Joint Escrow Instructions (2005)Full Document 

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PURCHASE AND SALE AGREEMENT AND


JOINT ESCROW INSTRUCTIONS

by and between

BIOGEN IDEC INC.,
a Delaware corporation

"SELLER"


and


GENENTECH, INC.,
a Delaware corporation

"BUYER"

 


 

TABLE OF CONTENTS

 

1.

Sale of the Property

2

2.

Purchase Price

2

3.

Retention Amount

2

4.

Conditions to Parties' Obligations

3

 

4.1

Buyer's Pre-Closing Conditions

3

 

4.2

Closing Conditions

4

 

4.3

Failure of Conditions

5

 

4.4

Investigations; Indemnity

6

 

4.5

Transition Services Agreement

6

5.

Remedies/Liquidated Damages

6

 

5.1

Buyer's Default.

6

 

5.2

Seller's Default

7

6.

Closing and Escrow

8

 

6.1

Escrow Instructions

8

 

6.2

Date of Closing

8

 

6.3

Conveyance

8

 

6.4

Closing Documents

8

7.

Employees

9

 

7.1

Hired Personnel

9

 

7.2

Personnel Files

9

8.

ADT Allocation and Incentive Amendment

9

9.

Seller's Maintenance of the Property

10

10.

Casualty and Condemnation

10

11.

Limited Liability

11

12.

Release

11

13.

AS-IS Condition of Property

13

14.

Prorations

14

15.

Closing Costs

15

16.

Brokers

15

17.

Notices

15

18.

Drafting Ambiguities

16

19.

Assignment

16

20.

Severability

16

21.

California Law

16

22.

Entire Agreement/Modifications/Survival

16

23.

Confidentiality

16

24.

Counterparts

17

25.

Dispute Costs

17

26.

Seller's Representations

17

 

26.1

Due Authorization

17

 

26.2

Litigation

17

 

26.3

Condemnation

17

 

26.4

Qualification/Validation Documents

17

 

26.5

Foreign Person

17

 

26.6

Bankruptcy

17

 

26.7

Violation of Law

18

 

26.8

No Other Sale Contracts

18

 

26.9

Agreement of Covenants

18

 

26.10

Documents and Materials

18

 

(i)


 

27.

Buyer's Representations

18

 

27.1

Authorization

18

 

27.2

Authority

18

 

27.3

Bankruptcy

19

 

27.4

Inspections

19

28.

Time of the Essence; and Business Days

19

29.

Agreement Date

19

30.

No Third Party Beneficiaries

19

31.

Discharge of Seller's Bonds

19

32.

Drafts not an Offer to Enter into a Legally Binding Contract

19

33.

Natural Hazard Disclosure Requirement Compliance

19

34.

Retention of Certain Materials

20

35.

Non-Solicitation of Employees

20

36.

Purchase of TD Equipment

20

 

(ii)


 

EXHIBITS

EXHIBIT A

LEGAL DESCRIPTION OF THE REAL PROPERTY

EXHIBIT B-1

LIST OF PERSONAL PROPERTY

EXHIBIT B-2

LIST OF EXCLUDED PROPERTY

EXHIBIT C

ASSIGNMENT AND ASSUMPTION OF INTANGIBLES, INTELLECTUAL PROPERTY AND ASSUMED CONTRACTS

EXHIBIT D

GRANT DEED

EXHIBIT E

BILL OF SALE

EXHIBIT F

ASSUMED CONTRACTS

EXHIBIT G-1

LIST OF HIRED PERSONNEL

EXHIBIT G-2

LIST OF SELLER RETAINED PERSONNEL

EXHIBIT G-3

LIST OF SELLER PERSONNEL WHO MAY BE CONTACTED BY BUYER

EXHIBIT H

PERSONNEL AGREEMENT

EXHIBIT I

ALLOCATION AGREEMENT

EXHIBIT J

QUALIFICATION AND VALIDATION DOCUMENTS

EXHIBIT K

LIST OF SELLER'S BONDS

SCHEDULE 3

REMAINING WORK

SCHEDULE 4.5

TRANSITION SERVICES

 

(iii)


 

PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS

 

TO:

First American Title Insurance Company
411 Ivy Street San Diego, CA  92101

Escrow No. NCS-164829-SD
Escrow Officer:  Lynn Graham
Title Order No. NCS-164829-SD
Title Officer:  Ralph M. Snyder

 

            THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (the "Agreement") is made and entered into as of June 16, 2005 (the "Agreement Date"), by and between BIOGEN IDEC INC., a Delaware corporation ("Seller"), and GENENTECH, INC., a Delaware corporation ("Buyer"), with reference to the facts set forth in the Recitals below:

R E C I T A L S :

            A.   Seller is the owner of the approximately sixty (60) acre parcel of real property located at 1 Antibody Way, Oceanside, California, as legally described in Exhibit A attached hereto and made a part hereof (the "Real Property"), together with (i) all improvements, structures and other property which is affixed to the Real Property so as to constitute fixtures under California law (collectively, the "Improvements"), (ii) all goods, equipment (including all plans, specifications, drawings, documents, manuals, maintenance and service logs and the like relating to the operation, care, validation, maintenance and repair thereof), materials, inventory, supplies and other personal property owned by Seller and located on the Real Property on May 25, 2005, including, without limitation, the items identified on Exhibit B-1 attached hereto and made a part hereof (but expressly excluding the personal property identified on Exhibit B-2 attached hereto and made a part hereof, which shall not constitute a portion of the Personal Property and which shall be retained by Seller) and all plans, specifications and drawings of the Improvements owned by Seller (collectively, the "Personal Property") (iii) all of Seller's right, title, and interest, in and to any development rights, entitlements, permits, easements, tenements, hereditaments, mineral rights, oil and gas rights, water, water rights, air rights, and privileges appurtenant to the Real Property, (collectively, the "Appurtenances"), (iv) all warranties, guarantees (including, without limitation, all contractor, builder, subcontractor, manufacturer, and vendor/supplier warranties and guarantees), indemnities, bonds, licenses, permits, approvals, intangible rights and privileges and other intangible property related exclusively to the Real Property, the Personal Property and/or the Improvements and rights relating to the construction or design of the Improvements and/or Personal Property (collectively, the "Intangibles"), provided that Intangibles shall not include any intellectual property whatsoever, (v) a non-exclusive, royalty free (as between Buyer or any successive owner of the Property and Seller) right as to those intellectual property rights which are (a) inherent in and/or readily discoverable by Buyer (or any successive owner of the Property) in the actual items of equipment and/or systems (including any design or configuration of such equipment and/or systems) constituting Personal Property or Improvements (as well as any software installed or embedded thereon as of immediately prior to the Closing), (b) owned by or licensed to Seller as of immediately prior to the Agreement Date, (c) transferable without the consent of any third party, and (d) specifically required and necessary for Buyer (or any successive owner of the Property) to operate the actual items of equipment and/or systems constituting Personal Property or Improvements (as well as any software installed or embedded thereon as of immediately prior to the Closing) (collectively, the "Intellectual Property" and for purposes of this definition, "Buyer" and "Seller" shall include their respective affiliates), (vi) rights to use the construction or design drawings relating to the Improvements (the "Drawings"), and (vii) all of Seller's right, title and interest, to the extent transferable pursuant to their terms, in the contracts listed on the attached Exhibit C (the "Assumed Contracts"). The Real Property, the Improvements, the Personal Property, the Appurtenances, the Intangibles, the Drawings, the Intellectual Property and the Assumed Contracts are collectively referred to herein as the "Property."

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