Exhibit 10.55
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY
REQUEST. OMISSIONS ARE DESIGNATED AS ***. A COMPLETE VERSION OF THIS EXHIBIT
HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASSET PURCHASE AGREEMENT
dated as of December 8, 2006
by and between
SIEGFRIED LTD.
SIEGFRIED DIENSTE AG
and
CELGENE CHEMICALS SARL
*** - indicates material omitted pursuant to a Confidential Treatment Request
and filed separately with the Securities and Exchange Commission.
Seigfried Asset Purchase Agreement 1
ARTICLE 1 DEFINITIONS.........................................................5
1.1 Definitions 5
1.2 Construction 5
ARTICLE 2 PURCHASE AND SALE...................................................5
2.1 Purchase and Sale of Assets 5
ARTICLE 3 PURCHASE PRICE......................................................6
3.1 Purchase Price 6
3.2 Purchase Price Payment 6
ARTICLE 4 GUARANTY............................................................7
ARTICLE 5 CLOSING AND CLOSING DELIVERIES......................................7
5.1 Closing 7
5.2 Conditions Precedent to Closing 7
5.3 Closing Deliveries 7
ARTICLE 5A REPRESENTATIONS AND WARRANTIES.....................................9
5A.1 Organization and Qualification 9
5A.2 Asset Sellers' Representations or Warranties 9
5A.3 Litigation 9
5A.4 Transferred Employees 9
5A.5 Social Security 10
5A.6 Insurance 10
5A.7 Registrations 10
5A.8 Taxes 10
5A.9 Technical Equipment and Other Personal Property 10
5A.10 Real Property 10
ARTICLE 6 COVENANTS AND AGREEMENTS...........................................11
6.1 Books and Records; Cooperation 11
6.2 Transferred Employees 12
6.3 Further Assurances 13
6.4 Real Property Deed 13
6.5 Technical Services Agreement 13
6.6 Toll Manufacturing Agreement 13
6.7 GMP Agreement. 13
6.8 Undertaking and Agreement in relation to the Use
and Operation of Acquired Assets 13
6.9 Maintenance and Capital Investments 14
6.10 Insurance 14
6.11 Environmental 14
6.12 Sale Back Option of Asset Buyer 15
6.13 Right of First Refusal of Asset Sellers 16
6.14 Asset Sellers' Right to Buy Back the Acquired Assets 16
6.15 Community of Co-Owners ("Stockwerkeigentumergemeinschaft"). 16
Seigfried Asset Purchase Agreement 2
ARTICLE 7 MISCELLANEOUS......................................................17
7.1 Assignment 17
7.2 Expenses 17
7.3 Confidentiality 17
7.4 Public Announcement Pertaining to this Agreement
and the Transaction Agreements 17
7.5 Severability 17
7.6 Amendment 17
7.7 Waiver 18
7.8 Governing Law 18
7.9 Term of this Agreement 18
7.10 Arbitration; Venue 18
7.11 Counterparts; Language 18
7.12 Notices 18
SCHEDULE 1.1 DEFINITIONS.....................................................21
SCHEDULES:
1.1 Definitions........................................................21
2.1(a) Real Property Documentation
2.1(b) Technical Equipment and Other Tangible Personal Property
3.2 Bank Account of Asset Sellers
6.2(a) Transferred Employees
EXHIBITS:
3.1 VAT Notification Form
3.2 Bank accounts
4 Guaranty
6.4 Real Property Deed
6.5 Technical Services Agreement
6.6 Manufacturing Agreement
6.7 GPM Agreement
Seigfried Asset Purchase Agreement 3
ASSET PURCHASE AGREEMENT
------------------------
THIS ASSET PURCHASE AGREEMENT, dated as of December 8, 2006
("AGREEMENT"), is entered into by and between Siegfried Ltd. ("ASSET SELLER 1")
and Siegfried Dienste AG ("ASSET SELLER 2") on the one hand, both companies
organized under the laws of Switzerland with registered office at Untere
Bruhlstrasse 4, 4800 Zofingen, Switzerland, (together "ASSET SELLERS"), and
Celgene Chemicals Sarl., a company organized under the laws of Switzerland with
its registered office at Faubourg du Lac 11, 2000 Neuchatel, Switzerland ("ASSET
Buyer"). Asset Sellers and Asset Buyer sometimes are referred to herein
collectively as the "PARTIES" and individually as a "PARTY".
W I T N E S S E T H
WHEREAS, Asset Buyer is an affiliate of Celgene Corporation, a company
organized under the laws of Delaware and listed on Nasdaq ("CELGENE"), and Asset
Sellers are affiliates of Siegfried Holding Ltd., a company organized under the
laws of Switzerland and listed on the Swiss stock exchange ("SIEGFRIED");
WHEREAS, Asset Buyer has needs for a manufacturing facility in order to
manufacture the active pharmaceutical ingredient ("API") for Celgene drug
products, including in particular for the Products;
WHEREAS, Asset Sellers have a suitable manufacturing facility available
for Asset Buyer;
WHEREAS, Asset Sellers desire to sell, transfer, convey, assign and
deliver, and Asset Buyer desires to purchase, acquire and accept the Acquired
Assets upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, the Parties agree as follows:
Seigfried Asset Purchase Agreement 4
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. In addition to the terms defined above and other
terms defined in other Articles of this Agreement, the terms set forth in
SCHEDULE 1.1 shall have the meanings specified or referred to in such Schedule
and shall be equally applicable to both the singular and plural forms.
1.2 CONSTRUCTION. The language in all parts of this Agreement shall
be construed, in all cases, according to its fair meaning. "Days" or "days"
means calendar days unless otherwise specified. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole (including any Schedules hereto) and not to any
particular provision of this Agreement, and all Article, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
ARTICLE 2
PURCHASE AND SALE
2.1 PURCHASE AND SALE OF ASSETS. Asset Sellers hereby undertake,
subject to the terms of this Agreement, to sell, transfer, assign, convey and
deliver to Asset Buyer, and Asset Buyer hereby undertakes, subject to the terms
of this Agreement, to purchase, acquire and accept from Asset Sellers, on the
Closing, on the terms herein provided, Seller's right, title and interest in and
to the following assets (the "ACQUIRED ASSETS"):
(a) Seller's ownership in the condominium-principled co-ownership
unit ("Stockwerkeigentums-Einheit"), Grundbuch Zofingen, Nr. 4651.01 all as
identified and described on SCHEDULE 2.1(a), free and clear of any Encumbrances
except for the Permitted Encumbrances identified and described on SCHEDULE
2.1(a), (such unit being the "REAL PROPERTY");
(b) all TECHNICAL EQUIPMENT AND OTHER TANGIBLE PERSONAL PROPERTY
listed on SCHEDULE 2.1(b).
Seigfried Asset Purchase Agreement 5
ARTICLE 3
PURCHASE PRICE
3.1 PURCHASE PRICE. The aggregate purchase price to be paid by Asset
Buyer to Asset Sellers for the Acquired Assets is CHF 55,500,000 (Swiss Francs
fifty-five million five hundred thousand), exclusive of any applicable
value-added tax (the "PURCHASE PRICE"). Any value-added Tax resulting from the
transactions including self supplies will be borne and paid by Asset Buyer. The
Purchase Price includes an amount, exclusive of any applicable value-added Tax,
of CHF 2,700,000 (Swiss Francs two million seven hundred thousand) for the Real
Property which is sold by Asset Seller 2 to Asset Buyer.
The Parties agree, where possible, to apply the VAT notification
procedure according to art. 47 para 3 VATL. If not possible, Asset Seller 1 will
charge Asset Buyer with VAT on the Purchase Price portion relating to the
Technical Equipment and Other Tangible Personal Property. In connection with the
Real Property, Asset Seller 2 will try to opt for VAT and Asset Buyer will
support Asset Seller 2 in this regard. If Asset Seller 2 successfully opts for
VAT on the sale of the Real Property, Asset Seller 2 will charge Asset Buyer
with VAT on the Purchase Price portion relating to the Real Property.
In the event value-added Taxes are to be paid by Asset Sellers, Asset
Buyer shall reimburse Asset Sellers for such payments at the time when Asset
Buyer files its first VAT return , but no later than by June 30, 2007.
3.2 PURCHASE PRICE PAYMENT. The Purchase Price shall be paid by
Asset Buyer to Asset Sellers as follows into the notary's and Asset Sellers'
bank accounts set forth on SCHEDULE 3.2 or, as may be the case for payments
after the Closing, as otherwise designated in written instructions by Asset
Sellers to Asset Buyer:
3.2.1 at Closing the sum of CHF 15,000,000 (the "CLOSING PAYMENT")
shall be made into the notary's and Asset Sellers' bank accounts as set forth on
SCHEDULE 3.2.
3.2.2 thereafter 5 annual instalments, each in an amount of four
million one hundred thousand Swiss francs (CHF 4,100,000), the first such
instalment payable on June 30, 2007, the second on June 30, 2008, the third on
June 30, 2009, the fourth on June 30, 2010 and the fifth on June 30, 2011;
3.2.3 thereafter, subject to ARTICLE 6.13, 5 annual instalments, each
in an amount of four million Swiss francs (CHF 4,000,000), the first such
instalment payable on June 30, 2012, the
Seigfried Asset Purchase Agreement 6
second on June 30, 2013, the third on June 30, 2014, the fourth on June 30, 2015
and the last such instalment being due on June 30, 2016.
No set off shall be allowed in respect of any of the payments owed under
this ARTICLE 3.2 against any counterclaims, unless such counterclaim amounts to
a minimum amount of CHF 4,100,000.
ARTICLE 4
GUARANTY
At the Closing, Asset Buyer will deliver to Asset Sellers a duly signed
Guaranty of Celgene International Sarl in the form set forth in EXHIBIT 4.
ARTICLE 5
CLOSING AND CLOSING DELIVERIES
5.1 CLOSING. The transactions contemplated by this Agreement shall
be consummated at a closing (the "CLOSING") which shall be held at the offices
of Asset Sellers on December 8th, 2006, except as otherwise mutually agreed in
writing by the Parties (the "CLOSING DATE").
5.2 CONDITIONS PRECEDENT TO CLOSING. Each Party shall be entitled to
refuse Closing for as long as any of the following conditions has not been met
or waived as being a condition precedent to Closing, provided that such
condition is legally waivable:
(i) a Governmental Approval relevant for the material
consummation of this Agreement has not been obtained;
(ii) the Real Property Deed has not been signed;
(iii) only Asset Sellers shall be entitled to refuse Closing,
if and for as long as the Guaranty according to ARTICLE 4 of this Agreement has
not been delivered.
5.3 CLOSING DELIVERIES.
(a) At the Closing, Asset Sellers shall deliver to Asset Buyer:
Seigfried Asset Purchase Agreement 7
(i) any notarial deeds or other transaction agreements or
documents required under Swiss law for Asset Sellers to sell, assign, transfer
and convey and, as appropriate, record and perfect unencumbered title to a
particular Acquired Asset to Asset Buyer, duly executed by Asset Sellers,
including in particular the Real Property Deed and the related application to
the real estate register, completed and signed by Asset Sellers and ready for
immediate filing with the real property register by Asset Buyer;
(ii) the means necessary for Asset Buyer to take possession
of the Acquired Assets;
(iii) a receipt from Asset Sellers for the Closing Payment
paid to Asset Sellers;
(iv) copy of a resolution of the board of directors of Asset
Sellers authorizing and approving this Agreement and the transactions
contemplated under this Agreement;
(v) the Transaction Agreements to which Asset Seller 2 is a
Party, duly executed by Asset Seller 2;
(vi) the Transaction Agreements to which Asset Seller 1 is a
Party, duly executed by Asset Seller 1; and
(vii) copy of the complete employment files of all Transferred
Employees (including their employment agreements and any other employment,
compensation and benefits related documentation).
(b) At the Closing, Asset Buyer shall deliver to Asset Seller:
(i) the amount of the Closing Payment by wire transfer of
immediately available funds to the bank accounts as designated by Asset Sellers
in SCHEDULE 3.2 ;
(ii) a receipt evidencing Asset Buyer's receipt of the
Acquired Assets;
(iii) the Transaction Agreements to which Asset Buyer is a
party, duly executed by Asset Buyer;
(iv) copy of a resolution of the board of directors of Asset
Buyer authorizing and approving this Agreement and the transactions contemplated
under this Agreement; and
(v) the Guaranty.
Seigfried Asset Purchase Agreement 8
ARTICLE 5A
REPRESENTATIONS AND WARRANTIES
5A.1 ORGANIZATION AND QUALIFICATION. Asset Sellers on the one hand
and Asset Buyer on the other hand represent and warrant to each other that as of
the time of signing of this Agreement and as of the Closing Date:
(i) They are duly organized and validly existing under Swiss
law,
(ii) They have the requisite power and authority to enter
into and to perform this Agreement and the Transaction Agreements and have taken
all necessary corporate actions to authorise the execution, delivery and
performance of this Agreement and the Transaction Agreements;
(iii) This Agreement and the other documents thereto executed
and delivered by the Parties at the time of signing of this Agreement and/or on
the Closing Date (including the Transaction Agreements) constitute legal, valid
and binding obligations of the Parties enforceable against them in accordance
with their respective terms; and
(iv) The execution, delivery and performance by the Parties
of this Agreement and/or of the Transaction Agreements will not (a) result in
breach of any provision of each Party's articles of association and internal
regulations, and (b) result in a breach of any order, judgment or decree of any
court or governmental agency by which either Party is bound.
5A.2 ASSET SELLERS' REPRESENTATIONS OR WARRANTIES. Asset Sellers
represent and warrant to Asset Buyer for a period of *** months as from the
Closing Date (except where otherwise indicated) that as of the time of signing
of this Agreement and as of the Closing Date (except where otherwise indicated):
5A.3 LITIGATION. There is no material litigation or arbitration,
administrative proceedings, governmental inquiries or investigations pending or,
to the knowledge of Asset Sellers, threatened in writing relating to the
Acquired Assets and/or the Transferred Employees.
5A.4 TRANSFERRED EMPLOYEES. All Transferred Employees are insured
according to Swiss labor laws and are beneficiaries of requisite pension funds.
All dues to pension funds with respect to the Transferred Employees'
compensation have been paid or shall be paid when due. As of the signing of this
Agreement, none of the Transferred Employees hereto has tendered or, to the
knowledge of Asset Sellers, threatened his/her resignation. The employment
agreements of the Transferred Employees are valid and in full force and effect
as of the Closing Date in all
Seigfried Asset Purchase Agreement 9
material respects. Asset Sellers have not given notice of termination of any
such agreement. No employees other than Transferred Employees shall be
transferred to the Asset Buyer.
5A.5 SOCIAL SECURITY. All social security returns, reports and forms
relating to Transferred Employees required to be filed in accordance with all
applicable laws have been prepared and filed in the manner required by
applicable law, are true, correct and complete in all material respects, and
reflect in all material respects the liability for social security for the
relevant terms. All social security contributions relating to Transferred
Employees and to any period prior to Closing have been paid in due course or
shall be paid when due. There are no audits, investigations or reassessments
relating to social security pending or, to the knowledge of Asset Sellers,
threatened with respect to the Transferred Employees. This representation and
warranty shall survive and be valid and enforceable until expiry of the relevant
statute of limitation.
5A.6 INSURANCE. The Acquired Assets, and in particular the Real
Property, are covered by currently effective insurance policies with insurance
companies in such minimum types and amounts as are consistent with customary
practices applicable in Switzerland for pharmaceutical API manufacturing.
Insurance policies held by and previously disclosed to Asset Buyer by Asset
Sellers are in full force and effect. As of Closing, Asset Sellers are not in
material default under any of them nor, to the knowledge of Asset Sellers, has
any insurer threatened in writing to terminate any of these policies. As of
Closing, no claims exist under any insurance policy in relation to the Acquired
Assets.
5A.7 REGISTRATIONS. Asset Sellers possess all those material
governmental licenses, permits and authorizations necessary for the manufacture
of the Products as currently produced.
5A.8 TAXES. There are no encumbrances on any of the Acquired Assets
that arose in connection with any failure or alleged failure to pay any Tax.
This representation and warranty shall survive and be valid and enforceable
until expiry of the relevant statute of limitation.
5A.9 TECHNICAL EQUIPMENT AND OTHER PERSONAL PROPERTY. There are no
charges, pledges or any other liens on any of the Technical Equipment and Other
Personal Property and Asset Seller 1 represents and warrants that it is the sole
owner of all Technical Equipment and Other Personal Property, where applicable.
Asset Seller 1 further represents and warrants that all Technical Equipment and
Other Personal Property are in good working condition, subject to usual wear and
tear, and have been properly maintained and revised in due time so that they can
be effectively used for their intended purposes as stated in this Agreement.
5A.10 REAL PROPERTY. Asset Seller 2 is the legal and beneficial owner
of the Real Property and Asset Seller 1 has exclusive occupation of the Real
Property. There are no
Seigfried Asset Purchase Agreement 10
circumstances which would entitle any third party to exercise any powers or
rights of entry or to take possession which may restrict in any way whatsoever
the ownership and/or continued possession, use and/or enjoyment of the Real
Property, except for the Permitted Encumbrances.
Subject to filing of the real estate register applications by Asset
Buyer upon Closing, there are, upon Closing, no Encumbrances other than the
Permitted Encumbrances in respect of the Real Property. There is no dispute,
claim, action, demand or complaint which is outstanding or threatened in respect
of the Real Property or any part thereof.
The current use of the Real Property is a lawful use under all relevant
municipal, cantonal and federal planning and administrative legislation and
Asset Sellers are not aware of any outstanding orders, notices or other
requirements of any authority which may adversely affect the existing and future
use of the Real Property.
No development, alterations, extensions or other improvements have been
carried out in relation to any part of the Real Property which are unlawful or
have been carried out without all necessary consents, approvals, orders, permits
and permissions.
There are no resolutions, proposals, orders or acts made for the
compulsory acquisition or change in approved use of any part of the Real
Property.
The Real Property is free of any asbestos, except in the roof in the
form of Eternit cement tiles. In the event that, at any time, any legal
obligation to remove or treat such asbestos arises, all such costs shall be
exclusively borne by Asset Sellers. The Real Property is currently in full
conformity with all the fire security laws, regulations and requirements
applicable in Zofingen.
ARTICLE 6
COVENANTS AND AGREEMENTS
6.1 BOOKS AND RECORDS; COOPERATION. Asset Sellers shall, upon
request of Asset Buyer, deliver copies or, where no longer needed by Asset
Sellers or where legally required by Asset Buyer, originals of all books and
records, documents and other information, in whatever form, relevant to the
Acquired Assets and the Transferred Employees, to Asset Buyer at any time during
the term of this Agreement. Asset Sellers shall permit Asset Buyer, during the
whole term of this Agreement, to inspect books, records and documentation in
relation to the Acquired Assets when and as reasonably required by Asset Buyer.
To the extent that the books and records, documents and other information relate
partially to Asset Sellers' assets and contracts other than the Acquired Assets
and Transferred Employees, Asset Seller shall provide Asset Buyer excised
portions of such information. This Article also covers Asset Sellers' duty to
Seigfried Asset Purchase Agreement 11
provide to Asset Buyer, at any time during the duration of this Agreement upon
Asset Buyer's request, copy of the Regulatory Documentation, including the
Registrations and all quality and safety related documentation, that may be
required to obtain or maintain all necessary licences from authorities to
operate the facility for the intended manufacturing of the Products.
6.2 TRANSFERRED EMPLOYEES. (a) Asset Seller 1 shall use its best
efforts to cause all the employees of Asset Seller 1 listed on SCHEDULE 6.2(a)
(the "TRANSFERRED EMPLOYEES") to remain employed with Asset Buyer in accordance
with the provisions of ARTICLE 6.2(b) below. SCHEDULE 6.2(a) contains a complete
and accurate list of the names of the Transferred Employees, containing their
positions, start dates, base pay, bonus payments, age, settlement agreements,
company cars (any deductions, tax treatment, allowances, including savings
supplements by Asset Seller 1), benefits, any other incentives, company loans to
employees and any other ongoing deductions.
(b) Asset Seller 1 and Asset Buyer acknowledge and agree that due to
the sale of the Acquired Assets by Asset Sellers to Asset Buyer, the contracts
of employment of the Transferred Employees are being transferred by operation of
law (art. 333 et seq. of the Swiss Code of Obligations) to Asset Buyer on the
Closing as if originally made between Asset Buyer and the Transferred Employees.
To the extent required by Swiss law, Asset Seller 1 shall be responsible for
complying with all obligations under applicable law to send a notification
and/or consult with any Transferred Employee with respect to the transactions
contemplated by this Agreement, in accordance with applicable law prior to the
Closing. Immediately following execution of this Agreement, Asset Sellers shall
or shall procure that all information and consultation processes pursuant to
applicable law, any collective bargaining, company-wide collective agreement,
shop, trade union, recognition, work council or other similar agreement,
undertaking or practice are complied with in respect of informing and consulting
with the Transferred Employees.
(c) Asset Buyer shall be responsible for all employer liabilities in
connection with any Transferred Employees actually transferred to Asset Buyer
(including any wages or amounts due under any of Asset Sellers' or Siegfried's
group plans or employee benefit plans accruing after the Closing. Asset Sellers
shall be responsible for all employer liabilities in connection with any
Transferred Employees actually transferred to Asset Buyer (including any wages
or amounts due under any of Asset Sellers' or Siegfried's group plans or
employee benefit plans accruing up to and including the Closing; this includes
any and all severance benefits and/or government required termination
liabilities). Upon written demand and receipt of proper documentation, the
Parties shall reimburse each other to the extent they pay for any employer
liability in connection with any Transferred Employees that is, under the regime
of this Article, owed by the other Party.
Seigfried Asset Purchase Agreement 12
(d) Asset Seller 1 shall take all steps within its control to
procure that all the pension fund entitlements of the Transferred Employees be
transferred to the pension scheme to be set up by the Asset Buyer or,
alternatively, as the case may be, Asset Seller 1 shall fully cooperate with
Asset Buyer to procure that the pension scheme and all entitlements of the
Transferred Employees deriving from such pension scheme come along with the
Transferred Employees and continue to be in place at least as beneficial as for
the Transferred Employees as before the Closing. Asset Seller 1 shall inform the
various insurance carriers regarding the transfer of the benefit arrangements
and retirement plans and insurance contracts that pertain to the Transferred
Employees. Asset Buyer shall execute, make, acknowledge and deliver such
instruments, agreements and other documents as may be required by the insurance
carriers.
(e) The Parties shall take all steps within their control to procure
that those Transferred Employees who are a party to Siegfried Holding Employee
Share Purchase Plan agree upon the replacement of this participation by an
equitable increase of their salary.
6.3 FURTHER ASSURANCES. Following the Closing, Asset Sellers and
Asset Buyer will execute and deliver such additional instruments, documents,
conveyances or assurances and take such other actions as shall be necessary, or
otherwise reasonably requested by Asset Sellers or Asset Buyer, as applicable,
to confirm and assure the rights and obligations provided for in this Agreement
and any other transaction agreements and render effective the consummation of
the transactions contemplated hereby and thereby.
6.4 REAL PROPERTY DEED. At the signing of this Agreement, Asset
Buyer and Asset Sellers shall sign the Real Property Deed, in the form attached
hereto as EXHIBIT 5.4
6.5 TECHNICAL SERVICES AGREEMENT. At the signing of this Agreement,
Asset Buyer and Asset Seller1 have entered into the Technical Services Agreement
attached hereto as EXHIBIT 5.5
6.6 TOLL MANUFACTURING AGREEMENT. At the signing of this Agreement,
Asset Buyer and Asset Seller1 have entered into the Toll Manufacturing Agreement
attached hereto as EXHIBIT 5.6
6.7 GMP AGREEMENT. At the signing of this Agreement, Asset Buyer and
Asset Seller1 shall have entered into the GMP Agreement attached hereto as
EXHIBIT 6.7.
6.8 UNDERTAKING AND AGREEMENT IN RELATION TO THE USE AND OPERATION
OF ACQUIRED ASSETS. (a) Asset Buyer undertakes to comply at all times with Asset
Sellers' safety, health, environmental and technical standards. Asset Buyer
further undertakes to only produce products
Seigfried Asset Purchase Agreement 13
and use substances in respect of which Asset Buyer can demonstrate that their
production, use and handling on site is and will be in compliance with Asset
Sellers' safety, health and environmental standards as well as with Asset
Sellers' permit framework.
(b) Asset Seller 1 shall have the right to use ***% of the
production capacity of the Acquired Assets for Siegfried's production. Asset
Seller 1 shall pay Asset Buyer for Asset Buyer's *** costs including material
costs and costs charged pursuant to the Technical Services Agreement. This right
shall include the pro rata use of Transferred Employees ***. In the event that
more production capacity is available Asset Buyer may offer to Asset Seller 1 to
use it at the same cost terms as for the right to use ***% of the production
capacity, including the right to make pro rata use of the Transferred Employees
***.
6.9 MAINTENANCE AND CAPITAL INVESTMENTS. Asset Sellers have advised
Asset Buyer that the estimated cost in order to maintain the Acquired Assets in
a condition similar to their current condition for the foreseeable future is
around CHF *** for the next *** year period; it is estimated that the value of
the replacement investments will amount to approximately CHF ***. These figures
are estimates and for information only.
6.10 INSURANCE. Asset Sellers undertake to maintain and insure all
assets not expressly forming part of the Acquired Assets, including all assets
in or for common use. Asset Sellers further undertake to keep appropriate
insurance cover for all property and assets in Asset Sellers' care, custody or
control. The premiums and costs shall be shared among the Parties pro rata to
their interest share in the Acquired Assets and non transferred assets. The Real
Property insurance will be maintained by Asset Seller 2, insuring Asset Seller 2
and Asset Buyer each for their respective ownership interest in the Real
Property. Asset Buyer undertakes to maintain and insure all Acquired Assets and
to maintain appropriate insurance cover for all Acquired Assets, except to the
extent insured by Asset Sellers'.
6.11 ENVIRONMENTAL. Asset Buyer and Asset Sellers agree that in
relation to any pollution or contamination in, on or above the land of the Real
Property existing before the Closing (including, for the sake of clarity any
pollution or contamination with asbestos), as mentioned in the Siegfried reports
from Pit Hofer dated 28 August 2001 ("Altlasten-Voruntersuchung") and updated on
6 February 2002 and on 6 January 2004 and since the site is presently mentioned
in the cantonal register of polluted sites, Asset Sellers shall be solely and
exclusively liable for the payment of any investigation expenses or of any
excavation, depollution or sanitation costs and for any and all liability
created either to Asset Buyer or to any third parties or public entities for
damages and cost incurred by Asset Buyer or such third parties or public
entities as a result of any such pollution or contamination existing at Closing,
as well as for any and all cost of remediation to be undertaken upon order of
the competent authority or voluntarily undertaken as reasonably required in any
given circumstances. In the event of any
Seigfried Asset Purchase Agreement 14
new pollution or contamination in, on or above the land of the Real Property
being created after the Closing, while Asset Buyer is owner of the Real
Property, liability shall extend exclusively to the Party causing or being
otherwise responsible for such pollution - e.g. based on art. 55 CO - (the
"POLLUTER") and any and all cost of remediation to be undertaken upon order of
the competent authority or upon unilateral but reasonable request of either
Party shall be borne by the Polluter. If more than one Party is a Polluter, then
such Polluters shall share in the liability to third parties and in any
remediation cost in accordance with their contribution in the causation of the
liability or cost and, if applicable, in accordance with their responsibility on
other grounds - e.g. based on art. 55 CO. However, any possible liability of
Asset Buyer for such a new pollution or contamination shall be in any case
extinguished *** years after the sale of the Real Property to any Asset Seller
or to any third party, except for liability of Asset Buyer to persons and
entities other than Asset Sellers. In addition, to the extent responsibility for
any new pollution or contamination created after the Closing cannot be
attributed to a Party as set forth in this Article, liability to third parties
or public entities and cost for remediation shall be attributed solely and
exclusively to the Asset Sellers. Notwithstanding the above, during the period
of *** years after the sale of the Real Property by Asset Buyer to any Asset
Sellers or to any third party, Asset Buyer shall only be responsible for
pollution or contamination that (a) Asset Sellers can prove originates from the
period of Asset Buyer's ownership of the Real Property , and (b) constitutes a
pollution or contamination comprising of ***, its intermediates or another
product (or intermediate thereof) produced by Asset Buyer and not produced by
Asset Sellers.
6.12 SALE BACK OPTION OF ASSET BUYER. (a) Upon serving *** months
written notice, Asset Buyer shall for a period of *** months have the right to
sell the Real Property back to any of the two Asset Sellers for *** Swiss Franc,
the first time upon the fifth anniversary of the Closing and then ***
thereafter, provided that the Real Property shall not have a *** due to a cause
attributable to Asset Buyer. In any event, any contamination or pollution that
is not exclusively attributable to Asset Buyer shall not be taken into account
while assessing the value of the Acquired Assets. Such *** shall be determined
by an international audit or valuation firm mutually agreeable by the Parties.
In the event of a *** Asset Sellers would be entitled to refuse to repurchase
the Real Property.
(b) Upon serving *** months written notice, Asset Buyer shall for a period of
*** months have the right to sell all Technical Equipment and Other Tangible
Personal Property back to Asset Seller 1 for *** Swiss Franc, the first time
upon the fifth anniversary of the Closing and then quarterly thereafter,
provided that all Technical Equipment and Other Tangible Personal Property shall
not have a *** due to a cause attributable to Asset Buyer. In any event, any
contamination or pollution that is not exclusively attributable to Asset Buyer
shall not be taken into account while assessing the value of the Acquired
Assets. Such *** shall be determined by an international audit or valuation firm
mutually agreeable by the Parties.
Seigfried Asset Purchase Agreement 15
In the event of a *** Assets Sellers would be entitled to refuse to repurchase
all Technical Equipment and Other Tangible Personal Property.
(c) The Parties shall share equally all notary and real property
register fees, as well as all transfer Taxes and other transfer costs.
(d) Any of the instalment payments pursuant to ARTICLE 3.2.3 that
have not become due up to the moment of completion of the sale back options
hereunder shall be automatically cancelled as of such completion date.
(e) The sale back option of Asset Buyer as provided under this
Article for the Real Property shall be incorporated in the Real Property Deed.
6.13 RIGHT OF FIRST REFUSAL OF ASSET SELLERS. (a) For a period of
twenty-five (25) years from the Closing, Asset Seller 2 shall have a right of
first refusal ("Vorkaufsrecht") according to art. 216 CO as further specified in
the Real Property Deed in relation to the Real Property, exercisable at the
lower of the price offered by a third party buyer or CHF ***. The right of first
refusal shall be entered ("vorgemerkt werden") in the real property register.
(b) For a period of twenty-five (25) years from Closing, Asset
Seller 1 shall have a right of first refusal ("Vorkaufsrecht") in analogy to
art. 216 in relation to all Technical Equipment and Other Tangible Property.
6.14 ASSET SELLERS' RIGHT TO BUY BACK THE ACQUIRED ASSETS. (a) Upon
serving *** months written notice, Asset Seller 2 shall for a period of ***
months have the right to buy back the Real Property sold to Asset Buyer for ***
Swiss Franc, the first time upon the *** anniversary of the Closing and then
annually upon each anniversary of the Closing until the 25th anniversary of the
Closing. This right to buy back is to be set forth in the Real Property Deed and
shall be registered ("vorgemerkt werden") in the real property register.
(b) Upon serving *** months written notice, Asset Seller 1 shall for
a period of *** months have the right to buy back "en bloc" all Technical
Equipment and Other Tangible Personal Property for *** Swiss Franc, to the
extent still available, the first time upon the *** anniversary of the Closing
and then annually upon each anniversary of the Closing until the 25th
anniversary of the Closing.
6.15 COMMUNITY OF CO-OWNERS ("STOCKWERKEIGENTUMERGEMEINSCHAFT").
Asset Buyer and Asset Seller 2 shall delegate one or more authorized
representatives into the meetings of the Community of Co-Owners.
Seigfried Asset Purchase Agreement 16
ARTICLE 7
MISCELLANEOUS
7.1 ASSIGNMENT. This Agreement may not be assigned or otherwise
transferred by either Party without the consent of the other Parties which shall
not be unreasonably withheld. Any purported assignment in violation of the
preceding sentence shall be void. Nothing in this Agreement, express or implied,
is intended to or shall confer upon any other Person or Persons any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
7.2 EXPENSES. Except as otherwise specified in this Agreement, each
Party shall bear its own expenses with respect to the transactions contemplated
by this Agreement, including, without limitation, attorneys' fees and other
expenses related to the preparation and execution of this Agreement and any
Transaction Agreement and the completion of this Agreement and any Transaction
Agreement. All of the notary cost for the parceling, the formation of the
Stockwerkeigentum units in relation to the Real Property Deed and any real
property transfer Tax shall be equally shared between Asset Seller 2 and Asset
Buyer.
7.3 CONFIDENTIALITY. During the term of this Agreement the Parties
shall and shall cause their employees, representatives and advisors to maintain
in confidence the content of this Agreement and the Ancillary Agreements,
subject always to the Parties' legal obligations.
7.4 PUBLIC ANNOUNCEMENT PERTAINING TO THIS AGREEMENT AND THE
TRANSACTION AGREEMENTS. Asset Buyer and Asset Sellers shall consult before
issuing media releases or otherwise making any public statements and they shall
not issue any such media release or statement without the prior approval of the
other, it being understood that the Parties shall be free to timely comply with
legal disclosure requirements (in particular with requirements of the stock
exchanges where a Party is listed) without the prior approval from the other
Party, in which case such Party shall immediately inform the other Party of such
disclosure requirements and of the contents of the planned disclosure.
7.5 SEVERABILITY. Each of the provisions contained in this Agreement
shall be severable, and the unenforceability of one shall not affect the
enforceability of any others or of the remainder of this Agreement.
7.6 AMENDMENT. This Agreement may not be amended, supplemented or
otherwise modified except by an instrument in writing signed by all of the
Parties hereto.
Seigfried Asset Purchase Agreement 17
7.7 WAIVER. The failure of any Party to enforce any condition or
part of this Agreement at any time shall not be construed as a waiver of that
condition or part, nor shall it forfeit any rights to future enforcement
thereof.
7.8 GOVERNING LAW. This Agreement and all documents related thereto
shall be governed by the laws of Switzerland, excluding the United Nations
Convention on the International Sales of Goods, except if otherwise stated in
writing in any such related document.
7.9 TERM OF THIS AGREEMENT. This Agreement is firm for a period
expiring at the 25th anniversary of the Closing, except to the extent otherwise
agreed in writing by the Parties and except to the extent it becomes redundant
before.
7.10 ARBITRATION; VENUE. Any and all disputes arising in connection
with this Agreement shall be finally settled by arbitration under the Swiss
Rules of International Arbitration of the Swiss Chambers of Commerce in force on
the date when the notice of arbitration is submitted. The number of arbitrators
shall be three. The seat of the arbitration shall be in Zurich and English shall
be the language of the arbitration. If disputes are arising out of or relating
to two or more agreements connected to this Agreement, the same arbitrators will
be appointed in all cases.
7.11 COUNTERPARTS; LANGUAGE. The Parties may execute this Agreement
in one or more counterparts, and each fully executed counterpart shall be deemed
an original. This Agreement in the English language shall be the controlling
text in as far as allowable under applicable law.
7.12 NOTICES. All communications, notices and consents provided for
herein shall be in writing and be given in person or by means of facsimile (with
request for assurance of receipt in a manner typical with respect to
communications of that type) or by registered mail or overnight courier, and
shall become effective: (a) on delivery if given in person; (b) on the date of
transmission if sent by facsimile or (c) upon receipt if delivered through
registered mail or courier service.
Notices shall be addressed as follows:
If to one or both of the Asset Sellers, to:
Siegfried Ltd.
Untere Bruhlstrasse 4
4800 Zofingen
Seigfried Asset Purchase Agreement 18
With copy to: Siegfried Holding Ltd.
CFO
Untere Bruhlstrasse 4
4800 Zofingen
If to Asset Buyer to: Celgene Chemicals Sarl
Untere Bruhlstrasse 4
4800 Zofingen
With copy to: Celgene International Sarl
Faubourg du Lac 11
CH-2000 Neuchatel
PROVIDED, HOWEVER, that if any Party shall have designated a different
address by notice to the others, then to the last address so designated.
[REMAINDER OF THE PAGE LEFT IN BLANK INTENTIONALLY]
Seigfried Asset Purchase Agreement 19
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
ASSET SELLER 1: ASSET SELLER 2:
Siegfried Ltd. Siegfried Dienste AG
By: __________________________ By: __________________________
Name: Hubert Stuckler Name: Hans Baumann
Title: Head Siegfried Actives Title: Head Engineering
By: __________________________ By: __________________________
Name: Richard Schindler Name: Richard Schindler
Title: Chief Financial Officer Title: Chief Financial Officer
ASSET BUYER:
Celgene Chemicals Sarl
By: __________________________
Name: Michael Morrissey
Title: Board Member
By: __________________________
Name: Jurg Oehen
Title: Board Member
Seigfried Asset Purchase Agreement 20
SCHEDULE 1.1
DEFINITIONS
"ACQUIRED ASSETS" is defined in ARTICLE 2.1 and includes the Real
Property, on the one hand, and all Technical Equipment and Other Tangible
Personal Property, on the other.
"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, a Person shall be
deemed to control another Person if it owns or controls, directly or indirectly,
at least fifty percent (50%) of the voting equity of the other Person (or other
comparable ownership if the Person is not a corporation).
"AGREEMENT" shall mean this Asset Purchase Agreement (including its
Schedules), as amended, modified or supplemented from time to time.
"BUSINESS DAY" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in Switzerland are authorized or required by Law
to close.
"CC" means the Swiss Civil Code ("Schweizerisches Zivilgesetzbuch") as
amended from time to time.
"CLOSING" shall mean the date of consumption of this Agreement as stated
in -ARTICLE 5.1
"CLOSING DATE" shall have the meaning ascribed to it in ARTICLE 5.1
"CLOSING PAYMENT" means the payment according to ARTICLE 3.3.1
"CO" means the Swiss Code of Obligations ("Schweizerisches
Obligationenrecht") as amended from time to time
"CONSENT" shall mean any consent, approval, authorization, consultation,
waiver, permit, grant, agreement, license, certificate, exemption, order,
registration, declaration, filing or notice of, with or to any Person or under
any law, in each case required to permit the consummation of any of the
transactions contemplated hereby.
"ENCUMBRANCE" shall mean with respect to any Acquired Assets, any lien,
mortgage, adverse ownership claim, restriction, pledge, security interest,
easement, servitude, other encumbrance and/or any other third party rights.
"GOVERNMENTAL APPROVAL" shall mean any Consent of, with or to any
Governmental Authority.
Seigfried Asset Purchase Agreement 21
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, provincial or
local government, quasi-governmental authority, or other political subdivision
thereof; any entity, authority, instrumentality or body exercising executive,
legislative, judicial, regulatory or administrative functions of any such
government, quasi-governmental authority or other political subdivision; and any
supranational organization exercising such functions for any sovereign states,
whether international, multinational, regional or otherwise.
"GOVERNMENTAL ORDER" shall mean, with respect to any Person, any
judgment, order, writ, injunction, decree, stipulation, agreement, determination
or award entered or issued by or with any Governmental Authority and binding on
such Person.
"GUARANTY" shall mean the Guaranty according to ARTICLE 4 and set forth
on EXHIBIT 4.
"PERMITS" shall mean licenses, consents, approvals, permits and other
Governmental Approvals.
"PERMITTED ENCUMBRANCE" shall mean exclusively easements, encroachments,
restrictions of way, servitudes or other restrictions valid by virtue of law or
registered in the real property register, as well as zoning, building and other
similar public law restrictions.
"PERSON" shall mean an individual or a legal entity or a quasi-legal
entity such as a partnership.
"POLLUTER" is defined in ARTICLE 6.11.
"PRODUCTS" shall mean *** and ***.
"PURCHASE PRICE" is defined in ARTICLE 3.1.
"REAL PROPERTY" is defined in ARTICLE 2.1(A).
"REAL PROPERTY DEED" is defined in ARTICLE 6.4 and shown as EXHIBIT 6.4.
"REGISTRATIONS" shall mean the product registrations currently held by
Asset Sellers relating to the Products, issued by the Governmental Authorities.
"REGULATORY DOCUMENTATION" shall mean, in relation to Products or the
Acquired Assets, the Registrations supported by and including: (i) the original
documents under the possession of Asset Seller (or that are accessible to Asset
Seller using commercially reasonable efforts) evidencing the Registrations
issued to Asset Seller by a Governmental Authority, in each case to the extent
assignable with or without the consent of the issuing Governmental Authority;
and (ii) all related Registration applications, clinical research and trial
agreements and other documentation, research tools, laboratory notebooks, files
and correspondence with regulatory
Seigfried Asset Purchase Agreement 22
agencies and quality reports and all relevant pricing information and
correspondence with Governmental Authorities with respect to such pricing
matters.
"TAX OR TAXES" shall mean any taxes of any kind including, but not
limited to those measured on, measured by or referred to as, income, alternative
or add-on minimum, gross receipts, capital, capital gains, sales, use, ad
valorem, franchise, profits, license, privilege, transfer, withholding, payroll,
employment, social, excise, severance, stamp, occupation, premium, value added,
property, environmental or windfall profits taxes, customs, duties or similar
fees, assessments or charges of any kind whatsoever, together with any interest
and any penalties, additions to tax or additional amounts imposed by any
Governmental Authority.
"TECHNICAL EQUIPMENT AND OTHER TANGIBLE PROPERTY" shall mean all
tangible personal property, including machinery, equipment, mechanical and spare
parts, supplies, fixtures, tools and other tangible property of any kind held by
Asset Seller to the extent listed on SCHEDULE 2.1 (b)
"TRANSACTIONS AGREEMENTS" shall mean the Real Property Deed and the
agreements and undertakings shown in Exhibits to this Agreement, as amended,
modified or supplemented from time to time.
"TRANSFERRED EMPLOYEES" is defined in ARTICLE 6.2.
Seigfried Asset Purchase Agreement 23