Product Sales Agreement - Aesgen Inc. and aaiPharma inc.
PRODUCT SALES AGREEMENT
THIS PRODUCT SALES AGREEMENT (this "Agreement") made as of the 21st day
of December, 2001, by and between Aesgen, Inc., a Delaware corporation, having
its principal place of business at 2 Research Way, Third Level East, Princeton,
New Jersey 08540 ("Aesgen") and aaiPharma, Inc., a Delaware corporation, having
its principal place of business at 2320 Scientific Park Drive, Wilmington, North
Carolina 28405 ("AAI").
WHEREAS, Aesgen is the owner of development projects relating to
certain products, including, but not limited to the abbreviated new drug
applications which have been filed and/or approved, as more specifically set
forth below; and
WHEREAS, AAI desires to purchase from Aesgen and Aesgen desires to sell
to AAI such products development projects, together with all their attendant
rights and obligations; and
WHEREAS, AAI has agreed to assume from Aesgen certain liabilities and
undertake certain obligations on behalf of Aesgen;
NOW THEREFORE, in consideration of the mutual covenants and benefits
contained in this Agreement, the parties agree as follows:
1 DEFINITIONS. In addition to the terms defined elsewhere
herein, the following terms shall be defined as follows:
1.1 "ANDA" shall mean an abbreviated new drug application which is
submitted to the FDA for approval to manufacture and/or sell a pharmaceutical
product in the United States pursuant to the FDC Act
1.2 "ANDA Products" shall mean (i) Acyclovir Capsules (200 mg); (ii)
Acyclovir Tablets (400 mg, 800 mg, UD); (iii) Etodolac Capsules (300 mg, bottle
of 100); (iv) Etodolac Tablets (400 mg, bottle of 100); and (iv) Ketoconazole
Tablets (200 mg, bottle of 100, blister packs).
1.3 "cGMP" shall mean current good manufacturing practices as set forth
in the FDC Act.
1.4 "Development Products" shall mean (i) Pentoxifylline Tablets (400
mg, bottle of 100, 5000, UD) and (ii) Selegiline Tablets/Capsules (generic
dosage forms).
1.5 "FDA" shall mean the United States Food and Drug Administration.
1.6 "FDC Act" shall mean the Federal Food, Drug and Cosmetic Act, 21
U.S.C.ss.321 et seq., as amended, and the regulations promulgated thereunder
from time to time.
1.7 "Governmental Entity" shall mean any federal, state, local or
non-U.S. government or any court of competent jurisdiction, legislature,
governmental agency,
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administrative agency or commission or other governmental authority or
instrumentality.
1.8 "LOI" shall mean that certain letter of intent executed by and
between Aesgen and AAI on or about April 20, 2001.
1.9 "Material Adverse Effect" means a material adverse effect on the
business, assets, operations, prospects or condition, financial or otherwise,
relating to the ANDA Products and the Development Products, taken as a whole.
2 TRANSFER OF THE ASSETS.
2.1 SALE OF ASSETS. On the terms and conditions set forth in this
Agreement, Aesgen agrees to sell, assign, deliver, transfer and convey and AAI
agrees to purchase, acquire and accept all of the right, title and interest of
Aesgen in and to the Products (as defined below), and more particularly the
assets set forth below in subsections 2.1.1 through 2.1.5 (the "Assets"), free
and clear of any and all liens or encumbrances.
2.1.1 THE PRODUCTS. All of Aesgen's right, title and
interest in and to the ANDA Products and the
Development Products (collectively referred to herein
as the "Products").
2.1.2 THE REGULATORY RECORDS. All of Aesgen's right, title
and interest in and to any and all regulatory files
(including correspondence with regulatory
authorities), registrations, applications, approvals,
licenses and permits relating to the Products, as of
the Closing Date, from the FDA, or, to the extent
they exist, any other applicable regulatory authority
in any country, in each case to the extent
transferable in light of legal, regulatory and,
practical considerations;
2.1.3 THE INTELLECTUAL PROPERTY. All trademarks, trademark
rights, licenses, inventions, processes,
specifications, know-how, trade secrets, goodwill and
copyrights, which are currently owned by Aesgen and
used exclusively in connection with the Products and
set forth on Schedule 2.1.3.
2.1.4 ACCRUED ROYALTIES. All royalties which accrue and
become due and owing from MOVA to Aesgen from the
date of the execution of the LOI, to be paid in
accordance with Section 6.1.3 below.
2.1.5 THE INTANGIBLES. All the rights exclusively relating
to the Assets set forth in 2.1.1, 2.1.2, 2.1.3 above,
including all claims, counterclaims, credits, causes
of action, rights of recovery and rights of setoff.
2.2 EXCLUDED ASSETS. AAI acknowledges and agrees that it is not
acquiring any right, title or interest in or to any other assets of Aesgen
including, by way of example, the following assets ("Excluded Assets"):
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2.2.1 CASH. All of Aesgen's cash, bank accounts,
certificates of deposit and other cash equivalents.
2.2.2 ACCOUNTS RECEIVABLE. Except as set forth in Section
2.1.4 above, all of Aesgen's accounts receivable,
which shall include all receivables arising from or
relating to any Products at any time prior to the
close of business on the Closing Date.
2.2.3 REAL ESTATE. Any real estate owned or leased by
Aesgen.
2.2.4 TAX RECORDS AND REFUNDS. All of Aesgen's tax returns
and records and any tax refunds or tax credits due
Aesgen attributable to the Products for tax periods
prior to the Closing Date.
2.2.5 OTHER ASSETS. All other assets of Aesgen except for
the Assets.
2.3 PRIOR OBLIGATIONS OF AAI. In connection with the termination of the
Product Transfer, Manufacturing, Marketing and Distribution Agreement between
MOVA Pharmaceutical Corporation ("MOVA") and Aesgen (the "MOVA Agreement")
relating to the Products, which termination shall be effective on April 22, 2002
(the "Termination Date"), AAI hereby acknowledges that, in accordance with the
terms of the MOVA Agreement an audit of MOVA's books and records has been
requested by Aesgen in order to determine the final balance of outstanding and
disputed amounts due to MOVA under said MOVA Agreement (the "Audit"). As partial
consideration for the transfer of the Assets, AAI further acknowledges and
agrees that AAI is and remains obligated, responsible and liable to undertake
the following actions on behalf of Aesgen:
2.3.1 AUDIT COSTS. To pay all Aesgen's costs associated
with the Audit which are unreimbursed by MOVA
directly to the auditors conducting the Audit; and
2.3.2 INDEMNIFICATION. To indemnify, defend and hold
harmless Aesgen, and its officers, directors,
employees and agents, against any and all suits,
claims, causes of action and liabilities, including,
without limitation, attorneys' fees, relating to the
termination of the MOVA Agreement.
2.4 ASSUMPTION OF CERTAIN LIABILITIES. As partial consideration for the
transfer of the Assets, on the terms and subject to the conditions of this
Agreement, AAI shall assume and agree to pay, perform or discharge, when due,
the following debts, obligations and liabilities of Aesgen (the "Assumed
Liabilities"):
2.4.1 AMOUNTS DUE MOVA. AAI shall be solely responsible for
and the payment directly to MOVA of any and all
amounts determined by the Audit to be due and owing
from Aesgen to MOVA under the MOVA Agreement.
2.4.2 PRODUCT LIABILITY. All liabilities arising out of or
relating to any product liability, breach of warranty
or similar claim for injury to person or
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property, regardless of when asserted, which resulted
from the use or misuse of the Products or otherwise
related to the Products, provided, however, that
Aesgen shall indemnify AAI, and its officers,
directors, employees and agents against any
liabilities for sales of Products by MOVA to the same
extent that Aesgen is indemnified against such
liabilities by MOVA pursuant to the MOVA Agreement.
2.4.3 PRODUCT RETURNS. Except to the extent set forth in
Section 2.5.1, all liabilities arising out of or
relating to the return of any Product on or after the
Closing Date, whether or not sold by Aesgen prior to,
on, or after the Closing Date.
2.4.4 ADDITIONAL LIABILITIES. All other liabilities,
obligations and commitments of whatever kind and
nature, primary or secondary, direct or indirect,
absolute or contingent, known or unknown, whether or
not accrued, arising out of or relating to, directly
or indirectly, the Products or the Assets or the
ownership, sale or lease of any of the Assets but
only to the extent related to any period on or after
the Closing Date.
2.5 NO OTHER LIABILITIES ASSUMED. Except as expressly stated in
Sections 2.3 and 2.4, AAI shall not assume or agree to pay, perform or discharge
any of the debts, obligations and liabilities of Aesgen. Without limiting the
foregoing AAI does not assume and will not be liable for the following (the
"Excluded Liabilities").
2.5.1 PRODUCT RECALLS. All liabilities arising out of or
relating to the recall of a Product pursuant to FDA
regulations or other applicable governmental
authority or returned by an end user, after the
Closing Date, which recall or return is a result of
adulteration, misbranding or other violation of the
FDC Act by Aesgen or MOVA prior to the Closing Date.
2.5.2 OTHER LIABILITIES. Except as provided elsewhere in
this Agreement, any debt, obligation or liability of
Aesgen, known or unknown, liquidated, unliquidated,
absolute or contingent, accrued or otherwise whether
arising from contract, tort or otherwise and relating
to the Products prior to the Closing Date.
3 CONSIDERATION.
3.1 As further consideration for the transfer of the Assets, AAI agrees
to the following:
3.1.1 TERMINATE AGREEMENTS. On the Termination Date, AAI
shall, together with Aesgen, terminate the following
agreements between the parties: (i) the Development
Agreement dated as of April 4, 1995, (ii) the License
Agreement for Selegiline Hydrochloride Capsules dated
as of June 24, 1996, and (iii) all ancillary
documents entered into between Aesgen and AAI
pursuant to the agreements set forth in clauses (i)
and (ii) above (all of the foregoing, collectively,
the "Aesgen/AAI Agreements").
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3.1.2 RELEASE OF CLAIMS. AAI shall waive any and all claims
against Aesgen, known and unknown, under the
Aesgen/AAI Agreements including, but not limited to,
all amounts due on invoices issued and unpaid and all
disputed amounts claimed due thereunder and agrees to
execute at Closing a General Release substantially in
the form attached hereto as Exhibit 3.1.2.
4 AESGEN'S REPRESENTATIONS AND WARRANTIES. Aesgen represents,
warrants and agrees as follows:
4.1 TITLE TO THE ASSETS. Except as disclosed on Schedule 4.1 hereto,
Aesgen has good and marketable title to the Assets set forth in Section 2.1,
above, free and clear of all claims, liens, encumbrances or restrictions of any
kind.
4.2 DUE ORGANIZATION, GOOD STANDING AND POWER. Aesgen is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
operate and lease its properties, to carry on its business as now being
conducted and to enter into this Agreement and perform its obligations
hereunder.
4.3 AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution, delivery
and performance by Aesgen of this Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly and effectively
authorized by Aesgen's Board of Directors and the shareholders of Aesgen, if
applicable. This Agreement has been duly executed and delivered by Aesgen and,
assuming that this Agreement has been duly authorized, executed and delivered by
AAI, is a legal, valid and binding obligation of Aesgen, enforceable in
accordance with its terms. No other corporate action on the part of the Aesgen
is necessary for the execution, delivery and performance by Aesgen of this
Agreement or any related agreement required for the completion of the within
transactions.
4.4 NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS. Except as disclosed
on Schedule 4.4 hereto, the execution, delivery and performance by Aesgen of
this Agreement and the consummation by it of the transactions contemplated
hereby: (i) will not violate Aesgen's Certificate of Incorporation or Bylaws or
other organizational documents; (ii) will not violate (with or without the
giving of notice or the lapse of time or both) any provision of law, rule, or
regulation applicable to Aesgen or the Assets; (ii) will not require (with or
without the giving of notice or the lapse of time or both) any consent, approval
or notice under, and will not materially conflict with, or result in the
material breach or termination of any provision of, or constitute a material
default under, or result in the acceleration of (or give anyone the right to
accelerate) the performance of, any obligation of Aesgen with respect to the
Assets, or result in the creation of a lien upon the Assets or upon any
properties, assets or business of Aesgen.
4.5 LEGAL PROCEEDINGS. There is no action or proceeding or, to the best
of Aesgen's knowledge, any governmental investigation pending against Aesgen
relating to the Assets, including product liability claims. Aesgen is not in
violation of any term of any judgment, decree, injunction or order outstanding
against it, which violations would have, in the aggregate, a Material Adverse
Effect on the transactions contemplated hereby and, to the best knowledge of
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Aesgen, there are no actions or proceedings, or any governmental investigations
against Aesgen that would prevent the completion of the transactions
contemplated hereby.
4.6 COMPLIANCE WITH LAWS.
4.6.1 Except as set forth on Schedule 4.6.1 or to the
extent that it could not reasonably be expected to
have a Material Adverse Effect, (i) the Products have
been developed in compliance with all permits,
government licenses, registrations, approvals,
concessions, franchises, authorizations, orders,
injunctions and decrees and applicable laws,
including the FDC Act, (ii) all governmental
licenses, permits, registrations, approvals,
concessions, franchises and authorizations
principally employed in, or necessary to the ongoing
development, manufacture and sale of the Products in
the United States are in full force and effect, (iii)
no Governmental Entity has served notice, to the best
of Aesgen's knowledge, there are no grounds for
notice, that the Assets were or are in violation of
any law, statute, ordinance, rule, regulation or
order in the United States or that there are any
circumstances currently existing which would lead to
any loss or refusal to renew any governmental
licenses, permits, registrations, approvals,
concessions, franchises and authorizations.
4.6.2 Except as set forth on Schedule 4.6.2 or to the
extent failure to do so could not reasonably be
expected to have a Material Adverse Effect, the ANDA
Products have been developed in compliance in all
material respects with all applicable laws and
regulations in connection with the preparation and
submission to the FDA of the ANDAs, and each of the
ANDA Products has been approved by, and to the best
of Aesgen's knowledge are currently in good standing
with the FDA. To the best of Aesgen's knowledge, or
to the extent failure to do so could not reasonably
be expected to have a Material Adverse Effect, all
required notices, supplemental applications and
annual or other reports, including adverse experience
reports, with respect to each ANDA Product have been
filed with the FDA.
4.6.3 Except as set forth on Schedule 4.6.3, neither
Aesgen, nor to the best of Aesgen's knowledge, MOVA,
has received any notice from the FDA regarding the
commencement or threatened commencement of any action
to withdraw its approval or request the recall of any
Product, or the commencement of threatened
commencement of any action to enjoin production of
the Products at any facility.
4.6.4 To the best of Aesgen's knowledge, all manufacturing
operations relating to the manufacturing of the
Products are being conducted in compliance in all
material respects with cGMP.
4.7 PRODUCT INFORMATION. Aesgen has made available to AAI copies of (i)
all serious adverse event reports and periodic adverse event reports with
respect to the Products that have been filed with the FDA since September 26,
1996, including any material correspondence or
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other material documents relating thereto, (ii) a schedule of all payouts made
by Aesgen or, to the best of Aesgen's knowledge, made by MOVA since September
26, 1996 to end-users in connection with claims relating to the Products and
(iii) a schedule of all actual or threatened claims made by end-users since
September 26, 1996 against Seller or, to the best of Aesgen's knowledge, MOVA,
relating to the Products.
4.8 INTELLECTUAL PROPERTY. The Intellectual Property listed and
identified in Schedule 2.1.3 attached hereto is owned or licensed by Aesgen and
no rights have been granted to others with respect thereto except as set forth
in Schedule 4.8.
4.9 BROKERS' FEES. Neither Aesgen nor any of its shareholders,
officers, directors or employees, on behalf of Aesgen, has employed any broker
or finder or incurred any liability for any brokerage fees, commissions or
finders' fees in connection with the transactions contemplated by this
Agreement.
4.10 NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this Article 4 (including the
Schedules) neither Aesgen nor and its officers, directors, shareholders,
employees or agents makes any other express or implied representation or
warranty on behalf of Aesgen.
5 AAI'S REPRESENTATIONS AND WARRANTIES. AAI represents, warrants and
agrees as follows:
5.1 DUE ORGANIZATION, GOOD STANDING AND POWER. AAI is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and has all requisite corporate power and authority to enter into this Agreement
and perform its obligations hereunder.
5.2 AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution, delivery
and performance by AAI of this Agreement and the consummation of the
transactions contemplated hereby have been duly and effectively authorized by
AAI's Board of Directors. This Agreement has been duly executed and delivered by
AAI, and, assuming that this Agreement has been duly authorized, executed and
delivered by Aesgen, is a legal, valid and binding obligation of AAI,
enforceable in accordance with its terms. No other corporate action on the part
of the AAI is necessary for the execution, delivery and performance by AAI of
this Agreement or any related agreement required for the completion of the
within transactions.
5.3 NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS. Except as disclosed
on Schedule 5.3 hereto, the execution, delivery and performance by AAI of this
Agreement and the consummation by it of the transactions contemplated hereby:
(i) will not violate AAI's Certificate of Incorporation or Bylaws or other
organizational documents; (ii) will not violate (with or without the giving of
notice or the lapse of time or both) any provision of law applicable to AAI; and
(iii) will not require (with or without the giving of notice or the lapse of
time or both) any consent, approval or notice under, and will not materially
conflict with, or result in the material breach or termination of any provision
of, or constitute a material default under, or result in the acceleration of (or
give anyone the right to accelerate) the performance of, any obligation of AAI
under, or result in the creation of a lien upon any properties, assets or
business of AAI.
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5.4 LEGAL PROCEEDINGS. There is no action or proceeding or, to the best
of AAI's knowledge, any governmental investigation pending against AAI which
would affect AAI's ability to consummate the transactions contemplated by this
Agreement.
5.5 FINANCIAL REVIEW. AAI acknowledges that it and its representatives
have been permitted full and complete access to the books and records, reports,
contracts, insurance policies (or summaries thereof) and conducted all due
diligence that AAI has deemed necessary relating to the Assets, and that it and
its representatives have had a opportunity to meet with the officers and
employees of Aesgen to discuss the Assets and the Products. AAI acknowledges
that through its own experience and that of its representatives, AAI has such
knowledge and experience in financial and business matters so that it is capable
of evaluating the merits and risks of the purchase of the Assets.
5.6 BROKERS' FEES. Neither AAI nor any of its shareholders, officers,
directors or employees, on behalf of Aesgen, has employed any broker or finder
or incurred any liability for any brokerage fees, commissions or finders' fees
in connection with the transactions contemplated by this Agreement.
6 COVENANTS
6.1 COVENANTS OF AESGEN. Aesgen covenants with AAI as follows:
6.1.1 CONDUCT OF BUSINESS. Aesgen agrees that from the date
of this Agreement until the Closing Date, without the
prior written consent of AAI (which consent shall not
be unreasonably withheld), Aesgen (i) shall not
mortgage, pledge or subject to any lien or
encumberence any Asset; (ii) shall use commercially
reasonable efforts to maintain satisfactory
relationships with and preserve the goodwill of
suppliers and customers in connection with the
manufacture and sale of the Products; (iii) shall not
transfer or grant any rights or options in or to any
of the Assets except for the transfer of inventory in
the ordinary course of business; (iv) shall, with the
aid and assistance of AAI, use commercially
reasonable efforts to maintain the current regulatory
status of the Products; (v) shall not transfer to any
third-party any rights under any licenses,
sublicenses or other agreements with respect to any
Intellectual Property; (vi) shall conduct its
marketing and promotional activities with respect to
the Products consistent with its past practices;
(vii) shall not institute any new methods of
purchase, sale or operation nor institute any changes
in the product pricing or in promotional allowances
other than in the ordinary course of business and
consistent with Aesgen's past practices; (viii) shall
not make any material changes in selling, pricing or
advertising practices inconsistent with past
practices; and (ix) shall not launch any Product
packaging changes or Product line extensions.
6.1.2 ACCESS, AID AND ASSISTANCE. From the date hereof to
the Closing Date, Aesgen shall permit AAI, its
representatives and agents to have reasonable access
during normal business hours to Aesgen's books,
manufacturing
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records and personnel involved with the Products and
knowledgeable with respect to the Assets and Aesgen
shall furnish to AAI such available information
concerning the Assets and the Products and provide
such assistance as AAI may reasonably request in
order to aid AAI in the preparation of its facilities
for scale-up and manufacturing of the Products by
AAI; provided, however, that such access, aid and
assistance does not unreasonably disrupt the normal
operations of Aesgen.
6.1.3 PAYMENT OF ACCRUED ROYALTIES. As provided in Section
2.1.4 above, Aesgen shall pay to AAI all accrued
royalties within ten (10) days of receipt of same
from MOVA.
6.1.4 DISTRIBUTORSHIP. Aesgen shall use its commercially
reasonable efforts to seek approval from MOVA to
appoint AAI as Aesgen's distributor pursuant to the
terms of the MOVA Agreement.
6.1.5 NOTICE OF CLAIMS. Aesgen covenants that it shall
immediately notify AAI of Aesgen's receipt, knowledge
or discovery of any claim, action, or proceeding of
any nature whatsoever concerning (i) the past,
present or future development, manufacture or sale of
the Products; and/or (ii) any of the Assets.
6.2 COVENANTS OF AAI. AAI covenants with Aesgen as follows:
6.2.1 HOLD HARMLESS. AAI agrees and covenants that it will
hold Aesgen harmless with respect to the manufacture,
and sale of the Products by AAI after the Closing
Date.
6.2.2 AID AND ASSISTANCE. From the date hereof to the
Closing Date, AAI furnish to Aesgen such aid and
assistance as Aesgen may reasonably request in
connection with Aesgen's obligations under Section
6.1.1(iv) above.
6.2.3 BULK TRANSFER LAWS. AAI hereby waives compliance by
Aesgen with the provisions of any so-called "bulk
transfer law" of any jurisdiction in connection with
the sale of the Assets to AAI.
6.3 JOINT COVENANTS.
6.3.1 REGULATORY APPROVALS. Each of Aesgen and AAI shall
use commercially reasonable efforts to procure all
applicable regulatory approvals necessary to
consummate the transactions contemplated hereby,
including the transfer from Aesgen to AAI, within 90
days of the Closing Date, of all Seller's rights,
title and interest to the regulatory approvals
relating to the Products.
6.3.2 TRANSFER FEES. Except as otherwise provided herein,
any fees, charges, transfer taxes, bulk sales taxes
or other payments ("Transfer Fees")
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required to be made to any Governmental Entity in
connection with the transfer and sale of the Project
Assets and the assignment and assumption of the
Assumed Liabilities pursuant to the terms of this
Agreement shall be borne by the parties on an equal,
50/50 basis. Aesgen and AAI shall cooperate in timely
making and filing all filings including, but not
limited to, tax returns, reports and forms as may be
required with respect to any Transfer Fees payable in
connection with the transactions contemplated
hereunder.
6.3.3 FURTHER ASSURANCES. Each party shall from time to
time after Closing, without additional consideration,
execute and deliver such further instruments and take
such other action as may be reasonably requested by
the other party to make effective the transactions
contemplated by this Agreement. With respect to all
documents, information and other materials included
in the Project Assets, in addition to paper and other
tangible copies, Aesgen shall, upon AAI's request,
also provide to AAI electronic copies of such
documents, information and other materials, provided,
that, Aesgen has electronic copies thereof. The
foregoing requirement shall only apply to such
documents, information and other material exclusively
related to the Project Assets, and Aesgen shall have
no obligation to reformat or otherwise alter or
modify any such materials in order to provide them to
AAI.
7 INDEMNIFICATION.
7.1 AESGEN'S INDEMNIFICATION. Aesgen agrees from and after Closing,
subject to the conditions and limitations set forth herein, to defend, indemnify
and hold harmless AAI from and against any and all loss, cost, damage or
expense, including reasonable attorney's fees, whatsoever resulting from or
arising out of (i) any breach or inaccuracy of any covenant, obligation,
representation or warranty of Aesgen contained herein or in the Schedules
referred to herein or in any certificate delivered by Aesgen under this
Agreement; (ii) except as set forth herein, any liability or obligation relating
to the Products prior to the Closing; and (iii) any claims made by any creditor
of Aesgen asserted against AAI by reason of the transfer of the Assets
contemplated herein.
7.2 AAI'S INDEMNIFICATION. AAI agrees from and after Closing, subject
to the conditions and limitations set forth herein, to defend, indemnify and
hold harmless Aesgen from and against any and all loss, cost, damage or expense,
including reasonable attorney's fees, whatsoever resulting from or arising out
of (i) any breach of any covenant, obligation, representation or warranty of AAI
contained herein or in any certificate delivered by AAI hereunder; (ii) any
Assumed Liability; and (ii) the use of the Assets on or after the Closing.
7.3 CLAIMS. (a) If AAI or Aesgen (the "Claimant") desires to make a
claim against the other (the "Indemnitor") under Section 7.1 or 7.2, the
Claimant shall give prompt written notice to the Indemnitor of the institution
of any action, suit, proceeding or demand at any time instituted against or made
upon the Claimant, or of the incurrence of the loss, cost, damage or expense, in
connection with which the Claimant could claim indemnification under Section 7.1
or 7.2 and shall advise the Indemnitor in writing, to the extent known, of the
amount and
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circumstances surrounding the same. If within sixty (60) days from the date the
Indemnitor is notified in writing in reasonable detail of the amount and
circumstances of a claim for indemnification, the Indemnitor has not contested a
claim made by the Claimant, the Indemnitor will pay the full amount thereof in
cash within ten (10) days after the expiration of the sixty (60) day period. (b)
If a claim is brought by a third party and the Indemnitor agrees in writing that
it is responsible to indemnify (fully and completely) the Claimant with respect
to such claim then, (i) the Claimant shall give the Indemnitor (at the sole
expense of the Indemnitor) full authority to defend, adjust, compromise or
settle the action, suit, proceeding or demand as to which notice has been given
(in the name of the Claimant or otherwise as the Indemnitor shall elect) and
(ii) the Indemnitor shall not be liable for any legal or other expense
thereafter incurred by the Claimant in connection with the defense, adjustment,
compromise or settlement thereof. The Indemnitor shall not be liable for any
settlement of any such action or claim effected without its consent. If the
Indemnitor contests the claim, the Indemnitor shall undertake the defense,
compromise or settlement of the claim in good faith, and shall be bound by the
results of such defense, compromise or settlement.
8 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
INDEMNIFICATIONS. All representations and warranties made by or on behalf of AAI
or Aesgen herein and the liabilities of the parties for the breach or inaccuracy
of any such representation or warranty and for any indemnity under Section 7
hereof, shall not be discharged or dissolved upon, but shall survive the Closing
Date, for a period of two (2) years and shall be unaffected by any investigation
made by any party at any time. The covenants set forth herein, as well as the
related obligations, shall survive indefinitely.
9 CONDITIONS PRECEDENT TO OBLIGATIONS OF AAI. The obligations of AAI
to consummate the transactions contemplated by this Agreement are subject, in
the discretion of AAI, to the satisfaction at or prior to the Closing Date of
each of the following conditions:
9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Aesgen contained herein shall be true in all material respects on
and as of the Closing Date, except for changes permitted or contemplated by this
Agreement.
9.2 PERFORMANCE OF AGREEMENTS. Aesgen shall have performed all material
obligations and agreements and complied with all material covenants and
conditions contained in this Agreement to be performed or complied with by it
prior to or at the Closing Date.
9.3 OFFICER'S CERTIFICATE. AAI shall have received a certificate of
Aesgen dated the Closing Date, signed by the President of Aesgen, to the effect
that the conditions specified in Sections 9.1 and 9.2 above have been fulfilled.
9.4 NO MATERIAL CHANGE. There shall have been no change in the status
of the Assets from the date of this Agreement through Closing which could
reasonably be expected to have a Material Adverse Effect.
9.5 NO SUITS OR ACTIONS. At the Closing Date, no suit, action or other
proceeding shall have been instituted to restrain, enjoin or otherwise prevent
or question the legality of the consummation of this Agreement or the
transactions contemplated thereby.
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10 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF AESGEN. The obligations
of Aesgen to consummate the transactions contemplated by this Agreement are
subject, in the discretion of Aesgen, to the satisfaction at or prior to the
Closing Date of each of the following conditions:
10.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties of AAI contained herein shall be true in all material respects on
and as of the Closing Date, except for changes permitted or contemplated by this
Agreement.
10.2 PERFORMANCE OF AGREEMENTS. AAI shall have performed all material
obligations and agreements, and complied with all material covenants and
conditions, contained in this Agreement to be performed or complied with by it
prior to or at the Closing Date.
10.3 OFFICER'S CERTIFICATE. Aesgen shall have received a certificate of
AAI, dated the Closing Date, signed by the President or Vice President of AAI,
to the effect that the conditions specified in Sections 10.01 and 10.02 above,
have been fulfilled.
10.4 NO SUITS OR ACTIONS. At the Closing Date, no suit, action or other
proceeding shall have been threatened or instituted to restrain, enjoin or
otherwise prevent or question the legality of the consummation of this Agreement
or the transactions contemplated thereby.
11 RISK OF LOSS. The Aesgen shall bear the risk of loss, damage or
destruction to any of the Project Assets, not caused by the AAI, which occurs
prior to the Closing Date. If there is such a loss prior to Closing, AAI shall
have the right to terminate this Agreement.
12 MOVA'S CONTINUING RIGHTS. AAI acknowledges and agrees that,
pursuant to the terms of the MOVA Agreement, MOVA has a continuing right to
manufacture, sell and distribute, on a non-exclusive basis, the products cover
by the MOVA Agreement, for a period of seven years from the date of the first
commercial sale of each such product. A complete list of the products covered
under the MOVA Agreement is set forth on Schedule 12.
13 CLOSING. The transfer of the Assets and Assumed Liabilities shall
take place at the closing (the "Closing") which shall be at 2 p.m. at the
offices of Reed Smith LLP, Princeton Forrestal Village, 136 Main Street,
Princeton, New Jersey 08540, within two (2) business days of the Termination
Date, or such other time and location as may be mutually agreed upon between the
parties, but in no case later than May 1, 2002 (the "Closing Date").
13.1 INSTRUMENTS OF CONVEYANCE. At the time of Closing, Aesgen shall
deliver to AAI a Bill of Sale, and any and all other instruments of sale,
conveyance or assignment that may be required for the proper transferring of the
Products and all of the Assets as enumerated in the Schedules attached pursuant
to Section 2.1, above, free from all encumbrances, except as otherwise provided
to the contrary herein, which instruments shall contain the usual warranties.
13.2 AESGEN'S OBLIGATIONS AT CLOSING. At the Closing, and concurrently
with performance by AAI of its obligations under Section 12.3, Aesgen shall
deliver or cause to be delivered to AAI the following:
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13.2.1 Instruments of conveyance and transfer described in
Section 12.1
13.2.2 The officer's certificate described in Section 9.3.
13.2.3 Copies of Aesgen's resolutions relating to this
transaction, certified by an officer of Aesgen.
13.2.4 Such other certificates, documents and agreements
which may be called for under this Agreement.
13.3 AAI'S OBLIGATIONS AT CLOSING. At the Closing, and concurrently
with performance by Aesgen of its obligations under Section 12.2, AAI shall
deliver or cause to be delivered the following:
13.3.1 The officer's certificate described in Section 10.3.
13.3.2 Copies of AAI's resolutions relating to this
transaction, certified by an officer of AAI.
13.3.3 The General Release described in Section 3.1.2.
13.3.4 Such other certificates, documents and agreements
which may be called for under this Agreement.
14 LIMITATION OF LIABILITY; WARRANTIES.
14.1 LIMITATION OF LIABILITY. Notwithstanding any provision herein,
neither Aesgen nor AAI shall in any event be liable to the other party officers,
directors, employees, stockholders, agents or representatives on account of any
indemnity obligation set forth in Sections 7.1(i) or 7.2(i) for any indirect,
consequential or punitive damages (including, but not limited to, lost profits,
loss of use, damage to goodwill or loss of business). Aesgen and AAI shall
cooperate with each other in resolving any claim or liability with respect to
which one party is obligated to indemnify the other under this Agreement,
including without limitation, by making commercially reasonable efforts to
mitigate or resolve any such claim or liability.
14.2 NO WARRANTIES. AAI also acknowledges that, except as expressly set
forth in the representations and warranties set forth in Article 4 of this
Agreement (including the Schedules), or in the officer's certificate provided
pursuant to Section 9.3, there are no representations or warranties by Aesgen of
any kind, express or implied, with respect to the Assets, and that Purchaser is
purchasing the Assets "AS IS", "WHERE IS" and "WITH ALL FAULTS". Without
limiting the generality of the foregoing, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15 MODIFICATION OF AGREEMENT. The parties hereby acknowledge that the
terms of this Agreement cannot be modified orally, but can be modified only by
an instrument in writing signed by all parties.
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16 BINDING ON ALL PARTIES. This Agreement shall be binding upon the
parties hereto and upon respective successors, heirs, administrators, and
assigns of each and all of such parties.
17 WAIVER. Any of the terms or conditions of this Agreement may be
waived at any time and from time to time by the party entitled to the benefit of
such terms or conditions; however, no party shall be deemed to have waived any
rights hereunder or under any other agreement unless such waiver shall be in
writing and signed by the party, or the party's representative. No delay or
omission on the part of any party in exercising any right shall operate as a
waiver of such right or any other right. A waiver by any party of a breach of a
provision of this Agreement shall not constitute a waiver of or prejudice the
party's right otherwise to demand strict subsequent compliance with that
provision or any other provision.
18 NOTICES. All notices, requests, demands and other communications
given by AAI or Aesgen shall be in writing and shall be deemed to have been duly
given upon receipt if delivered personally, or when sent if mailed by registered
or certified mail (return receipt requested) or by reputable overnight express
courier (charges prepaid) or transmitted by facsimile (with confirmation of
transmittal) to the parties at the following addresses:
If to Aesgen to:
Aesgen, Inc.
2 Research Way, Third Level East
Princeton, New Jersey 08540
Attention: Paul B. McGarty, President and CEO
Facsimile:
With copies to:
ReedSmith LLP
Princeton Forrestal Village
136 Main Street
Princeton, New Jersey 08540
Attention: Diane M. Frenier, Esq.
Facsimile: 609.951.0824
If to AAI to:
aaiPharma, Inc.
2320 Scientific Park Drive
Wilmington, North Carolina 28405
Attention: William Ginna, Executive Vice President, CFO
Facsimile: 910-815-2387
With copies to:
aaiPharma Inc.
2320 Scientific Park Drive
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Wilmington, North Carolina 28405
Attention: Office of General Counsel
Facsimile: 910-815-2340
19 ASSIGNMENT. This Agreement shall not be assigned by either party
hereto, except by written consent of the other party, which consent shall not be
unreasonably withheld, or as otherwise provided herein.
20 GOVERNING LAW. This Agreement and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the State of
Delaware.
21 ENFORCEABILITY OF AGREEMENT. If any term, covenant, condition or
provision of this Agreement, or the application thereof to any person or
circumstance shall, at any time, or to any extent, be invalid or unenforceable,
the remainder of this Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be effected thereby, and each term, covenant, condition
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
22 SPECIFIC PERFORMANCE. The parties hereto agree that if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
23 WAIVER OF JURY TRIAL. Each party hereto hereby waives to the
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect to any litigation directly or indirectly arising out of, under
or in connection with this Agreement. Each party hereto (i) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce that foregoing waiver and (ii) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement by, among other
things, the mutual waivers and certifications in this Article 23.
24 COMPLETE AGREEMENT. This Agreement, together with the LOI, set
forth all of the promises, agreements, conditions and understandings between the
parties hereto relative to the subject matter hereof, and there are no promises,
agreements, conditions or understanding, either written or oral, express or
implied, between them other than as set forth herein or therein.
25 MISCELLANEOUS PROVISIONS.
25.1 All the terms, covenants, and conditions herein contained shall be
for and shall inure to the benefit of and shall bind the respective parties
thereto, and their legal representatives, successors and assigns, respectively.
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25.2 This section or any other headings contained in this Agreement are
for purposes of reference only and shall not affect the meaning and
interpretation of this Agreement.
25.3 In all references herein to any parties, persons, entities or
corporations, the use of any particular gender or the plural or singular number
is intended to include the appropriate gender or number as the text of the
within instrument may require.
25.4 Except as set forth in the LOI, and regardless of whether or not
the transactions contemplated by this Agreement are consummated, each party
shall bear its own fees and expenses incurred in connection with the
transactions contemplated by hereunder.
25.5 This Agreement may be executed in any number of counterparts, each
of which shall be an original, but such counterparts together shall constitute
one in the same instrument.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals or caused these presents to be signed by the parties hereto.
AESGEN, INC. AAIPHARMA, INC.
By: By:
--------------------------------- ----------------------------------
Name: Name:
Title: Title:
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