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EXHIBIT 10.3
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OPTION AND ASSET PURCHASE AGREEMENT
by and among
LIGAND PHARMACEUTICALS INCORPORATED,
MARATHON BIOPHARMACEUTICALS, LLC,
000 XXXXXXXXXXXX XXXXXX XXXX XXXXXX CORP.,
and
660 CORPORATION
dated as of May 11, 1998
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS.........................................................................2
1.1 Defined Terms.....................................................................2
1.2 Construction of Certain Terms and Phrases.........................................5
ARTICLE 2 OPTION TO PURCHASE ASSETS PRIOR TO CLOSING DATE.....................................6
2.1 Grant of Option...................................................................6
2.2 Exercise of Option, Due Diligence and Closing.....................................6
ARTICLE 3 PURCHASE AND SALE OF ASSETS.........................................................6
3.1 Purchase and Sale of the Company Assets...........................................6
3.2 Excluded Assets...................................................................7
3.3 Assumed Liabilities...............................................................8
3.4 Option Consideration and Purchase Price...........................................8
3.5 Allocation of Aggregate Purchase Price............................................8
3.6 Sales, Use and Other Taxes........................................................9
3.7 Title.............................................................................9
3.8 Closing by Buyer..................................................................9
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLERS..........................................11
4.1 Representations and Warranties of Sellers as of the Date of this
Agreement and as of the Effective Time.........................................11
4.2 Representations and Warranties of Sellers as of the Closing......................19
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER............................................22
5.1 Organization of Buyer............................................................22
5.2 Authority of Buyer...............................................................23
5.3 Capital Structure................................................................23
5.4 SEC Documents; Parent Financial Statements.......................................23
5.5 Litigation.......................................................................24
ARTICLE 6 COVENANTS OF THE PARTIES...........................................................24
6.1 Covenants of the Company (and the Members) from the Date of this
Agreement to the Closing Date................. ...............................24
6.2 Covenants of the Company (and the Members) from the Merger Closing
to the Closing Date............................................................25
6.3 Additional Covenants of the Parties..............................................26
ARTICLE 7 CONDITIONS TO THE OBLIGATIONS OF SELLERS...........................................29
7.1 Representations, Warranties and Covenants........................................29
7.2 No Actions or Proceedings........................................................29
7.3 Consents.........................................................................29
7.4 Closing Deliveries...............................................................29
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ARTICLE 8 CONDITIONS TO THE OBLIGATIONS OF BUYER.............................................29
8.1 Representations, Warranties and Covenants........................................29
8.2 No Actions or Proceedings........................................................30
8.3 Consents.........................................................................30
8.4 Closing Deliveries...............................................................30
ARTICLE 9 ACTIONS BY THE PARTIES AFTER THE CLOSING...........................................30
9.1 Survival of Representations, Warranties, Etc.....................................30
9.2 Indemnification..................................................................30
ARTICLE 10 MISCELLANEOUS.....................................................................33
10.1 Termination......................................................................33
10.2 Notices..........................................................................34
10.3 Entire Agreement.................................................................35
10.4 Waiver...........................................................................35
10.5 Amendment........................................................................36
10.6 No Third Party Beneficiary.......................................................36
10.7 Assignment; Binding Effect.......................................................36
10.8 Headings.........................................................................36
10.9 Severability.....................................................................36
10.10 Governing Law....................................................................36
10.11 Consent to Jurisdiction and Forum Selection......................................36
10.12 Confidentiality..................................................................37
10.13 Expense..........................................................................37
10.14 Counterparts.....................................................................37
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EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A Certificate of Officer of Buyer
Exhibit B Xxxx of Sale
Exhibit C General Assignment
Exhibit D Intellectual Property Assignment
Exhibit E Certificate of Officer of the Company
Exhibit F Certificate of each of the Members
Exhibit G Certificate of the Secretary of the Company
SCHEDULES
Schedule 3.1 (i) Equipment, etc...
Schedule 3.1(ii) Customer Lists and Accounts
Schedule 3.1(iii) Assumed Contracts
Schedule 3.1(iv) Permits
Schedule 3.1(vii) Accounts Receivable
Schedule 3.3 Assumed Liabilities
Schedule 3.5 Purchase Price Allocation
Schedule 6.13 Selected Employees
Disclosure Schedules
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OPTION AND ASSET PURCHASE AGREEMENT
This Option and Asset Purchase Agreement (this "AGREEMENT") is made and
entered into as of May 11, 1998, by and among LIGAND PHARMACEUTICALS
INCORPORATED, a Delaware corporation ("Buyer"), MARATHON BIOPHARMACEUTICALS,
LLC, a Massachusetts limited liability company (the "Company"), 000 XXXXXXXXXXXX
XXXXXX XXXX XXXXXX CORP., a Massachusetts corporation ("520 Commonwealth"), and
660 CORPORATION, a Massachusetts corporation ("660 Corporation," and together
with 520 Commonwealth and the Company, "Sellers").
RECITALS
WHEREAS, the Company is in the business of biotechnical research,
development and manufacture of pharmaceutical and healthcare related products
(the "Business");
WHEREAS, 660 Corporation and 520 Commonwealth are the sole members of
the Company (collectively, the "Members");
WHEREAS, the Company conducts the Business in leased premises located in
Hopkinton, Massachusetts (the "Facility");
WHEREAS, the Company is a party to that certain Service Agreement, dated
as of February 14, 1997 (the "Service Agreement"), by and between Seragen, Inc.,
a Delaware corporation ("Seragen"), and BU, of which the Company is an assignee,
whereby the Company provides certain services at the Facility to Seragen as
described in the Service Agreement;
WHEREAS, concurrently with the execution of this Agreement, Buyer,
Seragen and Knight Acquisition Corporation, a Delaware corporation ("Knight"),
are entering into an Agreement and Plan of Reorganization (the "Merger
Agreement") and other transactions contemplated therein, whereby, among other
things, Seragen will become a wholly owned subsidiary of Buyer;
WHEREAS, concurrently with the execution of this Agreement, Buyer,
Seragen, the Company and the Members are entering into an Extension Option
Agreement (the "Option Agreement") whereby the Company and the Members will
grant to Buyer and Seragen an option to extend the closing under this Agreement,
subject to certain terms and conditions;
WHEREAS, Buyer desires to purchase, and Sellers desire to sell,
substantially all the assets of the Company used in the Business; and
WHEREAS, as a condition to Buyer's execution of the Merger Agreement and
consummation of the transaction contemplated therein, Sellers have agreed to
sell to Buyer substantially all of the assets of the Business pursuant to the
terms and conditions of this Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following defined terms
have the meanings indicated below:
"ACTIONS OR PROCEEDINGS" means any action, suit,
proceeding, arbitration, Order, inquiry, hearing, assessment with respect to
fines or penalties or litigation (whether civil, criminal, administrative,
investigative or informal) commenced, brought, conducted or heard by or before,
or otherwise involving, any Governmental or Regulatory Authority.
"ADVERSE CONSEQUENCE" means all Actions or Proceedings,
hearings, investigations, charges, complaints, claims, demands, decrees,
rulings, damages, dues, penalties, fines, costs, amounts paid in settlements,
liabilities, obligations, taxes, liens, losses, expenses, and fees, including
court costs and reasonable attorneys' fees and expenses that would have an
Adverse Affect on the Company.
"ADVERSE EFFECT" means, for any Person, a material
adverse effect whether individually or in the aggregate (i) on the business,
operations, financial condition, Assets and Properties, Liabilities or prospects
of such Person, or (ii) on the ability of such Person to consummate the
transactions contemplated hereby.
"AFFILIATE" means, with respect to any Person (as
defined below), another Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with such
Person.
"ASSETS AND PROPERTIES" and "ASSETS OR PROPERTIES"
of any Person each means all assets and properties of every kind, nature,
character and description (whether real, personal or mixed, whether tangible or
intangible, whether absolute, accrued, contingent, fixed or otherwise and
wherever situated), including the goodwill related thereto, operated, owned or
leased by such Person, including, without limitation, cash, cash equivalents,
accounts and notes receivable, chattel paper, documents, instruments, general
intangibles, real estate, equipment, inventory, goods and Intellectual Property.
"BENEFIT PLAN" means any Plan (as defined below)
established, arranged or maintained by the Company or any group of which the
Company is or was a member, existing at the Closing Date or prior thereto, to
which the Company contributes or has contributed, or under which any employee,
manager, officer, director or former employee, officer or director of the
Company or any beneficiary thereof is covered, is eligible for coverage or has
benefit rights.
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"BOOKS AND RECORDS" of any Person means all files,
documents, instruments, papers, books and records relating to the business,
operations or condition of such Person.
"BUSINESS DAY" means a day other than Saturday,
Sunday or any day on which banks located in the State of California or the
Commonwealth of Massachusetts are authorized or obligated to close.
"CLOSING" has the meaning described in Section 3.8 of
this Agreement.
"CLOSING DATE" means the date described in Section 3.8
of this Agreement.
"CODE" means the Internal Revenue Code of 1986, as
amended.
"COMPANY INTELLECTUAL PROPERTY" shall mean any
Intellectual Property (as hereinafter defined) that is owned by, or licensed to,
the Company.
"DEFINED BENEFIT PLAN" means each Benefit Plan which is
subject to Part 3 of Title I of ERISA, Section 412 of the Code or Title IV of
ERISA.
"DISCLOSURE SCHEDULE" means the disclosure schedule
attached hereto which sets forth the exceptions to the representations and
warranties contained in Article 3 hereof and certain other information called
for by this Agreement.
"ENCUMBRANCE" means any mortgage, pledge, assessment,
security interest, deed of trust, lease, lien, adverse claim, levy, charge or
other encumbrance of any kind, or any conditional sale or title retention
agreement or other agreement to give any of the foregoing in the future.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the rules and regulations promulgated thereunder.
"ERISA AFFILIATE" means any entity which is a member
of a "controlled group of corporations" or which is or was under "common
control" with the Company as defined in Section 414 of the Code.
"FINANCIAL STATEMENTS" means the unaudited balance
sheet of the Company as of March 31, 1998, and the related unaudited statement
of income and retained earnings for the Company for the three-month period ended
March 31, 1998.
"GAAP" means generally accepted accounting principles,
applied in a manner consistent with the past practices of the Company.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States or other country, any state, county, city
or other political subdivision.
"INTELLECTUAL PROPERTY" means any or all of the
following and all rights in, arising out of, or associated therewith: (i) all
United States, international and foreign patents and
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applications therefor and all reissues, divisions, renewals, extensions,
provisionals, continuations and continuations-in-part thereof; (ii) all
inventions (whether patentable or not), invention disclosures, improvements,
trade secrets, proprietary information, know how, technology, technical data and
customer lists, and all documentation relating to any of the foregoing; (iii)
all copyrights, copyrights registrations and applications therefor, and all
other rights corresponding thereto throughout the world; (iv) all industrial
designs and any registrations and applications therefor throughout the world;
(v) all trade names, logos, common law trademarks and service marks, trademark
and service xxxx registrations and applications therefor throughout the world;
(vi) all databases and data collections and all rights therein throughout the
world; and (vii) any similar or equivalent rights to any of the foregoing
anywhere in the world.
"KNOWLEDGE OF SELLERS" or "KNOWN TO SELLERS" means (i)
the knowledge of Xx. Xxxxxxxxx Xxxx, after due inquiry and comprehensive
investigation, and (ii) the actual knowledge of each of the Members or any other
executive officer or manager of the Company.
"LIABILITIES" 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.
"ORDER" means any writ, judgment, decree, injunction
or similar order of any Governmental or Regulatory Authority (in each such case
whether preliminary or final).
"ORDINARY COURSE OF BUSINESS" means such action that
is consistent with the past practices of the Company and is taken in the
ordinary course of the normal day-to-day operations of the Company.
"PERMITS" means all licenses, permits, certificates
of authority, authorizations, approvals, registrations and similar consents
granted or issued by any Governmental or Regulatory Authority.
"PERMITTED ENCUMBRANCE" means (i) any Encumbrance
for taxes not yet due or delinquent or being contested in good faith by
appropriate proceedings for which adequate reserves have been established and
(ii) any minor imperfection of title or similar Encumbrance which individually
or in the aggregate with other such Encumbrances does not impair the value of
the property subject to such Encumbrance or the use of such property in the
conduct of the Business.
"PERSON" means any natural person, corporation, general
partnership, limited partnership, limited liability company, proprietorship,
other business organization, trust, union, association or Governmental or
Regulatory Authority.
"PLAN" means any bonus, incentive compensation, deferred
compensation, pension, profit sharing, retirement, stock purchase, stock
option, stock ownership, stock appreciation rights, phantom stock, leave of
absence, layoff, vacation, day or dependent care, legal services, cafeteria,
life, health, accident, disability, workers' compensation or other insurance,
severance, separation or other employee benefit plan, practice, policy or
arrangement
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of any kind, whether written or oral, including, but not limited to,
any "employee benefit plan" within the meaning of Section 3(3) of ERISA.
"QUALIFIED PLAN" means each Benefit Plan which is
intended to qualify under Section 401 of the Code.
"REGISTERED INTELLECTUAL PROPERTY" means all United
States, international and foreign: (i) patents and patent applications
(including provisional applications); (ii) registered trademarks, applications
to register trademarks, intent-to-use applications, or other registrations or
applications related to trademarks; and (iii) registered copyrights and
applications for copyright registration.
"RETURNS" means all returns, declarations, reports,
statements and other documents required to be filed in respect of Taxes, and the
term "Return" means any one of the foregoing Returns.
"TAX" (and, with correlative meaning, "Taxes," "Taxable"
and "Taxing") means (A) any net income, alternative or add-on minimum tax,
gross income, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, 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, regulatory or administrative
entity or agency responsible for the imposition of any such tax (domestic or
foreign), (B) any Liability for the payment of any amounts of the type described
in (A) as a result of being a member of an affiliated, consolidated, combined,
unitary or other group for any Taxable period and (C) any Liability for the
payment of any amounts of the type described in (A) or (B) as a result of any
express or implied obligation to indemnify any other person. Notwithstanding the
foregoing, solely for purposes of Section 4.25 below, Tax (and the correlative
meanings, "Taxes," "Taxable" and "Taxing") shall not include any amount to the
extent that (A) an Encumbrance cannot be placed upon any of the Purchased Assets
with respect to such amount and the Purchased Assets cannot otherwise be used to
satisfy such amount without the consent of Buyer and (ii) neither Buyer nor any
of its affiliates can be made directly or indirectly liable with respect to such
amount.
1.2 CONSTRUCTION OF CERTAIN TERMS AND PHRASES. Unless the context of
this Agreement otherwise requires, (a) words of any gender include each other
gender; (b) words using the singular or plural number also include the plural or
singular number, respectively; (c) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Agreement; (d) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement; (e) the term "or" has, except where otherwise indicated, the
inclusive meaning represented by the phrase "and/or"; and (f) the term
"including" means "including without limitation." Whenever this Agreement refers
to a number of days, such number shall refer to calendar days unless Business
Days are specified. All accounting terms used herein and not expressly defined
herein shall have the meanings given to them under GAAP.
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ARTICLE 2
OPTION TO PURCHASE ASSETS PRIOR TO CLOSING DATE
2.1 GRANT OF OPTION. The Company and each Member hereby grant Buyer an
irrevocable option to purchase, as a going concern, all of the right, title and
interest in and to the Purchased Assets (as defined below), at a date prior to
the Closing Date (as defined in Section 3.8 below) which such date shall be
determined in Buyer's sole discretion, upon the terms and conditions set forth
in this Agreement (the "Option"). The term of the Option shall commence on the
date of the closing under the Merger Agreement (the "Merger Closing") shall
expire on the earlier of: (i) December 24, 1998 or (ii) the early termination of
this Agreement pursuant to Section 10.1 below (the "Option Term").
2.2 EXERCISE OF OPTION, DUE DILIGENCE AND CLOSING.
(a) The Option may be exercised by Buyer (or its permitted
assignee), in its sole discretion, by delivering written notice (the "Option
Notice") to the Company at any time prior to the expiration of the Option Term.
Such Option Notice shall specify the proposed time and date of the Closing (as
defined in Section 3.8 below) under this Agreement (which shall be not less than
thirty (30) nor more than forty (40) days from the date of delivery of the
Option Notice and which may be after the expiration of the Option Term (the
"Option Closing Date)). The Closing occurring on the Option Closing Date shall
be conducted as set forth in Section 3.8 of this Agreement.
(b) In the event the Closing occurring on the Option Closing
Date does not occur, for any reason within forty (40) days from the date of
Buyer's delivery of an Option Notice to the Company, this Agreement shall
continue in full force and effect until the earlier of: (i) January 31, 1999
(subject to extension pursuant to the Option Agreement) or such other date
mutually agreed to; (ii) a successful Closing pursuant to Buyer's delivery of an
Option Notice to the Company; or (iii) the early termination of this Agreement
pursuant to Section 10.1 below.
ARTICLE 3
PURCHASE AND SALE OF ASSETS
3.1 PURCHASE AND SALE OF THE COMPANY ASSETS. Subject to the terms and
conditions of this Agreement, at the Closing, the Company and the Members agree
to grant, sell, convey, assign, transfer and deliver to Buyer, and Buyer agrees
to purchase and acquire from the Company and the Members, free and clear of any
Encumbrance or adverse claim of any kind whatsoever other than any Permitted
Encumbrance, all of the Company's right, title, and interest in and to all
assets, properties, rights, leases, fixtures, accessions, claims, contracts and
interests of the Company of every kind, type or description, real, personal and
mixed, tangible and intangible, wherever located and whether or not specifically
referred to in this Agreement, that are used in or pertain to the Business and
operations of the Company (the "Purchased Assets"), including without
limitation:
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(a) The equipment, leasehold improvements, furniture and
fixtures, vehicles and other operating assets owned or leased by the Company and
used in the Business as set forth in Schedule 3.1(a) attached hereto;
(b) all customer lists and customer accounts owned by the
Company as set forth in Schedule 3.1(b) attached hereto (the "Customer Lists
and Accounts");
(c) all of the Company's right, title and interest in and to
the contracts and agreements set forth in Schedule 3.1(c) attached hereto (the
"Assumed Contracts");
(d) all Permits issued to or held by the Company necessary or
incidental to the conduct of the Business set forth in Schedule 3.1(d) attached
hereto (the "Permits");
(e) all the operating data, books, fles, documents and records
of the Company relating to the Business (the "Company Records");
(f) all prepaid expenses, deposits (other than lease security
deposits, if any) and deferred items in effect as of the Closing Date and from
which Buyer may derive future benefit;
(g) all of the Company's rights to the name "Marathon
Biopharmaceuticals", all variations thereof and all trademarks, trade names,
service marks and goodwill associated therewith (collectively, the
"Trademarks"); and
(h) the goodwill and going concern value of the Business.
The Purchased Assets shall include, without limitation, all of 520
Commonwealth's leasehold interest in the Facility and 520 Commonwealth hereby
agrees to assign to Buyer all of its right title and interest in such leasehold
interest.
3.2 EXCLUDED ASSETS.
Notwithstanding Section 3.1 hereof, the Purchased Assets
do not include:
(a) all accounts, accounts receivable, notes and notes
receivable of the Business (collectively the "Account Receivables") as of the
Closing Date, including without limitation (i) those Accounts Receivables which
are not evidenced by instruments or invoices, whether or not they have been
earned by performance or have been written off or reserved against as a bad debt
or doubtful account, together with all instruments and (ii) all documents of
title representing any of the foregoing and all right, title, security and
guaranties in favor of the Company with respect to any of the foregoing;
(b) all cash and cash equivalents of the Company as of the
Closing Date; and
(c) any minute books, partnership records and other records of
the Company which are not Company Records; provided, however, the Company shall
provide Buyer with access to the Books and Records of the Company upon request
as necessary to conduct the Business after the Closing Date.
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3.3 ASSUMED LIABILITIES. As of the Closing Date, Buyer agrees to assume,
satisfy or perform when due only those liabilities and obligations of the
Company listed in Schedule 3.3 attached hereto (the "Assumed Liabilities").
Other than the Assumed Liabilities, Buyer shall not assume, or be deemed to have
assumed or guaranteed, or otherwise be responsible for any liability, obligation
or claims of any nature of the Company, whether matured or unmatured, liquidated
or unliquidated, fixed or contingent, known or unknown, or whether arising out
of acts or occurrences prior to, at or after the date hereof. Sellers shall
remain liable for the payment of Liabilities and obligations to personnel of the
Company up to an amount of $250,000 with respect to the notice and continuation
coverage requirement of Section 4980B(e) of the Code and regulations thereunder,
payroll, overtime, accrued vacation time, holiday time, severance arrangements
or worker's compensation of any nature which are accrued but unpaid as of the
Closing Date or which accrued as a result of the consummation of the
transactions contemplated herein, except for employees who are Selected
Employees (as defined below).
3.4 OPTION CONSIDERATION AND PURCHASE PRICE. As consideration for the
grant of the Option, Buyer agrees to pay or cause to be paid to the Company an
aggregate of Three Million Dollars ($3,000,000) (the "Option Consideration"), in
cash or voting common stock, par value $.001 per share, of Buyer ("Buyer Common
Stock"), such form of consideration to be at Buyer's sole option, when the
Milestone Consideration is paid pursuant to the Merger Agreement.
(b) As consideration for the Purchased Assets, Buyer agrees to
(i) assume the Assumed Liabilities and (ii) pay, or cause to be paid, to the
Company an aggregate purchase price of Five Million Dollars ($5,000,000) (the
"Purchase Price"), in cash or Buyer Common Stock, such form of consideration to
be at Buyer's sole option, at the Closing.
(c) For purposes of determining the value of the shares of
Buyer Common Stock, if any, distributed pursuant to this Section 3.4, Buyer
Common Stock, shall be valued as follows:
(i) The value of Buyer Common Stock issued as part of the
Option Consideration shall be valued at the average of the closing prices of
Buyer Common Stock on the Nasdaq National Market for the ten (10) consecutive
trading days immediately preceding the date of issuance of such Buyer Common
Stock.
(ii) The value of Buyer Common Stock issued as part of the
Purchase Price shall be valued at the average of the closing prices of Buyer
Common Stock on the Nasdaq National Market for the five (5) consecutive trading
days immediately preceding the date of issuance of such Buyer Common Stock.
3.5 ALLOCATION OF AGGREGATE PURCHASE PRICE. The Purchase Price shall
be allocated among the Purchased Assets as mutually agreed upon by Buyer and
Sellers prior to the Closing. Buyer and Sellers agree (i) to report the sale of
the Purchased Assets for federal and state Tax purposes in accordance with the
mutually agreed-upon allocations and (ii) not to take any position inconsistent
with such allocations on any of their respective tax returns.
3.6 SALES, USE AND OTHER TAXES. Sellers shall be responsible for all
sales and use taxes, if any, arising out of the sale of the Purchased Assets to
Buyer pursuant to this Agreement.
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3.7 TITLE. Title to the Purchased Assets shall pass to Buyer at
the Closing and the Purchased Assets shall be at the risk of the Company
prior to the Closing.
3.8 CLOSING BY BUYER.
(a) Time and Place. The closing of the transactions contemplated
by this Agreement and the related agreements referred to herein (the "Closing")
shall occur on the earlier of (i) the Option Closing Date if Buyer exercises the
Option pursuant to Article II of this Agreement or (ii) January 31, 1999 (or
such later date determined pursuant to the Option Agreement) at 10:00 a.m., at
the offices of Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC ("Xxxxx Xxxxx"), Xxx
Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, at 10:00 a.m., or such other time
and place as the parties may mutually agree (collectively with the Option
Closing Date, the "Closing Date").
(b) Closing Deliveries. At the Closing, Buyer shall have
delivered or caused to be delivered:
(i) the Purchase Price to the Company by wire transfer in
immediately available funds to the account designated by the Company or, if in
the form of Buyer Common Stock, by transfer of such stock certificates to be
delivered to Seller by Buyer's transfer agent pursuant to the written
instructions of Buyer;
(ii) a certificate of an officer of Buyer substantially in
the form of Exhibit A attached hereto to evidence compliance with Sections 7.1,
7.2 and 7.3 hereof;
(iii) a certified copy of the resolutions of the Board of
Directors of Buyer approving the transactions contemplated herein;
(iv) the Employment Agreements (including a form of release
reasonably acceptable to the Company and the Buyer), executed by Buyer (or its
designee), as of the Closing Date;
(v) an opinion from Xxxxxxx, Phleger & Xxxxxxxx LLP, Buyer's
counsel, in form reasonably acceptable to Sellers and Sellers' counsel; and
(vi) such other documents as Sellers may reasonably request
for the purpose of facilitating the consummation of the transactions
contemplated herein.
(c) Closing Deliveries by Sellers. At the Closing, Sellers shall
have delivered or caused to be delivered to Buyer:
(i) possession of all of the Purchased Assets, together
will all files, Books and Records relating to the Purchased Assets;
(ii) an original Xxxx of Sale substantially in the form of
Exhibit B attached hereto, conveying good and marketable title in all of the
Purchased Assets duly executed by the Company;
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(iii) an original Assumption and Assignment Agreement
substantially in the form of Exhibit C attached hereto (the "General
Assignment") of all of the Purchased Assets, duly executed by the Company;
(iv) if there is Intellectual Property of the Company, an
original Intellectual Property Assignment of all Intellectual Property of the
Company, including without limitation that set forth in the Disclosure Schedule
of Sellers (the "Intellectual Property Assignment"), substantially in the form
of Exhibit D attached hereto, duly executed by the Company;
(v) a certificate of the Manager of the Company substantially
in the form of Exhibit E attached hereto to evidence compliance with Sections
8.1 and 8.2 hereof;
(vi) a certificate of each of the Members, respectively,
substantially in the form of Exhibit F attached hereto to evidence compliance
with Sections 8.1 and 8.2 hereof;
(vii) a certificate of the Manager of the Company substantially
in the form of Exhibit G attached hereto;
(viii) the Employment Agreements (including a form of release
acceptable to Buyer), executed by each employee designated by Buyer, as of the
Closing Date;
(ix) all clearance certificates or similar documents which may be
required by a Taxing authority in order to relieve Buyer of any obligation to
withhold any portion of the Purchase Price to satisfy or be applied to any Tax
obligation of Sellers;
(x) an opinion from Xxxxxx & Xxxx, Sellers' counsel, in form
reasonably acceptable to Buyer and Buyer's counsel; and
(xi) such other documents as Buyer may reasonably request for
the purpose of facilitating the consummation of the transactions contemplated
herein, including without limitation, the Due Diligence Information.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLERS
4.1 REPRESENTATIONS AND WARRANTIES OF SELLERS AS OF THE DATE OF THIS
AGREEMENT AND AS OF THE EFFECTIVE TIME.
As an inducement to Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, each of the Sellers jointly and
severally represents and warrants to the Buyer as of the date of this Agreement
and as of the Closing Date under the Merger Agreement, except as set forth in
the Disclosure Schedule furnished to Buyer, specifically identifying the
relevant subsection of this Section 4.1, as follows:
(a) Organization; Qualification and Ownership. The Company is a
limited liability company duly organized, validly existing and in good standing
under the laws of the
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Commonwealth of Massachusetts. The Company currently conducts its business
exclusively within the Commonwealth of Massachusetts. The Company has the
corporate power and authority to own and hold its Assets and Properties and to
carry on the Business as currently conducted. Xxxxxxx X. Xxxxxx is the Manager
of the Company. The Company has the following named officers, each duly elected
and qualified by the Manager of the Company as of the date hereof: Xxxxxxxxx
Xxxx, President, Xxx Xxxxx, Vice President, Xxxx Xxxxxxxx, Vice President, and
Xxxxxxx X. Xxxxxx, Treasurer. The Company has delivered to Buyer correct and
complete copies of the Company's Certificate of Organization and Operating
Agreement, each as amended to date. The Members of the Company are 000
Xxxxxxxxxxxx Xxxxxx Xxxx Xxxxxx Corp., a Massachusetts corporation, and 660
Corporation, a Massachusetts corporation (collectively, the "Members").
(b) Limited Liability Company Power and Authority. The Company
has the limited liability company power and authority to execute, deliver and
perform this Agreement and the other documents and instruments contemplated
hereby. The execution, delivery and performance of this Agreement and the other
agreements, documents and instruments contemplated hereby and the consummation
of the transactions contemplated hereby and thereby have been duly authorized
and approved by the Company's Manager and the Company's Members. This Agreement,
and each of the other agreements, documents and instruments to be executed and
delivered by the Sellers have been duly executed and delivered by, and
constitute the valid and binding obligation of the Sellers, enforceable against
the Sellers in accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, arrangement, moratorium and other similar laws now
or hereafter in effect, as well as limitations imposed by general principles of
equity upon the specific enforceability of any of the remedies, covenants or
other provisions and the availability of injunctive relief or other equitable
remedies.
(c) Validity, Etc. Neither the execution and delivery of this
Agreement and the other agreements, documents and instruments contemplated
hereby, the consummation of the transactions contemplated hereby or thereby, nor
the performance of this Agreement and such other agreements, documents and
instruments in compliance with the terms and conditions hereof and thereof will,
except as set forth in Section 4.1(c) of the Disclosure Schedule, (i) conflict
with or result in any breach of any trust agreement, certificate of organization
or operating agreement of any of the Company, (ii) except for approval of the
transactions contemplated hereby by the Office of the Attorney General of the
Commonwealth of Massachusetts, Public Charities Division, require any consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental or Regulatory Authority or any third party, (iii) result in a
breach of or default (or give rise to any right of termination, cancellation or
acceleration) under any law, rule or regulation or any judgment, decree, order,
governmental permit (other than permits set forth in a Schedule hereto which are
not transferable), license or order or any of the terms, conditions or
provisions of any mortgage, indenture or note or any material license, agreement
or other instrument or obligation to which the Company is a party or by which
the Company or its Assets and Properties (including the Purchased Assets) are
bound, or (iv) result in the creation of any Encumbrance upon the Purchased
Assets.
(d) Capital Structure. The Members own, beneficially and of
record, one hundred percent (100%) of the ownership interests of the Company
(the "Membership Interests") in the following percentages: 520 Commonwealth-99%;
660 Corporation-1%. All of the
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Membership Interests are duly authorized, validly issued, fully paid and
nonassessable. There are no options, warrants, conversion rights, rights of
exchange or other rights, plans, agreements or commitments of any nature
whatsoever (including, without limitation, conversion or preemptive rights)
providing for the purchase, issuance or sale of any Membership Interests or any
securities convertible into or exchangeable for any Membership Interests. The
Members own the Memberships Interests free and clear of all Encumbrances, and
have, and on the Closing Date will have, good and valid title to such.
(e) Authority of the Members. Each Member has all necessary power
and authority and has taken all action necessary to enter into this Agreement,
to consummate the transactions contemplated hereby and to perform its
obligations hereunder and no other proceedings on the part of such Member is
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. Each Member is a corporation duly authorized to conduct
business and is in good standing under the laws of the Commonwealth of
Massachusetts. This Agreement has been duly and validly executed and delivered
by each Member and constitutes a legal, valid and binding obligation of each
Member, enforceable against each Member in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium
and other similar laws now or hereafter in effect, as well as limitations
imposed by general principles of equity upon the specific enforceability of any
of the remedies, covenants or other provisions and the availability of
injunctive relief or other equitable remedies.
(f) No Affiliates. Other than its Members and Trustees of
Boston University, the Company does not have any Affiliates; the Company is not
a partner in any partnership or a party to a joint venture.
(g) Consents and Approvals. Except for the approval of the
office of the Attorney General of the Commonwealth of Massachusetts, Public
Charities Division, and as set forth in Section 4.1(c) or Section 4.1(g) of the
Disclosure Schedule, no consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any Governmental or Regulatory
Authority or third party is required by or with respect to the Sellers in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(h) Financial Statements; Absence of Undisclosed Liabilities.
The Company has previously delivered to Buyer the Financial Statements. The
Financial Statements fairly present the financial condition and results of
operations of the Company as of the dates thereof and for the periods covered
thereby; provided, however, that the Financial Statements lack footnotes and
certain other presentation items. Except as disclosed in the Financial
Statements, there are no Liabilities or claims, nor to Sellers' knowledge, any
basis for any Liabilities or claims against the Company, relating to or
affecting the Company or the Purchased Assets, other than (i) Liabilities
incurred in the Ordinary Course of Business which have not had, and could not be
expected to result, individually or in the aggregate, in an Adverse Effect on
the Purchased Assets; or (ii) Liabilities incurred under the Contracts (as set
forth in Section 4.1(q) of the Disclosure Schedule) as specifically set forth on
the face thereof.
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(i) Litigation. Except as set forth in Section 4.1(i) of the
Disclosure Schedule, there are no Actions or Proceedings with
respect to which the Company has received notice pending or, to the Sellers'
knowledge, threatened against or materially affecting the Company (whether or
not the Company is a party or a prospective party), at law or in equity, or
before or by any Governmental or Regulatory Authority. There are no outstanding
Orders against, or materially affecting, the Company of which the Company has
received notice, and to the Sellers' knowledge, there are no facts or
circumstances which could reasonably be expected to result in institution of any
Actions or Proceedings against, involving or affecting the Company or the
transactions contemplated hereby. The Company is not in default with respect to
any Orders known to or served upon it from any court or of any Governmental or
Regulatory Authority.
(j) Compliance with Law; Current Legislation. The Company is
not subject to any Order that adversely affects, individually or in the
aggregate, the Purchased Assets or the Business. To Sellers' knowledge, the
Company has complied with all laws, rules, regulations and Orders applicable to
it in relation to its ownership and operation of the Purchased Assets and the
Business. The Sellers are not aware of any existing law, rule, regulation or
Order, or of any proposed law, rule, regulation or Order currently pending
before any governmental body or agency, whether Federal or state, which would
prohibit or restrict the Buyer from, or otherwise adversely affect the Buyer in,
owning and operating the Purchased Assets or the Business as presently owned and
operated by the Company. The Company has not received any written notice to the
effect that, or otherwise have been advised that it is not in compliance with
any of such laws, rules, regulations and Orders, where the failure to comply
could be expected to result in an Adverse Effect on the Company, its Business or
the Purchased Assets.
(k) Licenses and Permits. Section 4.1(k) of the Disclosure
Schedule lists all licenses, permits, pending applications, consents, approvals
and authorizations held by the Company of or from any public or governmental
agency, used or useable in or otherwise necessary to the operation of the
Business or the Purchased Assets (collectively, the "Permits"). Except as noted
in Sections 4.1(k) and 4.1(u) of the Disclosure Schedule and as set forth in
Section 4.1(u), the Permits will be duly and validly transferred to the Buyer as
of the Closing Date. The Company has complied with all conditions and
requirements imposed by the Permits and the Company has not received any notice,
and has no reason to believe, that any appropriate authority intends to cancel
or terminate any of the Permits or that valid grounds for such cancellation or
termination exist. Except as set forth in Sections 4.1(k) and 4.1(u) of the
Disclosure Schedule, to the Sellers' knowledge no other Permits are necessary to
operate the Business. The Company owns or has the right to use the Permits in
accordance with the terms thereof without any conflict or alleged conflict or
infringement with the rights of others and subject to no Claim, and each Permit
is in full force and effect. Except as noted in Sections 4.1(k) and 4.1(u) of
the Disclosure Schedule and as set forth in Section 4.1(u), no Permit will be
terminated or adversely affected by the transactions contemplated hereby.
(l) Labor and Employee Relations. The Company is not a party
to or bound by any collective bargaining agreement with any labor organization,
group or association covering any of its employees, and the Sellers have no
knowledge of any attempt to organize any of the Company's employees by any
person, unit or group seeking to act as their bargaining agent. Except as set
forth in Section 4.1(l) of the Disclosure Schedule, there are no pending or,
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to the Sellers' knowledge, threatened charges (by employees, their
representatives or governmental authorities) of unfair labor practices or of
employment discrimination or of any other wrongful action with respect to any
aspect of employment of any person employed or formerly employed by the Company.
No union representation elections relating to employees of the Company have been
scheduled by any Governmental or Regulatory Authority, no organizational effort
is being made with respect to any of such employees, and to Sellers' knowledge
there is no investigation of the Company's employment policies or practices by
any governmental agency or authority pending or threatened. The Company is not
currently, and since January 1, 1998, has not been, involved in labor
negotiations with any unit or group seeking to become the bargaining unit for
any employees of the Company's employees. The Company has not experienced any
work stoppages since January 1, 1998 and to the Sellers' knowledge, no work
stoppage has been threatened or is planned.
(m) Certain Employees. Set forth in Section 4.1(m) of the
Disclosure Schedule is a list of the names of the Company's employees and
consultants as of the date hereof involved in the management and operation of
the Business, together with the title or job classification of each such person
and the total compensation (with wages and bonuses, if any, separately detailed)
paid in 1997 (if applicable) and the current rate of pay for each such person on
the date of this Agreement. Except as set forth in Section 4.1(m) of the
Disclosure Schedule, none of such persons has an employment agreement or
understanding, whether oral or written, with the Company which is not terminable
on notice by the Company without cost or other liability to the Company.
(n) Employee Benefits. Set forth in Section 4.1(n) of the
Disclosure Schedule is a list of all pension, profit sharing, retirement,
deferred compensation, stock purchase, stock option, incentive, vacation,
severance, disability, hospitalization, medical insurance, life insurance,
fringe benefit, welfare and other employee benefit plans, programs or
arrangements provided by the Company to which employees of the Company may be
entitled. Each "Employee Welfare Benefit Plan" (as defined in Section 3(1) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")),
covering any present or former employee of the Company subject to the
requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA") complies with all requirements for continuation coverage under group
health benefit plans under COBRA and there are no claims against the Company for
a failure or alleged failure to comply with the COBRA continuation requirements.
Each employee plan which is subject to ERISA conforms to, and its operation and
administration are in compliance with, all applicable requirements of ERISA.
There are no actions, suits or claims pending (other than routine claims for
benefits) or threatened against any employee plan or against the assets of any
employee plan. None of the Company employee plans promises or provides retiree
medical or other retiree welfare benefits to any person. The Company does not
currently maintain, sponsor, participate in or contribute to, nor has it ever
maintained, established, sponsored, participated in or contributed to, any
pension plan (within the meaning of Section 3(2) of ERISA) which is subject to
Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 4.12 of
the Code.
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(o) Purchased Assets.
(i) Section 4.1(o) of the Disclosure Schedule sets forth
a true and complete list of all tangible personal property owned by the Company
with an original purchase price in excess of $25,000 and used or useable in the
Business. The tangible personal property included in the Purchased Assets will
be, at the Closing, all of the tangible personal property currently owned by the
Company and used or useable in the Business. The Company is the owner of all of
the right, title and interest in and to, and has good and marketable title, free
and clear of all Encumbrances other than Permitted Encumbrances, to the
Purchased Assets listed in Section 4.1(o) of the Disclosure Schedule, except as
specifically set forth therein. With respect to equipment leased by the Company,
all leases, conditional sale contracts, franchises or licenses pursuant to which
the Company may hold or use (or permit others to hold or use) such equipment or
property are valid and in full force and effect, and to Sellers' knowledge there
is not, under any of such instruments, any existing default or event of default
or event which with notice or lapse of time or both would constitute such a
default. The Company's possession and use of such leased property has not been
disturbed and no claim has been asserted against the Company adverse to its
rights in such leasehold interests. All Purchased Assets, equipment and property
being sold, transferred or assigned hereunder is adequate and usable for the
purposes for which it is currently used and is in good operating condition and
repair, ordinary wear and tear excepted.
(ii) Each of the Assumed Contracts is in full force and
effect and constitutes a legal, valid and binding agreement, enforceable in
accordance with its terms, of each party thereto; and the Company has performed
all of its required obligations under, and is not, in any respect, in violation
or breach of or default under, any such contract. To the Company's knowledge,
the other parties to the Assumed Contracts are not in violation or breach of or
default under any such contract.
(p) Real Property. The Company does not own or hold title to
any real property. Section 4.1(p) of the Disclosure Schedule sets forth a true
and complete list and description of each parcel of real property leased by the
Company and/or 520 Commonwealth and used by the Company in the Business (the
"Leased Premises"). Each lease covering a Leased Premises is in full force and
effect (there existing no default under any such lease which, with the lapse of
time or notice or otherwise, would entitle the lessor to terminate the same),
conveys the leased real estate purported to be conveyed thereunder and is
enforceable by the Company. The Company has the right to use the Leased Premises
in accordance with the terms of such leases free and clear of all Encumbrances,
claims or other interests or rights of third parties, except those which do not
or would not have an adverse effect on the Leased Premises as used in the
operation of the Business. The Company has not received notice of any pending or
threatened condemnation or similar proceedings or assessments affecting any of
the Leased Premises, nor to the Sellers' knowledge is any such condemnation or
assessment contemplated by any governmental authority.
(q) Outstanding Commitments. Section 4.1(q) of the Disclosure
Schedule sets forth a description of all existing material contracts,
agreements, commitments, licenses and franchises (other than those which can be
canceled upon not more than 30 days notice without penalty to the Company),
whether written or oral, relating to the ownership or operation of the
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Purchased Assets or the Business (collectively "Contracts"). The Seller has
delivered or made available to the Buyer true, correct and complete copies of
all of the Contracts which are in writing, and Section 4.1(q) of the Disclosure
Schedule contains an accurate and complete description of all Contracts which
are not in writing. Except as otherwise disclosed in Section 4.1(q) of the
Disclosure Schedule, the Company has paid in full all amounts due as of the date
hereof under each Contract requiring payment. All of the Contracts described in
Schedule 4.1(q) are in full force and effect. To Sellers' knowledge, the Company
and each other party thereto have substantially performed all the obligations
required to be performed by them under such Contracts to date, performance by
the Company of any such Contract has not been waived, and the Company has
received no notice of default and is not in default (with due notice or lapse of
time or both) under any such Contract. The Company has no present expectation or
intention of not fully performing all its obligations under each Contract, and
the Sellers have no knowledge of any breach or anticipated breach by any party
other than the Company to any Contract to which the Company is a party. None of
such Contracts has been terminated, no notice has been given by any party
thereto of any alleged default by any party thereunder, and the Company is not
aware of any intention or right of any party to default another party to any
such Contract.
(r) Intellectual Property Rights. Except for the trademarks,
servicemarks or copyrights or the applications for same listed in Section 4.1(r)
of the Disclosure Schedule, the Company does not own any Registered Intellectual
Property or has not applied for the due registration of any Registered
Intellectual Property. To Sellers' knowledge, each item of Company Registered
Intellectual Property is valid and subsisting, all necessary registration,
application, maintenance and renewal fees, as applicable, in connection with
such Registered Intellectual Property have been made and all necessary documents
and certificates in connection with such Registered Intellectual Property have
been filed with the relevant patent, copyright, trademark or other authorities
in the United States for the purposes of maintaining such Registered
Intellectual Property. The Company has all Intellectual Property necessary to
run the Business as currently conducted.
(s) Proprietary Information of Third Parties. To Sellers'
knowledge, no third party has claimed or has reason to claim that any person
employed by or affiliated with the Company in connection with and during the
Company's ownership and operation of the Business has (i) violated or may be
violating any of the terms or conditions of such person's employment,
non-competition or non-disclosure agreement with such third party, (ii)
disclosed or may be disclosing or utilized or may be utilizing any trade secret
or proprietary information or documentation of such third party, or (iii)
interfered or may be interfering in the employment relationship between such
third party and any of its present or former employees. No third party has
requested information from the Company which suggests that such a claim might be
contemplated. To the Sellers' knowledge, no person employed by or affiliated
with the Company in connection with and during the Company's ownership and
operation of the Business has employed or proposes to employ any trade secret or
any information or documentation proprietary to any former employer and no
person employed by or affiliated with the Company in connection with and during
the Company's ownership and operation of the Business has violated any
confidential relationship which such person may have had with any third party,
in connection with the development, manufacture or sale of any product or
proposed product or the development or sale of any service or proposed service
of the Company, and the Sellers have no reason to believe there will be any such
employment or violation.
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(t) [Reserved]
(u) Environmental Liability.
(i) Environmental Substance Liability. To the Sellers'
knowledge, no event has occurred or condition exists or operating practice is
being employed that could give rise to material liability on the part of the
Sellers under existing law for any losses, liabilities, damages (whether
consequential or otherwise), settlements, penalties, interest and expenses,
including closure expenses, costs of assessment, containment, or removal (other
than transportation and/or disposal of materials required to be transported or
disposed of in the ordinary course of business, remedial work, or monitoring)
arising under any presently enacted federal, state, or local statute, or any
regulation that has been promulgated pursuant thereto, or common law, as a
result of or in connection with, or alleged to be a result of or in connection
with, the following:
(A) the handling, storage, use, transportation or
disposal of any Substances (as hereinafter defined) in or near
or from the Leased Premises by the Company or any owner of any
property used or owned by the Company;
(B) the handling, storage, use, transportation or
disposal of any Substances by the Company which Substances were
a product, by-product or otherwise resulted from the operations
conducted by or on behalf of the Company;
(C) any intentional or unintentional emission, discharge
or release of any Substances in, from or near facilities or
plants into or upon the air, surface water, ground water or land
or any disposal, handling, manufacturing, processing,
distribution, use, treatment, or transport of such Substances
in, from or near the Leased Premises; or
(D) the presence of any toxic or hazardous building
materials (including but not limited to asbestos or similar
substances) in the Leased Premises, including but not limited to
the inclusion of such materials in the exterior and interior
walls, floors, ceilings, tile, insulation or any other portion
of building structures.
As used in this Section 4.1(u), the term "Substances" shall mean
any pollutant, hazardous substance, hazardous material, hazardous waste or toxic
waste, as defined in any presently enacted Federal, state or local statute or
any regulation that has been promulgated pursuant thereto.
(ii) Environmental Permits. To the Sellers' knowledge,
the Company has obtained and holds all registrations, permits, licenses, and
approvals issued by or on behalf of any federal, state or local government body
or agency ("Environmental Permits"), that are required in connection with the
discharge or emission of Substances from the Leased Premises or the generation,
treatment, storage, transportation or disposal of any such Substances. Such
Environmental Permits, which are described in Section 4.1(u) of the Disclosure
Schedule, are
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currently effective and sufficient for the ownership and operation of the plants
and facilities as currently conducted, used or owned by the Company.
Notwithstanding any other term or provision hereof, the Sellers make no
representation or warranty that the Environmental Permits can be transferred as
of the Closing Date, but (A) to Sellers' knowledge, the Environmental Permits
may be transferred with the approval of the applicable governmental authority,
subject to the satisfaction of the applicable governmental authorities as to the
policies and procedures implemented by the Buyer with respect to the Buyer's
handling, storage and disposal of Substances in connection with the Buyer's
intended use, ownership and operation of the Business, and (B) the Sellers have
no reason to believe that the applicable governmental authorities will not be
satisfied with the Buyer's policies and procedures in connection with the
Buyer's intended use, ownership and operation of the Business and accordingly
the Sellers have no reason to believe that the applicable governmental
authorities will not in due course consent to the transfer of the Environmental
Permits to the Buyer.
(v) Taxes. Except as set forth in Section 4.1(v) of the
Disclosure Schedule, all federal, state, local and foreign tax returns and tax
reports required to be filed by the Company on or before the date hereof have
been timely filed with the appropriate governmental agencies in all
jurisdictions in which such returns and reports are required to be filed and all
amounts shown as owing thereon have been paid. All taxes (including, without
limitation, income, accumulated earnings, property, sales, use, franchise, value
added, fuel, employees' income withholding and social security taxes) which have
become due or payable or required to be collected by the Company or as otherwise
attributable to any periods ending on or before the date hereof and the Closing
Date and all interest and penalties thereon, whether disputed or not and whether
or not shown on any Return, have been paid or will be paid in full on or prior
to the Closing Date, except where the Company has a reasonable basis for
determining that the taxes are not then due and payable. All deposits required
by law to be made by the Company with respect to employees' withholding taxes
have been duly made, and, as of the Closing Date, all such deposits will have
been made. No claim or Encumbrance other than a Permitted Encumbrance will be
placed upon the Purchased Assets with respect to (i) any Taxes attributable to
the ownership or use of the Purchased Assets with respect to periods prior to
and including the Closing Date or (ii) any other Taxes (regardless of whether
attributable to periods prior to and including the Closing Date) imposed upon
the Company or attributable to the actions or activities of the Company. The
Company is not presently under, has not received notice of an, nor to the
Sellers' knowledge is there any contemplated, investigation or audit by the
Internal Revenue Service or any state tax agency. The Company has not taken, or
failed to take, any action which could create any tax lien on any of the
Purchased Assets. There is no contract, agreement, plan or arrangement,
including but not limited to the provisions of this Agreement and any exhibit or
annex hereto, covering any current or former employee of or service provider to
the Company that, individually or collectively, could give rise to the payment
of any amount by Buyer or its Affiliates that would not be deductible pursuant
to Section 280G or Section 162 of the Code. None of the Purchased Assets
consists of stock or securities of another corporation or entity. Neither the
Company nor any Member is other than a United States person within the meaning
of the Code.
(w) Insurance. Section 4.1(w) of the Disclosure Schedule
correctly describes (by type, carrier, policy number, limits, premium, and
expiration date) the material insurance coverages carried by the Company in
connection with its ownership and operation of the
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Purchased Assets and the Business. As of the date of this Agreement, there is no
material claim by the Company pending under any of the material Company
insurance policies as to which coverage has been questioned, denied or disputed
by the underwriters of such policies or bonds. All premiums payable under all
such material Company insurance policies have been paid and, to the Company's
knowledge, the Company are otherwise in material compliance with the terms of
such policies. As of the date of this Agreement, the Company does not know of
any threatened termination of, or material premium increase with respect to, any
of its material Company insurance policies.
(x) Brokers. Sellers have not retained any broker in
connection with the transactions contemplated hereunder. Buyer has no
and will have no obligation to pay any broker's, finder's, investment banker's,
financial advisor's or similar fee in connection with this Agreement or the
transactions contemplated hereby by reason of any action taken by or on behalf
of any Seller.
(y) Disclosure. Neither this Agreement, nor the Disclosure
Schedule to this Agreement, contains any untrue statement of a material fact,
taken together with all other statements made in this Agreement or the
Disclosure Schedule, or omits a material fact necessary to make the statements
contained herein or therein, in light of the circumstances in which made, not
misleading.
4.2 REPRESENTATIONS AND WARRANTIES OF SELLERS AS OF THE CLOSING. As an
inducement to Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, each of the Sellers jointly and severally
represents and warrants to the Buyer as of the Closing hereunder, except as set
forth in the Disclosure Schedule furnished to Buyer, specifically identifying
the relevant subsection of this Section 4.2, as follows:
(a) Organization; Qualification and Ownership. The Company is a
limited liability company duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts. The Company currently
conducts its business exclusively within the Commonwealth of Massachusetts. The
Company has the corporate power and authority to own and hold its Assets and
Properties and to carry on the Business as currently conducted. Xxxxxxx X.
Xxxxxx is the Manager of the Company. The Company has the following named
officers, each duly elected and qualified by the Manager of the Company as of
the date hereof: Xxxxxxxxx Xxxx, President, and Xxxxxxx X. Xxxxxx, Treasurer.
The Company has delivered to Buyer correct and complete copies of the Company's
Certificate of Organization and Operating Agreement, each as amended to date.
The Members of the Company are 000 Xxxxxxxxxxxx Xxxxxx Xxxx Xxxxxx Corp., a
Massachusetts corporation, and 660 Corporation, a Massachusetts corporation.
(b) Corporate Power and Authority. The Company has the
corporate power and authority to execute, deliver and perform this Agreement and
the other documents and instruments contemplated hereby. The execution, delivery
and performance of this Agreement and the documents contemplated hereby and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized and approved by the Company's Manager and the Company's Members. This
Agreement, and each of the other agreements, documents and instruments to be
executed and delivered by the Sellers have been duly executed and delivered
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by, and constitute the valid and binding obligation of the Sellers, enforceable
against the Sellers in accordance with their terms, subject to the effect of
bankruptcy, insolvency, reorganization, arrangement, moratorium and other
similar laws now or hereafter in effect, as well as limitations imposed by
general principles of equity upon the specific enforceability of any of the
remedies, covenants or other provisions and the availability of injunctive
relief or other equitable remedies.
(c) Validity, Etc. Neither the execution and delivery of this
Agreement and the other documents and instruments contemplated hereby, the
consummation of the transactions contemplated hereby or thereby, nor the
performance of this Agreement and such other agreements in compliance with the
terms and conditions hereof and thereof will, except as set forth in Section
4.1(c) of the Disclosure Schedule, (i) conflict with or result in any breach of
any trust agreement, certificate of organization, or operating agreement of any
of the Company, (ii) except for approval of the transactions contemplated hereby
by the Office of the Attorney General of the Commonwealth of Massachusetts,
Public Charities Division, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority, (iii) result in a breach of or default (or give rise to any right of
termination, cancellation or acceleration) under any law, rule or regulation or
any judgment, decree, order, governmental permit (other than permits set forth
in a Schedule hereto which are not transferable), license or order or any of the
terms, conditions or provisions of any mortgage, indenture, note, license,
agreement or other instrument or obligation to which the Company is a party or
by which the Company or its property is bound, or (iv) result in the creation of
any Encumbrance other than a Permitted Encumbrance upon the Purchased Assets.
(d) Capital Structure. The Members own, beneficially and of
record, one hundred percent (100%) of the Membership Interests In the following
percentages: 520 Commonwealth-99%; 660 Corporation-1%. All of the Membership
Interests are duly authorized, validly issued, fully paid and nonassessable.
There are no options, warrants, conversion rights, rights of exchange or other
rights, plans, agreements or commitments of any nature whatsoever (including,
without limitation, conversion or preemptive rights) providing for the purchase,
issuance or sale (except as contemplated by this Agreement) of any Membership
Interests or any securities convertible into or exchangeable for any Membership
Interests. The Members own the Membership Interests free and clear of all
Encumbrances, and have, and on the Closing Date will have, good and valid title
to such.
(e) Authority of the Members. Each Member has all necessary
power and authority and has taken all action necessary to enter into this
Agreement, to consummate the transactions contemplated hereby and to perform its
obligations hereunder and no other proceedings on the part of such Member is
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. Each Member is a corporation duly authorized to conduct
business and is in good standing under the laws of the Commonwealth of
Massachusetts. This Agreement has been duly and validly executed and delivered
by each Member and constitutes a legal, valid and binding obligation of each
Member, enforceable against each Member in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium
and other similar laws now or hereafter in effect, as well as limitations
imposed by general principles of equity upon the specific enforceability of any
of the remedies, covenants or other provisions and the availability of
injunctive relief or other equitable remedies.
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(f) No Affiliates. Other than its Members and Trustees of
Boston University, the Company does not have any Affiliates; the Company is not
a partner in any partnership or a party to a joint venture.
(g) Consents and Approvals. Except for the approval of the office
of the Attorney General of the Commonwealth of Massachusetts, Public Charities
Division, and as set forth in Section 4.1(c) or Section 4.1(g) of the Disclosure
Schedule, no consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any Governmental or Regulatory
Authority is required by or with respect to the Sellers in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(h) Financial Statements; Absence of Undisclosed Liabilities. The
Company has previously delivered to Buyer the Financial Statements. The
Financial Statements fairly present the financial condition and results of
operations of the Company as of the dates thereof and for the periods covered
thereby; provided, however, that the Financial Statements lack footnotes and
certain other presentation items.
(i) Purchased Assets. Section 4.1(o) of the Disclosure Schedule
sets forth a true and complete list of all tangible personal property owned by
the Company with an original purchase price in excess of $25,000 and used or
useable in the Business. The tangible personal property included in the
Purchased Assets will be, at the Closing, all of the tangible personal property
currently owned by the Company and used or useable in the Business. The Company
is the owner of all of the right, title and interest in and to, and has good and
marketable title, free and clear of all Encumbrances other than Permitted
Encumbrances, to the Purchased Assets listed in Section 4.1(o) of the Disclosure
Schedule, except as specifically set forth therein. With respect to equipment
leased by the Company, all leases, conditional sale contracts, franchises or
licenses pursuant to which the Company may hold or use (or permit others to hold
or use) such equipment or property are valid and in full force and effect, and
to Sellers' knowledge there is not, under any of such instruments, any existing
default or event of default or event which with notice or lapse of time or both
would constitute such a default. The Company's possession and use of such leased
property has not been disturbed and no claim has been asserted against the
Company adverse to its rights in such leasehold interests. All Purchased Assets,
equipment and property being sold, transferred or assigned hereunder is adequate
and usable for the purposes for which it is currently used and is in good
operating condition and repair, ordinary wear and tear excepted.
(j) Real Property. The Company does not own or hold title to any
real property. Section 4.1(p) of the Disclosure Schedule sets forth a true and
complete list and description of each Leased Premise. Each lease covering a
Leased Premises is in full force and effect (there existing no default under any
such lease which, with the lapse of time or notice or otherwise, would entitle
the lessor to terminate the same), conveys the leased real estate purported to
be conveyed thereunder and is enforceable by the Company. The Company has the
right to use the Leased Premises in accordance with the terms of such leases
free and clear of all Encumbrances, claims or other interests or rights of third
parties, except those which do not or would not have an adverse effect on the
Leased Premises as used in the operation of the Business. The Company has not
received notice of any pending or threatened condemnation or
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similar proceedings or assessments affecting any of the Leased Premises, nor to
the Sellers' knowledge is any such condemnation or assessment contemplated by
any governmental authority.
(k) Brokers. Sellers have not retained any broker in connection
with the transactions contemplated hereunder. Buyer has no and will have no
obligation to pay any broker's, finder's, investment banker's, financial
advisor's or similar fee in connection with this Agreement or the transactions
contemplated hereby by reason of any action taken by or on behalf of any Seller.
(l) Disclosure. Neither this Agreement, nor the Disclosure
Schedule to this Agreement, contains any untrue statement of a material fact,
taken together with all other statements made in this Agreement or the
Disclosure Schedule, or omits a material fact necessary to make the statements
contained herein or therein, in light of the circumstances in which made, not
misleading.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers, as of the date hereof and
as of the Closing, as follows:
5.1 ORGANIZATION OF BUYER. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware.
Buyer is duly authorized to conduct business and is in good standing under the
laws of each jurisdiction where such qualification is required except for any
jurisdiction where failure so to qualify would not have an Adverse Effect upon
Buyer. Buyer has full power and authority, and holds all Permits and
authorizations necessary, to carry on the business in which it is engaged and to
own and use the properties owned and used by it except where the failure to have
such power and authority or to hold such license, permit or authorization would
not have an Adverse Effect on Buyer.
5.2 AUTHORITY OF BUYER. Buyer has all necessary corporate power and
corporate authority and has taken all corporate actions necessary to enter into
this Agreement, to consummate the transactions contemplated hereby and to
perform its obligations hereunder and no other proceedings on the part of Buyer
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Buyer and constitutes a legal, valid and binding obligation of such
Buyer enforceable against Buyer in accordance with its terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
5.3 CAPITAL STRUCTURE. The authorized stock of Buyer consists of
80,000,000 shares of Common Stock, of which 38,503,345 shares were issued and
outstanding as of December 31, 1997, and 5,000,000 shares of Preferred Stock,
none of which were issued or outstanding as of December 31, 1997. As of December
31, 1997, there were issued and outstanding:
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(a) 38,504,459 shares of Buyer Common Stock;
(b) no shares of Preferred Stock;
(c) options exercisable into 4,068,506 shares of Buyer Common
Stock, warrants exercisable into 6,606,094 shares of Buyer Common Stock and an
aggregate principal amount of $6,250,000 of convertible promissory notes
convertible into shares of Buyer Common Stock; and
(d) an aggregate principal amount of $50 million 7 1/2%
Convertible Subordinated Debentures of Glycomed, Inc., a wholly owned subsidiary
of Buyer.
(e) All such shares, options, warrants, convertible promissory
notes and Convertible Subordinated Debentures have been duly authorized, and all
such issued and outstanding shares have been validly issued, are fully paid and
nonassessable and are free of any Encumbrances other than any Encumbrances
created by or imposed upon the holders thereof.
(f) The shares of Buyer Common Stock issuable pursuant to the
transactions contemplated in this Agreement, if issued, will
be duly authorized, validly issued, fully paid and non-assessable.
5.4 SEC DOCUMENTS; PARENT FINANCIAL STATEMENTS. Buyer has furnished or
made available to the Company copies of all reports or registration statements
filed by it with the U.S. Securities and Exchange Commission (the "SEC") under
the Securities Exchange Act of 1934 (the "Exchange Act") all in the form so
filed (all the foregoing being collectively referred to as the "SEC Documents").
As of their respective filing dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act of 1933, as amended (the
"Securities Act") or the Exchange Act, as the case may be, and none of the SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were made,
not misleading, except to the extent corrected by a document subsequently filed
with the SEC. The financial statements of Buyer, including the notes thereto,
included in the SEC Documents (the "Buyer Financial Statements") comply as to
form in all material respects with applicable accounting requirements and with
the published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with GAAP consistently applied (except as may be
indicated in the notes thereto or, in the case of unaudited statements, as
permitted by Form 10-Q of the SEC) and present fairly the financial position of
Buyer at the dates thereof and the results of its operations and cash flows for
the periods then ended (subject, in the case of unaudited statements, to normal
audit adjustments). There has been no change in Buyer accounting policies except
as described in the notes to the Buyer Financial Statements.
5.5 LITIGATION. There are no Actions or Proceedings pending, or as to
which Buyer has received any notice of assertion against Buyer, which in
any manner challenges or seeks to prevent, enjoin, alter or materially delay any
of the transactions contemplated by this Agreement or which, if determined
adversely to Buyer would have an Adverse Effect on Buyer.
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ARTICLE 6
COVENANTS OF THE PARTIES
6.1 COVENANTS OF THE COMPANY (AND THE MEMBERS) FROM THE DATE OF THIS
AGREEMENT TO THE CLOSING DATE. The Company and each of the Members covenant
with the Buyer, in the period from the date of this Agreement to the Closing
Date (except as otherwise provided herein), to act, as follows:
(a) Cooperation. The Company and the Members shall use their
commercially reasonable efforts to perform and fulfill all conditions and
obligations to be fulfilled or performed by it hereunder, to the end that the
transactions contemplated hereby will be fully and timely consummated.
(b) Access. Until the Closing, the Company shall give Buyer, its
attorneys, accountants and other authorized representatives reasonable access,
upon reasonable notice and at reasonable times, to the Leased Premises and
suppliers, employees, products, technology, business and financial records,
contracts, business plans, budgets and projections, agreements and commitments
relating to the operation of the Business. Buyer agrees that, prior to the
Closing, it shall not contact or otherwise communicate with the Company's
customers, suppliers or other third parties with whom the Company has a
relationship in connection with the Company's ownership and operation of the
Purchased Assets and the Business, without in each case obtaining the prior
approval of the Company, which approval shall not be unreasonably withheld,
delayed or conditioned.
(c) Insurance. The Company shall maintain insurance policies
providing coverage in type and amount substantially similar to its existing
policies relating to the ownership and operation of the Purchased Assets and the
Business through the Closing.
(d) Compliance with Laws. The Company shall operate the Business
in compliance with all applicable laws, rules, regulations and orders, except
for minor failures to be in compliance with applicable laws, rules, regulation
and orders that would not, individually or in the aggregate, have a material
adverse effect on the Purchased Assets or the operation or condition (financial
or otherwise) or prospects of the Business.
(e) Keeping of Books and Records. The Company shall continue to
keep adequate records and books of account, in which complete entries will be
made in accordance with its existing accounting principles consistently applied,
reflecting all financial transactions and in which all proper reserves for
depreciation, depletion, obsolescence, amortization, taxes, bad debts and other
purposes in connection with its ownership and operation of the Purchased Assets
and the Business.
(f) Actions Prior to Closing. The Company shall operate the
Business, pending the Closing, only in the Ordinary Course of Business. Without
limiting the generality of the foregoing, the Company will not, except in the
Ordinary Course of Business, without the prior written consent of Buyer, (i)
make any disposition of any Purchased Asset, (ii) enter into any contract or
release or relinquish any contract or other right with respect to the ownership
or operation of the Purchased Assets or the Business, or (iii) enter into or
renew any employment
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agreement with any employees or consultants or grant any increases in the
compensation or benefits to, or agree to pay any bonus, severance or termination
payment or other special compensation to, any employees or consultants involved
in the operation of the Business.
(g) Litigation. The Company will promptly notify Buyer
of any lawsuits, claims, proceedings or investigations which are
commenced or, to the Sellers' knowledge, threatened against the Company, or
against any employee or consultant of the Company, involving in any way the
ownership or operation of the Purchased Assets or the Business or which may
threaten the consummation by the Company of the transactions contemplated
hereby.
(h) Continued Effectiveness of Representations and Warranties.
From the date hereof up to and including the Closing Date, the Company will
continue to operate the Business in such manner that the representations and
warranties contained in this Agreement by the Company or the Sellers, as the
case may be, shall continue to be true and correct on and as of the Closing Date
as if made on and as of the Closing Date, except for changes and the
consequences of events arising in the Ordinary Course of Business after the date
hereof none of which would have an Adverse Effect on the Purchased Assets or the
operation or condition (financial or otherwise) or prospects of the Business as
presently conducted. Without limiting the foregoing, as of the Closing Date, the
Company will have satisfied in full all of its liabilities and obligations
thereunder due in the Ordinary Course of Business prior to the Closing.
(i) Tax Returns. The Company shall cause to be prepared and
timely filed all of its required tax returns for all periods up to and including
the Closing Date.
6.2 COVENANTS OF THE COMPANY (AND THE MEMBERS) FROM THE MERGER CLOSING
TO THE CLOSING DATE. (a) Except as otherwise contemplated by this Agreement,
during the period from the Merger Closing to the Closing Date, without the
prior written consent of Buyer, the Company will not, and each of the Members
shall to the extent it is in their respective powers cause the Company not to:
(i) commence or conduct any new business other than the
Business;
(ii) create, incur or assume any long-term or short-term
debt (including obligations with respect to capital leases), other than in
connection with the acquisition of any real property, machinery, equipment or
other capital assets with a purchase price not in excess of $30,000 in the
aggregate or (i) assume, guarantee, endorse or otherwise become liable or
responsible for (whether directly, contingently or otherwise) the obligations of
any other Person, other than endorsing negotiable instruments in the Ordinary
Course of Business in amounts less than $30,000;
(iii) declare, set aside or pay any distribution to any
Member (whether in cash or property or any combination thereof);
(iv) permit any material insurance (or reinsurance) policies
to be cancelled or terminated or any of the coverage thereunder to lapse, unless
simultaneously with such termination, cancellation or lapse, replacement
policies with similarly rated insurance
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companies providing coverage equal to or greater than coverage remaining under
those cancelled, terminated or lapsed are in full force and effect;
(v) create, organize or otherwise establish any new
subsidiary or joint venture;
(vi) make any change to its Certificate of Organization,
Operating Agreement or other organizational documents;
(vii) take any other action which would result in an Adverse
Effect on the Company;
(viii) agree, whether in writing or orally, whether formally
or informally, to engage in any of the actions described in clauses (i) through
(vii) of this Section 6.2.
(b) The Company shall prepare and deliver to Buyer within fifteen
(15) business days after each month end an unaudited balance sheet, a statement
of income and cash flows and detail of general and administrative expenses of
the Company for the immediately preceding calendar month during the period from
the Merger Closing through the earlier of (i) the Closing Date or (ii)
termination pursuant to Section 10.1 of this Agreement.
6.3 ADDITIONAL COVENANTS OF THE PARTIES. Each of the parties covenants
with the others to act, as follows:
(a) The Company shall allow Buyer or its authorized
representatives, at Buyer's own expense during regular business hours, or
otherwise with the consent of the Company (which consent shall not be
unreasonably withheld), to interview employees of the Company and to make such
inspection of the Company and to inspect (and, if applicable, make copies of)
Books and Records, plants, offices, warehouses and other facilities of the
Company as requested by Buyer or its authorized representatives and reasonably
necessary for or reasonably related to the operation of the Business, including
historical financial information, concerning the Business; provided, however,
that any information obtained from the Members or the Company is subject to the
obligations imposed by Section 10.12 below.
(b) As soon as practicable after execution of this Agreement,
Sellers will commence all reasonable action required hereunder to obtain all
applicable Permits, consents, approvals and agreements of, and to give all
notices and make all filings with, any third parties as may be necessary to
authorize, approve or permit the full and complete consummation of the
transactions contemplated hereby by the Closing Date.
(c) Each of the parties shall give prompt notice to the other
party, of (i) the discovery of a fact or facts of which the notifying party has
actual knowledge which cause it or him to conclude that any of the
representations, warranties or statements made by it or him or in an any
exhibit, schedule or other document delivered pursuant to this Agreement, may be
false or misleading or omission of any facts necessary in order to make such
representations, warranties or statements not false or misleading; (ii) the
occurrence, or failure to occur, of any event which occurrence or failure would
be likely to cause any representation or warranty made by them in this Agreement
to be untrue or inaccurate any time from the date hereof to the Closing Date;
and
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(iii) any failure of the notifying party to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it or him hereunder.
Each party hereto shall use all reasonable efforts to remedy any failure on its
or his part to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it or him hereunder. During the period from the
date of this Agreement to the Closing Date, Sellers will promptly notify Buyer
of any material change in, or outside of, the normal course of business or
operations of the Company and of any Governmental or Regulatory Authority
complaints, investigative hearings, or the institution, threat (to the extent
Sellers have knowledge of such threat) or settlement of litigation, in each case
involving an amount in excess of $150,000 and relating to the Company, and shall
keep Buyer fully informed in reasonable detail of such events. The Company shall
not enter into any settlements over $150,000 in connection with any such
litigation without the prior written consent of Buyer.
(d) Subject to the terms and conditions of this Agreement, each
of the parties hereto will use its commercially reasonable best efforts to take,
or cause to be taken, all action, or to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, obtaining all consents and approvals of all
Persons and Governmental or Regulatory Authorities and removing any injunctions
or other impairments or delays or otherwise which are necessary to the
consummation of the transactions contemplated by this Agreement.
(e) Each of the parties hereto will use its best efforts to make
or cause to be made all such filings and submissions as may be required under
applicable laws and regulations for the consummation of the transactions
contemplated by this Agreement. Sellers and Buyer will coordinate and cooperate
with one another in exchanging such information and provide each other such
assistance as any other party may reasonably request in connection with the
foregoing.
(f) On the earlier of the Closing Date or the date of payment of
the Option Consideration, Buyer will have registered, pursuant to the Securities
Act, the offer and sale of shares of Buyer Common Stock to be included in the
Purchase Price, if any, will have qualified such shares of Buyer Common Stock
for sale under applicable foreign or state securities or "blue sky" laws, and
maintained in effect such registrations and qualifications. Such Buyer Common
Stock, when delivered, shall be free of any restrictions on resale, other than
such restrictions required under federal securities laws.
(g) The shares of Buyer Common Stock, if any, issuable to the
Company pursuant to Section 3.4 shall have been authorized for listing on the
Nasdaq National Market upon official notice of issuance.
(h) On the Closing Date, the Company will amend its Operating
Agreement and all other documents necessary to change its name to any name other
than "Marathon Biopharmaceuticals, LLC" or any name similar thereto, shall
otherwise cease using the name "Marathon Biopharmaceuticals, LLC" and any
similar name thereto in any capacity, and will assign to Buyer all rights in and
to the name "Marathon Biopharmaceuticals, LLC."
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(i) Unless and until this Agreement is terminated pursuant to
Section 10.1, neither the Company nor any of the Members nor any of their
respective Affiliates, if any, will directly or indirectly solicit, initiate or
encourage any inquiries or proposals from, discuss or negotiate with, provide
any non-public information to or consider the merits of any unsolicited
inquiries or proposals from, any Person (other than Purchaser) relating to any
transaction involving the sale of all or a substantial portion of the Assets or
Properties of the Company, or any membership interests of the Company, or any
merger, consolidation, business combination or similar transaction involving the
Company (each a "Proposed Acquisition Transaction"). Sellers will immediately
notify Buyer if any discussions or negotiations are sought to be initiated, any
inquiry or proposal is made, or any information is requested with respect to any
Proposed Acquisition Transaction and notify Buyer of the terms of any proposal
which it or its Affiliates, if any, may receive in respect of any such Proposed
Acquisition Transaction, including without limitation the identity of the
prospective purchaser or soliciting party. Sellers shall also provide Buyer with
a copy of any written offer.
(j) Except as required by applicable law, prior to the Closing,
no party shall issue or cause the publication of any press release or otherwise
make any public statement with respect to the transactions contemplated hereby
without the prior written consent of Buyer and the Company, which consent shall
not be unreasonably withheld.
(k) (i) Buyer and Seller acknowledge and affirm their intention
that Buyer shall not assume any liabilities or obligations of the Company to any
current or former employee of the Company, other than those persons listed in
Schedule 6.3(k)(i) and as provided in Schedule 3.3. Buyer shall not have any
liability or obligation to or in respect of any employee or agent of the
Company, including but not limited to any liability or obligation (A) to employ
or engage any such employee or agent, (B) arising from such employee or agent's
dismissal by the Company or any notice and/or payment in lieu of notice required
by applicable law in connection with such dismissal, or (C) in respect of any
compensation, tenure, seniority, benefit, or welfare plan or arrangement of any
kind.
(ii) Schedule 6.3(k)(ii) hereto sets forth a list of all those
employees of the Company at the Facility to whom Buyer intends to offer
employment (the "Selected Employees"). Buyer shall offer employment to all of
the Selected Employees upon such terms and conditions as Buyer shall in its sole
discretion determine. At any time prior to the Closing Buyer may, but is in no
way obligated to, offer employment to such other employees of the Company whose
employment is terminated by Seller, notwithstanding that such employees are not
listed on Schedule 6.3(k)(ii) hereto.
(l) The Company shall take all necessary action to keep the
Service Agreement in full force and effect and binding on the parties thereto
consistent with its terms, and shall not amend or modify any provisions of the
Service Agreement without Buyer's prior written consent. The Company shall not
consider Seragen in breach or default of the Service Agreement for any failure
of Seragen to perform its obligations under the Service Agreement prior to the
Merger Closing and shall forbear from taking any action of whatever nature
inconsistent with this Section 6.3(l). After the Merger Closing, Buyer will, or
will cause Seragen to, faithfully perform all of its obligations, including
payment obligations, to the Company under the terms of the Service Agreement.
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(m) The Company shall not amend, modify or terminate any material
contract, agreement, commitment, license or franchise so as to cause an Adverse
Effect on the Company or the Purchased Assets.
ARTICLE 7
CONDITIONS TO THE OBLIGATIONS OF SELLERS
The obligations of Sellers to effect the transactions
contemplated hereby are subject to the satisfaction, at or before the Closing,
of each of the following conditions:
7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations and
warranties of Buyer contained in this Agreement shall be true and correct on and
as of the Closing Date, except for those representations and warranties which
address matters only as of a particular date (which shall remain true and
correct as of such date), and Buyer shall have performed all agreements and
covenants in a timely manner required to be performed by it prior to or on the
Closing Date.
7.2 NO ACTIONS OR PROCEEDINGS. No Actions or Proceedings shall have been
instituted or threatened which question the validity or legality of the
transactions contemplated hereby.
7.3 CONSENTS. All Permits, authorizations, consents, approvals and
waivers from third parties and Governmental or Regulatory Authorities and other
Persons necessary or appropriate to permit Buyer to perform their respective
obligations hereunder and to consummate the transactions contemplated hereby
shall have been obtained. The office of the Attorney General of the Commonwealth
of Massachusetts, Public Charities Division ("Massachusetts Attorney General"),
shall have approved the transactions contemplated by this Agreement to the
reasonable satisfaction of the Company and Xxxxx Xxxxx and such approval shall
be effective as of the Closing Date.
7.4 CLOSING DELIVERIES. Buyer shall have executed and delivered the
documents required to be executed and delivered by Buyer pursuant to
Section 3.8(b) above.
ARTICLE 8
CONDITIONS TO THE OBLIGATIONS OF BUYER
The obligation of Buyer to effect the transactions contemplated
hereby is subject to the satisfaction, at or before the Closing, of each of the
following conditions:
8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations and
warranties of Sellers contained in this Agreement shall be true and correct on
and as of the Closing Date, except for those representations and warranties
which address matters only as of a particular date (which shall remain true and
correct as of such date), and Sellers shall have performed all agreements and
covenants in a timely manner required to be performed by them prior to or on the
Closing Date.
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8.2 NO ACTIONS OR PROCEEDINGS. No Actions or Proceedings shall have
been instituted or threatened which question the validity or legality of the
transactions contemplated hereby.
8.3 CONSENTS. All Permits, authorizations, consents, approvals and
waivers from third parties and Governmental or Regulatory Authorities and
other Persons necessary or appropriate to permit Sellers to perform their
respective obligations hereunder and to consummate the transactions contemplated
hereby shall have been obtained, including, without limitation, the continued
effectiveness of approvals required from the Massachusetts Attorney General,
referred to in Section 7.3 above, to the satisfaction of Buyer and Buyer's
counsel.
8.4 CLOSING DELIVERIES. The Company and the Members shall have executed
and delivered the documents required to be executed and delivered by the Company
and the Members, respectively, pursuant to Section 3.8(c) above.
ARTICLE 9
ACTIONS BY THE PARTIES AFTER THE CLOSING
9.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC. The representations,
warranties and covenants of Sellers contained in or made pursuant to this
Agreement or any certificate, document or instrument delivered pursuant to or in
connection with this Agreement or the transactions contemplated hereby shall
survive the execution and delivery of this Agreement and the Closing hereunder
notwithstanding any investigation, analysis or evaluation by Buyer or its
designees of the Purchased Assets, Business, operations or condition (financial
or otherwise) of the Company and, where applicable, of the Members, and the
Purchase Assets and thereafter the representations and warranties of Sellers
shall continue to survive in full force and effect for a period of one (1) year
after the Closing Date; provided, however, that (i) the representations and
warranties contained in Sections 4.(a) through (e) shall continue to survive
indefinitely after the Closing Date; and (ii) the representations and warranties
in Section 4.1(u) shall continue to survive after the Closing Date for a period
of three (3) years; and (iii) the representations and warranties in Section
4.1(v) shall continue to survive after the Closing Date until the expiration of
all applicable statutes of limitations.
9.2 INDEMNIFICATION.
(a) By Sellers. Sellers, jointly and severally,
shall indemnify, defend and hold harmless Buyer, and its officers, directors,
employees, agents, successors and assigns (collectively the "Buyer Group") from
and against any and all costs, losses (including, without limitation, diminution
in value), Liabilities, damages, lawsuits, deficiencies, claims and expenses,
including without limitation, interest, penalties, costs of mitigation, clean-up
or remedial action, lost profits and other losses resulting from any shutdown or
curtailment of operations, damages to the Environment, attorneys' fees and all
amounts paid in investigation, defense or settlement of any of the foregoing
(collectively, the "Damages"), incurred in connection with, arising out of,
resulting from or incident to (i) any breach of any covenant, representation,
warranty or agreement or the inaccuracy of any representation, made by any of
the Sellers in or pursuant to this Agreement, (ii) any Excluded Assets or (iii)
any Liabilities of the Company on the Closing Date which are not part of the
Assumed Liabilities.
30.
35
(b) By Buyer. Buyer shall indemnify, defend and hold harmless
Sellers and their respective officers, employees, agents, successors and assigns
from and against any and all Damages incurred in connection with, arising out
of, resulting from or incident to (i) any breach of any covenant,
representation, warranty or agreement or the inaccuracy of any representation,
made by Buyer in or pursuant to this Agreement or (ii) any liability relating to
the Business arising on or after the Closing Date.
(c) Defense of Claims. If any Action or Proceeding is filed or
initiated against any party entitled to the benefit of indemnity hereunder,
written notice thereof shall be given to the indemnifying party as promptly as
practicable (and in any event within thirty (30) days after the service of the
citation or summons); provided, however, that the failure of any indemnified
party to give timely notice shall not affect rights to indemnification hereunder
except to the extent that the indemnifying party demonstrates actual damage
caused by such failure. After such notice, if the indemnifying party shall
acknowledge in writing to the indemnified party that the indemnifying party
shall be obligated under the terms of its indemnity hereunder in connection with
such Action or Proceeding, then the indemnifying party shall be entitled, if it
so elects, to take control of the defense and investigation of such Action or
Proceeding and to employ and engage attorneys of its own choice to handle and
defend the same, such attorneys to be reasonably satisfactory to the indemnified
party, at the indemnifying party's cost, risk and expense (unless (i) the
indemnifying party has failed to assume the defense of such Action or Proceeding
or (ii) the named parties to such Action or Proceeding include both of the
indemnifying party and the indemnified party, and the indemnified party and its
counsel determine in good faith that there may be one or more legal defenses
available to such indemnified party that are different from or additional to
those available to the indemnifying party and that joint representation would be
inappropriate), and to compromise or settle such Action or Proceeding, which
compromise or settlement shall be made only with the written consent of the
indemnified party, such consent not to be unreasonably withheld. The indemnified
party may withhold such consent if such compromise or settlement would adversely
affect the conduct of business or requires less than an unconditional release to
be obtained. If (i) the indemnifying party fails to assume the defense of such
Action or Proceeding within fifteen (15) days after receipt of notice thereof
pursuant to this Section 9, or (ii) the named parties to such Action or
Proceeding include both the indemnifying party and the indemnified party and the
indemnified party and its counsel determine in good faith that there may be one
or more legal defenses available to such indemnified party that are different
from or additional to those available to the indemnifying party and that joint
representation would be inappropriate, the indemnified party against which such
Action or Proceeding has been filed or initiated will (upon delivering notice to
such effect to the indemnifying party) have the right to undertake, at the
indemnifying party's cost and expense, the defense, compromise or settlement of
such Action or Proceeding on behalf of and for the account and risk of the
indemnifying party; provided, however, that such Action or Proceeding shall not
be compromised or settled without the written consent of the indemnifying party,
which consent shall not be unreasonably withheld. In the event the indemnified
party assumes defense of the Action or Proceeding, the indemnified party will
keep the indemnifying party reasonably informed of the progress of any such
defense, compromise or settlement and will consult with, when appropriate, and
consider any reasonable advice from, the indemnifying party of any such defense,
compromise or settlement. The indemnifying party shall be liable for any
settlement of any action effected pursuant to and in accordance with this
Section 9.2 and for any final judgment (subject to any right of appeal), and
31.
36
the indemnifying party agrees to indemnify and hold harmless the indemnified
party from and against any Damages by reason of such settlement or judgment.
Regardless of whether the indemnifying party or the indemnified
party takes up the defense, the indemnifying party will pay reasonable costs and
expenses in connection with the defense, compromise or settlement for any Action
or Proceeding under this Section 9.2.
The indemnified party shall cooperate in all reasonable respects
with the indemnifying party and such attorneys in the investigation, trial and
defense of such Action or Proceeding and any appeal arising therefrom; provided,
however, that the indemnified party may, at its own cost, participate in the
investigation, trial and defense of such Action or Proceeding and any appeal
arising therefrom. The indemnifying party shall pay all expenses due under this
Section 9.2 as such expenses become due. In the event such expenses are not so
paid, the indemnified party shall be entitled to settle any Action or Proceeding
under this Section 9.2 without the consent of the indemnifying party and without
waiving any rights the indemnified party may have against the indemnifying
party.
(d) Tax Indemnification.
(i) Notwithstanding anything in this Agreement to the
contrary, Sellers, jointly and severally, shall indemnify, defend and hold
harmless all members of the Buyer Group for, from and against all Damages
arising in respect of any Pre-Closing Period (as defined below) asserted against
or incurred by members of the Buyer Group resulting from a breach of the
representations or warranties set forth in Section 4.25 above, including the
Disclosure Schedule referred to therein and relating to such Section ("Tax
Losses").
(ii) "Pre-Closing Period" means any taxable period ending
on or before the Closing Date, and the portion of any taxable period beginning
on or before but ending after the Closing Date which portion begins on the first
day of such a taxable period and ends on the Closing Date.
(iii) Notwithstanding anything in this Agreement to the
contrary, Buyer shall have the right to control any audit or determination by
any taxing authority, initiate any claim for refund or amended return, contest,
defend against, resolve, and settle any assessment, notice of deficiency or
other adjustment or proposed adjustment of Taxes or otherwise resolve any issue
pertaining to any Tax Losses; provided, however, that Buyer shall consult with
Sellers in contesting any proposed adjustment, shall consider any reasonable
advice from Sellers concerning such contest and shall not settle any such
contest without the prior written consent of Buyer, which shall not be
unreasonably withheld. Sellers shall have the right to receive in a timely
manner copies of all non-privileged correspondence, records and relevant
documentation and to be timely informed of and to attend all meetings with third
parties relating to any claimed Tax Losses.
(e) Limitations on Liability. An indemnified party shall be
obligated to provide indemnity under this Article 9 only if and to the extent
that the Damages incurred by an indemnified party exceed $150,000 and in no case
shall an indemnifying party be obligated to provide indemnity for Damages in
excess of $1,000,000. The limitations of this Section 9.2(e)
32.
37
shall not apply to Damages resulting from fraudulent misrepresentations
or Damages incurred under Sections 9.2(a)(iii) or 9.2(b)(ii).
ARTICLE 10
MISCELLANEOUS
10.1 TERMINATION. This Agreement may be terminated at any time prior to
Closing:
(a) by mutual written consent of the parties hereto;
(b) by the Company, if the Company or any Seller is not in material
breach of their respective obligations under this Agreement and (i) any
condition precedent to Sellers' obligations hereunder is not satisfied and such
condition is not waived by Sellers at or prior to the Closing Date or (ii) there
has been a material violation or breach by Buyer of any agreement,
representation or warranty contained in this Agreement and such violation or
breach has not been waived in writing by Sellers; or
(c) by Buyer, if Buyer is not in material breach of its
obligations under this Agreement and (i) any condition precedent to Buyer's
obligations hereunder is not satisfied and such condition is not waived by Buyer
at or prior to the Closing Date or (ii) there has been a material violation or
breach by any of the Sellers of any agreement, representation or warranty
contained in this Agreement and such violation or breach has not been waived in
writing by Buyer;
(d) by Buyer, if there shall be any action taken, or any statute,
rule regulation or order enacted, promulgated or issued or deemed applicable to
the transactions contemplated by this Agreement, by any governmental entity,
which would (i) prohibit Buyer's ownership or operation of all or any portion of
the Purchased Assets of the Company or (ii) compel Buyer to dispose of or hold
separate all or a portion of the Purchased Assets of the Company as a result of
the transactions contemplated by this Agreement;
(e) by Buyer, if the Company seeks protection under any bankruptcy,
receivership, trust deed, creditors arrangement, composition or comparable
proceeding, or if any such proceeding is instituted against the Company within
sixty (60) days;
(f) by the Company, if Buyer seeks protection under any bankruptcy,
receivership, trust deed, creditors arrangement, composition or comparable
proceeding, or if any such proceeding is instituted against Buyer within sixty
(60) days;
(g) by Buyer or the Company, if the Merger Agreement is
terminated;
in which case, Buyer or Sellers, as the case may be, may terminate this
Agreement at its or their option by notice to the other party or parties. In the
event of the termination of this Agreement as above provided, no party shall
have any liability hereunder of any nature whatsoever to any other party,
including any liability for Damages; provided, however, that if, at the time of
such termination, any party is in default under its obligations hereunder, the
party in default shall be liable to the other parties for such default.
33.
38
In the event that a condition precedent to its obligations is not
satisfied, nothing contained herein shall be deemed to require any party to
terminate this Agreement, rather than to waive such condition precedent and
proceed with the Closing. This Agreement shall terminate automatically if the
Closing has not occurred on or prior to January 31, 1999, subject to extension
pursuant to the Option Agreement, unless otherwise extended in writing by all
parties hereto, provided that such termination will not relieve a party in
breach of any of its obligations.
10.2 NOTICES. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission with answer back
confirmation or mailed (postage prepaid by certified or registered mail, return
receipt requested) or by overnight courier to the parties at the following
addresses or facsimile numbers:
IF TO THE COMPANY, TO:
Marathon Biopharmaceuticals, LLC
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: President
WITH COPIES TO:
Mintz Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxx & Xxxx
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
000 Xxxxxxxxxxxx Xxxxxx Xxxx Xxxxxx Corp. (see below)
34.
39
IF TO THE MEMBERS, TO:
000 Xxxxxxxxxxxx Xxxxxx Xxxx Xxxxxx Corp.
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, President
IF TO BUYER, TO:
Ligand Pharmaceuticals Incorporated
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
WITH COPIES TO:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxx "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 10.2, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 10.2, be deemed given upon receipt, and (iii) if
delivered by mail in the manner described above to the address as provided in
this Section 10.2, be deemed given upon receipt (in each case regardless of
whether such notice, request or other communication is received by any other
Person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto.
10.3 ENTIRE AGREEMENT. This Agreement (and all Exhibits and Schedules
attached hereto, all other documents delivered in connection herewith)
supersedes all prior discussions and agreements among the parties with respect
to the subject matter hereof and contains the sole and entire agreement among
the parties hereto with respect thereto.
10.4 WAIVER. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party hereto of any term or condition of this Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Agreement on any future occasion. All
remedies, either under this Agreement or by law or otherwise afforded, will be
cumulative and not alternative.
35.
40
10.5 AMENDMENT. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party hereto.
10.6 NO THIRD PARTY BENEFICIARY. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person other
than any Person entitled to indemnity under Section 9.2.
10.7 ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other parties hereto and any attempt to do so will
be void; provided, any party's rights to indemnification under Article 9 may be
freely assigned; provided further, Buyer may assign its rights, interests and
obligations hereunder to an Affiliate or in connection with the merger of Buyer
or the sale of all or substantially all of the assets of the Buyer. This
Agreement is binding upon, inures to the benefit of and is enforceable by the
parties hereto and their respective successors and assigns.
10.8 HEADINGS. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the
provisions hereof.
10.9 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and mutually acceptable to
the parties herein.
10.10 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts executed and performed in such State, without giving effect to
conflicts of laws principles.
10.11 CONSENT TO JURISDICTION AND FORUM SELECTION. The parties hereto
agree that all actions or proceedings arising in connection with this Agreement
shall be initiated and tried exclusively in the State and Federal courts located
in the Commonwealth of Massachusetts. The aforementioned choice of venue is
intended by the parties to be mandatory and not permissive in nature, thereby
precluding the possibility of litigation between the parties with respect to or
arising out of this Agreement in any jurisdiction other than that specified in
this Section 10.11. Each party hereby waives any right it may have to assert the
doctrine of forum non conveniens or similar doctrine or to object to venue with
respect to any proceeding brought in accordance with this paragraph, and
stipulates that the State and Federal courts located in the Commonwealth of
Massachusetts shall have in personam jurisdiction and venue over each of them
for the purposes of litigating any dispute, controversy or proceeding arising
out of or related to this Agreement. Each party hereby authorizes and accepts
service of process sufficient for personal jurisdiction in
36.
41
any action against it as contemplated by this Section 10.11 by registered or
certified mail, return receipt requested, postage prepaid, to its address for
the giving of notices as set forth in this Agreement, or in the manner set forth
in Section 10.11 of this Agreement for the giving of notice. Any final judgment
rendered against a party in any action or proceeding shall be conclusive as to
the subject of such final judgment and may be enforced in other jurisdictions in
any manner provided by law.
10.12 CONFIDENTIALITY. Each of the parties agrees that, until the Closing,
it and its officers, directors, managers, employees, agents, Affiliates and
representatives shall maintain the facts surrounding the negotiation of this
Agreement, this Agreement, disclosures made herein and hereunder, and the
results of investigations and audits conducted hereunder completely confidential
and shall not disclose such information to any other Person (except as may be
required by law or legal process or as necessary to carry out the terms of this
Agreement or to the extent such information becomes public information or
generally available to the public through no fault of such party or its
Affiliates) without the prior written consent of Buyer and the Company.
10.13 EXPENSE. Except as otherwise provided in this Agreement, each
party hereto shall pay its own expenses and costs incidental to the preparation
of this Agreement and to the consummation of the transactions contemplated
hereby.
10.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by facsimile, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
37.
42
IN WITNESS WHEREOF, this Agreement has been duly
executed and delivered by the parties hereto as of the date first above written.
LIGAND PHARMACEUTICALS INCORPORATED,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
--------------------------------------------
Title: President and Chief Executive Officer
-------------------------------------------
MARATHON BIOPHARMACEUTICALS, LLC,
a Massachusetts limited liability company
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
000 XXXXXXXXXXXX XXXXXX XXXX XXXXXX CORP.,
a Massachusetts corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
660 CORPORATION, a Massachusetts corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[SIGNATURE PAGE TO THE ASSET PURCHASE AGREEMENT]
43
IN WITNESS WHEREOF, this Agreement has been duly
executed and delivered by the parties hereto as of the date first above written.
LIGAND PHARMACEUTICALS INCORPORATED,
a Delaware corporation
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
MARATHON BIOPHARMACEUTICALS, LLC,
a Massachusetts limited liability company
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------------
Title: Manager
--------------------------------------------
000 XXXXXXXXXXXX XXXXXX XXXX XXXXXX CORP.,
a Massachusetts corporation
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------------
Title: President
--------------------------------------------
660 CORPORATION, a Massachusetts corporation
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------------
Title: Treasurer
--------------------------------------------
[SIGNATURE PAGE TO THE ASSET PURCHASE AGREEMENT]
44
EXHIBIT A
CERTIFICATE OF OFFICER
LIGAND PHARMACEUTICALS INCORPORATED
This Certificate is delivered pursuant to Section 3.8(b)(ii) of that
certain Option and Asset Purchase Agreement (the "Agreement"), dated as of
__________________, 199__, by and among Ligand Pharmaceuticals Incorporated
("Buyer"), Marathon Biopharmaceuticals, LLC, 000 Xxxxxxxxxxxx Xxxxxx Xxxx Xxxxxx
Corp. and 660 Corporation. Capitalized terms used herein without definition
shall have the same meaning as set forth in the Agreement.
I, ________________________, do hereby certify that I am the duly
elected, qualified and acting ______________________ of Buyer and as such, am
authorized to execute this Certificate on its behalf, and I further certify
that:
1. All representations and warranties of Buyer contained in the
Agreement are true and correct on and as of the date hereof, except for those
representations and warranties which address matters only as of a particular
date (which shall remain true and correct as of such date), and Buyer has
performed all agreements and covenants in a timely manner required to be
performed by it prior to or on the date hereof.
2. No Actions or Proceedings have been instituted or threatened which
question the validity or legality of the transactions contemplated by the
Agreement.
3. All Permits, authorizations, consents, approvals and waivers from
third parties and Governmental or Regulatory Authorities and other Persons
necessary or appropriate to permit Buyer to perform its respective obligations
hereunder and to consummate the transactions contemplated by the Agreement have
been obtained.
IN WITNESS WHEREOF, I have executed this Certificate as of the Closing
Date, this ____ day of ________________, 199__.
___________________________________
Name:_______________
45
EXHIBIT B
XXXX OF SALE
THIS XXXX OF SALE dated as of May ___, 1998, is being executed
and delivered by Marathon Biopharmaceuticals LLC, a Massachusetts limited
liability company (the "Company"), 520 Commonwealth Real Estate Corporation, a
Massachusetts corporation ("520 Corporation"), and 660 Corporation, a
Massachusetts corporation ("660 Corporation," and together with the Company and
520 Commonwealth, the "Sellers"), pursuant to that certain Option and Asset
Purchase Agreement dated as of May __, 1998 (the "Purchase Agreement"), by and
among Sellers and Ligand Pharmaceuticals Incorporated, a Delaware corporation
("Buyer"). The execution and delivery of this Xxxx of Sale is a condition to
Buyer's obligations under the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Seller hereby agrees as
follows:
1. Capitalized terms used herein but not defined herein shall
have the meanings assigned such terms in the Purchase Agreement.
2. Subject to the terms and conditions set forth in the Purchase
Agreement, Sellers hereby grant, sell, convey, assign, transfer and deliver to
Buyer, and Buyer hereby acquires from Sellers, free and clear of any Encumbrance
or adverse claim of any kind whatsoever other than any Permitted Encumbrance,
all of the Company's right, title, and interest in and to all assets,
properties, rights, leases, fixtures, accessories, claims, contracts and
interests of the Company of every kind, type or description, real, personal and
mixed, tangible and intangible, wherever located, that are used in or pertain to
the Business and operations of the Company (the "Purchased Assets"), including
without limitation:
(a) the equipment, leasehold improvements, furniture
and fixtures, vehicles and other operating assets owned or leased by the Company
and used in the Business as set forth in Schedule 3.1(a) to the Purchase
Agreement;
(b) all customer lists and customer accounts owned by the
Company as set forth in Schedule 3.1(b) to the Purchase Agreement;
(c) all of the Company's right, title and interest in
and to the contracts and agreements set forth in Schedule 3.1(c) to the Purchase
Agreement;
(d) all Permits issued to or held by the Company
necessary or incidental to the conduct of the Business set forth in Schedule
3.1(d) to the Purchase Agreement to the extent transferable;
(e) all the operating data, books, files, documents and
records of the Company relating to the Business;
46
(f) all prepaid expenses, deposits (other than lease
security deposits, if any) and deferred items in effect as of the date hereof
and from which Buyer may derive future benefit;
(g) all of the Company's rights to the name "Marathon
Biopharmaceuticals", all variations thereof and all trademarks, trade names,
service marks and goodwill associated therewith; and
(h) the goodwill and going concern value of the
business of the Company.
3. Buyer hereby waives compliance by Sellers with the provisions
of the bulk transfer laws of any state. Sellers warrant and agree to pay and
discharge when due all claims of creditors which could be asserted against Buyer
by reason of such noncompliance. Sellers shall indemnify and hold Buyer harmless
from, against and in respect of (and shall on demand reimburse Buyer for) any
Damages suffered or incurred by Buyer by reason of the failure of Sellers to pay
or discharge such claims.
4. From time to time after the date hereof, Sellers will execute
and deliver, or cause its affiliates to execute and deliver, to Buyer such
instruments of sale, transfer, conveyance, assignment and delivery, and such
consents, assurances, powers of attorney and other instruments as may be
reasonably requested by Buyer or its counsel in order to vest in the Company all
right, title and interest of Seller in and to the Purchased Assets and otherwise
in order to carry out the purpose and intent of this Xxxx of Sale.
5. Notwithstanding any other provisions of this Xxxx of Sale to
the contrary, nothing contained in this Xxxx of Sale shall in any way supersede,
modify, replace, amend, change, rescind, waive, exceed, expand, enlarge or in
any way affect the provisions, including warranties, covenants, agreements,
conditions, representations or, in general any of rights and remedies, and any
of the obligations and indemnifications of Sellers or Buyers set forth in the
Purchase Agreement nor shall this Xxxx of Sale expand or enlarge any remedies
under the Purchase Agreement including without limitation any limits on
indemnification specified therein. This Xxxx of Sale is intended only to effect
the transfer of certain property transferred pursuant to the Purchase Agreement
and shall be governed entirely in accordance with the terms and conditions of
the Purchase Agreement.
6. This Xxxx of Sale may be executed in any number of
counterparts and by facsimile, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
47
IN WITNESS WHEREOF, Sellers have caused this Xxxx of Sale to be
executed and delivered on the date and year first written above.
Marathon Biopharmaceuticals, LLC,
a Massachusetts limited liability
company
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
520 Commonwealth Real Estate
Corporation, a Massachusetts
corporation
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
660 Corporation,
a Massachusetts corporation
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
[SIGNATURE PAGE TO THE XXXX OF SALE]
48
EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("Assignment") is
entered into this ____ day of ____, 199__, by and between Ligand Pharmaceuticals
Incorporated, a Delaware corporation ("Assignee"), and Marathon
Biopharmaceuticals LLC, a Massachusetts limited liability company, 520
Commonwealth Real Estate Corporation, a Massachusetts corporation and 660
Corporation, a Massachusetts corporation (collectively, the "Assignors").
RECITALS
WHEREAS, Assignors and Assignee have entered into that certain
Option and Asset Purchase Agreement, dated as of May ___, 1998 (the "Purchase
Agreement") for the sale by Assignors of the Purchased Assets (as defined in
Section 3.1 of the Purchase Agreement) (initially capitalized terms used herein
and not otherwise defined herein shall have the meanings given to such terms in
the Purchase Agreement); and
WHEREAS, the execution and delivery of this Agreement is a
condition precedent to the consummation of the transactions contemplated under
the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
promises set forth herein, and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. ASSIGNMENT AND ASSUMPTION. Assignors hereby agree that,
effective as of the Closing, it shall grant, sell, convey, assign, transfer and
deliver to Assignee, and Assignee hereby agrees to accept and assume, free and
clear of any Encumbrance or adverse claim of any kind whatsoever other than any
Permitted Encumbrance, all of Assignors' right, title and interest in and to all
the Purchased Assets. Assignors hereby assign, and Assignee hereby assumes,
agrees to pay, perform and discharge when due, any liability or obligation with
respect to the Assumed Liabilities.
2. RETAINED LIABILITIES. The parties acknowledge and agree that,
except for the Assumed Liabilities, Assignors shall retain and be responsible
for all obligations, liabilities, and claims of any nature, accruing, arising
out of, or relating to the Assignors (including without limitation any liability
or obligation arising out of or relating to any of the Excluded Assets), whether
actual or contingent, matured or unmatured, liquidated or unliquidated, or know
or unknown (the "Retained Liabilities"). Assignors shall indemnify and hold
Assignee harmless from, against and in respect to (and shall reimburse Assignee
for) any loss, liability, cost or expenses, including, without limitation,
reasonable attorneys' fees, suffered or incurred by Assignee by reason of or
resulting from the Retained Liabilities.
3. ENTIRE AGREEMENT; AMENDMENT. This Assignment, together with
the Purchase Agreement, constitutes the entire agreement and understanding
between and among the parties hereto with respect to the matters set forth
herein, and supersedes and replaces any prior agreements and understandings,
whether oral or written, between and among them with respect
49
to such matters. Neither this Agreement nor any provisions hereof may be
modified, amended or waived except by the written agreement of the parties
hereto.
4. ASSUMPTION OF LIABILITIES. Assignee hereby assumes and
hereafter shall pay when due and discharge those liabilities, contracts,
commitments and other obligations of Assignor set forth in Schedule 3.3 to the
Purchase Agreement.
5. EFFECT. Notwithstanding any other provisions of this
Assignment and Assumption Agreement to the contrary, nothing contained in this
Assignment and Assumption Agreement shall in any way supersede, modify, replace,
amend, change, rescind, waive, exceed, expand, enlarge or in any way affect the
provisions, including warranties, covenants, agreements, conditions,
representations or, in general any of rights and remedies, and any of the
obligations and indemnifications of Sellers or Assignee set forth in the
Purchase Agreement nor shall this Assignment and Assumption Agreement expand or
enlarge any remedies under the Purchase Agreement including without limitation
any limits on indemnification specified therein. This Assignment and Assumption
Agreement is intended only to effect the transfer of certain property
transferred pursuant to the Purchase Agreement and shall be governed entirely in
accordance with the terms and conditions of the Purchase Agreement.
6. ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES. From time to time
after the date hereof, Assignor will execute and deliver, or cause its
affiliates to execute and deliver, to Assignee such instruments of sale,
transfer, conveyance, assignment and delivery, and such consents, assurances,
powers of attorney and other instruments as may be reasonably requested by
Assignee or its counsel in order to vest in Assignee all right, title and
interest of Assignor in and to the Purchased Assets and otherwise in order to
carry out the purpose and intent of this Assignment and Assumption Agreement.
7. GOVERNING LAW. This Assignment shall in all respects be
construed in accordance with and governed by the laws of the State of Delaware
without giving effect to its conflicts-of-laws principles (other than any
provisions thereof validating the choice of the laws of the State of
Massachusetts in the governing law).
8. COUNTERPARTS. This Agreement may be executed in any number of
counter parts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
[SIGNATURE PAGE TO FOLLOW]
2
50
IN WITNESS WHEREOF, the parties have executed this Assignment as
of the day and year first written above.
MARATHON BIOPHARMACEUTICALS, LLC,
a Massachusetts corporation
By: __________________________________
Name: ________________________________
Title: _________________________________
520 COMMONWEALTH REAL ESTATE CORPORATION,
a Massachusetts corporation
By: _________________________________
Name: _______________________________
Title: ________________________________
660 CORPORATION,
a Massachusetts corporation
By: _________________________________
Name: ______________________________
Title: _______________________________
LIGAND PHARMACEUTICALS INCORPORATED,
a Delaware corporation
By: ________________________________
Name: _____________________________
Title: ______________________________
[SIGNATURE PAGE TO THE ASSIGNMENT AND ASSUMPTION AGREEMENT]
3
51
EXHIBIT D
INTELLECTUAL PROPERTY ASSIGNMENT
INTELLECTUAL PROPERTY ASSIGNMENT dated as of _______, 199__, by
and between Ligand Pharmaceuticals Incorporated, a Delaware corporation
("Assignee"), and Marathon Biopharmaceuticals, LLC, a Massachusetts limited
liability company ("Assignor").
WHEREAS, Assignee, Assignor, 520 Commonwealth Real Estate
Corporation, a Massachusetts corporation and 660 Corporation, a Massachusetts
corporation, are parties to that certain Option and Asset Purchase Agreement
dated as of May __, 1998 (the "Purchase Agreement").
WHEREAS, the execution and delivery of this Intellectual Property
Assignment is a condition precedent to Assignee's obligations under the Purchase
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Assignor assigns to Assignee, and Assignee hereby accepts such
assignment of, Assignor's entire right, title and interest in and to all of
Assignor's intellectual property, all patents, patent applications, and patent
licenses (including, without limitation, as set forth on Exhibit "A" hereto),
all trademarks and trademark applications (including, without limitation, as set
forth on Exhibit "A" hereto) and all copyrights and copyright applications
(including, without limitation, as set forth on Exhibit "A" hereto); all
registrations and applications and renewals for any of the foregoing; all trade
secrets, confidential information, ideas, formulae, compositions, know-how,
technical and computer data, documentation and software, financial, business and
marketing plans, consumer and supplier lists and related information, marketing
and promotional materials and all other information, know-how and intellectual
property rights and all tangible embodiments thereof of Assignor or utilized by
the Business; all income, royalties, damages and payments due as of the date
hereof or thereafter with respect to any of the foregoing and all other rights
with respect thereto (including, without limitation, rights to damages and
payments for past, present or future infringements or misappropriations thereof)
in all countries (collectively, "Intellectual Property") and the goodwill of the
business and operations of Marathon (the "Business") associated with the
Intellectual Property.
2. The rights, title and interest assigned under Section 1 above
shall be for Assignee's own use and enjoyment, and for the use and enjoyment of
Assignee's successors, assigns or other legal representatives, as fully and
entirely as the same would have been held and enjoyed by the Assignor if this
assignment and sale had not been made.
3. Assignor authorizes and requests the Commissioner of Patents
and Trademarks of the United States, and an official of any country or countries
foreign to the United States, whose duty it is to register patents, trademarks
or copyrights, to record Assignee as the assignee and owner of the Intellectual
Property.
4. Concurrently with the execution of this Intellectual Property
Assignment,
52
Assignor shall deliver the original papers, applications, and other
official documents relating to all patents and trademarks, and other
Intellectual Property, assigned under Section 1 above.
5. Assignor hereby represents and warrants that all rights,
title, and interest assigned under Section 1 above are free and clear of any
liens and encumbrances and that Assignor has not executed and will not execute
any agreement or other instrument in conflict herewith.
6. Assignor hereby covenants and agrees that it shall cease and
refrain from all use of all rights, title, and interests assigned under Section
1 above in all countries of the world as of the date hereof.
7. Assignor hereby appoints Assignee as Assignor's
attorney-in-fact, irrevocably and coupled with an interest, to executive,
acknowledge, deliver and record any documents or instruments necessary to effect
the assignment contemplated under Section 1.
8. With respect to the Intellectual Property, Assignor will, from
and after the Closing (i) use its best efforts to keep such Intellectual
Property confidential, including continuing to protect the confidential nature
of such Intellectual Property as if the sale provided for in the Purchase
Agreement had not occurred, (ii) not disclose the Intellectual Property to any
third party and (iii) not use the Intellectual Property. Assignor's obligations
of confidentiality and nondisclosure shall not apply to Intellectual Property
which (a) as of the Date hereof, was generally available to the public; (b)
after the date hereof, becomes generally available to the public through no act
or omission on the part of Assignor; or (c) is hereafter received on a
non-confidential basis by Assignors from a third party who has the lawful right
to disclose such Intellectual Property on such basis.
9. From time to time after the date hereof, Assignor will execute
and deliver, or cause its affiliates to execute and deliver, to Assignee such
instruments of sale, transfer, conveyance, assignment and delivery, and such
consents, assurances, powers of attorney and other instruments as may be
reasonably requested by Assignee or its counsel in order to vest in Assignee all
right, title and interest of Assignor in and to the Purchased Assets and
otherwise in order to carry out the purpose and intent of this Intellectual
Property Assignment.
10. Notwithstanding any other provisions of this Intellectual
Property Assignment to the contrary, nothing contained in this Intellectual
Property Assignment shall in any way superseded, modify, replace, amend, change,
rescind, waive, exceed, expand, enlarge or in any way affect the provisions,
including warranties, covenants, agreements, conditions, representations, or in
general any of the rights and remedies, and any of the obligations and
indemnifications of Assignor or Assignee set forth in the Purchase Agreement nor
shall this Intellectual Property Assignment expand or enlarge any remedies under
the Purchase Agreement including without limitation any limits on
indemnification specified therein. This Intellectual Property Assignment is
intended only to effect the transfer of certain property
53
transferred pursuant to the Purchase Agreement and shall be governed entirely in
accordance with the terms and conditions of the Purchase Agreement.
11. This Intellectual Property Assignment shall be binding upon,
and inure to the benefit of, the parties and their respective successors and
permitted assigns.
12. All notices, requests and other communications hereunder must
be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission with answer with
answer back confirmation or mailed (postage prepaid by certified or registered
mail, return receipt requested) or by overnight courier to the parties at the
following addresses or facsimile numbers.
If to the Company:
Ligand Pharmaceuticals Incorporated
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
with copies to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
000 Xxxx "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
If to Marathon:
Marathon Biopharmaceuticals LLC
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Secretary
with copies to:
---------------------------
---------------------------
Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
54
13. No waiver of any breach or condition of this Agreement shall
be deemed to be a waiver of any other or subsequent breach or condition, whether
of like or different nature. This Agreement may be amended or modified only by a
writing executed by both parties.
14. This Intellectual Property Assignment shall in all respects
be construed in accordance with and governed by the laws of the State of
Delaware without giving effect to its conflicts-of-laws principles (other than
any provisions thereof validating the choice of the laws of the State of
Delaware in the governing law).
15. This Intellectual Property Assignment may be executed by the
parties herein in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together shall
constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
55
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
LIGAND PHARMACEUTICALS INCORPORATED, a
Delaware corporation
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
MARATHON BIOPHARMACEUTICALS, LLC, a
Massachusetts limited liability company
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
56
STATE OF )
) ss
COUNTY OF )
On , 1997, before me personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
-----------------------------------
Notary Public
STATE OF )
) ss
COUNTY OF )
On , 1997, before me personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
-------------------------------------
Notary Public
57
Exhibit A
58
EXHIBIT E
CERTIFICATE OF MANAGER
MARATHON BIOPHARMACEUTICALS, LLC
This Certificate is delivered pursuant to Section 3.8(c)(vii) of that
certain Option and Asset Purchase Agreement (the "Agreement"), dated as of
__________________, 199__, by and among Ligand Pharmaceuticals Incorporated,
Marathon Biopharmaceuticals, LLC (the "Company"), 000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxxx Corp. and 660 Corporation. Capitalized terms used herein without
definition shall have the same meaning as set forth in the Agreement.
I, _____________________, do hereby certify that I am the duly elected,
qualified and acting Manager of the Company and as such, am authorized to
execute this Certificate on its behalf, and I further certify that:
1. I have custody and control of the records of the Company.
2. Attached hereto as Attachment 1 is a true and correct copy of the
Operating Agreement of the Company in full force and effect as of the date
hereof.
3. Attached hereto as Attachment 2 is a true and correct copy of the
Certificate of Organization of the Company as filed with the Secretary of the
Commonwealth of Massachusetts. No filing has been made with such authority since
the date of thereof and no other filing is pending.
IN WITNESS WHEREOF, I have executed this Certificate as of the
Closing Date, this ____ day of ________________, 199__.
___________________________________
Name:_______________
59
EXHIBIT F-1
CERTIFICATE OF OFFICER
000 XXXXXXXXXXXX XXXXXX XXXX XXXXXX CORP.
This Certificate is delivered pursuant to Section 3.8(c)(vi) of that
certain Option and Asset Purchase Agreement (the "Agreement"), dated as of
__________________, 199__, by and among Ligand Pharmaceuticals Incorporated,
Marathon Biopharmaceuticals, LLC, 000 Xxxxxxxxxxxx Xxxxxx Xxxx Xxxxxx Corp.
("Member") and 660 Corporation. Capitalized terms used herein without definition
shall have the same meaning as set forth in the Agreement.
I, _________________, do hereby certify that I am the duly elected,
qualified and acting _________________ of Member and as such, am authorized to
execute this Certificate on its behalf, and I further certify that:
1. All representations and warranties of Member contained in the
Agreement are true and correct on and as of the date hereof, except for those
representations and warranties which address matters only as of a particular
date (which shall remain true and correct as of such date), and Member has
performed all agreements and covenants in a timely manner required to be
performed by it prior to or on the date hereof.
2. No Actions or Proceedings have been instituted or threatened which
question the validity or legality of the transactions contemplated by the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate as of the
Closing Date, this ____ day of ________________, 199__.
___________________________________
Name:_______________
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EXHIBIT F-2
CERTIFICATE OF OFFICER
660 CORPORATION
This Certificate is delivered pursuant to Section 3.8(c)(vi) of that
certain Option and Asset Purchase Agreement (the "Agreement"), dated as of
__________________, 199__, by and among Ligand Pharmaceuticals Incorporated,
Marathon Biopharmaceuticals, LLC, 000 Xxxxxxxxxxxx Xxxxxx Xxxx Xxxxxx Corp. and
660 Corporation ("Member"). Capitalized terms used herein without definition
shall have the same meaning as set forth in the Agreement.
I, _________________, do hereby certify that I am the duly elected,
qualified and acting _________________ of Member and as such, am authorized to
execute this Certificate on its behalf, and I further certify that:
1. All representations and warranties of Member contained in the
Agreement are true and correct on and as of the date hereof, except for those
representations and warranties which address matters only as of a particular
date (which shall remain true and correct as of such date), and Member has
performed all agreements and covenants in a timely manner required to be
performed by it prior to or on the date hereof.
2. No Actions or Proceedings have been instituted or threatened which
question the validity or legality of the transactions contemplated by the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate as of the
Closing Date, this ____ day of ________________, 199__.
___________________________________
Name:_______________
61
EXHIBIT G
CERTIFICATE OF MANAGER
MARATHON BIOPHARMACEUTICALS, LLC
This Certificate is delivered pursuant to Section 3.8(c)(vii) of that
certain Option and Asset Purchase Agreement (the "Agreement"), dated as of
__________________, 199__, by and among Ligand Pharmaceuticals Incorporated,
Marathon Biopharmaceuticals, LLC (the "Company"), 000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxxx Corp. and 660 Corporation. Capitalized terms used herein without
definition shall have the same meaning as set forth in the Agreement.
I, _____________________, do hereby certify that I am the duly elected,
qualified and acting Manager of the Company and as such, am authorized to
execute this Certificate on its behalf, and I further certify that:
1. I have custody and control of the records of the Company.
2. Attached hereto as Attachment 1 is a true and correct copy of the
Operating Agreement of the Company in full force and effect as of the date
hereof.
3. Attached hereto as Attachment 2 is a true and correct copy of the
Certificate of Organization of the Company as filed with the Secretary of the
Commonwealth of Massachusetts. No filing has been made with such authority since
the date of thereof and no other filing is pending.
IN WITNESS WHEREOF, I have executed this Certificate as of the
Closing Date, this ____ day of ________________, 199__.
___________________________________
Name:_______________
