ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this Asset Purchase Agreement, together with all annexes, “Agreement”) dated as of December 21, 2006 is made by and among Valeant Research & Development, a Delaware corporation (“Seller”), Valeant Pharmaceuticals International, Inc., a Delaware corporation (“Parent”) (solely for purposes of Article 5) and IntraBiotics Pharmaceuticals, Inc., a Delaware corporation (“Purchaser”).
Whereas, Seller desires to sell to Purchaser, and Purchaser desires to purchase from Seller, certain assets of Seller related to the Programs.
Whereas, certain terms used herein without definition are defined in Annex A and the location of all other defined terms used herein is listed in Annex A.
Now Therefore, for and in consideration of the premises, mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, and intending to be legally bound, the parties agree as follows:
ASSETS, LIABILITIES AND PURCHASE PRICE
1.1 Purchase and Sale of Assets. Seller agrees to sell, transfer, convey, assign and deliver (“Transfer”) or where necessary cause its Affiliate(s) to Transfer to Purchaser, and Purchaser shall purchase, acquire and accept from Seller and its Affiliates, all of the rights, title and interest to the following properties, assets and contracts (such transferred assets hereinafter collectively referred to as the “Transferred Assets”), free and clear of all Liens other than Permitted Liens:
(a) the inventories including, without limitation, all raw materials and supplies, manufactured and processed parts, work in process and finished goods, (i) set forth on Schedule 1.1(a) or (ii) exclusively used or held for exclusive use in the Programs (collectively, the “Inventories”);
(b) the packaging materials, shipping materials, machinery, equipment, furniture, furnishings, fixtures, handling equipment, laboratory equipment, computer hardware (excluding laptops and desktop computers), data, software, molds, tools, parts and other items of personal tangible property, including items on order but undelivered, (i) set forth on Schedule 1.1(b) or (ii) exclusively used or held for exclusive use in the Programs;
(c) all right, title and interest in and to intellectual property rights and other proprietary or confidential information, whether protected, created or arising under
the laws of the United States or any other jurisdiction, including Patents, Copyrights, Know-How, Trade Secrets, Software and Confidential Information, including rights to sue for and remedies against past, present and future infringements thereof, and rights of priority and protection of interests therein under the laws of any jurisdiction worldwide and all tangible embodiments thereof, owned by Seller or its Affiliates and (i) used exclusively or held for the exclusive use in the Programs or (ii) listed on Schedule 1.1(c) (all of the foregoing, the “Acquired Intellectual Property”);
(d) subject to Section 1.8, all rights in, to and under the Contracts, other than the Excluded Contracts, that are (i) listed on Schedule 1.1(d) or (ii) used exclusively or held for exclusive use in the Programs, (collectively, the “Assumed Contracts”);
(e) the Permits, licenses, license applications, approvals, certifications, and product and/or service clearances that are (i) set forth on Schedule 1.1(e) or (ii) used exclusively or held for the exclusive use in the Programs;
(f) all books, records, data, manuals, files and other documentation, whether written, electronic or otherwise, used exclusively or held for the exclusive use in the Programs, including, supplier lists, purchase and sale records, correspondence, quality control records, research and development files, drawings, blue prints, and designs;
(g) all prepaid expenses, advance payments (if any), and prepaid items of Seller used exclusively or held for the exclusive use in the Programs;
(h) the Notebooks and Study Reports set forth on Schedule 1.1(h) that exclusively relate to the MEK and HIV programs; and
(i) the Notebooks and Study Reports set forth on Schedule 1.1(h) that predominantly relate to the MEK and HIV programs; provided that Purchaser will allow Seller reasonable access to examine and copy the files, or to temporarily possess the originals thereof, as reasonably requested by Seller.
1.2 Excluded Assets. Notwithstanding anything in Section 1.1 to the contrary, Seller shall retain all right, title and interest to, and shall not Transfer to Purchaser, any rights, titles, interests, properties, assets, contracts or leases that are not specifically included in the Transferred Assets, (the “Excluded Assets”), including but not limited to the following:
(a) all cash, cash equivalents, marketable securities and intercompany accounts receivable of Seller, including all accounts receivable arising out of or relating to its Affiliates or the Programs;
(b) all assets of Seller’s and its Affiliates’ employee benefit plans (the “Benefit Plans”);
(c) all minute books, stock books, Relevant Tax Returns and similar corporate records of Seller and its Affiliates;
(d) all employees of Seller and its Affiliates;
(e) all claims and counterclaims with respect to rights of offset against Liabilities of the Programs not assumed by Purchaser;
(f) all rights of Seller under this Agreement and the Transaction Documents;
(g) all rights of Seller and its Affiliates in, to and under the Contracts listed on Schedule 1.2(g) (the “Excluded Contracts”);
(h) all intellectual property rights other than those set forth in Schedule 1.1(c); and
(i) all Notebooks and Study Reports set forth on Schedule 1.1(h) for the retigabine program; provided that Seller will allow Purchaser reasonable access to examine and copy the files as requested by Purchaser, or to temporarily possess the originals thereof, as reasonably requested by Purchaser.
1.3 Obligations and Liabilities. Purchaser shall control all claims, proceedings and other matters relating to the Assumed Liabilities and Seller shall, and shall cause its Affiliates to, use commercially reasonable efforts to promptly refer all such matters to Purchaser for handling. Subject to the terms and conditions of this Agreement, at the Closing, Purchaser shall assume and agree to pay, perform and discharge when due, subject to Section 1.8, all obligations and Liabilities of Seller or its Affiliates under the Assumed Contracts listed on Schedule 1.1(d) to the extent such obligations are to be performed or such Liabilities arise after the Closing (the “Assumed Liabilities”).
1.4 Excluded Liabilities. Purchaser will not assume or be liable for any Excluded Liabilities. Seller shall control all claims, proceedings and other matters relating to Excluded Liabilities, and Purchaser shall, and shall cause its Affiliates to, use commercially reasonable efforts to promptly refer all such matters to Seller for handling. “Excluded Liabilities” shall mean all (i) Liabilities not specifically included in the Assumed Liabilities, (ii) Liabilities of Seller and its Affiliates arising out of, relating to or otherwise in respect of the Programs before the Closing, (iii) all other Liabilities of Seller and its Affiliates of any kind whatsoever that are not directly related to the Programs, and (iv) the following Liabilities:
(a) all Liabilities in respect of any and all products of the Programs sold and/or services performed by Seller or any of its Affiliates before the Closing;
(b) all Liabilities arising out of, relating to or with respect to (i) the employment or performance of services, or termination of employment or services, of any individual by Seller or any of its Affiliates, (ii) workers’ compensation claims against Seller or any Affiliate of Seller or (iii) any Benefit Plan;
(c) all Liabilities in respect of a breach by or default of Seller occurring under Assumed Contracts with respect to any period prior to Closing;
(d) all Liabilities under Assumed Contracts for payment of any amount, regardless of when invoiced, if and to the extent that such payment relates to the operation of the Programs prior to the Closing;
(e) all Liabilities in respect of any pending or threatened Action or any claim arising out of, relating to or otherwise in respect of (i) the Programs (in which case only that portion of such Liabilities that relates exclusively to the operation of the Programs prior to the Closing and not operations thereafter shall be an Excluded Liability), or (ii) any Excluded Asset;