Exhibit 10.27
ASSET PURCHASE AGREEMENT
by and between
UNITED STATES SURGICAL CORPORATION, and
CFC ASSETS CORPORATION
as Sellers, and
COLUMBUS FARMING CORPORATION, and
ALEXION PHARMACEUTICALS, INC.
as Purchasers
Dated as of February 9, 1999
ASSET PURCHASE AND REVERSION AGREEMENT
This Asset Purchase and Reversion Agreement (the "Agreement"), dated as of
February 9, 1999, is by and between United States Surgical Corporation
(hereinafter "USSC"), a corporation organized and existing under the laws of the
State of Delaware and having principal offices at 000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxx, CFC Asset Corporation (hereinafter "CAC"), a corporation organized
and existing under the laws of the State of Delaware and having principal
offices at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx (XXXX and CAC hereinafter
collectively referred to as the "Sellers"), and Alexion Pharmaceuticals, Inc., a
corporation organized and existing under the laws of the State of Delaware and
having its principal office at 00 Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
(hereinafter referred to as "Alexion"), and Columbus Farming Corporation
(hereinafter "CFC"), a corporation organized and existing under the laws of the
State of New York and having principal offices (*******) (Alexion and CFC
hereinafter collectively referred to as the "Purchasers") (Sellers and
Purchasers collectively hereinafter referred to as the "Parties"). Capitalized
terms used in this Agreement shall have the meanings given to them upon their
first use or in Section 16 hereof.
WITNESSETH
WHEREAS, USSC has been engaged in the business of the design, manufacture,
distribution and/or sale of medical devices, and has invested in technologies in
the field of xenotransplantation; and
WHEREAS, USSC holds licenses to certain intellectual property used by
Sellers in the said field; and
WHEREAS, USSC and Alexion have worked cooperatively in the development of
such xenotransplantation technologies, but USSC has decided to concentrate on
certain core businesses and therefore Sellers desire to divest themselves of
their business, properties and assets heretofore or currently used in connection
with their xenotransplantation business (the "Business"); and
WHEREAS, Sellers desire to sell and the CFC desires to buy, on the terms
and conditions set forth in this Agreement, the assets of the Business; and USSC
and Alexion have agreed that the licenses to certain intellectual property
granted by Alexion to USSC shall terminate and the technology and rights revert
to Alexion or shall otherwise be transferred to Alexion, all as set forth
herein.
1
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter contained, the parties hereto agree as follows:
Section 1. Purchase and Sale of Purchased Assets.
(a) Subject to and upon the terms and conditions of this Agreement, the
Sellers covenant and agree to sell, assign, transfer and convey to the
Purchasers and the CFC agree to purchase from the Sellers, on the Closing Date
(as hereinafter defined), the assets of the Business which are listed below:
(i) The land (with the buildings and improvements thereon) described
in Schedule l(a)(i) hereto which the Parties agree shall be conveyed to CFC as
of the Closing Date;
(ii) All machinery and equipment, fixtures, furniture, furnishings,
tooting and instruments, which are used exclusively in the Business, including
without limitation, assets that are listed on Schedule l(a)(ii) hereto and any
other assets used exclusively in the Business acquired by the Sellers from the
date hereof to the Closing Date which the Parties agree shall be transferred to
CFC as of the Closing Date;
(iii) All of the Sellers' inventories and supplies including,
without limitation, raw materials, work-in-process and finished goods related to
the Business, (the "Inventory" except that "Inventory," shall be deemed not to
include livestock and biological materials which is part of the "Licensed
Technology" (hereinafter defined)), and the Parties agree that the Inventory
shall be transferred to CFC as of the Closing Date;
(iv) All Sellers' interest in the corporate name "Columbus Farming
Corporation", as well as CAC's post office box and telephone and facsimile
numbers shall be transferred to CFC as of the Closing Date;
(v) All rights and privileges of the Sellers under and pursuant to
any contracts, leases, licenses, and agreements to the extent incident to and
relating exclusively to the Business, all of which in an amount greater than
$5,000 are listed in Schedule l(a)(v) hereto, and any such contracts, leases,
licenses and agreements which are entered into in the ordinary course of the
Business from the date hereof to the Closing Date, to the extent that such
contracts are uncompleted and outstanding because, in the case of purchase
contracts, services have not been rendered to the Sellers or products or
supplies have not been received by the Sellers prior to the Closing Date, and,
in the case of the sales contracts, products have not been shipped by the
Sellers prior to the Closing Date shall be transferred to CFC as of the Closing
Date;
2
(vi) All supplier lists, books, records and papers (1) of the
Sellers relaxing exclusively to the Business; and (2) of CAC; shall be
transferred to CFC as of the Closing Date except to the extent they are part of
the "Licensed Technology".
The items of property referred to in Sections l(a)(i) through l(a)(vi)
above, excluding the items described in Section 1(b) below, are hereinafter
collectively referred to as the "Purchased Assets".
(b) Excluded Assets. "Licensed Technology" (hereinafter defined) is
excluded from the definition of "Purchased Assets". Excluded from this sale and
from the definition of "Purchased Assets" is (i) the Adpro microwave transmitter
and related equipment located at CAC's (*******) facility, and ii) all know-how
specific to Sellers bioabsorbable compositions including, but not limited to,
the chemistry, formulation or composition of polymers developed, acquired or
licensed by USSC, specifically including those containing (*******) (referred to
as the "Bioabsorbable Know-how").
Section 2. Assumption of Liabilities: Termination of Prior Agreement.
I. Assumption of Liabilities.
(a) Except as set forth in Section 2 (b) below, CFC shall assume any and
all liabilities of the Sellers related exclusively to the Business set forth in
clauses (i), (ii), (iii) and (iv) below (collectively, the "Assumed
Liabilities"):
(i) The obligations of the Sellers under the contracts described in
Schedule l(a)(v) and the contracts which are entered into in the ordinary course
of the Business and consistent with past practices from the date hereof to the
Closing Date to the extent that such contacts are uncompleted and outstanding
because, in the ease of purchase contracts, services have not been rendered to
the Sellers or products or supplies have not been received by the Sellers, as
the case may be, prior to the Closing Date and, in the case of sales contracts,
products have nor been shipped by the Sellers prior to the Closing Date;
(ii) The obligations of USSC under National Institute of Standards
and Technology Cooperative Agreement No. 70NANB7H3065 (referred to as the "NIST
Agreement").
(iii) The obligations and liabilities, including product
liabilities, relating to products manufactured or sold by Purchasers after the
date of Closing and relating to the Business.
3
(iv) All other liabilities and obligations arising out of or
resulting from the conduct of the Business after the date of the Closing.
(b) Accounts and other payables arising out of the conduct of the Business
are specifically not assumed by the Purchasers and will be paid by Sellers when
due.
(c) (i) To the extent that the assignment of any contract or any license,
permit, approval or qualification issued or to be issued by any government or
agency or instrumentality thereof relating to the Business or the Purchased
Assets including, without limitation, the Permits (defined below) to be assigned
to the CFC or Alexion pursuant to this Agreement shall require the consent of
any other party, this Agreement shall not constitute a contract to assign the
same if an attempted assignment would constitute a breach thereof. The Sellers
shall use its reasonable commercial efforts, and the CFC or Alexion shall
cooperate where appropriate, to obtain any consent necessary to any such
assignment. If any such consent is not obtained, then the Sellers shall
cooperate with the CFC and Alexion in any reasonable arrangement requested by
CFC or Alexion designed to provide to the Purchasers the benefits under any such
contract license, permit, approval or qualification and the Permits, including
enforcement of any and all rights of the Sellers against the other party thereto
arising out of breach or cancellation thereof by such other party or otherwise.
(ii) Seller agrees to cooperate to the extent reasonably necessary
to obtain approval of an Assignment of Seller's interest in the NIST Agreement
to Alexion. This includes, without limitation, executing of any letters
requested by Alexion directed to persons or entities designated by Alexion
indicating that Sellers will no longer involved in the performance of the NIST
Agreement and that the performance of its obligations will be undertaken by
Alexion. Sellers shall also execute any other letters Alexion reasonably
requires to obtain approval of the assignment of the NIST Agreement to Alexion.
(d) Obligations of the Sellers relating to the Business but not assumed by
Purchasers herein shall constitute the "Excluded Liabilities", which shall
remain the responsibility of the Sellers after the Closing and shall not be
obligations of the Purchasers.
II. Termination of Prior Agreement.
(a) "Licensed Technology" shall mean:
(i) To the extent that any transferable rights currently obtain, all
U.S. and foreign letters patent and patent applications of the Sellers
(including all licenses with respect thereto), and Sellers' right, title and
interest in all reissues, divisions, continuations-in-part, extensions thereof,
and any other U.S. or foreign letters patent or patent applications
4
claiming priority therefrom, and all licenses, technology, know-how, technical
information, inventions, research records and other documentation, formulae,
processes, techniques, technical information, manufacturing and engineering
drawings and information and trade secrets; as set forth in any of subsections A
and B, as follows:
(A) all that are being used exclusively in or relate
exclusively to the Business; and
(B) all that are listed on Schedule 2 II (a)(i) hereto;
(ii) All rights and privileges of the Sellers under and pursuant to
the NIST Agreement, and all notebooks, data, knowledge and records (in whatever
media) relating to the research conducted under said NIST Agreement and all
results of the research conducted under said NIST Agreement (excluding
Bioabsorbable Know-how);
(iii) livestock and biological materials; and
(iv) all rights, privileges, licenses, and assets granted or
conveyed to USSC, including without limitation all licenses granted pursuant to
the Joint Development Agreement, all assets and rights transferred to USSC
pursuant to the Amendment to the Joint Development Agreement dated September 30,
1997, USSC Pigs referred to therein, and the Germline Constituents referred to
therein.
(b) Alexion and USSC hereby terminate their Joint Development Agreement
dated as of July 31, 1995, as amended in the Amendment to Joint Development
Agreement dated September 30, 1997 and Amendment No. 2 to Joint Development
Agreement dated January 8, 1998 (as so amended, the "Joint Development
Agreement"), and shall at Closing execute mutual general releases releasing each
of them from any obligations whatsoever under or arising from said Joint
Development Agreement, as amended, except for the obligations set forth in
Article 5 thereof. It is the intention of the parties by this Agreement that the
Licensed Technology shall revert and are hereby transferred to and shall become
the sole and exclusive property of Alexion, and USSC shall have no further
rights or obligations with respect thereto other than the obligations set forth
in Article 5 of the Joint Development Agreement.
(c) To the extent that Sellers have any interest in any of the Licensed
Technology which does not revert to Alexion as a result the termination of the
Joint Development Agreement, the same shall nevertheless be deemed transferred
and assigned to Alexion as of the Closing Date.
5
Section 3. Purchase Price.
Subject to and upon the terms and conditions of this Agreement, and as
full and complete consideration for the sale of the assets set forth herein,
Purchasers hereby agrees to pay to USSC $3,920,307.96 (*******) (the "Purchase
Price"). Notwithstanding anything in this Agreement to the contrary, no portion
of the Purchase Price shall be deemed payable by Alexion, and no portion of the
Purchase Price shall be deemed allocable to any property reverting, transferred,
or to be transferred to Alexion pursuant to this Agreement.
Section 4. Closing and Payment of Purchase Price.
(a) A closing (the "Closing") shall take place at 10:00 a.m. on February
9, 1999 at the offices of the Sellers at 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000
(the "Closing Date").
(b) (i) On the Closing Date, the Sellers shall transfer to CFC by all
necessary and appropriate bills of sale, deeds, assignments and other
instruments, all right, title and interest of the Sellers in and to the
Purchased Assets (and the Licensed Technology shall revert to and be transferred
and assigned to Alexion) free and clear of all Liens, claims and encumbrances
whatsoever (other than the "Xxxxx Xxxx", as hereinafter defined), and CFC shall
deliver to USSC a promissory note (the "Note") in the amount of $3,920,307.96
(the form of which is attached hereto as Exhibit B), a mortgage on the real
estate portion of the Purchased Assets (the form of which is attached hereto as
Exhibit C), and a security agreement and appropriate UCC financing statements on
the tangible personal property portion of the Purchased Assets (the forms of
which are attached hereto as Exhibits D and E).
(ii) UCC # (*******) in which the secured party is the United
States of America c/o Farm Service Agency is referred to as the "Xxxxx Xxxx."
Sellers covenant that Sellers, at Sellers' sole cost and expense, will cause
the Xxxxx Xxxx to be removed from the Purchased Assets on or before the
sixtieth day after the Closing Date unless CFC, in its sole discretion,
agrees that the Xxxxx Xxxx may remain in connection with an agreement reached
between CFC and the debtors described in the Xxxxx Xxxx.
(iii) If a certificate of occupancy has not yet been issued for any
building or improvement on the real property described on Schedule l(a)(i),
Sellers shall, at Sellers' sole cost and expense, cause it to be issued on or
before the sixtieth day after the date of this Agreement.
6
(c) On or before the date of the Closing, the Sellers shall:
(i) deliver to the Purchasers at the Sellers' (*******) facility
physical possession of all tangible Purchased Assets of the Business and
Licensed Technology located therein;
(ii) make available for pick-up by the Buyers such of the Purchased
Assets as are located at USSC's facility in North Haven, Connecticut;
(iii) if CFC has so requested, deliver letters to third parties from
whom CAC has contracted for goods and services indicating that the contracts
have been assigned to CFC and indicating that rights and warranties of CAC have
been assigned to CFC;
(iv) deliver share of stock of (*******) properly transferred to
CFC free and clear of all Liens;
(v) deliver titles to any vehicles, machinery or equipment for which
titles have been issued which are part of the Purchased Assets properly
transferred to CFC; and
(vi) deliver any additional documents and make any payments as are
required to transfer title from Sellers to Purchasers of any Purchased Assets
and Licensed Technology as required pursuant to this Agreement fully paid and
free and clear of any liens and encumbrances (except with respect to the Xxxxx
Xxxx).
(vii) deliver the "Estimated Payables Amount" reflected on Schedule
4(e)(vii) to the trust account of Purchasers' attorneys', Golenbock, Eiseman,
Assor & Xxxx via wire transfer. Purchasers attorneys shall be deemed authorized
to disburse the "Estimated Payables Amount" to CFC on the date of the Closing
and thereafter shall be free of any and all responsibilities with respect to
such amount.
(d) (i) Schedule 4(c)(vii) sets forth all of the payables which Sellers
have estimated as arising from the purchase of assets by Sellers in connection
with the Business on or before the date of the Closing and the operation of the
Business on or before the date of the Closing. CFC shall apply the Estimated
Payables Amount to the payment of the payables of CAC and/or USSC arising from
the purchase of assets by one or both of them in connection with the Business on
or before the date of the Closing and the operation of the Business on or before
the date of the Closing. CFC may also elect to pay such payables out of its own
funds, but CFC is not obligated to do so. To the extent such payables are paid
by CFC out of its own funds, the payment shall be reimbursed by Sellers.
Notwithstanding anything herein to the contrary, Purchasers do not
7
assume responsibility for the payment of any of the payables of Sellers except
to the extent CFC has agreed to apply the Estimated Payables Amount received by
it to the payables. If the Estimated Payables Amount is insufficient to pay such
payables, Sellers agree to pay the balance of the payables and to reimburse CFC
for any portion of the balance paid by CFC except for the payables to (*******).
(ii) On or before the sixtieth day after the date of the Closing
(the "Reconciliation Date") CFC shall submit to Sellers a schedule of the
payments made from the Estimated Payables Amount and the bills as CFC shall have
received supporting the payments made. If the aggregate of the amounts paid by
CFC on account of the payables is less than the Estimated Payables Amount, CFC
shall pay USSC the difference on or before the tenth day after the
Reconciliation Date. If the aggregate of the amounts paid by CFC on account of
the payables is more than the Estimated Payables Amount, USSC shall pay CFC the
difference on or before the tenth day after the Reconciliation Date. If USSC
fails to pay CFC any amounts owed CFC in accordance with this subsection (d),
the same shall be a credit to CFC which CFC may apply against payments due USSC
pursuant to the Note until the credit has been exhausted.
(e) As of the date of the Closing, all warranties inuring to the benefit
of CAC from any contractors, manufacturers, and/or suppliers shall be deemed
assigned to CFC. At any time after the date of the Closing, if CFC so requests,
Sellers shall deliver letters to third parties from whom CAC has contracted for
goods and services in connection with the Business indicating that the contracts
have been assigned to CFC and indicating that rights and warranties of CAC have
been assigned to CFC.
Section 5. Representations and Warranties of the Sellers.
The Sellers hereby represent and warrant to the Purchasers as follows:
(a) Due Organization: The Sellers are corporations duly organized, validly
existing and in good standing under the laws of the state of Delaware, with all
requisite power and authority to own, lease and operate their properties, to
carry on their businesses as presently conducted by them, to enter into this
Agreement and the other instruments and agreements of the Sellers provided for
herein, and to consummate the transactions contemplated hereby and thereby.
(b) Authorization. The execution and delivery by the Sellers of this
Agreement and the other instruments and agreements of the Sellers provided for
herein, and the performance of their obligations hereunder and thereunder, have
been duly and validly authorized by all necessary action on their parts, and
this Agreement and all other such instruments and agreements delivered or to be
delivered by the Sellers in connection wit the transactions
8
contemplated hereby are, or (when executed and delivered in accordance herewith)
will be, the legal, valid and binding obligations of the Sellers, enforceable
against them in accordance with their respective terms.
(c) Non-Contravention. Neither the execution and delivery by the Sellers
of this Agreement, nor the performance by them of their obligations hereunder
and thereunder will, or with the giving of notice or the lapse of time, or both,
would:
(i) conflict with, result in a breach of, or constitute a default
under, any provision of the organizational documents of the Sellers or of any
contract, indenture, lease, sublease, loan agreement, restriction, Lien or other
obligation or liability to which the Sellers are parties or by which either of
them are bound, or result in or create in any party the right to accelerate,
terminate, modify or cancel any contract, license, indenture, lease, sublease or
loan agreement to which the Sellers are parties or by which they, or any of
their properties or assets, is affected or bound;
(ii) violate any order, writ, injunction, decree, law, statute, rule
or regulation applicable to the Sellers; or
(iii) result in the creation or imposition of any Lien upon any of
the Purchased Assets or Licensed Technology.
(d) Asset Listing. The Sellers have delivered to the Purchasers a true and
complete listing of the purchase price of the machinery and equipment related to
the Business dated December 31, 1998 (the "Asset Listing"), which is attached
hereto as Exhibit A. The Asset Listing has been prepared from the books and
records of the Sellers and fairly presents such assets at the specified date,
and there have been no material changes in such Asset Listing since said date.
(e) Title to Purchased Assets; Condition of Purchased Assets. The Sellers
have good and marketable title to and possession of all the Purchased Assets and
the Licensed Technology, free and clear of all Liens; and, to the best of
Sellers' knowledge and belief, no interest in or right to any such Purchased
Assets or the Licensed Technology is held, legally or beneficially by any person
or entity other than the Sellers. Purchased Assets have been properly maintained
and are in good operating condition, reasonable wear and tear excepted, and
there exists no outstanding notice of any violation of any statute relating to
them or to the Licensed Technology.
(g) Intellectual Property. Schedule 2 II (a)(i) sets forth a complete and
accurate list of all of the United States and foreign patents, and/or
applications therefor that are owned, possessed or held by the Sellers and used
in the conduct of the Business (the "Intellectual
9
Property"). Unless otherwise indicated in such Schedule 2 II (a)(i), to the best
of Sellers' knowledge and belief, the Sellers exclusively owns the entire right,
title and interest in and to each item of Intellectual Property free and clear
of the rights of any other persons or entities (other than Purchasers).
(h) Contracts. Schedule 1(a)(v) lists all material contracts, leases,
agreements, letters of intent and commitments, whether written or oral, of an
amount equal to or greater than $5,000, to which the Sellers are a party or by
which the Sellers or any of the Purchased Assets or the Licensed Technology are
bound and which relate to the conduct of the Business (collectively, the
"Contracts"). Except as set forth in such Schedule 1(a)(v), (i) all of the
Contracts were entered into in the ordinary course of the Business, (ii) all of
the Contracts are currently in full force and effect, binding upon the parties
thereto, and enforceable against them in accordance with their terms, (iii) to
the best of Sellers' knowledge, the Sellers are complying in full with the terms
and provisions thereof, (iv) to the best knowledge of the Sellers, the other
parties to all of the Contracts are complying in full with the terms and
provisions thereof, (v) there are no progress payments, advances, or arrearages
in connection with any of the Contacts except as set forth on Schedule 1 (a)(v),
and (vi) the consummation of the transactions contemplated hereby will not
impair any right or privilege enjoyed by the Sellers or the Purchasers under any
Contract, or give rise to any right of termination or cancellation thereunder or
diminution of rights.
(i) Consents of Third Parties. No consent, approval or agreement of any
Person, party, court, government or entity is required to be obtained by the
Sellers in connection with the execution and delivery of this Agreement or the
other instruments or agreements provided herein or therein, or the consummation
of the transactions contemplated hereby or thereby.
(j) Litigation. There is no litigation, arbitration, claim, governmental
or other investigation or proceeding (formal or informal) pending or, to the
best knowledge of the Sellers, threatened with respect to the Business, or the
Purchased Assets, or the Licensed Technology, or the transactions contemplated
hereby and to the best knowledge of the Sellers there exists no basis or grounds
for any of the foregoing. To the best knowledge of the Sellers, the Sellers are
not in violation of, or in default with respect to, any order, judgment or
decree applicable to the Business or the Purchased Assets or the Licensed
Technology, and are not required to take any remedial action in order to avoid
such violation or default.
(k) Legal Matters. The Sellers are in compliance with all applicable laws,
including, without limitation, all environmental laws and other laws and
regulations of governmental agencies in connection with the Business and the
real property described in Schedule 1 (a)(i) and the buildings and improvements
thereon, except for any failure to comply which individually or in the aggregate
would not have a material adverse effect on the business, properties, assets or
condition (financial or otherwise) of CAC or CFC.
10
(l) No Broker. No agent, broker, person or firm acting on behalf of the
Sellers, or under its authority, is or will be entitled to a financial advisory
fee, brokerage commission, finder's fee or like payment in connection with this
Agreement or any of the transactions contemplated hereby.
(m) New York Lien Law. Seller shall comply wit its obligations pursuant to
Section 13 of the New York Lien Law.
(n) NIST Agreement. Sellers have received no notice of default with
respect to the NIST Agreement, and to the best of Seller's knowledge, Sellers
are not in default of any of their obligations pursuant to the NIST Agreement.
(o) Franchise Taxes. All franchise taxes due to date for USSC and CAC have
been paid to date. If they have not, Sellers promise to pay them.
(p) Certificates of Occupancy. All work performed in connection with any
construction on the real property described on Schedule l(a)(i), including
without limitation, work performed by (******) and its subcontractors and
materials supplied by its materialmen have as been fully completed and paid for.
(q) Liens. The Licensed Technology and the Purchased Assets are not
subject to any lien or security interest (excluding the Xxxxx Xxxx).
(r) Residents. No person resides or has the right to reside on the real
property described on Schedule 1(a)(i) except (*******), an employee of CAC, has
been required to live on the real property as a part of his employment through
the date of this Closing. (*******) has no tenancy in or continuing right to
reside on the real property after the termination of his employment by CAC as of
the Closing Date.
Section 6. Representations and Warranties of the Purchasers. The
Purchasers represents and warrants to the Sellers as follows:
(a) Due Organization. Alexion is a corporation duly organized, validly
existing and in good standing under the laws of Delaware with all requisite
corporate power and authority to enter into this Agreement and the other
instruments and agreements to be delivered by it hereunder, and to consummate
the transactions contemplated hereby and thereby. CFC is a corporation duly
organized, validly existing and in good standing under the laws of New York
11
with all requisite corporate power and authority to enter into this Agreement
and the other instruments and agreements to be delivered by it hereunder, and to
consummate the transactions contemplated hereby and thereby.
(b) Authorization. The execution and delivery by the Purchasers of this
Agreement and the other instruments and agreements of the Purchasers provided
for herein, and the performance of their obligations hereunder and thereunder,
have been duly and validly authorized by all necessary action on their parts,
and this Agreement and all other such instruments and agreements delivered or to
be delivered by the Purchasers in connection with the transactions contemplated
hereby are, or (when executed and delivered in accordance herewith) will be, the
legal, valid and binding obligations of the Purchasers, enforceable against them
in accordance with their respective terms.
(c) Non-Contravention. Neither the execution and delivery of this
Agreement by the Purchasers nor the performance by the Purchasers of their
obligations hereunder and thereunder will, or with the giving of notice or the
lapse of time, or both, would:
(i) conflict with, result in a breach of, or constitute a default
under, any provision of the Purchasers' charters or by-laws, or of any contract,
indenture, lease, sublease, loan agreement, Lien or other obligation or
liability to which the Purchasers are parties or by which they are bound; or
(ii) violate any order, writ, injunction, decree, law, statute, rule
or regulation applicable to or by which they or their properties are bound.
(d) Litigation. There is no litigation, arbitration, claim, governmental
or other investigation or proceeding (formal or informal) involving the
transactions contemplated hereby pending or, to the best knowledge of the
Purchasers, threatened, against the Purchasers and to the best knowledge of the
Purchasers there exists no bases or grounds for any of the foregoing.
(e) No Broker. No agent broker, person or firm acting on behalf of the
Purchasers or under their authority, is or will be entitled to a financial
advisory fee, brokerage commission, finder's fee or like payment in connection
with this Agreement or any of the transactions contemplated hereby.
(f) Consents of Third Parties. No consent, approval or agreement of any
Person, party, court, government or entity is required to be obtained by the
Purchasers in connection with the execution and delivery of this Agreement, or
the other instruments and agreements provided herein or the consummation of the
transactions contemplated hereby.
12
Section 7. Covenants of the Sellers Pending the Closing.
The Sellers covenant and agree that between the date of this Agreement and
the Closing or termination of this Agreement prior to Closing:
(a) The Sellers will not take any action, or omit to take any action,
which action or omission would make any of the representations and warranties of
the Sellers untrue or incorrect in any material respect at the Closing Date, and
will not undertake any course of action inconsistent with this Agreement, or
which would render any of the conditions to Closing by the Purchasers unable to
be satisfied at or prior to the Closing Date.
(b) The Purchasers and their officers, employees, and other agents,
including accountants and counsel, shall have reasonable access to all of the
books of account, records, permits, franchises, plans and other business records
of the Sellers, at reasonable times during business hours, for the purpose of
examining and inspecting the same and making copies of and extracts from such
records and documents.
(c) The Sellers will carry on the Business in the ordinary course,
consistent with past practice. The Sellers will make no material change in the
Purchased Assets or Licensed Technology, its business, contracts, accounting
practices, methods of operation or management of its business and properties
relating to the Business without the Purchasers' prior written consent.
(d) The Sellers will use all reasonable efforts to (i) promptly make all
filings and seek to obtain all authorizations required under the Sellers'
Contracts and applicable laws with respect to the transactions contemplated
hereby and will cooperate with the Purchasers with respect thereto, (ii)
promptly take or cause to be taken all other actions necessary, proper or
appropriate to satisfy the conditions set forth in Section 9 and to consummate
and make effective the transactions contemplated by this Agreement on the terms
and conditions set forth herein and therein as soon as practicable, and (iii)
not take any action that would reasonably be expected to impair the ability of
the Sellers to consummate the transactions contemplated by this Agreement at the
earliest practicable time, including without limitation any action that would
impair efforts to secure any required authorizations for such transactions. The
reasonable efforts of the Sellers shall include, without limitation, good faith
response, in cooperation with the Purchasers, to all requests for information,
documentary or otherwise, by any governmental agency.
Section 8. Covenants of the Purchasers Pending the Closing.
The Purchasers hereby covenant and agree that between the date of this
Agreement and the Closing or termination of this Agreement prior to the Closing:
13
(a) The Purchasers will not take any action, or omit to take any action,
which action or omission would make any of their representations and warranties
untrue or incorrect in any material respect at the Closing Date, and will not
undertake any course of action inconsistent with this Agreement, or which would
render any of the conditions to Closing by the Sellers unable to be satisfied at
or prior to the Closing Date.
(b) The Purchasers will use all reasonable efforts to (i) promptly make
all filings and seek to obtain all authorizations required to be made by the
Purchasers under applicable laws with respect to the transactions contemplated
hereby and will cooperate with the Sellers with respect thereto, (ii) promptly
take or cause to be taken all other actions necessary, proper or appropriate to
satisfy the conditions set forth in Section 10 and to consummate and make
effective the transactions contemplated by this Agreement on the terms and
conditions set forth herein and therein as soon as practicable, and (iii) not
take any action that would reasonably be expected to impair their ability to
consummate the transactions contemplated by this Agreement at the earliest
practicable time, including without limitation any action that would impair
efforts to secure any required authorizations for such transactions. The
reasonable efforts of the Purchasers shall include, without limitation, good
faith response, in cooperation with the Sellers, to all requests for
information, documentary or otherwise, by any governmental agency.
Section 9. Conditions Precedent to Closing by the Sellers.
The obligations of the Sellers to sell the Purchased Assets and to
consummate the transactions contemplated hereby are subject, at their sole
option, to the fulfillment prior to or at the Closing of each of the following
conditions:
(a) All of the representations and warranties made by the Purchasers in
this Agreement shall be true and correct in all respects both on and as of the
date of this Agreement and on and as of the Closing Date.
(b) The Purchasers shall have delivered the consideration set forth in
Section 4(b)(i) to the Sellers.
(c) All consents, approvals, authorizations and registrations,
qualifications or filings, required to have been made or obtained by the
Purchasers to permit the consummation by the purchasers of the transactions
contemplated hereby shall have been made or obtained, and all required
authorizations, consents and approvals of third parties to permit the
consummation of the transactions contemplated hereby shall have been obtained.
14
(d) No action or proceeding before a court or other governmental body
shall have been instituted or threatened by any government or agency thereof, or
by any other third party, to restrain or prohibit the consummation of any of the
transactions contemplated hereby.
Section 10. Conditions Precedent to Closing by the Purchasers.
The obligations of the Purchasers to purchase the Purchased Assets and to
consummate the transactions contemplated hereby are subject, at its sole option,
to the fulfillment prior to or at the Closing of each of the following
conditions:
(a) All of the representations and warranties made by the Sellers in this
Agreement shall be true and correct in all respects both on and as of the date
of this Agreement and on and as of the Closing Date.
(b) All consents, approvals and authorizations and registrations,
qualifications or filings, required to have been made or obtained by the Sellers
to permit the consummation by the Sellers of the transactions contemplated
hereby shall have been made or obtained, and all required authorizations,
consents and approvals of third parties to permit the consummation by the
Sellers of the transactions contemplated hereby shall have been obtained, except
as otherwise specified herein. All required consents, approvals and
authorizations of third parties to permit the consummation by the Purchasers of
the transactions contemplated by this Agreement shall have been obtained, except
as otherwise specified herein.
(c) No action or proceeding before a court or other governmental body
shall have been instituted or threatened by any government or agency thereof, or
by any other third party, to restrain or prohibit the consummation of any of the
transactions contemplated hereby.
(d) The Purchasers shall have received from the Sellers appropriate
documentation, reasonably satisfactory to the Purchasers, to transfer the
Purchased Assets to the Purchasers.
Section II. Indemnification.
(a) The parties shall be entitled to rely upon the representations and
warranties of the other parties set forth in this Agreement, and except as
otherwise specifically provided herein, such representations and warranties
shall survive the Closing and remain in full force and effect for a period of
three years after the Closing and shall thereafter expire, except with respect
to matters as to which notice has been given to the indemnifying party within
three years of the Closing. Notwithstanding the foregoing, warranties and
representations relating to title and authority matters shall survive
indefinitely.
15
(b) The Sellers hereby agree to indemnify and hold the Purchasers and
their officers, directors, employees, stockholders, agents and representatives,
harmless from and against and to pay for any loss, liability, claim, damage or
expense (including costs of litigation and reasonable legal fees and expenses)
(a "Loss") suffered or incurred by any such indemnified party based upon,
arising out of or resulting from any of the following:
(i) Any breach of any representation or warranty of the Sellers
contained in this Agreement or any other agreement or document delivered by them
pursuant hereto;
(ii) Any breach of any covenant of the Sellers contained in this
Agreement or any other agreement or document delivered by it pursuant hereto
requiring performance after the Closing Date;
(iii) Noncompliance with any so-called bulk sales law of any state
applicable to the transactions contemplated hereby; and
(iv) Excluded Liabilities.
(c) The Purchasers hereby agrees to indemnify the Sellers, and their
respective officers, directors, employees, stockholders, agents and
representatives, against and hold the Sellers harmless from and against and to
pay for any Loss suffered or incurred by the Sellers based upon, arising out of
or resulting from any of the following:
(i) Any breach of any representation or warranty of the Purchasers
contained in this Agreement or any other agreement, certificate or document
delivered by the Purchasers pursuant hereto;
(ii) Any breach of any covenant of the Purchasers contained in this
Agreement or any other agreement or document delivered by the Purchasers
pursuant hereto; and
(iii) Assumed Liabilities.
(d) Promptly after any person entitled to indemnification under this
Section 11 (the "Indemnified Party") has received notice of or has knowledge of
any claim against the Indemnified Party by a person not a party to this
Agreement (a "Third Person") or the commencement of any action or proceeding by
a Third Person, it shall give the other party (the "Indemnifying Party") written
notice of such claim or the commencement of such action or proceeding. Such
notice shall state the nature and the basis of such claim and a reasonable
estimate of the Loss. The Indemnifying Party shall have right to defend, at its
own expense and by its own counsel, any such matter so long as the indemnifying
Party pursues the same in good
16
faith and diligently. If the Indemnifying Party undertakes to defend or settle,
it shall promptly notify the Indemnified Party of its intention to do so, and
the Indemnified Party shall cooperate with the Indemnifying Party and its
counsel in the defense thereof and in any settlement thereof provided the
settlement consists solely of payment of money by the Indemnifying Party. Such
cooperation shall include, but shall not be limited to, furnishing the
indemnifying Party with any personnel, books, records or information reasonably
requested by the Indemnifying Party that are in the Indemnified Party's
possession or control. Notwithstanding the foregoing, the Indemnified Party
shall have the right to participate in any matter trough counsel of its own
choosing at its own expense (unless there is a conflict of interest that
prevents counsel for the Indemnifying Party from representing the Indemnified
Party, in which case the Indemnifying Party will reimburse the Indemnified Party
for the expenses of its counsel); provided however, that the Indemnifying
Party's counsel shall always be lead counsel and shall determine all litigation
and settlement steps, strategy and the like, provided, that the Indemnifying
Party shall not be entitled to pursue or effect any settlement that involves
anything other than the payment of money by the Indemnifying Party. After the
Indemnifying Party has notified the Indemnified Party of its intention to
undertake to defend or settle any such asserted liability, and for so long as
the Indemnifying Party diligently pursues such defense, the Indemnifying Party
shall not be liable for any additional legal expenses incurred by the
Indemnified Party in connection with any defense or settlement of such asserted
liability. If the Indemnifying Party desires to accept a final and complete
settlement of any such Third Person claim involving solely the payment of money
by the Indemnifying Party, such settlement shall require as an unconditional
term thereof that the Third Person deliver to the Indemnified Party a release
from all liability in respect of such claim. After Indemnified Party refuses to
consent to such settlement, then the Indemnifying Party's liability under this
Section with respect to such Third Person's claim shall be limited to the amount
so offered in settlement by said Third Person and the Indemnified Party shall
reimburse the Indemnifying Party for any additional costs of defense which it
subsequently incurs with respect to such claim. If the Indemnifying Party does
not undertake to defend such matter to which the Indemnified Party is entitled
to indemnification hereunder, or fails to diligently pursue such defense, the
Indemnified Party may undertake such defense through counsel of its choice, at
the cost and expense of the Indemnifying Party, and the Indemnified Party may
settle such matter, and the Indemnifying Party shall reimburse the Indemnified
Party for the amount paid in such settlement and any other liabilities or
expenses incurred by the Indemnified Party in connection therewith.
(e) Anything to the contrary contained herein notwithstanding, neither
party shall be entitled to recovery from the other party with respect to any
inaccuracy or breach of any representation or warranty in Sections 5 or 6,
hereof, as applicable, unless and until the amount of such Losses suffered,
sustained or incurred by the asserting party, or to which such party becomes
subject, by reason of such inaccuracy or breach, shall exceed $40,000 calculated
on a cumulative basis and not on a per item basis (the "Basket Amount"), and
then only with respect
17
to the excess over the Basket Amount, but in no event shall either party be
liable to the other, in each case in an aggregate amount in excess of the
Purchase Price; provided, that the Basket Amount shall not be applicable to any
representations or warranties with respect to title or authority matters.
Section 12. Termination of Agreement.
(a) This Agreement may be terminated at any time prior to the Closing:
(i) by mutual consent of the parties hereto;
(ii) by the Sellers, on the one hand, or by the Purchasers, on the
other hand, in the event of a material breach or default by the other party
hereto of any provision of this Agreement and, in the case of a breach or
default that is capable of being cured, continuation of such breach or default
for a period of 30 days after written notice thereof shall have been given to
the breaching party.
(b) Upon termination of this Agreement as provided in paragraph (a) above,
all obligations of the parties hereunder shall terminate, but such termination
will in no way limit any obligation or liability of any party based on or
arising from a breach or default by such party which occurs prior to such
termination with respect to any of his or its representations, warranties,
covenants or agreements contained in this Agreement. The provisions of this
Section 12 and of Sections 16, 17 and 18 shall survive the termination of this
Agreement.
Section 13. Additional Covenants and Agreements.
(a) Employee and Employee Benefit Matters.
Employment Status. The Sellers agree that they shall terminate the
employment of the Employees (as defined below) as of the date of Closing and
that they shall not discourage the Employees from accepting employment with the
Purchasers after the date of Closing. The Employees who accept such employment
shall become Employees of the Purchasers immediately after the Closing. As used
in this Section 13(a), "Employees" shall include all of those employees of the
Business, both salaried and hourly, who are listed on Schedule 13(a) hereto. The
parties hereto understand and agree that, to the maximum extent permitted by
applicable law, such employment shall continue to be employment at will.
18
(b) Books, Records and Information.
(i) The Purchasers agree that all documents included in the
Purchased Assets delivered to the Purchasers by the Sellers pursuant to this
Agreement and all documents of the Business shall after the Closing be open for
inspection by representatives of the Sellers at any time during regular business
hours for reasonable and necessary purposes until such time as documents are
destroyed or possession thereof is given to the other party as provided for in
Section 13(b)(ii) hereof and that the Sellers may during such period at their
expense make such copies thereof as it may reasonably request for preparation of
Sellers' tax returns. The Sellers agrees that all documents that are retained by
the Sellers after the Closing Date and that are related to the Business (other
than tax records of the Sellers) shall be open for inspection by representatives
of the Purchasers at any time during regular business hours until such time as
documents are destroyed or possession thereof is given up to the other party as
provided for in Section 13(b)(ii) hereof and that the Purchasers may during such
period at its expense make such copies thereof as they may reasonably request.
(ii) Without limiting the generality of Section 13(b)(i), for a
period ending on the sixth anniversary of the Closing Date, neither the
Purchasers nor the Sellers shall destroy or give up possession of any item
referred to in Section 13(b)(i) hereof without first offering to the other the
opportunity, at such other's expense (but without any other payment) to obtain
the same. Thereafter each party shall be free to dispose of any such item as it
deems fit.
(iii) The Purchasers shall use reasonable efforts to afford the
Sellers access to employees who were previously employees of the Sellers, and
remain in the employ of the Purchasers and the Sellers shall reasonably request
for its proper business purposes, including, without limitation, the defense of
legal proceedings. Such access may include interviews or attendance at
depositions or legal proceedings. All out-of-pocket expenses reasonably incurred
by the Purchasers in connection with this Section 13(b)(iii) shall be paid or
promptly reimbursed by the Sellers.
(c) Tax Matters.
(i) Taxes Through Closing Date.
Sellers shall be solely responsible for and shall indemnify
and hold harmless Purchasers for all Taxes of CAC for all periods and also with
respect to the Business transferred to CFC and the Purchased Assets for or
pertaining to all periods up to and including the Closing Date, and which shall
be deemed included in "Excluded Liabilities." Purchasers shall be responsible
for and indemnify and hold harmless Sellers for all Taxes with respect to the
19
Purchased Assets for or pertaining to all periods thereafter except that any
Taxes imposed upon the ownership of Purchased Assets on a particular date, or
similar tax, shall be prorated over the period ending on the Closing Date and
the period thereafter. Any claim for indemnification hereunder shall be subject
to the procedures set forth in Section II hereof.
(ii) Cooperation and Exchange of Information. Purchasers shall
provide Sellers with such cooperation and information as Sellers reasonably may
request with respect to the filing of any Return, amended Return or claim for
refund, the determination of a liability for Taxes, or a right to refund of
Taxes, or the conduct of any audit or other proceeding in respect of Taxes. Such
cooperation and information shall include providing copies of all relevant
Returns, together with accompanying schedules and related work papers, documents
relating to rulings or other determinations by taxing authorities, and records
concerning the ownership and tax basis of property, which Purchasers may possess
concerning the Business. Purchasers shall make its employees available to
Sellers on a mutually convenient basis to provide explanation of any documents
or information provided hereunder. Notwithstanding the foregoing, Purchasers
shall not be required to prepare any documents, or determine any information not
ten in its possession in response to a request under this Section 13(c)(ii)
Sellers shall reimburse Purchasers for any reasonable out-of-pocket costs
incurred by Purchasers in providing any Return, document or other written
information, and shall reimburse Purchasers for any reasonable out-of-pocket
costs (excluding regular wages and salaries) of making employees available, upon
receipt of reasonable documentation of such costs. Except as otherwise provided
in this Agreement, Purchasers shall retain all Returns, schedules and work
papers and all material records or other documents relating thereto, until the
expiration of the period of time beginning on the Closing Date and ending on the
date on which taxes may no longer be assessed under the applicable statutes of
limitation, including the period of waivers or extensions thereof Any
information obtained under this Section 13(c)(ii) shall be kept confidential,
except as may be otherwise necessary in connection with the filing of returns or
claims for refund or in conducting any audit or other proceeding.
(iii) Purchasers and the Sellers recognize their mutual obligations
pursuant to Section 1060 of the Code to timely file IRS Form 8594 (the "Asset
Acquisition Statement") with each of their respective federal income tax
returns.
(iv) The Sellers shall pay any transfer tax in connection with the
transfer of the real estate component of the Purchased Assets, and the
Purchasers shall pay any mortgage recording tax in connection wit the mortgage
of the real estate component of the Purchased Assets.
20
Section 14. Remedies.
The Sellers agree that the Purchased Assets are unique and that the
Purchasers will be irreparably harmed in the event that this Agreement,
including the obligations of the Sellers to sell and deliver the Purchased
Assets to the Purchasers are not specifically enforced. The parties further
agree it is impossible to measure in money the damage which will accrue by
reason of a refusal by the Sellers to perform such obligations under this
Agreement. Therefore, in the event that the Purchasers shall institute any
action to enforce such obligations, the Sellers hereby acknowledges that the
Purchasers do not have an adequate remedy at law and that injunctive or other
equitable relief will not constitute any hardship upon the Sellers.
Section 15. Definitions.
As used in this Agreement, the following terms shall have the meanings
ascribed to them below:
(a) "Affiliate" means, when used with reference to a specified party, (i)
any entity that, directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the specified
party, and (ii) any entity of which the specified party is, directly or
indirectly, the owner of an equity interest often (10) percent or more.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Lien" means any mortgage, lien, pledge, restriction, charge, security
interest, claims, encumbrance, or right, title and interest of others.
(d) "Person" means any individual, general partnership, limited
partnership, corporation, joint venture, trust, business trust, cooperative,
association or other form of organization.
(e) "To the best of the Sellers' Knowledge" means all information which is
currently and actually known by an executive officer or other managerial
employee of the Sellers.
Section 16. Confidentiality.
Neither of the parties hereto shall disclose the terms of any non-public
confidential information of the other parties hereto or any Affiliate thereof
obtained in connection with the proposed transactions hereunder without the
prior written consent of the other party, which consent shall not be
unreasonably withheld or delayed. The parties and their representatives
21
shall, for a period of three (3) years from the date hereof, treat all
information of the other parties as confidential (except to the extent that such
information: (i) is now, or later comes to be, in the public domain, other than
through the acts of the receiving party or its representatives in breach of this
provision, (ii) can be shown to have been known by the receiving party prior to
the time of disclosure to it by the other party, (iii) is later disclosed to the
receiving party on a nonconfidential basis by a Person having no obligation to
the disclosing party in regard thereto, (iv) is independently developed, as
evidenced by written records, by the receiving party, or (v) is required to be
disclosed by law.
Section 17. Expenses.
Whether or not the transactions contemplated by this Agreement are
consummated, each party will pay its respective expenses, including all fees and
expenses of counsel, accountants and other advisors, incurred in connection with
the origination, negotiation, execution and performance of this Agreement.
Section 18. Further Assurances.
From time to time after the execution hereof, at the request of the
Purchasers and without further consideration, the Sellers shall execute and
deliver such other and further instruments of conveyance, assignment, transfer
and consent, and take such other action as the Purchasers may reasonably request
in connection with the transfer of the Purchased Assets and the business of the
Sellers and for the more effective consummation of the transactions contemplated
hereby.
Section 19. No Public Announcement.
Neither party shall make, or permit any of its directors, officers,
employees, agents, advisors, Affiliates or representatives to make, any press
release, public announcement or other public disclosure with respect to the
existence of this Agreement or the transactions contemplated hereby or thereby
without the prior consent of the other party, except as and to the extent that
counsel for such party shall determine that such announcement or disclosure is
required by law, rule, regulation or order of any governmental, regulatory or
judicial body and provided that the text of any such proposed announcement or
disclosure has been timely submitted to the other party for comment and such
comments, if timely made, have been considered in good faith.
Section 20. Entire Agreement.
This Agreement (including all attachments hereto) comprise the entire
agreement among the parties hereto as to the subject matter hereof and thereof,
and supersede all prior agreements
22
and understandings between them relating thereto. All of the provisions of the
Agreement shall survive the Closing except as otherwise provided herein.
Section 21. Amendments and Waivers.
This Agreement may not be amended or modified, except by a writing
executed by the parties hereto. No extension of time for, or waiver of the
performance of, any obligation of any party hereto shall be effective unless it
is made in a writing signed by the party granting such extension or waiver.
Unless it specifically states otherwise, no waiver shall constitute or be
construed as a waiver of any subsequent breach or non-performance.
Section 22. Notices.
Any notice, request, demand, waiver, consent, approval or other
communication which is required or permitted to be given pursuant to this
Agreement shall be in writing and shall be given in person or by telecopy or by
certified or registered first-class mail or internationally recognized express
courier delivery service addressed as follows:
If to the Sellers: Xxxxxxxx Xxxxxxx Xxxxxxxxxxx
x/x Xxxxxx Xxxxxx Surgical Corporation
000 Xxxxxx Xxxxxx
Xxxxxxx XX 00X00
Attention: Legal Department
If to the Purchasers: Alexion Pharmaceuticals, Inc.
00 Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Executive V.P. & C.E.O.
Any such address may be changed by any party by written notice to the other
parties given in accordance herewith. Any notice shall be deemed to be given
three (3) days after being placed for delivery so addressed with postage or
other charges prepaid, provided, however, that any written notice actually
received by any party in less than three (3) days shall be deemed to be given,
for all purposes of this Agreement, at the time it is received.
Section 23. Governing Law.
This Agreement is made and shall be construed in accordance with the laws
of the State of New York without giving effect to the conflict of laws
principles thereof
23
Section 24. Successors and Assigns.
This Agreement shall inure to the benefit of, and be binding upon and
enforceable against, the respective successors and assigns of the parties
hereto.
24
Section 25. Captions.
Section headings and other captions are supplied herein for convenience
only and shall not be deemed a part of this Agreement for any purpose.
Section 26. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original for all purposes, and all of which together
shall constitute one agreement.
Section 27. Severability.
If any term or provision of this Agreement, or the application thereof to
any person or circumstance, shall to any extent be overly broad, invalid or
unenforceable, the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those as to which it is
overly broad, invalid or unenforceable, shall not be affected thereby and each
term and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
UNITED STATES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: VP & Controller USSC
------------------------------------
CFC ASSETS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: VP
------------------------------------
COLUMBUS FARMING CORPORATION
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: VP
------------------------------------
ALEXION PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: VP of Finance and Administration
------------------------------------
25
