portion of any of
the Purchased Assets if an attempted sale, assignment, transfer or delivery,
without the consent of a third party, would constitute a breach or other
contravention thereof or in any way adversely affect the rights of Buyer or
Seller thereunder.
2. This Agreement shall be construed in accordance with and governed by
the law of the State of New York, without regard to the conflicts of law rules
of such state.
A-1
IN WITNESS WHEREOF, XOMA Corporation has caused this Xxxx of Sale to be
duly executed as of the day and year first above written.
XOMA CORPORATION
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Finance and
Chief Financial Officer
A-2
STATE OF __________________)
) ss:
COUNTY OF _________________)
On this ___ day of ______________, 1997, before me personally came
Xxxxx X. Xxxxx, to be personally known, who, being duly sworn, did depose and
say that he resides at ________________________; that he is the Vice President,
Finance and Chief Financial Officer of XOMA Corporation, the corporation
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed of said instrument is
such corporate seal; that it was so fixed by authority of the Board of Directors
of said corporation; and that he signed his name thereto by likely authority.
------------------------------
Notary Public
X-0
XXXXXXX X
Xxxx. Xxxxxx Xx. 0000/0
ASSIGNMENT
WHEREAS, XOMA CORPORATION, a corporation of the State of Delaware,
(hereinafter "ASSIGNOR"), is the owner and assignee of record of all interest
in:
U.S. Xxx. No. 5,500,362, issued March 19, 1996,
U.S. Xxx. No. 5,667,180, issued October 14, 1997, and
U.S. Xxx. Appln. Ser. No. 08/471,984, filed June 6, 1995.
WHEREAS, Pharmaceutical Partners, L.L.C. (hereinafter "ASSIGNEE"), a
limited liability company organized and existing under the laws of the State of
Delaware, and having a usual place of business at 00 X. 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000 desires to acquire an interest therein, in accordance with
Patent and Exclusive License Purchase Agreement duly entered into between
ASSIGNOR and ASSIGNEE on December 30, 1997;
NOW, THEREFORE, to all whom it may concern be it known that for and in
consideration of said Purchase Agreement and the covenants therein, and of other
good and valuable consideration, the receipt of which is hereby acknowledged,
ASSIGNOR has sold, assigned and transferred and by these presents does hereby
sell, assign and transfer unto said ASSIGNEE, its successors, assigns, and legal
representatives, ASSIGNOR's entire right, title and interest in and throughout
the United States of America, its territories and all foreign countries, in and
to the said inventions as described in said patents and patent applications,
together with ASSIGNOR's entire right, title and interest in and to said patents
and patent applications, and such Letters Patent as may issue thereon or claim
priority under international convention; said inventions, patents and patent
applications and Letters Patent to be held and enjoyed by said ASSIGNEE for its
own use and behalf, and for its successors, assigns and legal representatives,
to the full end of the term for which said Letters Patent may be granted as
fully and entirely as the same would have been held by ASSIGNOR had this
assignment and sale not been made; ASSIGNOR hereby conveys all of ASSIGNOR's
rights arising under or pursuant to any and all international agreements,
treaties or laws relating to the protection of industrial property by filing any
such applications for Letters Patent. ASSIGNOR hereby acknowledges that this
assignment, being of ASSIGNOR's entire right, title and interest in and to said
inventions, carries with it the right in ASSIGNEE to apply for and obtain from
competent authorities in all countries of the world any and all Letters Patent
by attorneys and agents of ASSIGNEE's selection and the right to procure the
grant of all Letters Patent to ASSIGNEE for its own name as assignee of
ASSIGNOR's entire right, title and interest therein.
AND, ASSIGNOR hereby further agrees for itself and its successors,
assigns and legal representatives to execute upon request any other lawful
documents and likewise to perform any other lawful acts which may be deemed
necessary to secure fully the aforesaid invention to said ASSIGNEE, its
successors, assigns, and legal representatives, but at its or their expense and
B-1
charges, including: the execution of applications for patents in foreign
countries; the execution of substitution, reissue, divisional or continuation
applications; and preliminary or other statements or the giving of testimony in
any interference or other proceeding in which said inventions or any application
or patent directed thereto may be involved; and ASSIGNOR further hereby
authorizes ASSIGNEE or its attorneys or agents to insert any correct serial
number and filing date into this assignment, if appropriate.
AND, ASSIGNOR hereby authorizes and requests the Commissioner of
Patents of the United States to issue such Letters Patent as shall be granted
upon said patent applications or other patent applications based thereon to said
ASSIGNEE, its successors, assigns, and legal representatives.
B-2
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be duly executed and set our hands and affixed our seals the date set forth
below.
XOMA CORPORATION
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Finance and
Chief Financial Officer
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
PHARMACEUTICAL PARTNERS, L.L.C.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
X-0
XXXXXXX X
Xxxx. Xxxxxx Xx. 0000/0
ASSIGNMENT
WHEREAS, XOMA CORPORATION, a United States corporation of the State of
Delaware, (hereinafter "ASSIGNOR"), is the owner and assignee of record of all
interest in:
Australian Xxx. No. 606,653, issued July 3, 1991.
WHEREAS, Pharmaceutical Partners, L.L.C. (hereinafter "ASSIGNEE"), a
United States limited liability company organized and existing under the laws of
the State of Delaware, and having a usual place of business at 00 X. 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 desires to acquire an interest therein,
in accordance with Patent and Exclusive License Purchase Agreement duly entered
into between ASSIGNOR and ASSIGNEE on December 30, 1997;
NOW, THEREFORE, to all whom it may concern be it known that for and in
consideration of said Purchase Agreement and the covenants therein, and of other
good and valuable consideration, the receipt of which is hereby acknowledged,
ASSIGNOR has sold, assigned and transferred and by these presents does hereby
sell, assign and transfer unto said ASSIGNEE, its successors, assigns, and legal
representatives, ASSIGNOR's entire right, title and interest in and throughout
Australia, in and to the said inventions as described in said patents and patent
applications, together with ASSIGNOR's entire right, title and interest in and
to said patents and patent applications, and such Letters Patent as may issue
thereon or claim priority under international convention; said inventions,
patents and patent applications and Letters Patent to be held and enjoyed by
said ASSIGNEE for its own use and behalf, and for its successors, assigns and
legal representatives, to the full end of the term for which said Letters Patent
may be granted as fully and entirely as the same would have been held by
ASSIGNOR had this assignment and sale not been made; ASSIGNOR hereby conveys all
of ASSIGNOR's rights arising under or pursuant to any and all international
agreements, treaties or laws relating to the protection of industrial property
by filing any such applications for Letters Patent. ASSIGNOR hereby acknowledges
that this assignment, being of ASSIGNOR's entire right, title and interest in
and to said inventions, carries with it the right in ASSIGNEE to apply for and
obtain from competent authorities in all countries of the world any and all
Letters Patent by attorneys and agents of ASSIGNEE's selection and the right to
procure the grant of all Letters Patent to ASSIGNEE for its own name as assignee
of ASSIGNOR's entire right, title and interest therein.
AND, ASSIGNOR hereby further agrees for itself and its successors,
assigns and legal representatives to execute upon request any other lawful
documents and likewise to perform any other lawful acts which may be deemed
necessary to secure fully the aforesaid invention to said ASSIGNEE, its
successors, assigns, and legal representatives, but at its or their expense and
charges, including: the execution of applications for patents in foreign
countries; the execution of substitution, reissue, divisional or continuation
applications; and preliminary or other
C-1
statements or the giving of testimony in any interference or other proceeding in
which said inventions or any application or patent directed thereto may be
involved; and ASSIGNOR further hereby authorizes ASSIGNEE or its attorneys or
agents to insert any correct serial number and filing date into this assignment,
if appropriate.
AND, ASSIGNOR hereby authorizes and requests the Commissioner of
Patents of Australia to issue such Letters Patent as shall be granted upon said
patent applications or other patent applications based thereon to said ASSIGNEE,
its successors, assigns, and legal representatives.
C-2
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be duly executed and set our hands and affixed our seals the date set forth
below.
XOMA CORPORATION
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Finance and
Chief Financial Officer
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
PHARMACEUTICAL PARTNERS, L.L.C.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
X-0
XXXXXXX X
Xxxx. Xxxxxx Xx. 0000/0
ASSIGNMENT
WHEREAS, XOMA CORPORATION, a United States corporation of the State of
Delaware, (hereinafter "ASSIGNOR"), is the owner and assignee of record of all
interest in:
Canadian Xxx. No. 1,336,826, issued August 29, 1995.
WHEREAS, Pharmaceutical Partners, L.L.C. (hereinafter "ASSIGNEE"), a
United States limited liability company organized and existing under the laws of
the State of Delaware, and having a usual place of business at 00 X. 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 desires to acquire an interest therein,
in accordance with Patent and Exclusive License Purchase Agreement duly entered
into between ASSIGNOR and ASSIGNEE on December 30, 1997;
NOW, THEREFORE, to all whom it may concern be it known that for and in
consideration of said Purchase Agreement and the covenants therein, and of other
good and valuable consideration, the receipt of which is hereby acknowledged,
ASSIGNOR has sold, assigned and transferred and by these presents does hereby
sell, assign and transfer unto said ASSIGNEE, its successors, assigns, and legal
representatives, ASSIGNOR's entire right, title and interest in and throughout
Canada, in and to the said inventions as described in said patents and patent
applications, together with ASSIGNOR's entire right, title and interest in and
to said patents and patent applications, and such Letters Patent as may issue
thereon or claim priority under international convention; said inventions,
patents and patent applications and Letters Patent to be held and enjoyed by
said ASSIGNEE for its own use and behalf, and for its successors, assigns and
legal representatives, to the full end of the term for which said Letters Patent
may be granted as fully and entirely as the same would have been held by
ASSIGNOR had this assignment and sale not been made; ASSIGNOR hereby conveys all
of ASSIGNOR's rights arising under or pursuant to any and all international
agreements, treaties or laws relating to the protection of industrial property
by filing any such applications for Letters Patent. ASSIGNOR hereby acknowledges
that this assignment, being of ASSIGNOR's entire right, title and interest in
and to said inventions, carries with it the right in ASSIGNEE to apply for and
obtain from competent authorities in all countries of the world any and all
Letters Patent by attorneys and agents of ASSIGNEE's selection and the right to
procure the grant of all Letters Patent to ASSIGNEE for its own name as assignee
of ASSIGNOR's entire right, title and interest therein.
AND, ASSIGNOR hereby further agrees for itself and its successors,
assigns and legal representatives to execute upon request any other lawful
documents and likewise to perform any other lawful acts which may be deemed
necessary to secure fully the aforesaid invention to said ASSIGNEE, its
successors, assigns, and legal representatives, but at its or their expense and
charges, including: the execution of applications for patents in foreign
countries; the execution of substitution, reissue, divisional or continuation
applications; and preliminary or other
D-1
statements or the giving of testimony in any interference or other proceeding in
which said inventions or any application or patent directed thereto may be
involved; and ASSIGNOR further hereby authorizes ASSIGNEE or its attorneys or
agents to insert any correct serial number and filing date into this assignment,
if appropriate.
AND, ASSIGNOR hereby authorizes and requests the Commissioner of
Patents of Canada to issue such Letters Patent as shall be granted upon said
patent applications or other patent applications based thereon to said ASSIGNEE,
its successors, assigns, and legal representatives.
D-2
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be duly executed and set our hands and affixed our seals the date set forth
below.
XOMA CORPORATION
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Finance and
Chief Financial Officer
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
PHARMACEUTICAL PARTNERS, L.L.C.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
X-0
XXXXXXX X
Xxxx. Xxxxxx Xx. 0000/0
ASSIGNMENT
WHEREAS, XOMA CORPORATION, a United States corporation of the State of
Delaware, (hereinafter "ASSIGNOR"), is the owner and assignee of record of all
interest in:
New Zealand Xxx. No. 223,120, issued January 7, 1988.
WHEREAS, Pharmaceutical Partners, L.L.C. (hereinafter "ASSIGNEE"), a
United States limited liability company organized and existing under the laws of
the State of Delaware, and having a usual place of business at 00 X. 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 desires to acquire an interest therein,
in accordance with Patent and Exclusive License Purchase Agreement duly entered
into between ASSIGNOR and ASSIGNEE on December 30, 1997;
NOW, THEREFORE, to all whom it may concern be it known that for and in
consideration of said Purchase Agreement and the covenants therein, and of other
good and valuable consideration, the receipt of which is hereby acknowledged,
ASSIGNOR has sold, assigned and transferred and by these presents does hereby
sell, assign and transfer unto said ASSIGNEE, its successors, assigns, and legal
representatives, ASSIGNOR's entire right, title and interest in and throughout
New Zealand, in and to the said inventions as described in said patents and
patent applications, together with ASSIGNOR's entire right, title and interest
in and to said patents and patent applications, and such Letters Patent as may
issue thereon or claim priority under international convention; said inventions,
patents and patent applications and Letters Patent to be held and enjoyed by
said ASSIGNEE for its own use and behalf, and for its successors, assigns and
legal representatives, to the full end of the term for which said Letters Patent
may be granted as fully and entirely as the same would have been held by
ASSIGNOR had this assignment and sale not been made; ASSIGNOR hereby conveys all
of ASSIGNOR's rights arising under or pursuant to any and all international
agreements, treaties or laws relating to the protection of industrial property
by filing any such applications for Letters Patent. ASSIGNOR hereby acknowledges
that this assignment, being of ASSIGNOR's entire right, title and interest in
and to said inventions, carries with it the right in ASSIGNEE to apply for and
obtain from competent authorities in all countries of the world any and all
Letters Patent by attorneys and agents of ASSIGNEE's selection and the right to
procure the grant of all Letters Patent to ASSIGNEE for its own name as assignee
of ASSIGNOR's entire right, title and interest therein.
AND, ASSIGNOR hereby further agrees for itself and its successors,
assigns and legal representatives to execute upon request any other lawful
documents and likewise to perform any other lawful acts which may be deemed
necessary to secure fully the aforesaid invention to said ASSIGNEE, its
successors, assigns, and legal representatives, but at its or their expense and
charges, including: the execution of applications for patents in foreign
countries; the execution of substitution, reissue, divisional or continuation
applications; and preliminary or other
E-1
statements or the giving of testimony in any interference or other proceeding in
which said inventions or any application or patent directed thereto may be
involved; and ASSIGNOR further hereby authorizes ASSIGNEE or its attorneys or
agents to insert any correct serial number and filing date into this assignment,
if appropriate.
AND, ASSIGNOR hereby authorizes and requests the Commissioner of
Patents of New Zealand to issue such Letters Patent as shall be granted upon
said patent applications or other patent applications based thereon to said
ASSIGNEE, its successors, assigns, and legal representatives.
E-2
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be duly executed and set our hands and affixed our seals the date set forth
below.
XOMA CORPORATION
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Finance and
Chief Financial Officer
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
PHARMACEUTICAL PARTNERS, L.L.C.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
X-0
XXXXXXX X
Xxxx. Xxxxxx Xx. 0000/0
ASSIGNMENT
WHEREAS, XOMA CORPORATION, a United States corporation of the State of
Delaware, (hereinafter "ASSIGNOR"), is the owner and assignee of record of all
interest in:
Republic of South Africa Xxx. No. 88/0091, issued August 31, 1988.
WHEREAS, Pharmaceutical Partners, L.L.C. (hereinafter "ASSIGNEE"), a
United States limited liability company organized and existing under the laws of
the State of Delaware, and having a usual place of business at 00 X. 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 desires to acquire an interest therein,
in accordance with Patent and Exclusive License Purchase Agreement duly entered
into between ASSIGNOR and ASSIGNEE on December 30, 1997;
NOW, THEREFORE, to all whom it may concern be it known that for and in
consideration of said Purchase Agreement and the covenants therein, and of other
good and valuable consideration, the receipt of which is hereby acknowledged,
ASSIGNOR has sold, assigned and transferred and by these presents does hereby
sell, assign and transfer unto said ASSIGNEE, its successors, assigns, and legal
representatives, ASSIGNOR's entire right, title and interest in and throughout
the Republic of South Africa, in and to the said inventions as described in said
patents and patent applications, together with ASSIGNOR's entire right, title
and interest in and to said patents and patent applications, and such Letters
Patent as may issue thereon or claim priority under international convention;
said inventions, patents and patent applications and Letters Patent to be held
and enjoyed by said ASSIGNEE for its own use and behalf, and for its successors,
assigns and legal representatives, to the full end of the term for which said
Letters Patent may be granted as fully and entirely as the same would have been
held by ASSIGNOR had this assignment and sale not been made; ASSIGNOR hereby
conveys all of ASSIGNOR's rights arising under or pursuant to any and all
international agreements, treaties or laws relating to the protection of
industrial property by filing any such applications for Letters Patent. ASSIGNOR
hereby acknowledges that this assignment, being of ASSIGNOR's entire right,
title and interest in and to said inventions, carries with it the right in
ASSIGNEE to apply for and obtain from competent authorities in all countries of
the world any and all Letters Patent by attorneys and agents of ASSIGNEE's
selection and the right to procure the grant of all Letters Patent to ASSIGNEE
for its own name as assignee of ASSIGNOR's entire right, title and interest
therein.
AND, ASSIGNOR hereby further agrees for itself and its successors,
assigns and legal representatives to execute upon request any other lawful
documents and likewise to perform any other lawful acts which may be deemed
necessary to secure fully the aforesaid invention to said ASSIGNEE, its
successors, assigns, and legal representatives, but at its or their expense and
charges, including: the execution of applications for patents in foreign
countries; the execution of substitution, reissue, divisional or continuation
applications; and preliminary or other
F-1
statements or the giving of testimony in any interference or other proceeding in
which said inventions or any application or patent directed thereto may be
involved; and ASSIGNOR further hereby authorizes ASSIGNEE or its attorneys or
agents to insert any correct serial number and filing date into this assignment,
if appropriate.
AND, ASSIGNOR hereby authorizes and requests the Registrar of Patents
of the Republic of South Africa to issue such Letters Patent as shall be granted
upon said patent applications or other patent applications based thereon to said
ASSIGNEE, its successors, assigns, and legal representatives.
F-2
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be duly executed and set our hands and affixed our seals the date set forth
below.
XOMA CORPORATION
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Finance and
Chief Financial Officer
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
PHARMACEUTICAL PARTNERS, L.L.C.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
STATE OF ____________)
COUNTY OF ___________)ss
Subscribed and sworn to before me, by the above-named
__________________ this _______ day of ___________________, 1997.
______________________________________
Notary Public
My Commission Expires: _______________
