EXECUTION COPY
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LIMITED PARTNERSHIP INTEREST AND
STOCK PURCHASE AGREEMENT
between
ABGENIX, INC.
and
JT AMERICA INC.
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TABLE OF CONTENTS
Page
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ARTICLE 1 PURCHASE OF THE SECURITIES.............................................2
SECTION 1.1. PURCHASE OF THE SECURITIES................................2
SECTION 1.2. PURCHASE PRICE............................................2
SECTION 1.3. CLOSING...................................................2
SECTION 1.4. REGISTRATION OF SALE......................................2
SECTION 1.5. ASSIGNMENT OF RIGHTS AND ASSUMPTION OF OBLIGATIONS........3
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER...............................3
SECTION 2.1. CORPORATE ORGANIZATION AND AUTHORITY......................3
SECTION 2.2. VALIDITY AND EXECUTION OF AGREEMENT.......................3
SECTION 2.3. OWNERSHIP OF SECURITIES...................................3
SECTION 2.4. NO CONFLICT...............................................4
SECTION 2.5. CONSENTS AND APPROVALS....................................4
SECTION 2.6. COMPLIANCE WITH LAW.......................................4
SECTION 2.7. TAX MATTERS...............................................4
SECTION 2.8. LITIGATION................................................5
SECTION 2.9. BROKER'S AND FINDER'S FEES................................5
SECTION 2.10. NO OBLIGATIONS............................................5
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER................................5
SECTION 3.1. CORPORATE ORGANIZATION AND AUTHORITY......................5
SECTION 3.2. VALIDITY AND EXECUTION OF AGREEMENT.......................6
SECTION 3.3. NO CONFLICT...............................................6
SECTION 3.4. CONSENTS AND APPROVALS....................................6
SECTION 3.5. TAX MATTERS...............................................6
SECTION 3.6. BROKER'S OR FINDER'S FEES.................................6
ARTICLE 4 ADDITIONAL AGREEMENTS..................................................7
SECTION 4.1. EXPENSES..................................................7
SECTION 4.2. ADDITIONAL AGREEMENTS; FURTHER ACTIONS....................6
SECTION 4.3. CONFIDENTIALITY; PUBLIC DISCLOSURE........................7
SECTION 4.4. AMENDMENTS TO AGREEMENTS..................................7
ARTICLE 5 CONDITIONS TO CLOSING..................................................8
SECTION 5.1. CONDITIONS TO OBLIGATIONS OF BUYER........................8
SECTION 5.2. CONDITIONS TO OBLIGATIONS OF SELLER.......................8
ARTICLE 6 TERMINATION AND REMEDIES...............................................9
SECTION 6.1. TERMINATION...............................................9
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SECTION 6.2. EFFECT OF TERMINATION.....................................9
ARTICLE 7 SURVIVAL AND INDEMNIFICATION...........................................9
SECTION 7.1. SURVIVAL OF REPRESENTATIONS...............................9
SECTION 7.2. INDEMNIFICATION BY SELLER................................10
SECTION 7.3. INDEMNIFICATION BY BUYER.................................10
SECTION 7.4. CLAIMS...................................................10
ARTICLE 8 MISCELLANEOUS PROVISIONS..............................................11
SECTION 8.1. NOTICES..................................................11
SECTION 8.2. SUCCESSORS AND ASSIGNS...................................12
SECTION 8.3. TITLES AND HEADINGS......................................12
SECTION 8.4. SEVERABILITY.............................................13
SECTION 8.5. ENTIRE AGREEMENT.........................................12
SECTION 8.6. WAIVERS AND AMENDMENTS..................................132
SECTION 8.7. GOVERNING LAW............................................13
SECTION 8.8. DISPUTES.................................................13
SECTION 8.9. EXECUTION IN COUNTERPARTS; BINDING EFFECT................14
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EXECUTION COPY
LIMITED PARTNERSHIP INTEREST AND STOCK PURCHASE AGREEMENT
This LIMITED PARTNERSHIP INTEREST AND STOCK PURCHASE AGREEMENT is made
and entered into this 20th day of December, 1999 by and between ABGENIX, INC., a
Delaware corporation ("BUYER"), and JT AMERICA INC., a New York corporation
("SELLER").
W I T N E S S E T H:
WHEREAS, Xenotech, L.P., a California limited partnership (the
"PARTNERSHIP"), was organized on June 12, 1991 pursuant to a Limited Partnership
Agreement (as amended through the date hereof, the "LP AGREEMENT") among
Xenotech, Inc., a Delaware corporation (the "GENERAL PARTNER"), Cell Genesys,
Inc., ("CGI") the predecessor company of Buyer, and JT Immunotech USA, Inc.
("JTI"), the predecessor company of Seller and an indirect subsidiary of Japan
Tobacco Inc., to develop genetically modified strains of mice which can produce
fully human monoclonal antibodies, and to commercialize products generated
therefrom;
WHEREAS, Seller currently holds a limited partnership interest in the
Partnership comprising forty-nine and one-half percent (49.5%) of the aggregate
Percentage Interests (as defined in the LP Agreement) in the Partnership, Buyer
currently holds a limited partnership interest in the Partnership comprising
forty-nine and one-half percent (49.5%) of the aggregate Percentage Interests in
the Partnership, and the General Partner holds a general partnership interest in
the Partnership comprising one percent (1.0%) of the aggregate Percentage
Interests in the Partnership;
WHEREAS, Seller currently owns 500 shares of Series B Common Stock, par
value $1.00 per share (the "SERIES B COMMON STOCK" and, together with the Series
A Common Stock referred to below, the "GP COMMON STOCK"), of the General
Partner, representing fifty percent (50.0%) of the issued and outstanding shares
of GP Common Stock, and Buyer currently owns 500 shares of Series A Common
Stock, par value $1.00 per share (the "SERIES A COMMON STOCK"), of the General
Partner, representing fifty percent (50.0%) of the issued and outstanding shares
of GP Common Stock; and
WHEREAS, Buyer desires to acquire from Seller, and Seller desires to
sell to Buyer, all of Seller's limited partnership interest in the Partnership
(the "PARTNERSHIP INTEREST") and all of the shares of Series B Common Stock held
by Seller (the "SHARES" and, together with the Partnership Interest, the
"SECURITIES"), upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual terms,
conditions and other agreements set forth herein, intending to be legally bound,
the parties hereby agree as follows:
1.
ARTICLE 1
PURCHASE OF THE SECURITIES
SECTION 1.1. PURCHASE OF THE SECURITIES; PARTNERSHIP INTEREST.
On the terms and subject to the conditions set forth in this Agreement, at
the Closing, Seller agrees to sell, transfer, assign, convey and deliver to
Buyer, and Buyer agrees to purchase, acquire and accept from Seller, the
Partnership Interest (including, but not limited to, the proportionate amount
of the Capital Account (as defined in the LP Agreement) of the Seller) free
and clear of all security interests, pledges, mortgages, liens, charges,
adverse claims or restrictions of any kind, including, but not limited to,
any restriction on the use, voting, transfer, receipt of income or other
exercise of any attributes of ownership ("ENCUMBRANCES").
(b) SHARES. On the terms and subject to the conditions set
forth in this Agreement, at the Closing, Seller agrees to sell, transfer,
assign, convey and deliver to Buyer, and Buyer agrees to purchase, acquire
and accept from Seller, the Shares free and clear of all Encumbrances.
SECTION 1.2. PURCHASE PRICE. The aggregate consideration for the
purchase of the Shares shall be four hundred sixty thousand dollars (US$
460,000) (the "SHARE PURCHASE PRICE"). The aggregate consideration for the
purchase of the Partnership Interest shall be forty-six million five hundred
forty thousand dollars (US$ 46,540,000) (the "PARTNERSHIP INTEREST PURCHASE
PRICE" and, together with the Share Purchase Price, the "PURCHASE PRICE"),
the Buyer will pay the Purchase Price to Seller at the Closing by bank wire
transfer in immediately available funds to one or more accounts, as
designated in writing by Seller to Buyer on the Closing Date.
SECTION 1.3. CLOSING. The consummation of the purchase and sale of
the Securities (the "CLOSING") shall be held at 10:00 a.m. local time at the
offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
XX 00000, as soon as practicable, but not later than the second business day,
after the satisfaction or waiver of the conditions set forth in Article 5
hereof, or at such other time, date and place as shall be mutually agreed
upon by the parties (such date and time being referred to herein as the
"CLOSING DATE"). Each party hereto agrees to use all commercially reasonable
efforts to promptly satisfy the conditions precedent specified in Article 5
to its obligation to consummate the Closing in order to expedite the Closing.
SECTION 1.4. REGISTRATION OF SALE. At the Closing:
(a) Seller and Buyer shall cause the Partnership to
register the sale of the Partnership Interest and the proportionate amount of
Seller's Capital Account to Buyer on the books of the Partnership; and
(b) Seller shall deliver or cause to be delivered to Buyer
stock certificates evidencing the Shares duly endorsed in blank, or
accompanied by stock powers duly executed in blank, in form satisfactory to
Buyer and with all required stock transfer tax stamps affixed.
2.
SECTION 1.5. ASSIGNMENT OF RIGHTS AND ASSUMPTION OF OBLIGATIONS.
Seller hereby assigns to Buyer all of the Seller's rights under (i) the LP
Agreement and (ii) the Joint Venture Agreement (as amended through the date
hereof, the "JV AGREEMENT") between CGI, the predecessor company of Buyer,
and JTI, the predecessor company of Seller, and subject to the terms and
conditions thereof, in each case as such agreements are amended hereby,
effective as of the Closing.
(a) If the assignment of any contract or other instrument
to be assigned to Buyer hereunder requires the consent of any party thereto
then Seller shall furnish copies of each such consent to Buyer. Buyer shall
use its reasonable best efforts to assist and cooperate with Seller in
obtaining any and all such consents. Buyer shall also notify Seller as soon
as reasonably practicable after it becomes aware that any such consent is
required.
(b) Buyer hereby assumes, and agrees to be bound by, all of
the obligations of Seller under the LP Agreement and the JV Agreement,
whether arising prior to or after the Closing.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants as of the date hereof and as
of the Closing Date to Buyer as follows:
SECTION 2.1. CORPORATE ORGANIZATION AND AUTHORITY. Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of New York and has all necessary corporate power and
corporate authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
SECTION 2.2. VALIDITY AND EXECUTION OF AGREEMENT. The Board of
Directors and, if required, the shareholders, of Seller have taken all action
required by law, its articles of incorporation and by-laws or otherwise to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Seller and is a legal, valid and binding
agreement of Seller enforceable against Seller in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general application affecting the enforcement of creditors'
rights.
SECTION 2.3. OWNERSHIP OF SECURITIES; PARTNERSHIP INTEREST. Seller
owns the Partnership Interest directly, free and clear of all Encumbrances
and upon consummation of the purchase and sale of the Partnership Interest,
Buyer will have good and marketable title to and ownership of the Partnership
Interest, free and clear of all Encumbrances, other than any failure to have
such title and ownership, and other than any Encumbrances, in each case
resulting from the status of or from any
3.
action or failure to act by Buyer. There are no outstanding contractual
obligations of Seller to any Person with respect to the Partnership Interest.
(a) SHARES. Seller owns the Shares directly, free and clear
of all Encumbrances and upon consummation of the purchase and sale of the
Shares, Buyer will have good and marketable title to and ownership of the
Shares, free and clear of all Encumbrances, other than any failure to have
such title and ownership, and other than any Encumbrances, in each case
resulting from the status of or from any action or failure to act by Buyer.
There are no outstanding contractual obligations of Seller to any Person with
respect to the Shares.
SECTION 2.4. NO CONFLICT. Neither the execution, delivery and
performance by Seller of this Agreement nor the consummation of the
transactions contemplated hereby by Seller will (i) violate or conflict with
any of the provisions of its articles of incorporation or by-laws, the
articles of incorporation or by-laws of the General Partner, or the LP
Agreement; (ii) violate or conflict with any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable to
Seller, the General Partner or the Partnership or (iii) result in any breach
of, or constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result
in the creation of any Encumbrance on the Partnership Interest or the Shares
or any of the assets or properties of the Partnership or the General Partner
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument relating to Seller, the
Partnership Interest, the Shares or such assets or properties to which
Seller, the General Partner or the Partnership is a party or by which Seller,
the General Partner, the Partnership, the Shares, the Partnership Interest or
any of such assets or properties is bound or affected.
SECTION 2.5. CONSENTS AND APPROVALS. The execution and delivery of
this Agreement by Seller do not, and the performance of this Agreement and
the consummation of the transactions contemplated hereby by Seller will not,
require any consent, approval, exemption, authorization or other action by,
or filing with or notification to, any court, administrative agency or other
governmental or regulatory authority, except for the filing of a premerger
notification and report form under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the AHSR ACT).
SECTION 2.6. COMPLIANCE WITH LAW. On the Closing Date, Seller will
not be in violation of any law, rule, regulation, order, judgment or decree
applicable to Seller relating to or affecting Seller's ownership of the
Securities or the ability of Seller to perform its obligations under this
Agreement and to consummate the transactions contemplated hereby.
SECTION 2.7. TAX MATTERS. Seller has reviewed with its own tax
advisors the federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. Seller relies solely on such
advisors and not on any statements or representations of Buyer, the General
Partner, the Partnership, or any of their agents. Seller acknowledges that it
(and not Buyer, the General
4.
Partner or the Partnership) shall be responsible for its own tax liability
that may arise as a result of the transactions contemplated by this Agreement.
SECTION 2.8. LITIGATION. There is no action, suit, proceeding,
investigation or arbitration, before or by any Governmental Entity, pending
or threatened against or affecting (i) the Partnership Interest, (ii) the
Shares or (iii) the ability of Seller to perform its obligations under this
Agreement and to consummate the transactions contemplated hereby.
SECTION 2.9. BROKER'S AND FINDER'S FEES. No investment banker,
broker, finder or other intermediary has been retained by Seller or any of
its Affiliates or is authorized to act on behalf of Seller who might be
entitled to any fee or commission with respect hereto or to the transactions
contemplated hereby. As used herein "AFFILIATE" means a Person (defined as
any person, corporation or other entity) who, directly or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified. For the purpose of this definition, the
term "controls," is controlled by" or "is under common control with" means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. The government of
Japan shall be deemed not to be an Affiliate of JTI.
SECTION 2.10. NO OBLIGATIONS. As of the Closing Date, Seller has
paid in full or otherwise fully satisfied all obligations and liabilities of
Seller to the Partnership under the LP Agreement and to the General Partner
under the JV Agreement, including any obligation to make any capital
contribution, refund any excess distribution, pay any taxes, reimburse
expenses or otherwise.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants as of the date hereof and as of
the Closing Date to Seller as follows:
SECTION 3.1. CORPORATE ORGANIZATION AND AUTHORITY. Buyer is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all necessary corporate power and
corporate authority to execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
SECTION 3.2. VALIDITY AND EXECUTION OF AGREEMENT. The Board of
Directors and, if required, the shareholders, of Buyer have taken all action
required by law, its certificate of incorporation and by-laws or otherwise to
authorize the performance of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Buyer and is a legal, valid
and binding agreement of Buyer, enforceable against Buyer in accordance with
its terms,
5.
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general application affecting the enforcement of creditors'
rights.
SECTION 3.3. NO CONFLICT. Neither the execution, delivery and
performance by Buyer of this Agreement nor the consummation of the
transactions contemplated hereby by Buyer will (i) violate or conflict with
any of the provisions of its certificate of incorporation or by-laws, the
articles of incorporation or by-laws of the General Partner, or the LP
Agreement; (ii) violate or conflict with any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable to
Buyer, the General Partner or the Partnership or (iii) result in any breach
of, or constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result
in the creation of any Encumbrance on the Partnership Interest or the Shares
or any of the assets or properties of the Partnership or the General Partner
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument relating to Buyer, the
Partnership Interest, the Shares or such assets or properties to which Buyer,
the General Partner or the Partnership is a party or by which Buyer, the
General Partner, the Partnership, the Shares, the Partnership Interest or any
of such assets or properties is bound or affected.
SECTION 3.4. CONSENTS AND APPROVALS. The execution and delivery of
this Agreement by Buyer do not, and the performance of this Agreement and the
consummation of the transactions contemplated hereby by Buyer will not,
require any consent, approval, exemption, authorization or other action by,
or filing with or notification to, any court, administrative agency or other
governmental or regulatory authority, except for the filing of a premerger
notification and report form under the HSR Act.
SECTION 3.5. TAX MATTERS. Buyer has reviewed with its own tax
advisors the federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. Buyer relies solely on such
advisors and not on any statements or representations of Seller, the General
Partner, the Partnership, or any of their agents. Buyer acknowledges that it
(and not Seller, the General Partner or the Partnership) shall be responsible
for its own tax liability that may arise as a result of the transactions
contemplated by this Agreement.
SECTION 3.6. BROKER'S OR FINDER'S FEES. No investment banker,
broker, finder or other intermediary has been retained by Buyer or any of its
Affiliates or is authorized to act on behalf of Buyer who might be entitled
to any fee or commission with respect hereto or to the transactions
contemplated hereby.
6.
ARTICLE 4
ADDITIONAL AGREEMENTS
SECTION 4.1. EXPENSES. Whether or not the transactions contemplated
hereby are consummated, all costs and expenses incurred in connection with
this Agreement, the instruments and documents delivered hereunder and the
transactions contemplated hereby will be paid by the party incurring such
expense.
SECTION 4.2. ADDITIONAL AGREEMENTS; FURTHER ACTIONS. Subject to the
terms and conditions of this Agreement, Buyer and Seller each agree to use
all commercially reasonable efforts to take, or cause to be taken by their
respective Affiliates and otherwise, all actions and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement, including using
all commercially reasonable efforts to obtain all necessary waivers, consents
and approvals, to execute and deliver all necessary documents and
instruments, to give all notices and to effect all necessary registrations
and filings. If at any time after the Closing Date any further action is
necessary or desirable to carry out the purposes of this Agreement, the
proper officers and directors of Buyer and Seller shall use all commercially
reasonable efforts to take such action and Buyer and Seller shall use all
commercially reasonable efforts to cause the proper officers and directors of
their respective Affiliates to take such action.
SECTION 4.3. CONFIDENTIALITY; PUBLIC DISCLOSURE. Buyer and Seller
each agree to maintain, and to cause their respective Affiliates to maintain,
the confidentiality of any and all confidential information furnished to it
in connection with the transactions contemplated by this Agreement, except
with the prior written consent of the other or as may be required by any
Governmental Entity.
(a) Buyer and Seller shall consult with each other before
issuing any press release or otherwise making any public statement or making
any other public (or non-confidential) disclosure (whether or not in response
to an inquiry) regarding the terms of this Agreement and the transactions
contemplated hereby, and neither shall issue any such press release or make
any such statement or disclosure without the prior approval of the other
(which approval shall not be unreasonably withheld), except as may be
required by law or by obligations pursuant to any listing agreement with any
national securities exchange or market or with the NASD.
SECTION 4.4. AMENDMENTS TO AGREEMENTS. Effective immediately prior
to the Closing, and without any further action being required on the part of
either party hereto:
(a) Section 7.1 of the JV Agreement shall be deemed to have been
amended to permit the transfer of the Shares from Seller to
Buyer as contemplated hereby;
(b) Section 5.1 of the LP Agreement shall be deemed to have been
amended to permit the transfer of the Partnership Interests
from Seller to Buyer as contemplated hereby;
7.
(c) The JV Agreement shall be deemed to have been amended to
permit the assignment of Sellers rights and obligations under
the JV Agreement to Buyer as contemplated hereby;
(d) Section 12.8 of the LP Agreement shall be deemed to have been
amended to permit the assignment of Sellers rights and
obligations under the LP Agreement to Buyer as contemplated
hereby; and
(e) Except as provided herein, the LP Agreement and the JV
Agreement shall remain in full force and effect in accordance
with their respective terms.
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.1. CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of
Buyer to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction of all of the following conditions at or prior to
Closing, any one or more of which may be waived by Buyer:
(a) SELLER'S WARRANTIES AND PERFORMANCE. The
representations and warranties of Seller contained in this Agreement shall be
true as of and on the Closing Date with the same effect as though made at the
Closing Date. Seller shall have performed all obligations and complied with
all conditions, covenants and other agreements required by this Agreement to
be performed and complied with by Seller prior to or at the Closing. Seller
shall have delivered to Buyer a certificate to the effect of the preceding
two sentences duly executed by an appropriate officer of Seller.
(b) LEGAL PROHIBITION. On the Closing Date, there shall
exist no injunction or other order issued by a court of competent
jurisdiction, domestic or foreign, or any proceeding pending or threatened
seeking such an injunction or order, which would prohibit or make unlawful
the consummation of the transactions contemplated by this Agreement.
(c) HSR ACT. The waiting period (and any extension thereof)
applicable to the purchase of the Securities under the HSR Act shall have
been terminated or shall have expired.
(d) RESIGNATION OF DIRECTORS. The directors of the General
Partner immediately prior to the Closing that were elected by Seller as the
holder of the Series B Common Stock shall have resigned as directors of the
General Partner effective as of the Closing.
SECTION 5.2. CONDITIONS TO OBLIGATIONS OF SELLER. The obligation of
Seller to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction of all of the following conditions at or prior to
the Closing, any one or more of which may be waived by Seller:
8.
(a) BUYER'S WARRANTIES AND PERFORMANCE. The representations
and warranties of Buyer herein contained shall be true as of and on the
Closing Date with the same effect as though made at the Closing Date. Buyer
shall have performed all obligations and complied with all conditions,
covenants and other agreements required by this Agreement to be performed or
complied with by Buyer prior to or on the Closing Date. Buyer shall have
delivered to Seller a certificate to the effect of the preceding two
sentences duly executed by an appropriate officer of Buyer.
(b) LEGAL PROHIBITION. On the Closing Date, there shall
exist no injunction or other order issued by a court of competent
jurisdiction, domestic or foreign, or any proceeding pending or threatened
seeking such an injunction or order, which would prohibit or make unlawful
the consummation of the transactions contemplated by this Agreement.
(c) HSR ACT. The waiting period (and any extension thereof)
applicable to the purchase of the Securities under the HSR Act shall have
been terminated or shall have expired.
ARTICLE 6
TERMINATION AND REMEDIES
SECTION 6.1. TERMINATION. This Agreement may be terminated upon
written notice given at any time prior to the Closing:
(a) by the mutual written consent of Seller and Buyer; or
(b) by either Seller or Buyer, if the Closing shall not
have occurred on or before the date sixty (60) days from the date hereof.
SECTION 6.2. EFFECT OF TERMINATION. In the event of termination of
this Agreement as provided in Section 6.1, this Agreement shall forthwith
become void and there shall be no liability on the part of any party hereto
except (a) as set forth in Sections 4.1 and 4.3 and (b) nothing herein shall
relieve either party from liability for any willful breach hereof.
ARTICLE 7
SURVIVAL AND INDEMNIFICATION
SECTION 7.1. SURVIVAL OF REPRESENTATIONS. The representations and
warranties made by Seller in Article 2 hereof and elsewhere in this Agreement
(including the certificate delivered in accordance with Section 5.1(a)
hereof, insofar as such certificate relates to such representations and
warranties) shall survive until the first anniversary of the Closing Date;
PROVIDED, HOWEVER, that the representations and warranties made by Seller in
Section 2.3 hereof (including the certificate
9.
delivered in accordance with Section 5.1(a) hereof, insofar as such
certificate relates to such representations and warranties) shall survive
indefinitely after the Closing Date.
(b) The representations and warranties made by Buyer in
Article 3 hereof and elsewhere in this Agreement (including the certificate
delivered in accordance with Section 5.2(a) hereof, insofar as such
certificate relates to such representations and warranties) shall survive
until the first anniversary of the Closing Date.
(c) Anything in this Agreement to the contrary
notwithstanding, no claim for indemnification with respect to the breach of
any representation and warranty contained in this Agreement (or with respect
to any certificate relating to such representation and warranty) may be
brought, and no arbitration or litigation with respect thereto commenced, and
the party making such representation and warranty shall have no obligation
with respect thereto, unless written notice specifying the representation and
warranty claimed to have been breached shall have been delivered to such
party.
SECTION 7.2. INDEMNIFICATION BY SELLER. Seller shall indemnify and
hold Buyer, and its respective directors, officers, employees, agents,
Affiliates and assigns (the "BUYER INDEMNIFIED PARTIES"), harmless from and
against any and all losses, damages, liabilities, claims, demands, judgments,
settlements, costs and expenses (including, without limitation, interest,
penalties, any court or administrative agency costs, and attorneys',
accountants' and other consultants' fees) (hereinafter individually a "LOSS"
and collectively, "LOSSES") suffered or incurred by the Buyer Indemnified
Parties and arising out of or resulting from any inaccuracy in or breach or
nonfulfillment of any representation, warranty, covenant or agreement by
Seller contained in this Agreement.
SECTION 7.3. INDEMNIFICATION BY BUYER. Buyer shall indemnify and
hold Seller, and its respective directors, officers, employees, agents,
Affiliates, and assigns (the "SELLER INDEMNIFIED PARTIES" and, together with
the Buyer Indemnified Parties, the "INDEMNIFIED PARTIES"), harmless from and
against any and all Losses suffered or incurred by the Seller Indemnified
Parties and arising out of or resulting from any inaccuracy in or breach or
nonfulfillment of any representation, warranty, covenant or agreement by
Buyer contained in this Agreement.
SECTION 7.4. CLAIMS.If a claim by a third party is made against an
Indemnified Party, and if such Indemnified Party intends to seek indemnity
with respect thereto under this Agreement, the Indemnified Party shall
promptly (and in any case within 30 days of such claim being formally made)
give the indemnifying party a written notice of such claim. The indemnifying
party shall have 30 days after receipt of such notice to assume and control
the defense of such claim at its expense and through counsel of its choice;
PROVIDED, HOWEVER, that if the Indemnified Party or Indemnified Parties
reasonably determine that a conflict of interest exists where it is advisable
for such Indemnified Party or Indemnified Parties to be represented by
separate counsel or that upon advice of counsel there may be legal defenses
available to such Indemnified Party or Indemnified Parties which are
different from or in addition to those available to the indemnifying party,
then the
10.
indemnifying party shall not be entitled to assume and control the defense of
such claim. If the indemnifying party elects not to defend against such
claim, then it shall promptly so notify the Indemnified Party and, in such
event, the Indemnified Party shall thereupon again be entitled, at its
option, to assume and control the defense of such claim and through counsel
of its choice. In any circumstance where the Indemnified Party assumes and
controls the defense of such claim, the indemnifying party shall promptly pay
all attorneys', accountants' and other consultants' fees of the Indemnified
Party in connection with the assumption and defense of such claim. If the
indemnifying party exercises its right to undertake the defense against any
such claim as provided above, the Indemnified Party shall cooperate with the
indemnifying party in such defense and make available to the indemnifying
party, at the indemnifying party's expense, all pertinent records, materials
and information in its possession or under its control relating thereto as is
reasonably requested by the indemnifying party. No claim which is being
assumed and defended in good faith by the indemnifying party shall be settled
by the Indemnified Party without the written consent of the indemnifying
party.
(b) The indemnifying party shall be subrogated to any and
all defenses, claims and setoffs which the Indemnified Party asserted or
could have asserted against the third party making a claim. The Indemnified
Party shall execute and deliver to the indemnifying party such documents as
may be reasonably necessary to establish by way of subrogation the ability
and right of the indemnifying party to assert such defenses, claims and
setoffs.
ARTICLE 8
MISCELLANEOUS PROVISIONS
SECTION 8.1. NOTICES. All notices, requests, claims, demands and
other communications given or made pursuant hereto shall be in writing (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by cable, by telecopy (with confirmation copy of such telecopied
material delivered in person or by registered or certified mail, postage
prepaid, return receipt requested) or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 8.1).
(i) If to Buyer:
Abgenix, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: President
11.
(ii) If to Seller:
JT America Inc.
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: President
with copies to:
Japan Tobacco, Inc.
JT Xxxxxxxx
0-0 Xxxxxxxxx 0-xxxxx
Xxxxxx-Xx, Xxxxx 000
Fax: 000-00-0-0-000-0000
Japan
Attn: Vice President, Pharmaceutical Division
Akros Pharma Inc.
0000 Xxxxxxx Xxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: President
Xxxxxxx, Xxxxxx and Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
SECTION 8.2. SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of, and be binding upon, the parties hereto and their respective
successors and permitted assigns; PROVIDED, HOWEVER, that Seller may not
assign any rights or delegate any of the obligations created under this
Agreement without the prior written consent of Buyer. Nothing in this
Agreement shall confer upon any person or entity not a party to this
Agreement, or the legal representatives of such person or entity, any rights
or remedies of any nature or kind whatsoever under or by reason of this
Agreement.
SECTION 8.3. TITLES AND HEADINGS. Titles and headings to Articles
and Sections herein, and the Table of Contents to this Agreement, are
inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
12.
SECTION 8.4. SEVERABILITY. This Agreement shall be deemed severable,
and the invalidity or unenforceability of any term or provision hereof shall
not affect the validity or enforceability of this Agreement or of any other
term or provision hereof.
SECTION 8.5. ENTIRE AGREEMENT. This Agreement represents the entire
agreement and understanding of the parties with reference to the transactions
set forth herein, and no representations or warranties have been made in
connection with this Agreement or the transactions contemplated hereby other
than those expressly set forth herein, certificates and other documents
delivered in accordance herewith. This Agreement supersedes all prior
negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this
Agreement and all prior drafts of this Agreement, all of which are merged
into this Agreement.
SECTION 8.6. WAIVERS AND AMENDMENTS. Each of Seller and Buyer may,
but shall not be obligated to, by written notice to the others (a) extend the
time for the performance of any of the obligations or other actions of the
other; (b) waive any inaccuracies in the representations or warranties of the
other contained in this Agreement; (c) waive compliance with any of the
covenants of the other created under this Agreement; or (d) waive fulfillment
of any of the conditions to its own obligations under this Agreement. The
waiver by any party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach,
whether or not similar. This Agreement may be amended, modified or
supplemented only by a written instrument executed by all parties hereto.
SECTION 8.7. GOVERNING LAW. This Agreement shall be construed under
and in accordance with, and governed in all respects by the laws of the State
of California (without giving effect to principles of conflicts of law).
SECTION 8.8. DISPUTES. The parties will attempt to resolve any
dispute under this Agreement by mutual agreement, and, if required, there
shall be a face-to-face meeting between the Chief Executive Officer of Buyer
and the Vice President of the Pharmaceutical Division of Japan Tobacco, Inc.
Any dispute under this Agreement which is not settled after such meeting
shall be finally settled by binding arbitration, conducted in accordance with
the Commercial Arbitration Rules of the American Arbitration Association by
three (3) arbitrators appointed in accordance with said rules. The
arbitration proceedings and all pleadings and written evidence shall be in
the English language. Any written evidence originally in a language other
than English shall be submitted in English translation accompanied by the
original or a true copy thereof. The costs of the arbitration, including
administrative and arbitrators' fees, shall be shared equally by the parties
to the arbitration. Each party shall bear its own costs and attorneys' and
witness' fees; provided that the prevailing party in any arbitration, as
determined by the arbitration panel, shall be entitled to an award against
the other party in the amount of the prevailing party's costs and reasonable
attorneys' fees. A disputed performance or suspended performances pending the
resolution of the arbitration must be completed within thirty (30) days
following the final decision of the arbitrators. Any arbitration
13.
subject to this Section 8.8 shall be completed within six (6) months from the
filing of notice of a request for such arbitration.
SECTION 8.9. EXECUTION IN COUNTERPARTS; BINDING EFFECT. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original copy and all of which together shall be considered one and
the same agreement, and shall become a binding agreement when one or more
counterparts have been signed by each party and delivered to the other
parties.
[Remainder of This Page is Intentionally Left Blank]
14.
IN WITNESS WHEREOF, Seller and Buyer have caused this Agreement to
be executed as of the day and year first written above.
ABGENIX, INC.
By: /s/ R. Xxxxx Xxxxx
---------------------------------------
R. Xxxxx Xxxxx
President and Chief Executive Officer
JT AMERICA INC.
By: /s/ Xxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxx
President
15.
EXECUTION COPY
ABGENIX, INC.
OFFICER'S CERTIFICATE
I, ______________________, ___________________ of ABGENIX, INC., a
Delaware corporation (the "Company"), DO HEREBY CERTIFY, in connection with the
Limited Partnership Interest and Stock Purchase Agreement dated as of December
____, 1999 by and between JT America Inc. and the Company, that the
representations and warranties of the Company contained in Article 3 are true
and correct as of this date.
IN WITNESS WHEREOF, I have signed this certificate dated as of _______
day of ____________, _____.
_______________________________
Name:
Title:
1.
JT AMERICA INC.
OFFICER'S CERTIFICATE
I, _________________, ______________ of JT AMERICA INC., a New York
corporation (the "Company"), DO HEREBY CERTIFY, in connection with the Limited
Partnership Interest and Stock Purchase Agreement dated as of December ____,
1999 by and between Abgenix, Inc. and the Company, that the representations and
warranties of the Company contained in Article 2 are true and correct as of this
date.
IN WITNESS WHEREOF, I have signed this certificate dated as of _______
day of ____________, _____.
_______________________________
Name:
Title:
2.
