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Document Preview Asset Purchase Agreement |
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Title: |
Asset Purchase Agreement |
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Entities: |
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Date: |
2007 |
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Size: |
Preview shows 58KB of 213KB total |
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Price: |
$42 |
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ID: |
#2748563 |
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[*****] A CONFIDENTIAL PORTION OF THE MATERIAL HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASSET PURCHASE AGREEMENT
between
NABI BIOPHARMACEUTICALS
(the Seller)
and
FRESENIUS USA MANUFACTURING, INC.
(the Buyer)
Dated October 11, 2006
TABLE OF CONTENTS
| ARTICLE I DEFINITIONS AND CONSTRUCTION | 1 | |||
| 1.1 | DEFINED TERMS | 1 | ||
| 1.2 | CONSTRUCTION | 10 | ||
| ARTICLE II CONTEMPLATED TRANSACTIONS | 11 | |||
| 2.1 | PURCHASE OF ASSETS | 11 | ||
| 2.2 | PURCHASED ASSETS | 11 | ||
| 2.3 | EXCLUDED ASSETS | 13 | ||
| 2.4 | ASSUMPTION OF LIABILITIES | 14 | ||
| 2.5 | CONSENT OF THIRD PARTIES | 16 | ||
| 2.6 | REGISTRATIONS AND APPLICABLE PERMITS | 17 | ||
| ARTICLE III PURCHASE PRICE AND CLOSING | 17 | |||
| 3.1 | PURCHASE PRICE | 17 | ||
| 3.2 | REPORTS; PAYMENTS | 18 | ||
| 3.3 | BOOKS AND RECORDS; AUDITS | 19 | ||
| 3.4 | PAYMENTS | 19 | ||
| 3.5 | ALLOCATION OF CLOSING PAYMENT | 20 | ||
| 3.6 | FREEDOM TO CONDUCT BUSINESS UNIMPAIRED | 20 | ||
| ARTICLE IV CLOSING | 20 | |||
| 4.1 | CLOSING | 20 | ||
| 4.2 | CLOSING OBLIGATIONS. AT THE CLOSING: | 20 | ||
| ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE SELLER | 22 | |||
| 5.1 | ORGANIZATION AND GOOD STANDING | 22 | ||
| 5.2 | AUTHORITY RELATIVE TO THIS AGREEMENT | 22 | ||
| 5.3 | CONSENTS AND APPROVALS; NO VIOLATIONS | 22 | ||
| 5.4 | PURCHASED ASSETS | 23 | ||
| 5.5 | REAL PROPERTY. [INTENTIONALLY BLANK] | 23 | ||
| 5.6 | INTELLECTUAL PROPERTY | 23 | ||
| 5.7 | SOFTWARE | 25 | ||
| 5.8 | PERMITS | 25 | ||
| 5.9 | CONTRACTS | 26 | ||
| 5.10 | FINANCIAL STATEMENTS | 27 | ||
| 5.11 | BOOKS AND RECORDS | 27 | ||
| 5.12 | TAXES | 27 | ||
| 5.13 | LIABILITIES | 27 | ||
| 5.14 | PRODUCT LIABILITY; LITIGATION | 27 | ||
| 5.15 | LITIGATION | 27 | ||
| 5.16 | REGULATORY COMPLIANCE | 28 | ||
| 5.17 | COMPLIANCE | 29 | ||
| 5.18 | CLINICAL AND SCIENTIFIC DATA; GOOD PRACTICES | 31 | ||
| 5.19 | EXPORTS AND CUSTOMS | 32 | ||
| 5.20 | WARRANTY CLAIMS | 32 | ||
| 5.21 | SPECIFICATIONS | 32 | ||
| 5.22 | LABOR AND EMPLOYMENT MATTERS | 32 | ||
| 5.23 | EMPLOYEE BENEFIT PLANS; ERISA | 33 | ||
| 5.24 | ENVIRONMENTAL MATTERS | 33 | ||
ii
| 5.25 | INSURANCE | 34 | ||
| 5.26 | ABSENCE OF CHANGES OR EVENTS | 34 | ||
| 5.27 | CUSTOMERS AND SUPPLIERS | 35 | ||
| 5.28 | BUSINESS RELATIONSHIPS | 35 | ||
| 5.29 | INVENTORY; PRICING; CERTAIN COSTS | 35 | ||
| 5.30 | OVERPAYMENT | 36 | ||
| 5.31 | CERTAIN INTERESTS | 36 | ||
| 5.32 | COMMISSIONS | 36 | ||
| ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BUYER | 36 | |||
| 6.1 | ORGANIZATION AND QUALIFICATION | 36 | ||
| 6.2 | AUTHORITY RELATIVE TO THIS AGREEMENT | 36 | ||
| 6.3 | CONSENTS AND APPROVALS; NO VIOLATIONS | 36 | ||
| 6.4 | LITIGATION | 37 | ||
| 6.5 | COMMISSION | 37 | ||
| ARTICLE VII PRE-CLOSING COVENANTS | 37 | |||
| 7.1 | CLOSING EFFORTS; HSR ACT | 37 | ||
| 7.2 | OPERATION OF BUSINESS | 39 | ||
| 7.3 | ACCESS | 40 | ||
| 7.4 | REPORTS | 40 | ||
| 7.5 | EXCLUSIVITY | 40 | ||
| 7.6 | NOTICE OF SUITS | 41 | ||
| 7.7 | EMPLOYEES | 41 | ||
| 7.8 | UPDATED SCHEDULES | 41 | ||
| 7.9 | SALES TAX | 41 | ||
| 7.10 | INVENTORY | 42 | ||
iii
| ARTICLE VIII POST-CLOSING COVENANTS | 42 | |||
| 8.1 | POST-CLOSING PAYMENTS | 42 | ||
| 8.2 | REPORTS | 42 | ||
| 8.3 | TAIL INSURANCE | 42 | ||
| 8.4 | INTELLECTUAL PROPERTY | 43 | ||
| 8.5 | ACCESS TO INFORMATION; RECORD RETENTION; COOPERATION; CONFIDENTIALITY | 43 | ||
| 8.6 | POST-EFFECTIVE TIME RECEIPTS AND PAYMENTS | 45 | ||
| 8.7 | USE OF NAME FOR TRANSITION PERIOD | 45 | ||
| 8.8 | WHOLESALER CHARGES AND REBATE CHARGES | 46 | ||
| 8.9 | ASSISTANCE WITH PROCEEDINGS | 46 | ||
| 8.10 | BUYER?S DILIGENCE OBLIGATIONS | 46 | ||
| 8.11 | NON-COMPETITION BY THE BUYER | 49 | ||
| 8.12 | SELLER?S DILIGENCE OBLIGATIONS | 50 | ||
| 8.13 | CERTAIN EXCLUDED LIABILITIES | 50 | ||
| 8.14 | ROXANE PROCEEDING | 50 | ||
| 8.15 | [*******] AGREEMENT | 50 | ||
| 8.16 | EXCLUDED CONTRACTS | 51 | ||
| 8.17 | PART D AND COMMERCIAL REBATE CONTRACTS | 51 | ||
| ARTICLE IX CLOSING CONDITIONS | 51 | |||
| 9.1 | MUTUAL CONDITIONS | 51 | ||
| 9.2 | CLOSING CONDITIONS OF THE SELLER | 52 | ||
| 9.3 | CLOSING CONDITIONS OF THE BUYER | 53 | ||
iv
| ARTICLE X INDEMNIFICATION | 54 | |||
| 10.1 | SURVIVAL OF REPRESENTATIONS | 54 | ||
| 10.2 | SELLER?S AGREEMENT TO INDEMNIFY | 55 | ||
| 10.3 | BUYER?S AGREEMENT TO INDEMNIFY | 55 | ||
| 10.4 | PROCEDURE FOR THIRD-PARTY CLAIMS | 56 | ||
| 10.5 | PROCEDURE FOR DIRECT CLAIMS | 58 | ||
| 10.6 | LIMITATIONS ON INDEMNIFICATION. | 60 | ||
| 10.7 | TREATMENT OF INDEMNIFICATION PAYMENTS | 61 | ||
| 10.8 | CONSTRUCTION | 61 | ||
| 10.9 | INTEREST | 61 | ||
| 10.10 | REMEDIES | 61 | ||
| ARTICLE XI TERMINATION | 61 | |||
| 11.1 | TERMINATION | 61 | ||
| 11.2 | PROCEDURE AND EFFECT OF TERMINATION | 62 | ||
| ARTICLE XII MISCELLANEOUS PROVISIONS | 62 | |||
| 12.1 | JURISDICTION, VENUE AND SERVICE OF PROCESS | 62 | ||
| 12.2 | REMEDIES | 62 | ||
| 12.3 | ATTORNEYS? FEES | 63 | ||
| 12.4 | PUBLICITY | 63 | ||
| 12.5 | EXPENSES | 63 | ||
| 12.6 | WAIVER OF COMPLIANCE; CONSENTS | 63 | ||
| 12.7 | NOTICES | 64 | ||
| 12.8 | BINDING AGREEMENT; ASSIGNMENT | 64 | ||
| 12.9 | INTERPRETATION | 65 | ||
v
| 12.10 | GOVERNING LAW | 65 | ||
| 12.11 | FURTHER ASSURANCES | 65 | ||
| 12.12 | SEVERABILITY | 65 | ||
| 12.13 | COUNTERPARTS; ELECTRONIC SIGNATURES | 65 | ||
| 12.14 | MERGER AND MODIFICATION; AMENDMENT | 66 | ||
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