概要：カナダ企業の資産売買契約書（Asset Purchase Agreement）
締結先：Orphan Canada Inc.とKnight Therapeutics Inc.の
ASSET PURCHASE AGREEMENT
DATED AS OF THE 2ND DAY OF SEPTEMBER, 2014
BY AND BETWEEN
ORPHAN CANADA INC.
KNIGHT THERAPEUTICS INC. ASSET PURCHASE AGREEMENT
This Agreement is made and entered into as of the 2nd day of September, 2014.
BETWEEN: Orphan Canada Inc.
(hereinafter called “Orphan”)
AND: Knight Therapeutics Inc.
376 Victoria Avenue, Suite 220
(hereinafter called “Purchaser”)
WHEREAS Orphan has agreed to sell to Purchaser and Purchaser has agreed to purchase from Orphan the Purchased Assets defined below in accordance with the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants, agreements and provisions herein contained, and other consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 – INTERPRETATION
1.1 Defined Terms. Where used herein or in any amendments hereto or in any communication required or permitted to be given hereunder, the following capitalized terms shall have the following meanings, respectively, unless the context otherwise requires:
“Affiliate” means with respect to a specified Person, any Person that directly or indirectly controls, is controlled by, or is under common control with, the specified Person. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. “Agreement” means this Asset Purchase Agreement and all instruments supplemental hereto or in amendment or confirmation hereof; “herein”, “hereof”, “hereto”, “hereunder” and similar expressions mean and refer to this Agreement and not to any particular Article, Section or other subdivision;
“Article”, “Section” or other subdivision of this Agreement means and refers to the specified Article, Section or other subdivision of this Agreement.
“ATryn” means a recombinant antithrombin product indicated for the prevention of perioperative and peri-partum thromboembolic events in hereditary antithrombin deficient patients.
“Authorities” means, in any jurisdiction, all applicable governmental or regulatory bodies, agencies, officials, and other authorities in such jurisdiction.
“Authorization” means, with respect to any Person, any order, permit, consent, approval, waiver, licence or similar authorization of any Authorities having jurisdiction over the Person.
“Business Day” means any day other than a Saturday, Sunday or other day on which the principal commercial banks in Montreal, Québec are not open for business during normal business hours.
“Closing” means the completion of the transaction of purchase and sale contemplated in this Agreement.
“Closing Date” means the effective date of this Agreement first set forth above or such other later date on which the transactions contemplated herein are completed as agreed by the Parties hereto.
“Contracts” means any agreement, indenture, contract, lease, deed of trust, license,
option, instrument or other commitment, whether written or oral.
“Common Shares” means common shares in the capital of the Purchaser.
“Damages” has the meaning ascribed thereto in Section 6.1.
“Drug Identification Number” and “DIN” mean the drug identification number assigned from time to time by HC to the Products.
“Effective Time” means 12:01 a.m. (Montreal Time) on the Closing Date.
“Employment Agreements” means those certain employment agreements entered into
by and between the Purchaser and Jason Flowerday and the Purchaser and Joost van der Mark on or prior to the date hereof.
“Encumbrance” means any encumbrance, lien, charge, prior claim, hypothec, pledge, mortgage, title retention agreement, security interest of any nature, adverse claim, publication against title, option, right of pre-emption, privilege or any Contract to create
any of the foregoing.
“ETA” means Part IX of the Excise Tax Act (Canada), as amended from time to time.
“Formulary Listings” means all listings for the Product in provincial and territorial formularies in Canada.
“GST” means all taxes payable under the ETA (including, for greater certainty, the harmonized sales tax) or under any provincial legislation similar to the ETA, and any reference to a specific provision of the ETA or any such provincial legislation shall refer to any successor provision thereto of like or similar effect;
“HC” means Health Canada, Health Products and Food Branch, Therapeutic Products Directorate, or any replacement or successor authority with jurisdiction over the sale of the Products in Canada.
“Indemnified Party” has the meaning ascribed thereto in Section 6.4.
“Indemnifying Party” has the meaning ascribed thereto in Section 6.4.
“Intellectual Property” means (a) all domestic or foreign patents and applications and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (b) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology, technical data, schematics and formulae and all documentation relating to any of the foregoing; (c) all copyrights or copyright registrations and applications, and all other rights corresponding thereto throughout the world; (d) all software (both source code and object code form) and all proprietary rights in such software, including documentation and other materials related thereto; (e) all licenses, sublicenses and other third party rights held or used by Orphan or its Affiliates; and (e) all other intellectual or industrial property rights owned, held or used by Orphan and/or its Affiliates with respect to any pharmaceutical products manufactured, processed, finished, marketed, distributed, packaged and/or labelled by Orphan and/or its Affiliates.
“Know-How” means Orphan specifications necessary to market, manufacture, produce, package, label and supply the Products in Canada, including (but not limited to) all information, data, formulae, quality control/quality assurance procedures, stability data, testing methods, validation reports, assays and reports and master manufacturing instructions relating thereto.
“Laws” means all provisions of all (a) constitutions, treaties, laws, statutes, codes, ordinances, orders, decrees, rules, regulations and municipal by-laws, whether domestic, foreign or international, (b) judgments, orders, writs, injunctions, decisions, rulings, decrees and words of any Authority, and (c) all policies, voluntary restraints, practices and guidelines of any Authority, in each case binding on or affecting the Party referred to in the context in which such term is used.
“Net Sales” shall mean the aggregate arms-length gross price invoiced by the Purchaser for the sale for commercial use of Products to non-affiliated third parties during the relevant period, less deductions for (i) normal and customary trade and cash discounts, credits and allowances (for rejection or return of Products), rebates or refunds incurred granted; and (ii) sales, use or excise taxes and duties, and freight and insurance, to the extent included in the gross price charged.
“Parties” means Orphan, on the one part, and Purchaser, on the other part, and any other Person who may become a party to this Agreement.
“Person” means an individual, partnership, limited partnership, joint venture, trustee, trust, corporation, company, unlimited liability company, unincorporated organization or other entity or a government, state or agency or political subdivision thereof, and pronouns have a similarly extended meaning.
“Photofrin” means a photosensitizer used in photodynamic therapy and radiation therapy and for palliative treatment of obstructing endobronchial non-small cell lung carcinoma and obstructing esophageal cancer and for any other uses which the Purchaser may from time to time discover.
“Products” means ATryn and Photofrin.
“Purchase Price” has the meaning ascribed thereto in Section 3.1.
“Purchased Assets” has the meaning ascribed thereto in Section 2.1.
“Purchased Contracts” means the Licensing, Development and Supply Agreement by
and between Gard Therpeutics Inc. and GTC Biotherapeutics, Inc. dated June 13, 2011, the Supply Agreement by and between Gard Therapeutics Inc. and GTC Biotherapeutics, Inc. dated October 26, 2011, each as subsequently assigned by Gard Therapeutics Inc. to Orphan and the Collaboration Agreement by and between Orphan and Pinnacle Biologics, Inc. dated July 23, 2014;
“QSTA” means the Act Respecting the Québec Sales Tax (Québec), as amended from time to time.
“Third Party Claim” has the meaning ascribed thereto in Section 6.5.1.
“TPD Information” means all dossiers, submissions, correspondence, files and records that reside at HC in the name of Orphan in respect of the DIN, if any.
“Transaction Agreements” means:
(a) this Agreement; and
(b) all other documents and instruments (including consents and waivers), required to assign, transfer and convey the Purchased Assets to Purchaser hereunder free and clear of all Encumbrances.
1.2 Gender and Number. Any reference in this Agreement to gender includes all genders and words importing the singular number only shall include the plural and vice versa.
1.3 Headings, etc. The division of this Agreement into Articles and Sections and the insertion of headings are for convenient reference only and are not to affect its interpretation.
1.4 Currency. All references in this Agreement to dollars, unless otherwise specifically indicated, are expressed in Canadian dollars.
1.5 Certain Phrases, etc. In this Agreement (a) the words “including” and “includes” mean “including (or includes) without limitation”, and (b) in the computation of periods of time from a specified date to a later specified date, unless otherwise expressly stated, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.
ARTICLE 2- PURCHASED ASSETS
2.1 Purchased Assets. Subject to the terms and conditions of this Agreement, effective as of the Effective Time, Orphan hereby sells, assigns and transfers to Purchaser, and Purchaser hereby purchases from Orphan, free and clear of any Encumbrances, all right, title and interest of Orphan in, to and under the following property (the “Purchased Assets”):
2.1.1 the Purchased Contracts;
2.1.2 all Intellectual Property rights of any nature whatsoever, owned or licensed by Orphan in connection with the Purchased Contracts; and
2.1.3 all rights in and to the relevant regulatory documentation related to federal and provincial governmental filings in respect of the Products (or renewals thereof), including, NOCs, DINs, New Drugs Submissions, and filings with the Patented Medicines Price Review Board and all TPD Information relating thereto in any way owned or licensed by Orphan pursuant to the Purchased Contracts. For greater certainty, Purchaser does not hereby assume or agree to assume any liabilities or obligations of Orphan.
ARTICLE 3- PURCHASE PRICE
3.1 Purchase Price. The aggregate purchase price (the “Purchase Price”) payable by Purchaser to Orphan for the Purchased Assets is five hundred thousand dollars ($500,000).
3.2 Payment of the Purchase Price. Purchaser shall pay the Purchase Price to Orphan as follows:
3.2.1 Two hundred and fifty thousand dollars ($250,000) of the Purchase Price at Closing by bank draft, certified cheque or wire transfer of immediately available funds;
3.2.2 the issuance of that number of Common Shares representing payment of two hundred and fifty thousand dollars ($250,000) at a price per Common Share equal to the closing price of the Common Shares on the Toronto Stock Exchange on the last trading day prior to the Closing less a discount of fifteen percent (15%).
3.3 ATryn Milestone Payment. In the event that cumulative Net Sales of ATryn exceed seven and a half million dollars ($7,500,000) (the “ATryn Net Sales Threshold”) within five years of the first sale of ATryn by the Purchaser in Canada, Purchaser shall pay Orphan five hundred thousand dollars ($500,000). This payment shall only be due once, if at all, and shall be due and payable thirty (30) days following the end of the applicable calendar year in which the ATryn Net Sales Threshold is achieved.
3.4 Photofrin Milestone Payment. In the event that Net Sales of Photofrin exceed five million dollars ($5,000,000) (the “Photfrin Net Sales Threshold”) within five years of the first sale of Photofrin by the Purchaser in Canada, the Purchaser shall pay Orphan two hundred and fifty thousand dollars ($250,000). This payment shall only be due once, if at all, and shall be due and payable thirty (30) days following the end of the applicable calendar year in which the Photofrin Net Sales Threshold is achieved.
3.5 Joint Tax Election. Purchaser and Orphan shall, on the Closing Date, elect jointly under subsection 167(1) of the ETA and section 75 of the QSTA, and under any other similar provision of any applicable provincial Laws, in the prescribed form and within the prescribed time, in respect of the sale and transfer of the Purchased Assets hereunder, and Purchaser shall file such elections with Canada Revenue Agency and the Ministère du Revenue du Québec, respectively.
ARTICLE 4- REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Orphan. Orphan represents and warrants to Purchaser as follows and acknowledges that Purchaser is relying on such representations and warranties:
4.1.1 Incorporation and Qualification. Orphan is a corporation duly incorporated and existing under the Laws of Canada and has the corporate power to own and operate its property, carry on its business as at present carried on and enter into and perform its obligations under this Agreement.
4.1.2 Validity of Agreement. The execution, delivery, observance and performance by Orphan of each of the Transaction Agreements to which it is a party:
(a) have been duly authorized by all necessary corporate action on the part of Orphan;
(b) do not (or would not with the giving of notice, the lapse of time or the
happening of any other event or condition) result in a breach or a violation of, or conflict with, or allow any other Person to exercise any rights under, any of the terms or provisions of the constituting documents or by-laws of Asset Orphan or any Contracts to which Orphan is a party or pursuant to which any of its assets or property (including, without limitation, the Purchased Assets) may be affected;
(c) will not result in a violation of any Law.
4.1.3 Execution and Binding Obligation. The Transaction Agreements have been duly executed and delivered by, and constitute legal, valid and binding obligations of, Orphan, enforceable against Orphan in accordance with their respective terms subject only to any limitation under applicable Laws relating to (a) bankruptcy, winding-up, insolvency, reorganization, arrangement and other similar Laws of general application affecting the enforcement of creditors’ rights, and (b) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction.
4.1.4 No Other Agreements to Purchase. Except for rights of Purchaser under this Agreement, no Person has any written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming such for the purchase or acquisition from Orphan of any of the Purchased Assets or any interest therein.
4.1.5 Title to Purchase Assets. Orphan is the sole and absolute owner of, and has good, valid and marketable title to, all of the Purchased Assets and upon the execution and delivery of this Agreement by Orphan and Purchaser, Purchaser will become the sole and absolute owner of, and will receive good, valid and marketable title to, the Purchased Assets, free and clear of all Encumbrances.
4.1.6 No Consents, Approvals. No consent, approval, registration, declaration or filing with any Authorities or any third party is required by Orphan in connection with the execution and delivery by Orphan of the Transaction Agreements or the observance and performance by Orphan of its obligations thereunder, including, for greater certainty, the transfer of the Purchased Assets.
4.1.7 Authorizations. The Product formulation complies with all rules, policies and guidelines of HC. All material Product Authorizations employed in or necessary for the manufacture, marketing, distribution and sale of the Products in Canada that have been obtained by Orphan are in full force and effect and each such activity has been carried on in material compliance with the rules, policies and guidelines of HC.
4.1.8 Notice of Infringement. Orphan has not received any notice, complaint, threat or claim alleging that any of the Purchased Assets infringes any patent, trade mark, trade name, copyright, industrial design, trade secret or other intellectual property right or proprietary right of any other Person.
4.1.9 All or Substantially All Assets. The sale by Orphan of the Purchased Assets represents the sale by Orphan of all or substantially all of the assets of Orphan in respect of its business.
4.1.10 Intellectual Property. Orphan owns or has the right to use all the Intellectual Property. Neither Orphan nor any of its Affiliates has (a) granted any license to use or exploit or any right, title or interest in or to the Intellectual Property to any Person, or (b) any knowledge of any facts which reasonably cast doubt on the validity or enforceability of the Intellectual Property.
4.1.11 Taxes. Orphan has duly filed on a timely basis all tax returns required to be filed by it and has paid or remitted (in the case of GST or other sales taxes) all taxes which are due and payable, and all assessments, reassessments, governmental charges, penalties, interest and fines due and payable by it. There are no actions, suits, proceedings, investigations or claims pending or, to the knowledge of Orphan, threatened against Orphan in respect of taxes, governmental charges or assessments, nor are any material matters under discussion with any governmental authority relating to taxes, governmental charges or assessments asserted by any such authority.
4.1.12 Residency. Orphan is not a non-resident of Canada for the purposes of the Income Tax Act (Canada).
4.1.13 GST. Orphan is duly registered under the applicable provisions of the ETA for the purposes of GST and its GST number is 848207973 – RT001.
4.2 Representations and Warranties of Purchaser. Purchaser hereby represents and warrants as follows to Orphan and acknowledges that Orphan is relying on such representations and warranties:
4.2.1 Incorporation and Corporate Power. Purchaser is a corporation duly incorporated and existing under the Laws of its jurisdiction of incorporation and has the corporate power and authority to enter into and perform its obligations under this Agreement.
4.2.2 Validity of Agreement. The execution, delivery and performance by Purchaser of each of the Transaction Agreements to which it is a party:
(a) have been duly authorized by all necessary corporate action on the part of Purchaser;
(b) do not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a breach or a violation of, or conflict with, any of the terms or provisions of its constituting documents or by-laws or any Contracts to which it is a party or pursuant to which any of its assets or property may be affected; and
(c) will not result in the violation of any Law.
4.2.3 Execution and Binding Obligation. The Transaction Agreements have been duly executed and delivered by, and constitute legal, valid and binding Asset Purchase obligations of, Purchaser, enforceable against Purchaser in accordance with their respective terms subject only to any limitation under applicable Laws relating to (a) bankruptcy, winding-up, insolvency, reorganization, arrangement and other similar Laws of general application affecting the enforcement of creditors’ rights, and (b) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction.
4.2.4 GST. Purchaser is duly registered under the applicable provisions of the ETA for the purposes of GST and its GST number is 82918 4639 RT0001.
ARTICLE 5 – CLOSING
5.1 Date, Time and Place of Closing. The completion of the transaction of purchase and sale contemplated by this Agreement shall take place at 10:00 a.m. on the Closing Date at the offices of Davies Ward Phillips & Vineberg LLP in Montréal.
5.2 Deliveries. At the Closing, each of the Parties shall deliver to the other a duly executed copy of each of the Transaction Agreements, in counterpart, and upon such delivery Purchaser shall pay Purchase Price owing to Orphan in accordance with Section 3.2.
ARTICLE 6– INDEMNIFICATION
6.1 Orphan Indemnification in Favour of Purchaser. Subject to the restrictions set forth in this Agreement, Orphan shall indemnify and save Purchaser harmless of and from any claim, demand, action, cause of action, suit, proceeding, loss, liability, damage or expense (whether or not involving a third-party claim) (collectively, “Damages”) suffered by, imposed upon or asserted against Purchaser as a result of, in respect of, connected with, or arising out of, under, or pursuant to:
6.1.1 any failure of Orphan to perform or fulfill any covenant or obligation of Orphan under this Agreement;
6.1.2 any breach or inaccuracy of any representation or warranty given by Orphan contained in this Agreement; or
6.1.3 any debt, obligation or liability of Orphan not specifically assumed by Purchaser pursuant to this Agreement.
6.2 Purchaser Indemnification in Favour of Orphan. Subject to the restrictions set forth in this Agreement, Purchaser shall indemnify and save Orphan harmless of and from any Damages suffered by, imposed upon or asserted against Orphan as a result of, in respect of, connected with, or arising out of, under or pursuant to:
6.2.1 any failure of Purchaser to perform or fulfill any covenant or obligation of Purchaser under this Agreement; or
6.2.2 any breach or inaccuracy of any representation or warranty given by Purchaser contained in this Agreement;
6.3 Time Limitations.
6.3.1 All covenants and obligations of the Parties set forth in this Agreement to be performed after Closing shall survive the Closing and remain in full force and effect indefinitely until fully performed.
6.3.2 The representations and warranties of Orphan contained in Section 4.1.6 to 4.1.13 shall survive the Closing and any investigation made by or on behalf of the Purchaser but shall only continue for a period of thirty-six (36) months after the Closing. After such period, Orphan shall have no further liability hereunder with respect to such representations and warranties except with respect to claims properly made within such period. The representations and warranties of Orphan contained in Sections 4.1.1 to 4.1.5 and any representation or warranty breached due to fraud shall survive the Closing and remain in full force and effect indefinitely.
6.3.3 The representations and warranties of Purchaser shall survive the Closing and remain in full force and effect indefinitely.
6.4 Notification. Promptly upon obtaining knowledge thereof, the Party being indemnified hereunder (the “Indemnified Party”) shall notify the Party providing indemnification hereunder (the “Indemnifying Party”) of any cause which the Indemnified Party has determined has given or could give rise to indemnification under this Article 6. The omission to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any duty to indemnify and hold harmless which otherwise might exist with respect to such cause unless (and only to that extent) the omission to so notify materially prejudices the ability of the Indemnifying Party to exercise its right to defend provided in this Article 6.
6.5 Defense of Third Party Claim.
6.5.1 If any legal proceeding shall be instituted or any claim or demand shall be asserted by a third party against the Indemnified Party (each a “Third Party Claim”), then the Indemnifying Party shall have the right, after receipt of the Indemnified Party’s notice under Section 6.4 and upon giving notice to the Indemnified Party within ten (10) calendar days of such receipt, to defend the Third Party Claim at its own cost and expense with counsel of its own selection provided that the Indemnified Party shall at all times have the right to fully participate in the defense at its own expense.
6.5.2 Amounts payable by the Indemnifying Party pursuant to a Third Party Claim shall be paid in accordance with the terms of the settlement or the judgment, as applicable, but in any event prior to the expiry of any delay for a judgment to become executory, provided, however, that the Indemnifying Party shall not be Asset permitted to compromise and settle or to cause a compromise and settlement of any Third Party Claim, without the prior written consent of the Indemnified Party, unless:
(a) the terms of the compromise and settlement require only the payment of money and do not require the Indemnified Party to admit any wrongdoing or take or refrain from taking any action; and
(b) the Indemnified Party receives, as part of the compromise and settlement, a legally binding and enforceable unconditional satisfaction or release, which is in form and substance satisfactory to the Indemnified Party, acting reasonably, from any and all obligations or liabilities it may have with respect to the Third Party Claim.
6.5.3 If the Indemnifying Party fails within ten (10) calendar days from receipt of the notice of a Third Party Claim to give notice of its intention to defend the Third Party Claim in accordance with Section 6.5.1, then the Indemnifying Party shall be deemed to have waived its right to defend the Third Party Claim and the Indemnified Party shall have the right (but not the obligation) to undertake the defense of the Third Party Claim and compromise and settle the Third Party Claim without prejudice to its rights to indemnification hereunder.
6.5.4 Where the defense of a Third Party Claim is being undertaken and controlled by the Indemnifying Party, the Indemnified Party, except as permitted pursuant to Section 6.5.3, will not settle or compromise the Third Party Claim without the consent of the Indemnifying Party and will use its reasonable efforts to make available to the Indemnifying Party those employees whose assistance, testimony or presence is necessary to assist the Indemnifying Party in evaluating and defending any such claims. However, the Indemnifying Party shall be responsible for the expense associated with any employees made available by the Indemnified Party to the Indemnifying Party pursuant to this Section 6.5.4, which expense shall be equal to an amount to be mutually agreed upon per person per hour or per day for each day or portion thereof that the employees are assisting the Indemnifying Party and which expenses shall not exceed the actual cost to the Indemnified Party associated with the employees.
6.5.5 With respect to any Third Party Claim, at the request of the Indemnifying Party, the Indemnified Party shall make available to the Indemnifying Party or its representatives on a timely basis all documents, records and other materials in the possession of the Indemnified Party, at the expense of the Indemnifying Party, reasonably required by the Indemnifying Party for its use in defending any such claim and shall otherwise co-operate on a timely basis with the Indemnifying Party in the defense of such claim.
ARTICLE 7 CLOSING CONDITIONS
7.1 Conditions of Closing in Favour of the Purchaser
The sale and purchase of the Purchased Assets is subject to the following terms and conditions for the exclusive benefit of the Purchaser, to be performed or fulfilled at or prior to the Closing Date:
7.1.1 Representations and Warranties. The representations and warranties of Orphan contained in this Agreement shall be true and correct in all material respects at the Closing Date with the same force and effect as if such representations and warranties were made at and as of such time, and a certificate of a senior officer of Orphan, dated the Closing Date, to that effect shall have been delivered to the Purchaser, such certificate to be in form and substance satisfactory to the Purchaser, acting reasonably;
7.1.2 Covenants. All of the terms, covenants and conditions of this Agreement to be complied with or performed by Orphan at or before Closing Date shall have been complied with or performed in all material respects, and a certificate of a senior officer of Orphan dated the Closing Date, to that effect shall have been delivered to the Purchaser, such certificate to be in form and substance satisfactory to the Purchaser, acting reasonably;
7.1.3 Regulatory Consents. There shall have been obtained from all appropriate federal, provincial, municipal or other governmental or administrative bodies such licences, permits, consents, approvals, certificates, registrations and authorizations as are required to be obtained by Orphan to permit the change of ownership of the Purchased Assets contemplated hereby, in each case in form and substance satisfactory to the Purchaser, acting reasonably;
7.1.4 Toronto Stock Exchange Consent. The Toronto Stock Exchange shall have approved the issuance of the Common Shares as contemplated in Section 3.2.2; and
7.1.5 Delivery of Employment Agreements. The Employment Agreements shall have
been entered into in form and substance satisfactory to the Purchaser.
ARTICLE 8– POST-CLOSING COVENANTS AND ACKNOWLEDGEMENTS
8.1 Post-Closing Covenants of Orphan. Orphan undertakes and covenants in favour of Purchaser that after Closing:
8.1.1 Orphan shall immediately (a) grant to Purchaser full access to the TPD Information, (b) deliver any relevant Authorizations necessary to manufacture, market, distribute and sell the Products in Canada, (c) deliver to Purchaser all reprints, package inserts, information material, marketing material, marketing plans and artwork regarding the Products, and (e) provide all such assistance as Asset may reasonably be requested by Purchaser in order to more effectively transfer the Purchased Assets from Orphan to Purchaser; and
8.1.2 Orphan shall forward and refer (and cause its Affiliates to forward and refer) to Purchaser any inquiries or orders concerning the Products from any customers or potential customers in Canada.
8.2 Further Assurances. From time to time after the Closing Date, each Party shall, at the request of any other Party, execute and deliver such additional conveyances, transfers and other assurances as may be reasonably required to effectively transfer the Purchased Assets to Purchaser and carry out the intent of this Agreement.
ARTICLE 9– MISCELLANEOUS
9.1 Notices. Any notice, direction or other communication given under this Agreement shall be in writing and given by delivering it or sending it by facsimile or other similar form of recorded communication addressed:
(a) to Orphan at:
Attention: Jason Flowerday and Joost van der Mark
(b) to Purchaser at:
376 Victoria Avenue, Suite 220
Attention: Jeffrey Kadanoff
Facsimile: (514) 481-4116
with a copy to:
Davies Ward Phillips & Vineberg
1501 McGill College
Attention: Brian Kujavsky
Any such communication shall be deemed to have been validly and effectively given (i) if personally delivered, on the date of such delivery if such date is a Business Day and such delivery was made prior to 4:00 p.m. (Montreal time) and otherwise on the next Business Day, or (ii) if transmitted by facsimile or similar means of recorded communication on the Business Day following the date of transmission. Any Party may change its address for service from time to time by notice given in accordance with the foregoing and any subsequent notice shall be sent to such Party at its changed address.
9.2 Announcements. Purchaser and Orphan shall agree in advance to the terms of (one or more) public announcements or press releases regarding the transaction contemplated herein, which either Party shall be entitled to disseminate in its absolute discretion. No other public disclosure regarding the transaction contemplated herein shall be made by either Party without the other Party’s prior written consent.
9.3 Time of the Essence. Time shall be of the essence of this Agreement.
9.4 Brokers. Orphan shall indemnify and save harmless Purchaser from and against any and all claims, losses and costs whatsoever for any commission or other remuneration payable or alleged to be payable to any broker, agent or other intermediary who purports to act or have acted for Orphan. Purchaser shall indemnify and save harmless Orphan from and against any and all claims, losses and costs whatsoever for any commission or other remuneration payable or alleged to be payable to any broker, agent or other intermediary who purports to act or have acted for Purchaser.
9.5 Third Party Beneficiaries. Each Party intends that this Agreement shall not benefit or create any right or cause of action in, or on behalf of, any Person other than the Parties to this Agreement and no Person, other than the Parties to this Agreement and their respective successors and permitted assigns shall be entitled to rely on the provisions of this Agreement in any action, suit, proceeding, hearing or other forum.
9.6 Expenses. All costs and expenses (including the fees and disbursements of legal counsel, investment advisers and accountants) incurred in connection with the Agreement and the completion of the transactions contemplated herein shall be paid by the Party incurring such costs and expenses.
9.7 Amendments. This Agreement may only be amended, supplemented or otherwise
modified by written agreement signed by the Parties.
9.8 Waiver. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver be binding unless executed in writing by the Party to be bound by the waiver. No failure on the part of any Party to exercise, and no delay in exercising any right under this Agreement shall operate as a waiver of such right; nor shall any single or partial exercise of any such right preclude any other or further exercise of such right or the exercise of any other right.
9.9 Entire Agreement. The Transaction Agreements constitute the entire agreement between the Parties with respect to the transactions contemplated herein and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement except as specifically set forth herein and therein and neither Orphan nor Purchaser has relied or is relying on any other information, discussion or understanding in entering into and completing the transactions contemplated in this Agreement.
9.10 Successors and Assigns. This Agreement shall become effective when executed by Orphan and Purchaser and after that time shall be binding upon and enure to the benefit of Orphan and Purchaser and their respective successors and permitted assigns. Except as otherwise provided herein, neither this Agreement nor any of the rights or obligations under this Agreement shall be assignable or transferable by any Party without the prior written consent of the other Party hereto, which consent shall not be unreasonably withheld or delayed provided, however, that Orphan and Purchaser may freely assign any or all of its rights and obligations hereunder to any of its respective Affiliates without relieving the other Party of its obligations hereunder.
9.11 Severability. If any provision of this Agreement shall be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be severed from this Agreement and the remaining provisions shall continue in full force and effect.
9.12 Governing Law. This Agreement shall be governed by and interpreted and enforced in accordance with the Laws in force in the Province of Quebec and the Laws of Canada applicable therein, without regard to conflict of law principles.
9.13 Consent to Jurisdiction and Venue; Service of Process. Any action or proceeding to enforce or arising out of this Agreement may be commenced in the courts having jurisdiction in and for the City of Montréal, Province of Quebec, and Purchaser and Orphan consent and submit in advance to such jurisdiction and agree that venue will be proper in such courts on any such matter. The choice of forum set forth in this section shall not be deemed to preclude the enforcement of any judgment obtained in such forum or the taking of any action under this Agreement to enforce the same, in any appropriate jurisdiction.
9.14 Counterparts. This Agreement may be executed in any number of counterparts (including counterparts by facsimile) and all such counterparts taken together shall be deemed to constitute one and the same instrument.
9.15 Disclaimer of Partnership and Agency. This is an Agreement between separate entities and neither is the agent of the other for any purpose whatsoever. Purchaser is an independent contractor and neither Party has any power nor will it represent itself as having any power to in any way bind or obligate the other or to assume or create any expressed or implied obligation or responsibility on behalf of the other or in the other’s name. This Agreement shall not be construed as constituting Purchaser and Orphan as partners or to create any other form of legal association which would impose liability upon one Party for the act or failure to act of the other.
9.16 Language. The Parties have expressly requested that this Agreement be drafted in the English language. Les Parties ont expressément requis que cette convention soit rédigée en anglais seulement.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS
AGREEMENT AT THE PLACE AND AS OF THE DAY AND YEAR FIRST
HEREINABOVE SET FORTH.
ORPHAN CANADA INC.
Per: (signed) Joost van der Mark
Name: Joost van der Mark
KNIGHT THERAPEUTICS INC.
Per: (signed) Jeffrey Kadanoff
Name: Jeffrey Kadanoff