ASSET Transfer AGREEMENT
Exhibit 10.4
This ASSET TRANSFER AGREEMENT (this “Agreement”) is made and entered as of June 28, 2023 (“Effective Date”) by and between Pharmosa Biopharm Inc., a corporation incorporated under the laws of Taiwan having a place of business at 0X.-0, Xx. 00, Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxx Xxxx 00000, Xxxxxx (“Seller”), and Liquidia Technologies, Inc., a corporation incorporated under the laws of the State of Delaware, USA having a place of business at 000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000, XXX (“Buyer”). Seller and Buyer may be referred to herein as a “Party” or, collectively, as “Parties”, and certain other capitalized terms not otherwise defined herein shall have the definitions set forth in Article V hereof.
W I T N E S S E T H:
WHEREAS, concurrently with and contingent on the execution of this Agreement, the Parties are entering into that certain License Agreement by and between the Buyer and Seller dated on or around the date hereof (the “License Agreement”) pursuant to which the Buyer is obtaining an exclusive license to certain intellectual property rights owned, licensed to or otherwise controlled by the Seller; and
WHEREAS, in connection with the License Agreement, Seller desires to transfer ownership of the Inventory to Buyer, and Buyer desires to obtain ownership of the Inventory from Seller, upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual representations, promises and covenants set forth herein and in the License Agreement, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, intending to be legally bound, the Parties hereby agree as follows:
Seller represents and warrants to Buyer that the statements contained in this Article II are true and correct as of the Effective Date and shall be true and correct as of the date of each Delivery with the same force and effect as though such representations and warranties had been made on and as of the Effective Date.
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representations and warranties of Buyer
Buyer represents and warrants to Seller that the statements contained in this Article III are true and correct as of the Effective Date and shall be true and correct as of the date of each Delivery with the same force and effect as though such representations and warranties had been made on and as of the Effective Date.
INDEMNIFICATION
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If to Seller:
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Pharmosa Biopharm Inc.
3F.-3, Xx. 00, Xxxxxxxx Xxxx
Nangang District, Taipei City 11502
Taiwan
Attention: Pei Kan/ Xxxxxx Xx
Email: xxxxxx@xxxxxxxx.xxx.xx / Xxxxxx.xx@xxxxxxxx.xxx.xx
With a copy (which shall not constitute notice) to:
K&L Gates
30F, No. 95. Dun Hua S. Road, Section 2
Ta-an District, Taipei City 106
Taiwan
Attention: Xxxxxxxxxx Xx
Email: xxxxxxxxxx.xx@xxxxxxx.xxx
If to Buyer:
Liquidia Technologies, Inc.
000 Xxxxx Xxxxx, Xxxxx 000
Morrisville, North Carolina 27560
USA
Attention: General Counsel
Email: xxxxx@xxxxxxxx.xxx
With a copy (which shall not constitute notice) to:
DLA Piper LLP (US)
00 Xxxx X. Xxxxxxx Xxxxxxx, Xxxxx 000
Short Hills, New Jersey 07078
USA
Attention: Xxxxxx X. Xxxxxxx
Email: xxxxxx.xxxxxxx@xx.xxxxxxxx.xxx
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“Affiliate” means a Person that controls, is controlled by or is under common control with a Party, but only for so long as such control exists. For the purposes of this definition, the word “control” (including, with correlative meaning, the terms “controlled by” or “under the common control with”) means the actual power, either directly or indirectly through one or more intermediaries, to direct the management and policies of such Person or entity, whether by the ownership of more than fifty percent (50%) of the voting stock of such entity, or by contract or otherwise.
“Agreement” has the meaning set forth in the preamble of this Agreement.
“Bill of Sale” has the meaning set forth in Section 1.05 hereof.
“Business Day” means any day, other than a Saturday or Sunday or any other day on which banks are required or authorized to close in New York, New York or Taiwan.
“Buyer” has the meaning set forth in the preamble of this Agreement.
“Buyer Indemnified Parties” has the meaning set forth in Section 4.01 hereof.
“Claim(s)” has the meaning set forth in Section 4.01 hereof.
“Closing” has the meaning set forth in Section 1.04 hereof.
“Closing Date” has the meaning set forth in Section 1.04 hereof.
“Delivery” has the meaning set forth in Section 1.06 hereof.
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“Effective Date” has the meaning set forth in the preamble of this Agreement.
“Excluded Liabilities” has the meaning set forth in Section 1.03 hereof.
“Governmental Body” means any: (a) nation, principality, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental division, subdivision, department, agency, bureau, branch, office, commission, council, board, instrumentality, officer, official, representative, organization, unit, body or entity and any court or other tribunal); (d) multi-national or supranational organization or body; or (e) individual, entity, or body exercising, or entitled to exercise, any executive, legislative, judicial, administrative, regulatory, police, military or taxing authority or power of any nature.
“Indemnified Parties” has the meaning set forth in Section 4.02 hereof.
“Inventory” means the quantities of materials set forth in Exhibit A.
“Knowledge” shall have the meaning set forth in the License Agreement.
“Law” or “Laws” means all applicable laws, statutes, rules, regulations, ordinances and other pronouncements having the binding effect of law of any Governmental Body.
“Liability” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including, but not limited to, any liability for Taxes.
“License Agreement” has the meaning set forth in the recitals of this Agreement.
“Loss” means any claim, demand, Proceeding, loss, damage, penalty, Liability, obligation, settlement payment, cost and expense of every kind whatsoever (including, without limitation, costs of investigation, preparing or defending any such claim, demand or Proceeding and reasonable legal fees and disbursements).
“Party” or “Parties” has the meaning set forth in the preamble of this Agreement.
“Permitted Liens” means (a) any mechanic’s, materialmen’s or similar statutory lien incurred in the ordinary course of business for monies not yet due and (b) any lien for Taxes not yet due.
“Person” means any natural person, corporation, firm, business trust, joint venture, association, organization, company, partnership or other business entity, or any government or agency or political subdivision thereof.
“Philadelphia GMP Depot Facility” means that certain storage facility located at 000 Xxxxxxxxxxx Xx., Xxxxxxxxxxx Xxxxxxxx Xxxx, Xxxxx, XX 00000, XXX.
“Proceeding” means any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any court or other Governmental Body or referee, trustee, arbitrator or mediator.
“Seller” has the meaning set forth in the preamble of this Agreement.
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“Seller Indemnified Parties” has the meaning set forth in Section 4.02 hereof.
“Tax” or “Taxes” means, without limitation, any federal, state, local, foreign or other net income, gross income, gross receipts, license, lease, payroll, employment, excise, severance, stamp, occupation, premium, ad valorem, windfall profits, environmental (including taxes under Section 59A of the Internal Revenue Code), customs duties, capital stock, franchise, service, service use, profits, withholding, social security (or similar), unemployment, disability, real property, customs duties, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not, and any obligations under any agreements or arrangements with respect to any taxes described herein.
[signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date.
BUYER:
LIQUIDIA TECHNOLOGIES, INC.
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: CEO
SELLER:
PHARMOSA BIOPHARM INC.
By /s/ Pei Kan
Name: Xxx Xxx
Title: President
[Signature Page to Asset Transfer Agreement]
EXHIBIT A
Inventory
Clinical Drug Supply1
[***]
Devices
[***]
1 To the extent any inventory on this Exhibit A is stated as of a specific date, any changes in inventory since that date have been in the normal course of business in the conduct of the Existing Clinical Trial (as defined in the License Agreement) consistent with past practice.
EXHIBIT B
Bill of Sale
_________ __, 2023
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Pharmosa Biopharm Inc., a Taiwan corporation (“Seller”), does hereby grant, bargain, transfer, sell, assign, convey and deliver to Liquidia Technologies, Inc., a Delaware corporation (“Buyer”), all of its rights, title and interests in and to the Inventory (as such term is defined in the Asset Transfer Agreement dated as of even date herewith, by and between Xxxxx and Seller (“Asset Transfer Agreement”)) in accordance with Asset Transfer Agreement to have and to hold the same unto Buyer, its successors and assigns forever.
Seller, for itself, its successors and its assigns, hereby covenants and agrees that, at any time and from time to time upon the written request of Xxxxx, Seller will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required by Buyer in order to assign, transfer, set over, xxxxxx, assure and confirm unto and vest in Buyer, its successors and its assigns, title to the assets sold, conveyed and transferred by this Bill of Sale.
IN WITNESS WHEREOF, Xxxxxx has duly executed this Bill of Sale as of the date first written above.
| PHARMOSA BIOPHARM INC. |
| By: ______________________________ Name: Title: |