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Document Preview Asset Purchase Agreement |
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Title: |
Asset Purchase Agreement |
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Entities: |
Abbott Laboratories; Mayne Group Ltd.; Mylan Laboratories Inc.; Ross Systems, Inc.; Tapestry Pharmaceuticals, Inc.; Wells Fargo Securities, LLC |
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Date: |
2003 |
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Size: |
Preview shows 43KB of 244KB total |
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Price: |
$99 |
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ID: |
#328355 |
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Start of Preview |
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Asset Purchase Agreement
Between
Faulding Pharmaceutical Co.
and
NaPro BioTherapeutics, Inc.
August 25, 2003
| 1. Definitions | 1 | |||
| 2. Basic Transaction | 10 | |||
| (a) | Purchase and Sale of Assets | 10 | ||
| (b) | Assumption of Liabilities | 11 | ||
| (c) | Closing Payment | 11 | ||
| (d) | The Closing | 11 | ||
| (e) | Deliveries at the Closing | 11 | ||
| (f) | Inventory | 11 | ||
| (g) | Delivery After the Closing of the Mylan Litigation Payments | 12 | ||
| (h) | Allocation | 13 | ||
| (i) | Attempted Assignment of Acquired Assets or Assumption of Assumed Liabilities | 13 | ||
| 3. Seller's Representations and Warranties | 13 | |||
| (a) | Organization of Seller | 13 | ||
| (b) | Authorization of Transaction | 13 | ||
| (c) | Noncontravention | 14 | ||
| (d) | Brokers' Fees | 14 | ||
| (e) | Title to Assets | 14 | ||
| (f) | Financial Statements | 14 | ||
| (g) | Events Subsequent to Most Recent Fiscal Year End | 14 | ||
| (h) | Undisclosed Liabilities | 16 | ||
| (i) | Legal Compliance | 16 | ||
| (j) | Tax Matters | 17 | ||
| (k) | Real Property | 18 | ||
| (l) | Intellectual Property | 19 | ||
| (m) | Paclitaxel Records | 21 | ||
| (n) | Assets | 21 | ||
| (o) | Inventory | 21 | ||
| (p) | Contracts | 21 | ||
| (q) | Notes | 22 | ||
| (r) | Powers of Attorney | 22 | ||
| (s) | Insurance | 23 | ||
| (t) | Litigation | 23 | ||
| (u) | Product Warranty | 23 | ||
| (v) | Product Liability | 23 | ||
| (w) | Employees | 23 | ||
| (x) | Employee Benefits | 24 | ||
| (y) | Guaranties | 25 | ||
| (z) | Environmental, Health, and Safety Matters | 25 | ||
| (aa) | Certain Business Relationships with Seller's Affiliates | 26 | ||
| (bb) | Solvency | 26 | ||
| (cc) | UK Subsidiary | 26 | ||
| (dd) | Disclosure | 26 | ||
| (ee) | Representations and Warranties of Buyer | 27 | ||
| 4. Buyer's Representations and Warranties | 27 | |||
| (a) | Organization of Buyer | 27 | ||
| (b) | Authorization of Transaction | 27 | ||
| (c) | Noncontravention | 27 | ||
| (d) | Brokers' Fees | 27 | ||
i
| (e) | Financing | 27 | ||
| (f) | WARN Act | 28 | ||
| (g) | Disclosure | 28 | ||
| (h) | Representations and Warranties by Seller | 28 | ||
| 5. Pre-Closing Covenants | 28 | |||
| (a) | General | 28 | ||
| (b) | Notices and Consents | 28 | ||
| (c) | Operation of Business | 28 | ||
| (d) | Preservation of Business | 29 | ||
| (e) | Full Access | 29 | ||
| (f) | Notice of Developments | 29 | ||
| (g) | Exclusivity | 29 | ||
| (h) | Maintenance of Leased Real Property | 30 | ||
| (i) | Leases | 30 | ||
| (j) | Proxy Statement | 30 | ||
| (k) | Special Stockholders' Meeting | 31 | ||
| (l) | Fairness Opinion | 31 | ||
| (m) | Transfer of Assets of Cayman Subsidiary | 31 | ||
| (n) | Confidentiality | 31 | ||
| (o) | Transfer of UK Subsidiary | 31 | ||
| (p) | Assistance with European Regulatory Matters | 31 | ||
| (q) | Information System Transition | 32 | ||
| (r) | Allocation of Purchase Price | 32 | ||
| (s) | Voting Assurances | 32 | ||
| (t) | Amendment of Certain Agreements | 32 | ||
| 6. Post-Closing Covenants | 32 | |||
| (a) | General | 32 | ||
| (b) | Litigation Support | 32 | ||
| (c) | Transition | 33 | ||
| (d) | Confidentiality | 33 | ||
| (e) | Covenant Not to Compete | 34 | ||
| (f) | Books and Records | 34 | ||
| (g) | Employment Matters | 34 | ||
| (h) | Use of Names | 36 | ||
| (i) | Collection of Accounts Receivable | 37 | ||
| (j) | Supply Agreement | 37 | ||
| 7. Conditions to Obligation to Close | 37 | |||
| (a) | Conditions to Buyer's Obligation | 37 | ||
| (b) | Conditions to Seller's Obligation | 39 | ||
| 8. Remedies for Breaches of This Agreement | 40 | |||
| (a) | Survival of Representations and Warranties | 40 | ||
| (b) | Indemnification Provisions for Buyer's Benefit | 40 | ||
| (c) | Indemnification Provisions for Seller's Benefit | 40 | ||
| (d) | Matters Involving Third Parties | 41 | ||
| (e) | Matters not Involving Third Party Claims | 41 | ||
| (f) | Determination of Adverse Consequences | 42 | ||
| (g) | Exclusive Remedy | 42 | ||
| (h) | Payment of Claims | 42 | ||
| 9. Termination | 42 | |||
| (a) | Termination of Agreement | 42 | ||
| (b) | Effect of Termination | 43 | ||
ii
| 10. Miscellaneous | 44 | |||
| (a) | Press Releases and Public Announcements | 44 | ||
| (b) | No Third-Party Beneficiaries | 44 | ||
| (c) | Entire Agreement. | 44 | ||
| (d) | Succession and Assignment | 44 | ||
| (e) | Counterparts | 44 | ||
| (f) | Headings | 44 | ||
| (g) | Notices | 44 | ||
| (h) | Governing Law | 45 | ||
| (i) | Amendments and Waivers | 45 | ||
| (j) | Severability | 45 | ||
| (k) | Expenses | 46 | ||
| (l) | Construction | 46 | ||
| (m) | Incorporation of Exhibits and Schedules | 46 | ||
| (n) | Bulk Transfer Laws | 46 | ||
| (o) | Arbitration | 46 | ||
| (p) | Limitations on Representations and Warranties | 46 | ||
| (q) | Mylan Litigation | 47 | ||
Exhibits and Schedules
Exhibit AForm of Intellectual Property Agreement
Exhibit BTerm Sheet for Transition Services Agreement
Exhibit C[intentionally omitted]
Exhibit DFinancial Statements
Exhibit EList of Gunbarrel Assets
Exhibit FAbbott Termination Agreement
Exhibit GFaulding Termination Agreement
Schedule ADefinition of Paclitaxel
Disclosure ScheduleSupplemental Information and exceptions to representations and warranties
[The Registrant shall provide supplementally a copy of any omitted exhibit or schedule to the
Securities and Exchange Commission upon request.]
iii
This Asset Purchase Agreement (this "Agreement") is entered into on August 25, 2003, between Faulding Pharmaceutical Co., a Delaware corporation ("Buyer"), and NaPro BioTherapeutics, Inc., a Delaware corporation ("Seller"). Buyer and Seller are each referred to in this Agreement as a "Party" and collectively as the "Parties."
This Agreement contemplates a transaction in which Buyer will purchase all assets (and assume specified liabilities) of Seller's business of the manufacture of bulk active pharmaceutical ingredient Paclitaxel according to Seller's drug master files and Seller's intellectual property, in each case related to the right to make, use or sell Paclitaxel formulated in polyethoxylated castor oil and ethanol in exchange for cash.
Now, therefore, in consideration of the premises and the mutual promises made in this Agreement, and in consideration of the representations, warranties, and covenants contained in this Agreement, the Parties agree as follows.
1. Definitions. Unless otherwise expressly provided in this Agreement:
(a) The following terms, as used in this Agreement, have the following meanings:
"Abbott Agreement" means the Development, License, and Supply Agreement, dated as of July 23, 1999, by and between Abbott Laboratories and Seller, and all amendments thereto.
"Abbott Loan Agreement" means that certain Loan and Security Agreement, dated as of July 23, 1999, by and between Seller and Abbott Laboratories.
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