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Title: |
Asset Purchase Agreement |
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Entities: |
King Pharmaceuticals Inc.; Virbac Corp.; Blank Rome LLP; Hogan & Hartson |
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Date: |
2003 |
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Size: |
Preview shows 14KB of 98KB total |
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Price: |
$49 |
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ID: |
#329674 |
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), is entered
into as of September 5, 2003, by and among JONES PHARMA INCORPORATED, a Delaware
corporation ("JPI"), JMI-DANIELS PHARMACEUTICALS, INC., a Florida corporation
("JMI-Daniels" and together with JPI, "Seller"), and VIRBAC CORPORATION, a
Delaware corporation ("Buyer").
WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to
acquire from Seller, certain assets used by Seller solely and exclusively in
Seller's manufacture and distribution of the animal health products sold under
the trademarks Soloxine(R), Pancrezyme(R), Tumil-K(R), Uroeze(R) and Ammonil(R)
(the "Products"), and, in connection therewith, will assume from Seller certain
liabilities related to the Products.
NOW, THEREFORE, in consideration of the foregoing, the
covenants and agreements contained in this Agreement, and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, Seller and Buyer agree as follows:
Article 1
DEFINITIONS AND REFERENCES
1.1. Defined Terms.
As used in this Agreement, the following defined terms have
the meanings specified below:
"Acquired Assets" means those assets identified in Section
2.1.
"Activities" means the marketing, distribution and selling of
the Products as conducted by Seller in Seller's ordinary course of business
prior to the Closing Date.
"Additional Soloxine(R) Inventory" has the meaning set forth
in Section 6.9.
"Advertising and Promotional Materials" means all existing
advertising and promotional materials owned or developed by Seller, including
flyers, brochures, pamphlets, video cassettes, tradeshow materials and booths,
or any similar materials or items, which pertain exclusively to the Products and
are in the possession of Seller on the Closing Date.
"Affiliates" means, with respect to any Person, any Persons
directly or indirectly controlling, controlled by, or under common control with,
such Person. For purposes hereof, the term "controlled" (including the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the direct or indirect ability or power to
direct or cause the direction of management policies of such Person or otherwise
direct the affairs of such Person, whether through ownership of voting
securities or otherwise.
"Assigned Contracts" means those contracts listed in Appendix
A.
"Assigned Trademarks" means the registered trademarks listed
in Appendix B, including any goodwill associated therewith.
"Assignment of Trademarks" means that certain Assignment of
Trademarks, dated as of the Closing Date and executed by Seller and Buyer,
substantially in the form attached hereto as Exhibit A.
"Assumed Liabilities" has the meaning set forth in Section
3.1.
"Assumption Agreement" means that certain Assumption
Agreement, dated as of the Closing Date and executed by Seller and Buyer,
substantially in the form attached hereto as Exhibit B.
"Bill of Sale" means that certain Bill of Sale and Assignment
of Assets, dated as of the Closing Date and executed by Seller and Buyer,
substantially in the form attached hereto as Exhibit C.
"Buyer Financial Statements" has the meaning set forth in
Section 5.2.5.
"Buyer Manufacturing Facility" means Buyer's manufacturing
facility located at 13001 St. Charles Rock Road, Bridgeton, Missouri 63044.
"Cap" has the meaning set forth in Section 10.5.
"Closing" means the consummation of the purchase and sale of
the Acquired Assets and the assumption of the Assumed Liabilities, all as
contemplated by this Agreement.
"Closing Date" has the meaning set forth in Section 7.1.
"Confidentiality Agreement" has the meaning set forth in
Section 6.11.
"Damages" means any and all costs, losses, damages, claims,
liabilities, fines, penalties and expenses, court costs, and reasonable fees and
disbursements of counsel, consultants and expert witnesses incurred by a party
hereto.
"Deductible" has the meaning set forth in Section 10.5.
"Document Delivery Date" means the date on which Seller
delivers to Buyer the Soloxine(R) Documents, which date shall not be earlier
than the Closing Date.
"Encumbrances" mean any mortgages, pledges, liens, claims,
security interests, agreements, restrictions, defects in title, easements,
encumbrances or charges.
"Equipment" means the equipment identified in Appendix D.
"Escrow Agent" means United Bank, a state banking association
with its headquarters in Vienna, Virginia.
"Escrow Agreement" means that certain Escrow Agreement dated
as of the Closing Date and executed by Buyer, Seller and the Escrow Agent,
substantially in the form attached hereto as Exhibit D.
"Escrow Amount" has the meaning set forth in Section 4.1(b).
"Excluded Assets" has the meaning set forth in Section 2.2.
"Excluded Liabilities" has the meaning set forth in Section
3.2.
"Facility Transfer Date" means the first date on which Buyer
produces a batch of Soloxine(R) from the Buyer Manufacturing Facility that is
packaged, tested, released and ready for sale to the ultimate consumer.
"FDA" means the United States Food and Drug Administration and
any successor agency or entity that may be established hereafter.
"FDCA" means the federal Food, Drug and Cosmetic Act, as
amended, and the regulations promulgated thereunder.
"Indemnified Party" has the meaning set forth in Section
10.4.
"Indemnifying Party" has the meaning set forth in Section
10.4.
"Inventory" means all rights of Seller in the finished goods
inventory of the Products that are owned by Seller as of the Closing Date, that
are packaged, tested, released and ready for sale to the ultimate consumer as of
the Closing Date, and that have expiration dates of at least twelve (12) months
after the Closing Date.
"Liabilities" shall mean, as to any Person, all debts, adverse
claims, liabilities and obligations, direct, indirect, absolute or contingent of
such Person, whether accrued, vested or otherwise, whether in contract, tort,
strict liability or otherwise and whether or not actually reflected, or required
by generally accepted accounting principles to be reflected, in such Person's
balance sheets or other financial books and records.
"License" has the meaning set forth in Section 2.4.
"Licensed Technology" means any patent, unpatented inventions,
know-how and technical data owned or in the possession of Seller that is
reasonably necessary, and currently used by Seller, in the manufacture of
Soloxine(R) and that Seller has the right to provide to Buyer as of the date of
this Agreement.
"Manufacturing Deficiency" means, with respect to Soloxine(R),
one or more of the following are true: (a) at the time Soloxine(R) is made
available by Seller to the common carrier, Soloxine(R) fails to meet release
specifications in effect at the time of release in any material respect, (b)
Soloxine(R) is not manufactured by Seller in material compliance with good
manufacturing practices in effect at the time of manufacture, or (c) Soloxine(R)
is adulterated or misbranded by Seller within the meaning of the FDCA. Except as
specifically set forth in this definition, no other event, condition or
deficiency shall be deemed a Manufacturing Deficiency.
"Material Adverse Effect" means (a) a material adverse effect
on the Acquired Assets, taken as a whole, (b) a material adverse effect on the
validity or enforceability of this Agreement or (c) a material impairment of the
ability of Seller to fulfill Seller's obligations under this Agreement;
provided, that the term "Material Adverse Effect" shall specifically exclude any
material adverse effect caused by, arising out of or related to (i) factors
affecting the animal health pharmaceutical products market generally or the
markets in which the Products compete, (ii) general, national, regional or local
economic or financial conditions, (iii) changes in laws, rules and regulations
or other governmental action, or (iv) the failure to achieve any financial or
operational targets, projections or milestones set forth in any business plan or
budget.
"NDC" has the meaning set forth in Section 6.1(d).
"Person" means a natural person, a corporation, a partnership,
a trust, a joint venture, a limited liability company, any governmental
authority or any other entity or organization.
"Pre-Closing Accounts Receivable" has the meaning set forth in
Section 6.4.
"Product Financial Statements" has the meaning set forth in
Section 6.12.
"Products" has the meaning set forth in the Recitals.
"Purchase Deficiency" has the meaning set forth in Section
4.4(a).
"Purchase Orders" has the meaning set forth in Section 2.1(h).
"Required Consents" means all consents, authorizations and
approvals from third parties listed on Appendix E which are necessary for the
valid assignment and transfer to Buyer of the Acquired Assets.
"Seller Manufacturing Facility" means Seller's manufacturing
facility located at 2540 26th Avenue North, St. Petersburg, Florida.
"Seller Packaging Materials" has the meaning set forth in
Section 2.3(d).
"Soloxine(R) Documents" means the documents with respect to
Soloxine(R) set forth on Appendix C.
"Soloxine(R) Forecast" has the meaning set forth in Section
6.9(b).
"Transferred Data" means the chemistry, safety and efficacy
data related solely and exclusively to the Products and in Seller's possession
as of the Closing Date.
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) all references herein to "Articles" or "Sections" are to
Articles or Sections of this Agreement; (e) the term "or" has, except as
otherwise indicated, the inclusive meaning represented by the phrase "and/or"
and (f) the words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation".
Article 2
PURCHASE AND SALE OF ASSETS
2.1. Acquired Assets.
On the Closing Date, and subject to the terms and conditions
of this Agreement, Seller shall sell, assign, convey, transfer and deliver to
Buyer, and Buyer shall purchase, assume and accept from Seller, all of
Seller's right, title and interest in and to the following (collectively, the
"Acquired Assets"):
(a) the formulations used solely and exclusively in the
manufacture of the Products;
(b) the Transferred Data;
(c) the Assigned Trademarks;
(d) the Advertising and Promotional Materials;
(e) the Equipment;
(f) the Assigned Contracts;
(g) the Canadian product registrations of Soloxine(R) and
Tumil-K(R), when and to the extent transferable in accordance with applicable
law; and
(h) all Product purchase orders in the possession of Seller
which have not been filled by Seller as of the Closing Date, which purchase
orders are set forth on Schedule 2.1(h) (the "Purchase Orders").
2.2. Excluded Assets.
Notwithstanding anything herein to the contrary, Seller does
not and shall not sell, assign, convey, transfer or deliver and Buyer does not
purchase, assume or accept, any assets or rights not specifically listed and
identified in Section 2.1 (the "Excluded Assets"), including:
(a) the trademarks "DP," "DANIELS," "JMI-DANIELS
PHARMACEUTICALS," "JONES PHARMA," "KING," "KING PHARMACEUTICALS," "KINGPHARM,"
"MONARCH," "MONARCH PHARMACEUTICALS" and any variation thereof or derivation
therefrom and any other rights in or to such names or the names of any other
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