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Exhibit 4(a)(3)




EXECUTION COPY




      




ASSET PURCHASE AGREEMENT




among



JANSSEN PHARMACEUTICAL,



JUNO NEUROSCIENCES,



ELAN CORPORATION, PLC



and



THE OTHER PARTIES IDENTIFIED HEREIN



Dated as of July 2, 2009



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	Purchase and Sale of Acquired Assets
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Purchase and Sale
	 	 	1	 
	SECTION 1.02. Acquired Assets and Excluded Assets
	 	 	2	 
	SECTION 1.03. Assumption of Certain Liabilities
	 	 	5	 
	SECTION 1.04. Consents of Third Parties
	 	 	8	 
	SECTION 1.05. Securities Compliance
	 	 	8	 
	 
	 	 	 	 
	 
	ARTICLE II
	 	 	 	 
	 
	The Closing
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. Closing Date
	 	 	9	 
	SECTION 2.02. Transactions To Be Effected at the Closing
	 	 	9	 
	SECTION 2.03. Risk of Loss
	 	 	9	 
	 
	 	 	 	 
	 
	ARTICLE III
	 	 	 	 
	 
	Representations and Warranties of Lucky Parent and Sellers
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Organization, Standing and Power
	 	 	10	 
	SECTION 3.02. Authority; Execution and Delivery; Enforceability
	 	 	10	 
	SECTION 3.03. No Conflicts; Consents
	 	 	11	 
	SECTION 3.04. Undisclosed Assumed Liabilities
	 	 	12	 
	SECTION 3.05. Assets
	 	 	12	 
	SECTION 3.06. Intellectual Property
	 	 	12	 
	SECTION 3.07. Contracts
	 	 	20	 
	SECTION 3.08. Inventory
	 	 	23	 
	SECTION 3.09. Permits
	 	 	23	 
	SECTION 3.10. Regulatory Matters
	 	 	24	 
	SECTION 3.11. Insurance
	 	 	26	 
	SECTION 3.12. Sufficiency of Acquired Assets
	 	 	27	 
	SECTION 3.13. Taxes
	 	 	27	 
	SECTION 3.14. Proceedings
	 	 	27	 
	SECTION 3.15. Benefit Plans
	 	 	28	 
	SECTION 3.16. Absence of Changes or Events
	 	 	29	 
	SECTION 3.17. Compliance with Applicable Laws
	 	 	30	 
	SECTION 3.18. Employee and Labor Matters
	 	 	30	 
	SECTION 3.19. Transactions with Affiliates
	 	 	30	 
	SECTION 3.20. Collaboration Agreement
	 	 	31	 
	SECTION 3.21. Brokers
	 	 	31	 






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	 	 	Page
	SECTION 3.22. Information Supplied
	 	 	31	 
	SECTION 3.23. Effect of Transaction
	 	 	31	 
	SECTION 3.24. No Other Warranties
	 	 	31	 
	 
	 	 	 	 
	 
	ARTICLE IV
	 	 	 	 
	 
	Representations and Warranties of Jupiter Parent and the Company
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. Organization, Standing and Power
	 	 	32	 
	SECTION 4.02. Authority; Execution and Delivery; Enforceability
	 	 	32	 
	SECTION 4.03. No Conflicts; Consents
	 	 	32	 
	SECTION 4.04. The Company Stock
	 	 	33	 
	SECTION 4.05. Business of the Company
	 	 	33	 
	SECTION 4.06. Brokers
	 	 	34	 
	SECTION 4.07. No Other Warranties
	 	 	34	 
	 
	 	 	 	 
	 
	ARTICLE V
	 	 	 	 
	 
	Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Covenants of Lucky Parent and each Seller Relating to Operation and Conduct
of the Business
	 	 	34	 
	SECTION 5.02. Covenants of Jupiter Parent and the Company
	 	 	37	 
	SECTION 5.03. No Solicitation
	 	 	37	 
	SECTION 5.04. Access to Information
	 	 	38	 
	SECTION 5.05. Confidentiality
	 	 	38	 
	SECTION 5.06. Required Actions
	 	 	39	 
	SECTION 5.07. Expenses
	 	 	41	 
	SECTION 5.08. Post-Closing Cooperation
	 	 	41	 
	SECTION 5.09. Publicity
	 	 	44	 
	SECTION 5.10. Further Assurances
	 	 	44	 
	SECTION 5.11. Tax Matters
	 	 	44	 
	SECTION 5.12. Post-Closing Insurance Claims
	 	 	46	 
	SECTION 5.13. Lucky Parent Guarantee; Jupiter Parent Guarantee
	 	 	46	 
	SECTION 5.14. Transaction Documents
	 	 	47	 
	 
	 	 	 	 
	 
	ARTICLE VI
	 	 	 	 
	 
	Conditions Precedent
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Conditions to Each Party’s Obligation
	 	 	48	 
	SECTION 6.02. Conditions to Obligations of Jupiter Parent and the Company
	 	 	48	 
	SECTION 6.03. Conditions to Obligations of Lucky Parent and each Seller
	 	 	49	 
	SECTION 6.04. Frustration of Closing Conditions
	 	 	50	 






ii









 






	 	 	 	 	 
	 	 	Page
	ARTICLE VII
	 	 	 	 
	 
	Termination, Amendment and Waiver
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01. Termination
	 	 	50	 
	SECTION 7.02. Effect of Termination
	 	 	51	 
	SECTION 7.03. Amendments and Waivers
	 	 	52	 
	 
	 	 	 	 
	 
	ARTICLE VIII
	 	 	 	 
	 
	Indemnification
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01. Indemnification by Lucky Parent and each Seller
	 	 	52	 
	SECTION 8.02. Indemnification by Jupiter Parent and the Company
	 	 	52	 
	SECTION 8.03. Termination of Indemnification
	 	 	53	 
	SECTION 8.04. Procedures
	 	 	54	 
	SECTION 8.05. Survival of Representations and Covenants
	 	 	58	 
	SECTION 8.06. Tax Treatment of Indemnification Payments
	 	 	58	 
	SECTION 8.07. Exemplary or Punitive Damages
	 	 	58	 
	SECTION 8.08. Claims under Collaboration Agreement; Turnover
	 	 	58	 
	SECTION 8.09. Sole Remedy
	 	 	59	 
	 
	 	 	 	 
	 
	ARTICLE IX
	 	 	 	 
	 
	General Provisions
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01. Assignment
	 	 	59	 
	SECTION 9.02. No Third-Party Beneficiaries
	 	 	59	 
	SECTION 9.03. Notices
	 	 	59	 
	SECTION 9.04. Interpretation; Exhibits and Schedules; Certain Definitions
	 	 	61	 
	SECTION 9.05. Counterparts
	 	 	73	 
	SECTION 9.06. Entire Agreement
	 	 	73	 
	SECTION 9.07. Severability
	 	 	73	 
	SECTION 9.08. Consent to Jurisdiction
	 	 	73	 
	SECTION 9.09. GOVERNING LAW
	 	 	74	 
	SECTION 9.10. Waiver of Jury Trial
	 	 	74	 
	SECTION 9.11. Enforcement in Equity and at Law
	 	 	74	 
	SECTION 9.12. Other Subsidiaries
	 	 	74	 
	 
	Annex I — Index of Defined Terms
	 	 	78	 








	 	 	 	 	 
	Schedule A — Sellers
	 	 	 	 
	Schedule B — Joint Press Release
	 	 	 	 
	Schedule C — Allocation
	 	 	 	 
	 
	 	 	 	 
	Exhibit A — Subscription and Transfer Agreement
	 	 	 	 
	Exhibit B — Investment Agreement
	 	 	 	 






iii









 






	 	 	 	 	 
	Exhibit C — Shareholders’ Agreement
	 	 	 	 
	Exhibit D — Employment Matters Agreement
	 	 	 	 
	Exhibit E — Royalty Agreement
	 	 	 	 
	Exhibit F — License and Grant-Back Agreement
	 	 	 	 
	Exhibit G — Internal Asset Purchase Agreement
	 	 	 	 
	Exhibit H-1 — Wyeth Notice from the Company
	 	 	 	 
	Exhibit H-2 — Wyeth Notice from Elan Pharma International Limited and Lucky Collaboration Subsidiary
	 	 	 	 
	Exhibit I-1 — Wyeth Confirmation (Execution of Agreement) from the Company
	 	 	 	 
	Exhibit I-2 — Wyeth Confirmation (Execution of Agreement) from Lucky Collaboration Subsidiary
	 	 	 	 
	Exhibit J-1 — Wyeth Confirmation (Closing) from the Company
	 	 	 	 
	Exhibit J-2 — Wyeth Confirmation (Closing) from Lucky Collaboration Subsidiary
	 	 	 	 
	Exhibit K — Memorandum and Articles of Association of the Company
	 	 	 	 






iv









 






     ASSET PURCHASE AGREEMENT (this “Agreement”) dated as of July
2, 2009, among JANSSEN PHARMACEUTICAL, an Irish Unlimited Company
(“Jupiter Parent”), JUNO NEUROSCIENCES, an Irish Unlimited Company
(the “Company”), ELAN CORPORATION, PLC, an Irish Public Limited
Company (“Lucky Parent”), and THE SUBSIDIARIES OF LUCKY PARENT SET
FORTH ON SCHEDULE A HERETO (collectively, the “Sellers”, and each,
a “Seller”).



          WHEREAS Crimagua Limited, an Irish Limited Company (“Lucky Collaboration Subsidiary”)
and successor in interest to Elan Pharma International Limited, itself a successor in interest to
Neuralab Limited, and Wyeth (formerly known as American Home Products Corporation), a Delaware
corporation (“Wyeth”), are party to that certain Research, Development and
Commercialization Agreement dated as of March 17, 2000, as amended prior to the date hereof (the
“Collaboration Agreement”);




          WHEREAS each Seller is engaged, in whole or in part, in (or holds assets that are used, held
for use or intended for use in) the Business;




          WHEREAS the Acquired Assets comprise substantially all of the properties and assets of Lucky
Parent and its subsidiaries used, held for use or intended to be used in the Business; and




          WHEREAS upon the terms and subject to the conditions set forth in this Agreement, each Seller
desires to transfer, sell, convey, assign and deliver to the Company, and the Company desires to
purchase, acquire and accept, the Acquired Assets, free and clear of all liabilities (other than
Assumed Liabilities) and all Liens (other than Permitted Liens).




          NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements
contained in this Agreement, and subject to the conditions set forth in this Agreement, the parties
hereto hereby agree as follows:




ARTICLE I




Purchase and Sale of Acquired Assets



          SECTION 1.01. Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, at the Closing, each of the Sellers shall transfer, sell, convey, assign and
deliver to the Company (or any of its subsidiaries as may be designated by the Company), and the
Company (or any of its subsidiaries as may be designated by the Company) shall purchase, acquire
and accept from each of the Sellers, free and clear of all liabilities (other than Assumed
Liabilities) and all Liens (other than Permitted Liens), all of such Seller’s right, title and
interest as of the Closing in, to and under the Acquired Assets (other than the Licensed
Intellectual Property, which shall instead be licensed to the Company under the terms of the
License and Grant-Back Agreement), in consideration for (i) the issuance by the Company to Lucky



 









 






Collaboration Subsidiary of 499 Class O-E Shares (as defined in the Shareholders’ Agreement)
of the Company (the “Company Stock”), payable as set forth in Section 2.02 (the “Stock
Consideration”), (ii) the execution and delivery by the Company, Jupiter Parent and each
affiliate of Jupiter Parent or the Company, of each Specified Collaboration Document to which any
of them is, or is specified to be, a party and (iii) the assumption of the Assumed Liabilities by
the Company. The transactions described in the immediately preceding sentence are collectively
referred to in this Agreement as the “Acquisition”.




          SECTION 1.02. Acquired Assets and Excluded Assets. (a) The term “Acquired
Assets” means all the business, properties, assets, rights and claims of each Seller, of
whatever kind and nature, personal (but not real), tangible or intangible, that are owned, leased
or licensed by or on behalf of, such Seller on the Closing Date and used, held for use or intended
to be used in, or arising from, the operation or conduct of the Business, except to the extent
constituting Excluded Assets, including (to the extent not constituting an Excluded Asset):





     (i) the Business Intellectual Property (provided that the Licensed
Intellectual Property shall not be sold, conveyed or assigned to the Company, but
instead shall be licensed to the Company under the terms of the License and
Grant-Back Agreement), including the Assigned Intellectual Property set forth on
Section 1.02(a)(i) of the Seller Disclosure Letter;




     (ii) the Collaboration Agreement, and all Contracts (A) that are used, held
for use or intended to be used in, or that arise from, the operation or conduct of
the Business or (B) to which any Acquired Asset is subject, including the Contracts
set forth on Section 1.02(a)(ii) of the Seller Disclosure Letter (collectively, the
“Assigned Contracts”);




     (iii) all Permits issued by a Governmental Entity to, or owned, used, licensed
or possessed by or on behalf of, any Seller (including any pending application of
any Seller to a Governmental Entity for or with regard to any Permit and any
documents to or from any Governmental Entity), that are used, held for use or
intended to be used in, or arise from, the operation or conduct of the Business, to
the extent transferable, including the Permits set forth on Section 1.02(a)(iii) of
the Seller Disclosure Letter (the “Transferred Permits”);




     (iv) all drug substances, clinical lots, reference standards, reserve samples,
patient samples (including fluid, DNA and blood samples), vials, patient images and
scans, reagents, reference standards, vectors, DNA constructs, experimental and
manufacturing cell lines needed to perform assays, produce drug product or
reagents, hybridomas to Aß and for assays,, bulk drug substance and finished
product and other materials, wherever located, that are used, held for use or
intended to be used in, or arise from, the operation or conduct of the Business,
including the items



2









 







set forth on Section 1.02(a)(iv) of the Seller Disclosure Letter
(collectively, the “Inventory”);




     (v) all other tangible personal property and interests therein, including all
apparatus, materials, fixtures, tools, toolings, machinery, animal test subjects
and equipment, wherever located, that are used, held for use or intended to be used
in, or arise from, the operation or conduct of the Business (excluding any office
supplies, furniture or furnishings located at the Leased Facilities) (the
“Personal Property”); but excluding any personal property which is leased
by Sellers to the extent consent of a third party is required to assign Sellers’
interest and is not obtained on or prior to the Closing Date;




     (vi) any Reconciliation Payment apportioned to the Company in accordance with
Section 5.08(e);




     (vii) all rights, claims, causes of action and credits of each Seller to the
extent relating to (i) any Acquired Asset from and after the Closing or (ii) any
Assumed Liability, or arising from the operation or conduct of the Business,
including all guarantees, warranties, indemnities and similar rights in favor of
any Seller in respect of (x) any Acquired Asset from and after the Closing or (y)
any Assumed Liability;




     (viii) all data, reports, clinical study reports, audit reports, certificates,
laboratory notebooks, written notes, standard operating procedures, logs, master
label copy, studies, databases, raw or experimental data, records, research
records, personnel records in respect of Transferred Employees as expressly
provided in the Employment Matters Agreement, assay protocols, meeting minutes,
charters, meeting plans, preclinical and clinical trial data and documentation
(including protocols and any amendments thereto, investigations, brochures,
publications, interim and final reports, safety reports, toxicology reports, safety
data, raw data, batch records, certificates of analysis, data tables, derived data
sets, notes, source documents, files and summaries), vendor and supplier lists,
investigator lists, other distribution lists, files, documents and correspondence
relating to the Business, all sales and promotional literature (if any), manuals,
product drawings, blueprints and schematics and all other general, business and
technical records, files and documents (including market research reports,
commercial plans and strategic assessments, and, in all cases, in any form or
medium), of each Seller that are used, held for use or intended to be used in, or
that arise from, the conduct or operation of the Business, including the items set
forth on Section 1.02(a)(viii) of the Seller Disclosure Letter (collectively, the
“Acquired Records”); provided, however, that to the extent
any such Acquired Record is not exclusively related to the Business, Sellers will
deliver copies of such Acquired Record (redacted with respect to the portions
thereof which do not relate to the Business) and retain the original



3









 







Acquired Record and make such original Acquired Record available to the
Company upon request; and




     (ix) all assets of or relating to any Seller Benefit Plan that are transferred
to any employee benefit plan maintained by the Company or any of its affiliates as
expressly provided in the Employment Matters Agreement (collectively,
“Transferred Benefit Plan Assets”);




provided that, with respect to clauses (ii), (iii) and (viii) above,
Sellers shall be entitled to retain (subject to Section 5.05 hereof and clause 17
of the Shareholders’ Agreement) a copy of all such Assigned Contracts, Transferred
Permits and Acquired Records, in each case, for archival purposes only (such
copies, collectively, the “Retained Records”).




     (b) The term “Excluded Assets” means the following:




     (i) all cash and cash equivalents of each Seller;




     (ii) all Intellectual Property of each Seller, other than the Business
Intellectual Property (it being understood and agreed that the rights provided to
the Company under the License and Grant-Back Agreement shall not constitute an
Excluded Asset), including Intellectual Property specifically related to the
programs listed on Section 1.02(b)(ii) of the Seller Disclosure Letter;




     (iii) all Contracts to which any Seller is a party, other than the Assigned
Contracts, including the Contracts listed on Section 1.02(b)(iii) of the Seller
Disclosure Letter;




     (iv) all Permits issued by a Governmental Entity to, or owned, used, licensed
or possessed by or on behalf of, any Seller, other than the Transferred Permits;




     (v) all data, reports, clinical study reports, audit reports, certificates,
laboratory notebooks, written notes, standard operating procedures, logs, master
label copy, studies, databases, raw or experimental data, records, research
records, assay protocols, meeting minutes, charters, meeting plans, preclinical and
clinical trial data and documentation (including protocols and any amendments
thereto, investigations, brochures, publications, interim and final reports, safety
reports, toxicology reports, safety data, raw data, batch records, certificates of
analysis, data tables, derived data sets, notes, source documents, files and
summaries), vendor and supplier lists, investigator lists, other distribution
lists, files, documents and correspondence, all sales and promotional literature
(if any), manuals, product drawings, blueprints and schematics and all other
general, business, technical, financial, accounting and personnel records, files
and documents (including market research reports, commercial plans and strategic
assessments, and, in all



4









 







cases, in any form or medium), of each Seller, other than the Acquired
Records;




     (vi) all financial and accounting records (including books of account,
budgets, forecasts, financial models, financial communications and reports, audit
documentation, historical financial information, ledgers and other financial
records, and, in all cases, in any form or medium) of Lucky Parent or any Seller
(it being understood and agreed that Lucky Parent and each Seller shall provide
Jupiter Parent and the Company access to each of the foregoing in accordance with
Section 5.08) (collectively, the “Retained Financial Records”);




     (vii) all rights, claims, causes of action and credits of each Seller to the
extent relating to any Excluded Asset or any Excluded Liability, including all
guarantees, warranties, indemnities and similar rights in favor of any Seller in
respect of any Excluded Asset or any Excluded Liability;




     (viii) all assets of the Seller Benefit Plans, other than Transferred Benefit
Plan Assets;




     (ix) any and all Tax assets of any Seller, including, any Tax claims or rights
to Tax refunds;




     (x) the Retained Records;




     (xi) all real property, whether owned or leased, of any Seller, and all rights
pertaining to such real property; and




     (xii) all rights of each Seller under this Agreement and the Transaction
Documents.



          SECTION 1.03. Assumption of Certain Liabilities. (a) Upon the terms and subject
to the conditions of this Agreement, the Company shall assume, effective as of the Closing, and
from and after the Closing the Company shall pay, perform and discharge when due, only the
following liabilities, obligations and commitments of each Seller; provided however, that
Collaboration Expenses and Reconciliation Payments shall be apportioned in accordance with Section
5.08:





     (i) all liabilities, obligations and commitments of each Seller under the
Assigned Contracts to the extent such liabilities, obligations and commitments
arise from the operation or conduct of the Business after the Closing;




     (ii) all liabilities, obligations and commitments of each Seller in respect of
Product Liability Claims (as defined in the Collaboration Agreement) by any person
in respect of any Product (as defined in the



5









 







Collaboration Agreement), other than to the extent such liabilities,
obligations or commitments constitute Excluded Collaboration Liabilities;




     (iii) all liabilities, obligations and commitments of each Seller to the
extent arising from the ownership of the Acquired Assets after the Closing; and




     (iv) all liabilities, obligations and commitments of each Seller with respect
to the Transferred Employees relating to employment or employee benefits that the
Company has specifically agreed to assume pursuant to the Employment Matters
Agreement (the “Covered Employee Liabilities”).



          The liabilities, obligations and commitments of each Seller described in clauses (i), (ii),
(iii) and (iv) of this Section 1.03(a) are collectively referred to herein as the “Assumed
Liabilities” (it being understood and agreed, however, that the term Assumed Liabilities shall
in no event include any of the liabilities, commitments or obligations described below in clauses
(i) through (ix) of Section 1.03(b)).





          (b) Notwithstanding anything in Section 1.03(a) or any other provision of this
Agreement or any Transaction Document to the contrary, and regardless of any disclosure to
the Company, except for the Assumed Liabilities, the Company shall not assume or be liable
for any liabilities, commitments or obligations of Lucky Parent, any Seller or any of their
affiliates, of any kind (the “Excluded Liabilities”), all of which shall be
retained and paid, performed and discharged when due by Lucky Parent, each Seller or any of
their affiliates, as applicable, including the following:




     (i) any Indebtedness of Lucky Parent, any Seller or any of their affiliates,
or any Guarantee by Lucky Parent, any Seller or any of their affiliates of any
Indebtedness;




     (ii) any liability, obligation or commitment (A) arising out of any actual or
alleged breach by Lucky Parent, any Seller or any of their affiliates of, or
nonperformance by Lucky Parent, any Seller or any of their affiliates under, any
Contract (including any Assigned Contract) prior to the Closing or (B) except as
otherwise provided in Section 1.03(a)(ii), accruing under any Assigned Contract
with respect to any period prior to the Closing;




     (iii) any liability, obligation or commitment arising from or relating to (A)
except as otherwise provided in Section 1.03(a)(ii), the operation or conduct of
the Business prior to the Closing or any Seller’s ownership, operation or use of
any Acquired Asset (including any Business Intellectual Property) or Excluded Asset
prior to the Closing, (B) any Excluded Collaboration Liability or (C) any actual or
alleged



6









 







violation by Lucky Parent, any Seller or any of their affiliates of any Applicable Law;




     (iv) any liability, obligation or commitment of any Seller that relates to, or
that arises from, any Excluded Asset, or that arises out of the distribution to, or
ownership or operation by, any Seller of the Excluded Assets or associated with the
realization of the benefits of any Excluded Asset;




     (v) any liability, obligation or commitment for Taxes, whether or not accrued,
assessed or currently due and payable, (A) arising out of or relating to the
Acquired Assets or the operation or conduct of the Business, in each case, for any
Pre-Closing Tax Period or (B) of any Seller for any taxable period;




     (vi) any liability, obligation or commitment for transfer, documentary, sales,
use, registration, value-added and other similar Taxes (including, without limiting
the generality of the foregoing, all Taxes on chargeable gains) and related amounts
(including any penalties, interest and additions to Tax) incurred in connection
with this Agreement, the Transaction Documents, the Acquisition and the other
transactions contemplated hereby and thereby (“Transfer Taxes”);




     (vii) any liability, obligation or commitment arising out of or in connection
with any Environmental Law, any Release of or exposure to Hazardous Materials or
any Environmental Claim, in each case to the extent arising from or relating to the
ownership or operation of, or any act or omission occurring or condition existing
with respect to, the Business, the Acquired Assets or any property currently or
formerly owned, leased, operated or used in connection with the Business prior to
the Closing;




     (viii) any liability, obligation or commitment relating to employment or
employee benefits, other than the Covered Employee Liabilities; and




     (ix) any liability, obligation or commitment for any fees or expenses incurred
by Lucky Parent, any Seller or any of their affiliates (including the fees and
expenses of legal counsel, and fees and expenses of any accountant, auditor,
broker, financial advisor or consultant retained by or on behalf of Lucky Parent,
any Seller or any of their affiliates) arising from or in connection with this
Agreement, the Transaction Documents, the Acquisition or any of the other
transactions contemplated hereby or thereby.




          (c) The Company shall acquire the Acquired Assets free and clear of all liabilities,
obligations and commitments of Lucky Parent, any Seller or any of their affiliates, other
than the Assumed Liabilities, and free and clear of all



7









 







Liens, other than Permitted Liens. For clarity, none of Jupiter Parent or any of its
affiliates (other than the Company) shall assume or be liable for any liabilities,
commitments or obligations of Lucky Parent, any Seller or any of their affiliates (whether
they may be Assumed Liabilities, Excluded Liabilities or otherwise).



          SECTION 1.04. Consents of Third Parties. (a) Notwithstanding anything in this
Agreement to the contrary, this Agreement shall not constitute an agreement to assign any Acquired
Asset if an attempted assignment thereof, without the consent of a third party, would constitute a
breach or other contravention of the rights of such third party, would be ineffective with respect
to any party to a Contract concerning such Acquired Asset, or would in any way adversely affect
the rights of any Seller or, upon transfer, the Company under such Acquired Asset. If any transfer
or assignment by any Seller to, or any assumption by the Company of, any interest in, or
liability, obligation or commitment under, any Acquired Asset requires the consent of a third
party, then such assignment or assumption shall be made subject to such consent being obtained.
To the extent any Acquired Asset may not be assigned to the Company by reason of the absence of
any such consent and, to the extent applicable, Jupiter Parent and the Company waive Section
6.02(c) with respect to such consent, the Company shall not be required to assume any Assumed
Liabilities arising under such Acquired Asset.





          (b) If any consent referred to in Section 1.04(a) is not obtained prior to the
Closing and, to the extent applicable, Jupiter Parent and the Company waive Section 6.02(c)
with respect to such consent, Lucky Parent, each applicable Seller and the Company shall
cooperate (at their own expense) in any lawful and reasonable arrangement reasonably
proposed by the Company under which the Company shall obtain the rights, benefits and
economic claims under the Acquired Asset with respect to which such consent has not been
obtained in accordance with this Agreement. Such reasonable arrangement may include (i)
the subcontracting, sublicensing or subleasing to the Company of any and all rights of such
Seller against the other party to such third-party agreement arising out of a breach or
cancellation thereof by the other party and (ii) the enforcement by such Seller of such
rights. To the extent, and only to the extent, the Company is able to receive the rights,
benefits and economic claims under such Acquired Asset, the Company shall be responsible
for the Assumed Liabilities, if any, arising under such Acquired Asset.



          SECTION 1.05. Securities Compliance. The Company Stock to be received by Lucky
Collaboration Subsidiary pursuant to this Agreement is being acquired for Lucky Collaboration
Subsidiary’s own account, for investment and not with a view to or for resale in connection with
any “distribution” thereof as such term is used in connection with the registration provisions of
the Securities Act of 1933, as amended (the “Securities Act”). Lucky Collaboration
Subsidiary acknowledges that Jupiter Parent and the Company have informed it that the shares of
Company Stock deliverable pursuant to this Agreement will not be registered under the Securities
Act and may not be sold until, among other things, such shares have been registered or until an
exemption from registration is available. Lucky Collaboration Subsidiary



8









 






acknowledges that it has sufficient knowledge and experience with respect to financial and
business matters as is necessary for making an informed decision on the merits and risks of an
investment in the Company Stock. Lucky Collaboration Subsidiary further acknowledges that the
Company Stock deliverable hereunder is subject to additional restrictions (including with respect
to transferability) under the Shareholders’ Agreement.




ARTICLE II




The Closing



          SECTION 2.01. Closing Date. The closing of the Acquisition (the “Closing”)
shall take place at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New
York 10019, on the day of and immediately following the Equity Closing and the Internal Asset
Purchase Closing, but subject to the satisfaction (or, to the extent permitted, waiver by the
party or parties entitled to the benefits thereof) of the conditions set forth in Article VI, or,
if on such day any condition set forth in Article VI has not been satisfied (or, to the extent
permitted, waived by the party or parties entitled to the benefit thereof), at such other place,
time and date as shall be agreed by Lucky Parent, each Seller, Jupiter Parent and the Company.
The date on which the Closing occurs is referred to in this Agreement as the “Closing
Date”.




          SECTION 2.02. Transactions To Be Effected at the Closing. At the Closing:





     (a) each Seller shall deliver to the Company (or any of its subsidiaries as may be
designated by the Company) (i) such appropriately executed deeds (in recordable form),
bills of sale, assignments and other instruments of transfer relating to the Acquired
Assets as the Company may reasonably request, (ii) any Acquired Asset which is capable of
being transferred by delivery, (iii) a certificate or certificates of the kind described in
Section 980 of the Taxes Consolidation Act 1997 in respect of the consideration and (iv)
such other documents as the Company may reasonably request to demonstrate satisfaction of
the conditions and compliance with the covenants set forth in this Agreement;




     (b) The Company shall deliver to Lucky Collaboration Subsidiary (i) a share
certificate evidencing the Company Stock to be delivered to it pursuant to Section 1.01(i)
and (ii) such other documents as any Seller may reasonably request to demonstrate
satisfaction of the conditions and compliance with the covenants set forth in this
Agreement; and




     (c) each party shall execute and deliver the applicable agreements required to be
executed and delivered pursuant to Section 5.14.



          SECTION 2.03. Risk of Loss. Until the transfer of any Acquired Assets to the
Company hereunder, any loss of or damage to such Acquired Assets from fire, casualty or any other
occurrence shall be the sole responsibility of the Sellers.




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ARTICLE III




Representations and Warranties of Lucky Parent and Sellers



          Lucky Parent and each Seller hereby jointly and severally represent and warrant to the Company
and Jupiter Parent that the statements contained in this Article III are true and correct, with
respect to representations and warranties of Lucky Parent and each Seller, other than Lucky
Collaboration Subsidiary, as of the date of this Agreement and as of the Closing Date, and, with
respect to the representations and warranties which pertain to Lucky Collaboration Subsidiary, as
of the Closing Date, except as set forth in the disclosure letter delivered by Lucky Parent and the
Sellers to the Company on or prior to the date of the execution and delivery by Lucky Parent and
each Seller of this Agreement (the “Seller Disclosure Letter”). The Seller Disclosure
Letter shall be arranged in numbered and lettered sections and subsections corresponding to the
numbered and lettered sections and subsections contained in this Article III, and the disclosure in
any section or subsection shall be deemed to qualify other sections and subsections in this Article
III to the extent (and only to the extent) that it is reasonably apparent from the face of such
disclosure that such disclosure also qualifies or applies to such other sections and subsections
(except with respect to disclosures relating to the Collaboration Agreement, which shall not be
deemed to qualify any other section unless actually disclosed in such other section).




          SECTION 3.01. Organization, Standing and Power. Lucky Parent and each Seller are
duly organized, validly existing and in good standing under the laws of their respective
jurisdictions of organization and have full corporate or other power and authority to own, lease
or otherwise hold their respective properties and assets and to conduct the Business as currently
conducted. Each Seller is duly qualified to do business as a foreign corporation in each
jurisdiction where (x) the character of the Acquired Assets held by it or the nature of the
Business make such qualification necessary for it to conduct the Business as currently conducted
or (y) the failure to so qualify has had or could reasonably be expected to have, individually or
in the aggregate, a Seller Material Adverse Effect. Each Seller has delivered to the Company or
its counsel true and complete copies of the certificate of incorporation and by-laws (or other
comparable documents) of such Seller, in each case as amended through the date of this Agreement.
Each Seller is a direct or indirect wholly owned subsidiary of Lucky Parent.




          SECTION 3.02. Authority; Execution and Delivery; Enforceability. Lucky Parent and
each Seller have all requisite corporate power and authority to execute this Agreement and the
Specified Collaboration Documents to which each of them is, or is specified to be, a party and to
consummate the Acquisition and the other transactions contemplated hereby and thereby. The
execution and delivery by Lucky Parent and each Seller of this Agreement and the Specified
Collaboration Documents to which each of them is, or is specified to be, a party and the
consummation by Lucky Parent and each Seller of the Acquisition and the other transactions
contemplated hereby and thereby have been duly authorized by all necessary corporate or other
action on the part of Lucky Parent and each Seller, and no other proceedings on the part of



10









 






Lucky Parent or any Seller are necessary to authorize this Agreement and the Specified
Collaboration Documents or the consummation of the Acquisition and the other transactions
contemplated hereby or thereby. Lucky Parent and each Seller have duly executed and delivered
this Agreement and, prior to or substantially simultaneously with the Closing, will have duly
executed and delivered each Specified Collaboration Document to which each of them is, or is
specified to be, a party, and, assuming the due execution and delivery of this Agreement and each
Specified Collaboration Document by the other parties hereto and thereto, this Agreement
constitutes, and each Specified Collaboration Document to which each of them is, or is specified
to be, a party will after the Closing constitute, legal, valid and binding obligations of each of
them, enforceable against each of them in accordance with their respective terms, subject to
bankruptcy, insolvency or similar laws relating to creditors’ rights generally and to general
principles of equity.




          SECTION 3.03. No Conflicts; Consents. Except as set forth on Section 3.03 of the
Seller Disclosure Letter, the execution and delivery by Lucky Parent and each Seller of this
Agreement and each Specified Collaboration Document to which each of them is, or is specified to
be, a party, the consummation by Lucky Parent and each Seller of the Acquisition and the other
transactions contemplated hereby and thereby and compliance by Lucky Parent and each Seller with
the terms hereof and thereof do not and will not conflict with, or result in any violation of or
default (with or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a benefit under, or to
increased, additional, accelerated or guaranteed rights or entitlements of any person under, or
result in the creation of any Lien upon or transfer of any of the properties or assets of Lucky
Parent or any Seller under, any provision of (i) the certificate of incorporation or by-laws (or
other comparable documents) of Lucky Parent or any Seller, (ii) any Indenture, (iii) any Contract
(other than those listed in clause (ii) above) to which Lucky Parent or any Seller is a party or
to which the Business, Lucky Parent, any Seller or any of their respective properties or assets is
subject or (iv) any Judgment or Applicable Law applicable to Lucky Parent or any Seller or any of
their respective properties or assets, other than, in the case of clauses (iii) and (iv) above,
any such items that, individually or in the aggregate, have not had and could not reasonably be
expected to have, individually or in the aggregate, a Seller Material Adverse Effect. Except as
set forth on Section 3.03 of the Seller Disclosure Letter or as have not had and could not
reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse
Effect, no consent or Permit (“Consent”) of, or registration, declaration or filing with,
any Governmental Entity, or any third parties or stockholders of Lucky Parent, in each case is
required to be obtained or made by or with respect to Lucky Parent or any Seller in connection
with the execution and delivery of this Agreement or any Specified Collaboration Document, the
consummation of the Acquisition or the other transactions contemplated hereby and thereby or
compliance with the terms hereof and thereof, in each case other than compliance with and filings
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR
Act”).







11









 








          SECTION 3.04. Undisclosed Assumed Liabilities. Except as set forth on Section 3.04
of the Seller Disclosure Letter or as have not had and could not reasonably be expected to have,
individually or in the aggregate, a Seller Material Adverse Effect, since December 31, 2008,
neither Lucky Parent nor any of the Sellers has incurred liabilities or obligations of any nature
relating to the Acquired Assets (whether accrued, absolute, contingent, unasserted or otherwise),
except liabilities incurred in the ordinary course of the Business consistent with past practice.
Without limiting the foregoing, except as set forth on Section 3.04 of the Seller Disclosure
Letter or as have not had and could not reasonably be expected to have, individually or in the
aggregate, a Seller Material Adverse Effect, the Business has not had any known liability (and
there is no basis for any present or future Proceeding against the Business giving rise to any
liability) arising out of any injury to individuals or damages as a result of the possession or
use of any pharmaceutical product manufactured, used or delivered by the Business.




          SECTION 3.05. Assets. The Sellers, taken together, have good and valid title to all
the Acquired Assets, in each case free and clear of all mortgages, liens, security interests,
charges, easements, leases, subleases, covenants, rights of way, options, claims, restrictions or
encumbrances of any kind (collectively, “Liens”), except mechanics’, carriers’, workmen’s,
repairmen’s or other like Liens arising or incurred in the ordinary course of business that,
assuming that the Company pays all Assumed Liabilities when due, (i) individually or in the
aggregate, do not materially impair, and could not reasonably be expected to materially impair,
the continued use and operation of the assets to which they relate in the operation or conduct of
the Business and (ii) do not constitute an imperfection of title or otherwise compromise the
Sellers’ good and valid title to the applicable Acquired Asset (such Liens, “Permitted
Liens”).




          SECTION 3.06. Intellectual Property. (a) Except as otherwise provided in Section
3.06(a) of the Seller Disclosure Letter, to the knowledge of Lucky Parent and each Seller, Section
1.02(a)(i)(A)(1), Section 1.02(a)(i)(A)(2), Section 1.02(a)(i)(B)(1), Section 1.02(a)(i)(B)(2),
Section 1.02(a)(i)(B)(3), Section 1.02(a)(i)(B)(4), and Section 1.02(a)(i)(B)(5) sets forth a true
and complete list, as of the date of this Agreement, of the information described below as it
pertains to the Business Intellectual Property: (i) for each Patent Right owned by a Seller, the
patent number or application serial number for each jurisdiction in which such Patent Right has
been granted or application has been filed, the date filed or issued, and the present status
thereof, (ii) for each trademark, the application serial number or registration number for each
jurisdiction in which the application has been filed or registration granted, and the class of
goods covered, (iii) for any registered URL or domain name, the registration date, any renewal
date and name of registry, (iv) for each copyright, the number and date of registration for each
jurisdiction in which the copyright application has been registered and (v) in respect of each of
the foregoing, a clear indication as to (A) whether such Business Intellectual Property is owned,
jointly or solely (such owned Business Intellectual Property, the “Pre-Closing Owned
Intellectual Property”), or licensed (such licensed Business Intellectual Property, the
“Pre-Closing Licensed Intellectual Property”) by Lucky Parent or any of its affiliates,
(B) with respect to any



12









 






Pre-Closing Owned Intellectual Property that is jointly owned or for which
there is an obligation for joint ownership, the identity of any other person who has an interest in such
Business Intellectual Property, and the nature of such interest and (C) with respect to any
Pre-Closing Licensed Intellectual Property, the identity of the licensor and the exclusive or
non-exclusive nature of such license.





          (b) Except as otherwise provided in Section 3.06(a), all Inventions made by either
Wyeth or Elan (as defined in the Collaboration Agreement) after May 10, 2000 under the
Collaboration Agreement are jointly owned. True and complete copies of all patent and
trademark applications filed and patents and trademark registrations obtained (including
all documents relating to the prosecution, defense or enforcement of any applications,
patents or registrations) related to the Business Intellectual Property have been made
available to Jupiter Parent and the Company.




          (c) The Business Intellectual Property constitutes all of the Intellectual Property
that Lucky Parent or any of its affiliates own, license or otherwise have the right to use
or practice and that relates to the Business or to the subject matter of the Collaboration
Agreement.




          (d) Except as set forth on Section 3.07(a)(xx) and 3.06(d), Lucky Parent and its
affiliates (and, at the Closing, the Sellers), through their individual and collective
rights, own the Pre-Closing Owned Intellectual Property and license the Pre-Closing
Licensed Intellectual Property with the right to grant sublicenses, or otherwise have the
right to convey and transfer all Business Intellectual Property as provided for under this
Agreement, the Specified Collaboration Documents and the transactions contemplated
hereunder or thereunder, in each case (i) without any payments to third parties, (ii)
without restriction (whether contractual, legal or otherwise, including, for any
Pre-Closing Licensed Intellectual Property, that Lucky Parent or its applicable affiliate
(and at the Closing the applicable Seller) has the right to grant a sublicensee the right
to further sublicense) and (iii) free and clear of any Liens or any other claims, including
any claim of ownership or other right by any inventor named on any Patent Right or any
person not so named as an inventor or any claim of breach of an obligation to a third
party. Each of Lucky Parent and its affiliates (and at the Closing each Seller) has the
legal power to convey to a successor all of its ownership and license interests in such
person’s Business Intellectual Property. The copyrights of Lucky Parent and its affiliates
(and at the Closing of each Seller) have been properly assigned to such person or such
person’s rights to such copyrights have been reasonably secured.




          (e) Neither Lucky Parent nor any Seller, nor any of their affiliates, is aware of any
Proceeding relating to the creation (whether through inventorship or authorship),
ownership, licensing, validity, enforceability or use of any Business Intellectual Property
right (whether it be in the nature of a Patent Right, trademark, copyright, trade secret or
other Intellectual Property right). Except as set forth on Section 3.06(e) of the Seller
Disclosure letter, neither Lucky Parent



13









 







nor any of its affiliates has received notice of,
and to the knowledge of Lucky
Parent and its affiliates, there are no ongoing, interferences, oppositions, reissues,
reexaminations or other proceedings, including ex parte and post grant proceedings, in the
PTO, any foreign patent office, any court or other Government Entity involving any of the
Patent Rights listed in Section 1.02(a)(i)(A)(1), Section 1.02(a)(i)(A)(2), Section
1.02(a)(i)(B)(1), Section 1.02(a)(i)(B)(2), Section 1.02(a)(i)(B)(3), Section
1.02(a)(i)(B)(4), and Section 1.02(a)(i)(B)(5).




          (f) Neither Lucky Parent nor any Seller, nor any of their affiliates, to its
knowledge is aware of, or any facts that could form the basis of, any misappropriation of
any Business Intellectual Property right. Neither Lucky Parent nor any Seller, nor any of
their affiliates, is aware of, any therapeutic commercialization activity that could form
the basis of, any infringement, misappropriation or other violation of any Business
Intellectual Property right.




          (g) To the knowledge of Lucky Parent, any Seller, and any of their affiliates, all
Patent Rights, trademarks and copyrights owned by Lucky Parent or any of its affiliates and
related to the Business have been duly registered and filed with or issued by each
appropriate Governmental Entity in each jurisdiction indicated therefore in Section
1.02(a)(i)(A)(1), Section 1.02(a)(i)(A)(2), Section 1.02(a)(i)(B)(1), Section
1.02(a)(i)(B)(2), Section 1.02(a)(i)(B)(3), Section 1.02(a)(i)(B)(4), and Section
1.02(a)(i)(B)(5), all necessary affidavits of continuing use have been filed, all necessary
maintenance fees have been paid to continue all such rights in effect, and all other
actions required to maintain the validity and effectiveness of the grants, registrations
and filings have been taken. Lucky Parent and each of its affiliates has used commercially
reasonable efforts to make all filings with Governmental Entities and to obtain all grants
and registrations as may be necessary or appropriate to preserve and protect the Business
Intellectual Property. Subject to Section 3.06(e) of the Seller Disclosure Letter, except
for the Patent Rights, trademarks and copyrights within the Business Intellectual Property
identified on Section 3.06(a) of the Seller Disclosure Letter as having been so indicated,
and except as otherwise disclosed in the Section 1.02(a)(i)(A)(1), Section
1.02(a)(i)(A)(2), Section 1.02(a)(i)(B)(1), Section 1.02(a)(i)(B)(2), Section
1.02(a)(i)(B)(3), Section 1.02(a)(i)(B)(4), and Section 1.02(a)(i)(B)(5), none of the
Business Intellectual Property has been disclaimed, or finally judged or finally determined
to be invalid or unenforceable, or has lapsed, expired or been abandoned or canceled or, to
Lucky Parent’s or any Sellers’ knowledge, is the subject of any opposition, cancellation or
other adversarial proceeding.




          (h) Except as set forth in Section 3.06(h)(i) and 3.06(d) of the Seller Disclosure
Letter, none of Lucky Parent or any of its affiliates pays or receives any royalties or
other remuneration to or from any person with respect to any Business Intellectual
Property. Except as set forth in Section 3.06(h)(ii) of the Seller Disclosure Letter, none
of Lucky Parent or any of its affiliates has licensed to any person any rights under the
Business Intellectual Property.



14









 






          (i) Section 1.02(a)(i)(A)(2) and Section 1.02(a)(i)(B)(2), sets forth a true and
complete list, as of the date of this Agreement, of all Contracts to which each of Lucky
Parent or any of its affiliates is a party or by which it is bound involving or relating in
any way to AIP Intellectual Property.




          (j) Neither Lucky Parent nor Sellers, nor any of their affiliates, has received any
notice or communication from any third party that Lucky Parent Sellers, or any of their
affiliates is infringing, misappropriating or otherwise violating any Intellectual Property
rights of any person with regard to any Business activities (including with respect to the
discovery, development, clinical testing, manufacture, distribution, marketing, use or sale
of any products related to the Business). Neither Lucky Parent, nor Sellers, nor any of
their affiliates, to its knowledge is infringing, misappropriating or otherwise violating
any valid Intellectual Property rights of any person with respect to any R&D Candidate or
Product.




          (k) Except as set forth in Section 3.06(k) of the Seller Disclosure Letter, (i)
neither Lucky Parent nor any of its affiliates is subject to any Judgment with respect to,
nor has any of them entered into or become party to, any Contract which does or could
restrict or impair the practice of any Business Intellectual Property and (ii) neither
Lucky Parent nor any of its affiliates has entered into any indemnification with respect to
a litigation, forbearance to sue, or settlement agreement with respect to any Business
Intellectual Property. Lucky Parent, Sellers, and their affiliates have provided a list of
any third party patent rights which to their knowledge may be related to bapineuzumab or
AAB-002.




          (l) To the knowledge of Lucky Parent, any Seller, or any of their affiliates, each of
the Patent Rights within the Business Intellectual Property properly identifies each and
every inventor of the claimed subject matter thereof and corrections have been made if
inventorship was later determined to have been in error after reasonable inquiry in
accordance with the laws of the jurisdiction in which such patent is issued or such patent
application is pending. Each such inventor and each current or former director, officer,
employee, contractor or consultant of Lucky Parent or any of its affiliates has assigned in
writing or otherwise transferred by Contract to Lucky Parent or such affiliate all
ownership and other rights of any nature whatsoever of such person in any Pre-Closing Owned
Intellectual Property. No current or former directors, officers, employees, contractors,
or consultants of Lucky Parent or any of its affiliates has, in writing, made or threatened
to make any claim or challenge against Lucky Parent or any of its affiliates in connection
with the involvement of such person in the creation, conception, reduction to practice,
origin, or development of any Business Intellectual Property. To the knowledge of Lucky
Parent, any Seller, and any of their affiliates, no current or former directors, officers,
employees, contractors, or consultants of Lucky Parent or any of its affiliates has orally
made or threatened to make any claim or challenge against Lucky Parent or any of its
affiliates in connection with the involvement of such person in the creation, conception,



15









 







reduction to practice, origin, or development of any Business Intellectual Property.




          (m) Except as set forth on Section 1.02(a)(ii) of the Seller Disclosure Schedule
entitled “Contracts Requiring Consent”, to Lucky Parent’s and Seller’s knowledge, the
execution and delivery of this Agreement and the Specified Collaboration Documents, the
consummation of the Acquisition and the other transactions contemplated hereby and thereby
and the compliance with the provisions hereof and thereof do not and will not conflict
with, or result in any violation or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancelation or acceleration of any
Business Intellectual Property right or obligation set forth in any Contract to which Lucky
Parent or any of its affiliates is a party, or to a loss of any benefit related thereto, or
result in the creation of any Lien in or upon or the transfer of any Business Intellectual
Property related thereto, or give rise to any increased, additional, accelerated or
guaranteed rights or entitlements of any person relating to Business Intellectual Property
under any such Contract, or result in the creation of any Lien on or the transfer of any
Business Intellectual Property owned by Lucky Parent or any of its affiliates or with
respect to which Lucky Parent or any of its affiliates now has or has had any Contract with
any third party.




          (n) Section 1.02(a)(i) and 1.02(a)(ii) of the Seller Disclosure Letter sets forth a
complete and accurate list of all options, rights, licenses or interests of any kind
relating to Business Intellectual Property granted (i) to Lucky Parent or any of its
affiliates (other than software licenses for generally available software and except
pursuant to employee proprietary inventions agreements (or similar employee agreements),
non-disclosure agreements and consulting agreements entered into by Lucky Parent or any of
its affiliates in the ordinary course of business), or (ii) by Lucky Parent or any of its
affiliates to any other person (including any obligations of such other person to make any
fixed or contingent payments, including royalty payments). All requirements for payment of
monies and other material obligations by Lucky Parent or any of its affiliates in
connection with such options, rights, licenses or interests have been satisfied in a timely
manner.




          (o) Lucky Parent, on behalf of it and its affiliates, and each Seller has used
reasonable efforts and taken commercially necessary steps to maintain in confidence all
trade secrets relating to the Business, including (i) the development of a policy for the
protection of Intellectual Property and periodic training for all employees working in the
Business on the implementation of such policy, (ii) requiring all employees working in the
Business to execute confidentiality agreements with respect to Intellectual Property
developed for or obtained in respect of the Business, (iii) making reasonable efforts to
advise employees working in the Business that were voluntarily or involuntarily severed
from working in the Business of their continuing obligation to maintain such trade secrets
in confidence and (iv) entering into licenses and Contracts that generally require
licensees, contractors and other third persons with access to such trade



16









 







secrets to keep such trade secrets confidential (which licenses and Contracts will be
enforceable to the extent sufficient to fully exploit all such trade secrets, subject to
bankruptcy, insolvency or similar laws relating to creditors’ rights generally and to
general principles of equity). All employees of Lucky Parent or any of its affiliates who
have contributed to or participated in the conception, reduction to practice or development
of any Pre-Closing Owned Intellectual Property have executed and delivered to Lucky Parent
or such affiliate a confidentiality agreement restricting such person’s right to disclose
proprietary information of Lucky Parent and its affiliates. All such former and current
employees either (i) have been party to a “work-for-hire” Contract with Lucky Parent or one
of its affiliates, in accordance with Applicable Law, that has accorded Lucky Parent or
such affiliate the sole and exclusive ownership of all tangible and intangible property
arising in the course of such person’s services on behalf of Lucky Parent or such affiliate
or (ii) have executed appropriate instruments assigning, or agreements to assign, to Lucky
Parent or such affiliate the sole and exclusive ownership of all Intellectual Property
conceived, reduced to practice or developed during the course of their employment. No
former or current employee of Lucky Parent or any of its affiliates has any written claim
against Lucky Parent or any of its affiliates in connection with such person’s involvement
in the conception, reduction to practice or development of any Pre-Closing Owned
Intellectual Property and no such claim has been asserted or, to the knowledge of Lucky
Parent and its affiliates, threatened in writing. To the knowledge of Lucky Parent and
each Seller and any of their affiliates, no former or current employee of Lucky Parent or
any of its affiliates has any oral claim against Lucky Parent or any of its affiliates in
connection with such person’s involvement in the conception, reduction to practice or
development of any Pre-Closing Owned Intellectual Property and no such claim has been
asserted or, to the knowledge of Lucky Parent and its affiliates, threatened. Except as
set forth on Section 3.06(o) of the Seller Disclosure Letter, no employee or former
employee of Lucky Parent or any of its affiliates has any Patent Rights issued or
applications pending for any device, process, design or invention of any kind that is now
used or needed in the furtherance the Business, which Patent Rights have not been assigned
to Lucky Parent or such affiliate, with such assignment duly recorded in the PTO.




          (p) To the knowledge of Lucky Parent and each Seller, each current licensor,
supplier, manufacturer, contract research organization or other contractor for Lucky Parent
or any of its affiliates pertaining to the Business (each, a “Seller Supplier”),
owns or has valid license to all Intellectual Property that is licensed to Lucky Parent or
such affiliate by such Seller Supplier or that is necessary for the manufacture and sale of
products, or the provision of services, to Lucky Parent or such affiliate by such Seller
Supplier, in each case, in respect of the Business (collectively, the “Supplier
Rights”), and has the legal power to license such Supplier Rights, and to manufacture
and sell such products or provide such services, to Lucky Parent or such affiliate. To the
knowledge of Lucky Parent and each Seller, no Supplier Right has expired or been declared
invalid, in whole or in part, by any Governmental Entity.



17









 






          (q) Except as set forth in Section 3.06(q) of the Seller Disclosure Letter, Lilly (as
defined in the Collaboration Agreement) neither has nor retains any rights to any Business
Intellectual Property or to any reagents, animal test subject, hybridomas, cell lines or
any other materials related to or useful for the Business, including the development and
commercialization of antibodies directed at one or more epitopes of Aß or any naturally
occurring variants including the administration of a peptide immunogen as a vaccine or the
administration of an antibody thereto. Without exception, Lilly (as defined in the
Collaboration Agreement) neither has nor retains any rights in the AIP Intellectual
Property. Without exception, Lilly (as defined in the Collaboration Agreement) neither
has nor retains any rights in bapineuzumab.




          (r) Except as set forth on Section 3.06(r) of the Seller Disclosure Letter, to the
knowledge of Lucky Parent and each Seller and any of their affiliates no Business
Intellectual Property is subject to or was developed pursuant to any funding agreement with
any Governmental Entity or under any grant from a Governmental Entity. Without exception,
no Assigned Intellectual Property is subject to or was developed pursuant to any funding
agreement with any Governmental Entity or under any grant from a Governmental Entity.




          (s) Lucky Parent and its affiliates have provided Jupiter Parent all material
information in their possession relating to the Business Intellectual Property.




          (t) Except as set forth in Section 3.20 of the Seller Disclosure Letter, no R&D
Candidate (as such term is defined in the Collaboration Agreement) has been selected by the
JSC (as such term is defined in the Collaboration Agreement) for Development. The research
conducted under the Collaboration Agreement to date has consisted solely of programs aimed
at discovering R&D Candidates that are vaccines or antibodies. Anything disclosed in
working examples in the patents listed on Section 102(a)(i)(A)(1) was done prior to or
pursuant to the Collaboration Agreement. Any work done by Lucky Parent or its affiliate on
a Company Product was done under the Collaboration Agreement.




          (u) Except as set forth in Section 3.06(a), all Patent Rights directed to Inventions
arising under the Collaboration Agreement have been filed, prosecuted and maintained under
the direction and oversight of the Patent Review Committee (as defined in the Collaboration
Agreement) in accordance with the terms and conditions of the Collaboration Agreement.




          (v) The IND 11,245 and its attached exhibits and amendments on file with the FDA are
complete and accurate in all material respects. The Assigned Intellectual Property
includes all Patent Rights Controlled by Lucky Parent or any of its affiliates (and at the
Closing any Seller) that contain any claims covering bapineuzumab or its manufacture or
use.



18









 






          (w) Each of the Contracts set forth on Schedule 3.06(w) of the Seller Disclosure
Letter have expired or have been terminated with Wyeth’s consent.




          (x) Lucky Parent and each of its affiliates has no extant rights or interests in the
Patent Rights (including any divisional, continuation, or continuation-in-part
applications, or reissues, reexamination or foreign counter parts thereof) set forth on
Schedule 3.06(x) of the Seller Disclosure Letter. The rights and interests in respect of
such Patent Rights have been released with the full agreement and consent of Wyeth.




          (y) The information technology of the Business is sufficient for the conduct of the
Business as presently conducted by Lucky Parent and its affiliates and as currently
expected to be conducted and constitutes all the information technology that Lucky Parent
and its affiliates own, license or otherwise have the right to use and that is subject to
the terms of the Collaboration Agreement.




          (z) Neither Lucky Parent nor any of its affiliates has received any notice or other
communication from Wyeth (or its successor) under the Collaboration Agreement of any
requirement, or Wyeth’s intent, to divest its interest in or to any Products or the
Collaboration Agreement.




          (aa) Lucky Parent and each of its affiliates has at all times complied in all
material respects with the terms and obligations of the Collaboration Agreement, including
those set forth in Sections 2.3.2(a) and Section 2.4 of the Collaboration Agreement.




          (bb) The Acquired Records include true and complete copies or originals of Lucky
Parent and each of its affiliates’ records of data, information, Inventions, techniques and
discoveries (whether patentable or not) arising out of the conduct of the Research Program
and Development Program (as such terms are defined in the Collaboration Agreement), and all
Inventions, techniques and discoveries (whether patentable or not) included in the ELAN
Intellectual Property.




          (cc) Except as set forth on Section 1.02(a)(ii) of the Seller Disclosure Schedule
entitled “Contracts Requiring Consent”, all of the Sellers’ right, title, and interest in
and to the Assigned Intellectual Property is assignable to the Company, without violating
the terms of any Contracts with any third parties. All of the Sellers’ right, title, and
interest in and to the Licensed Intellectual Property is licensable to the Company pursuant
to the terms and conditions of the License Agreement, without violating the terms of any
Contracts with any third parties.




          (dd) The Collaboration Agreement is in full force and effect, the version of such
agreement attached hereto is a true and complete copy of such



19









 







agreement and Lucky Parent, any Seller, and any of their affiliates have not been
assigned, amended, waived or modified, except in the attached amendments and as set forth
in Section 3.20 of the Seller Disclosure Letter.




          (ee) To the knowledge of Lucky Parent, any Seller, and any of their affiliates, Lucky
Parent and its affiliates have provided to Jupiter every material search report that the
patent attorneys for Lucky Parent and its affiliates have conducted or had conducted on
their behalf.




          (ff) Neither Lucky Parent, nor any of its affiliates have received any notice of
termination, or any notice that it is in breach of any provision of the Collaboration
Agreement.




          (gg) Neither Lucky Parent, nor any of its affiliates has obtained a final written
opinion of outside patent counsel specifically in connection with the exploitation of
bapineuzumab in the conduct of the business as of the execution date with respect to the
potential infringement of any issued third party patent.




          (hh) Neither Lucky Parent, nor any of its affiliates has requested in writing a
license under any third party patent or patent application that claims the composition of
or a method of using bapineuzumab.




          (ii) There is no priority patent application not listed on Section 1.02(a)(i)(A)(1)
and filed by Lucky Parent, nor any of its affiliates within twenty four (24) months prior
to the Closing Date that Lucky Parent or any it its affiliates does not Control, which
patent specifically claims (i) bapineuzumab alone or in combination with other known
pharmaceutically active agents, (ii) a method of treatment using bapineuzumab or (iii) a
method of manufacture or formulation of bapineuzumab or a bapineuzumab product.



          SECTION 3.07. Contracts. (a) Section 3.07(a) of the Seller Disclosure Letter sets
forth a true and complete list, as of the date of this Agreement, of each Contract (other than any
Contracts relating solely to Excluded Assets) to or by which Lucky Parent or any of its
subsidiaries is a party or bound and to which any of the Business or the Acquired Assets are
subject and will continue to be subject after the Closing Date, that is or includes:





     (i) a covenant not to compete or not to engage in any activity or business, or
pursuant to which any benefit is required to be given or lost as a result of so
competing or engaging;




     (ii) a lease, sublease or similar Contract with any person under which (A)
Lucky Parent or any of its subsidiaries is lessee of, or holds or uses or any other
tangible personal property owned by any person that is material to the conduct of
the Business or (B) Lucky Parent or any of its subsidiaries is a lessor or
sublessor of, or makes available for use by any person, any tangible personal
property owned or leased by Lucky Parent or any of its subsidiaries that is
material to the conduct of the Business;



20









 






     (iii) a Contract granting a Lien upon any Acquired Asset;




     (iv) a Contract providing for indemnification of any person with respect to
liabilities relating to any current or former business of Lucky Parent or any of
its subsidiaries or any predecessor person;




     (v) a Contract (including consulting and services agreements) which provides
for “exclusivity” or any similar requirement in favor of any person other than
Lucky Parent or any of its subsidiaries or that requires or obligates Lucky Parent
or any of its subsidiaries to purchase specified minimum amounts of any product;




     (vi) a Contract not made in the ordinary course of the Business;




     (vii) a nondisclosure agreement, confidentiality agreement or similar Contract
entered into outside of the ordinary course of the Business;




     (viii) a Contract (A) involving future payment of more than $100,000 by or to
Lucky Parent or any of its subsidiaries (unless terminable without payment or
penalty upon no more than 30 days’ notice) or (B) providing for future performance
by the Business or Lucky Parent or any of its subsidiaries in consideration of
amounts previously paid to the Business or Lucky Parent or any of its subsidiaries,
or which has resulted in deferred revenue under GAAP of more than $100,000;




     (ix) a Contract for the sale of any Acquired Asset in excess of $50,000 or the
grant of any preferential rights to purchase any Acquired Asset in excess of
$50,000 or requiring the consent of any party to the transfer thereof;




     (x) a Contract with any Governmental Entity;




     (xi) a Contract relating to any completed, pending or proposed (A) joint
venture, partnership or similar arrangement, (B) acquisition or divestiture of any
person, business or division or (C) merger or reorganization;




     (xii) a Contract granting the other party to such Contract or a third party
“most favored nation” or similar status;




     (xiii) a Contract that prohibits the hiring or solicitation for employment of
employees of another person;




     (xiv) a Contract that would purport to bind any affiliate of Jupiter Parent
(other than the Company and its subsidiaries) after it is assigned to the Company;



21









 






     (xv) a Contract entered into in connection with the settlement or other
resolution of any Proceeding pursuant to which Lucky Parent or any of its
subsidiaries has any ongoing performance obligations;




     (xvi) a Contract which restricts the conduct of the Business (including the
ability to research, develop, commercialize, distribute, sell, supply, market or
manufacture any product (including products under development) for any indication
in any product market, therapeutic area or geographic area);




     (xvii) a Contract that would require the Company to perform or conduct
research, clinical trials or development for the benefit of any third party after
it is assigned to the Company;




     (xviii) a Contract which relates to research, clinical trial, development,
commercialization, distribution, sale, supply, license, marketing, co-promotion or
manufacturing by third parties of products (including products under development)
owned or licensed by or on behalf of Lucky Parent or any of its subsidiaries, that
are used, held for use or intended to be used in, or arise from, the operation or
conduct of the Business, in each case involving expenditures greater than $100,000;




     (xix) a Contract that would require the Company to grant an option or a right
of first refusal, right of first negotiation or right of first offer in favor of
any third party after it is assigned to the Company;




     (xx) a Contract containing any provisions (A) dealing with a “change of
control” or similar event with respect to a Seller or the Business, (B) prohibiting
or imposing any restrictions on the assignment of all or any portion of such
Contract by a Seller or any other person or (C) having the effect of providing that
the consummation of the Acquisition or any of the other transactions contemplated
by this Agreement or the Specified Collaboration Documents or the execution,
delivery or effectiveness of this Agreement or the Specified Collaboration
Documents will require the consent of the other party or parties thereto or will
conflict with, result in a violation of, or constitute a default under (with or
without notice or lapse of time, or both), such Contract or give rise under such
Contract to any right of termination, right of first refusal, amendment,
revocation, cancellation or acceleration, or loss of material benefit under, or the
creation of any Lien in or upon or transfer of any of the properties or assets of a
Seller or the Company or any of their respective affiliates, or to any increased,
guaranteed, accelerated or additional rights or entitlements of any person or any
other material changes in the terms thereof; or




     (xxi) a Contract other than as set forth above to which Lucky Parent or any of
its subsidiaries is a party or by which it or any of its assets



22









 







or businesses is bound or subject that is material to the Business or the use
or operation of the Acquired Assets.




          (b) Except as have not had and could not reasonably be expected to have, individually
or in the aggregate, a Seller Material Adverse Effect, all Assigned Contracts are valid,
binding agreements of Lucky Parent or the applicable subsidiary of Lucky Parent (and
immediately following the Internal Asset Purchase Closing, of the applicable Seller) and
are in full force and effect and are enforceable against Lucky Parent or the applicable
subsidiary of Lucky Parent (and immediately following the Internal Asset Purchase Closing,
against the applicable Seller) and, to the knowledge of Lucky Parent and each Seller,
against each other party thereto, in accordance with their terms, subject to bankruptcy,
insolvency or similar laws relating to creditors’ rights generally and to general
principles of equity. Except as have not had and could not reasonably be expected to have,
individually or in the aggregate, a Seller Material Adverse Effect, Lucky Parent and its
subsidiaries have (and at the Closing each Seller will have) performed all obligations
required to be performed by them to date under the Assigned Contracts, and none of them are
or will be (with or without the lapse of time or the giving of notice, or both) in breach
or default in any respect thereunder and, to the knowledge of Lucky Parent and each Seller
and except as set forth on Section 3.07(b) of the Seller Disclosure Letter, no other party
to any Assigned Contract is (with or without the lapse of time or the giving of notice, or
both) in breach or default in any respect thereunder. Neither Lucky Parent nor any of its
subsidiaries has (and at the Closing no Seller will have) received any notice of the
intention of any party to terminate any Assigned Contract. Complete and correct copies,
together with any and all modifications and amendments thereto, of (i) all Contracts listed
in or referred to in the Seller Disclosure Letter and (ii) the Collaboration Agreement
have, in each case, been made available to the Company.



          SECTION 3.08. Inventory. Each item of Inventory (a) is free of any material defect
or deficiency, (b) is in good, usable and currently marketable condition in the ordinary course of
the Business and (c) meets or exceeds all of the applicable requirements and specifications.




          SECTION 3.09. Permits. Section 3.09 of the Seller Disclosure Letter sets forth a
true and complete list, as of the date of this Agreement, of all Permits issued or granted to
Lucky Parent or any of its affiliates by a Governmental Entity pertaining to the Business,
including all Permits and Registration Information under the Federal Food, Drug and Cosmetic Act
of 1938, as amended (including the rules and regulations promulgated thereunder, the
“FDCA”), and the regulations of the Federal Food and Drug Administration (the
“FDA”) promulgated thereunder, and all pending applications of Lucky Parent or any of its
affiliates to any Governmental Entity for any of the foregoing, in each case, that are used, held
for use or intended to be used in the operation or conduct of the Business. Lucky Parent and its
affiliates possess (and immediately following the Internal Asset Purchase Closing the Sellers will
possess) possess all material Permits necessary to own or hold under lease and operate the



23









 






Acquired Assets and to conduct the Business as currently conducted. All such Permits are in
full force and effect, and, except as have not had and could not reasonably be expected to have,
individually or in the aggregate, a Seller Material Adverse Effect, Lucky Parent and its
affiliates have complied with all the terms and conditions thereof. Except as set forth on
Section 3.09 of the Seller Disclosure Letter, during the past three years, neither Lucky Parent
nor any of its affiliates has received notice of any Proceedings relating to the revocation or
modification of any such Permits that are material to the Business. Except as set forth on
Section 3.09 of the Seller Disclosure Letter, none of such Permits will be subject to suspension,
modification, revocation or nonrenewal as a result of the execution and delivery of this Agreement
and the Transaction Documents or the consummation of the Acquisition and the other transactions
contemplated hereby and thereby.




          SECTION 3.10. Regulatory Matters. (a) Except as set forth on Section 3.10(a) of
the Seller Disclosure Letter, all pre-clinical and clinical studies, trials and investigations
conducted or sponsored in relation to the Business are being, and at all times have been,
conducted in compliance in all material respects with all applicable clinical protocols, informed
consents and Applicable Laws administered or issued by applicable Regulatory Authorities,
including (to the extent applicable) (i) FDA or other health authority standards for conducting
non-clinical laboratory studies contained in Title 21 part 58 of the Code of Federal Regulations
and associated regulatory guidance, (ii) investigational new drug requirements and associated
regulatory guidance, (iii) FDA or other health authority standards for the design, conduct,
performance, monitoring, auditing, recording, analysis and reporting of clinical trials contained
in Title 21 parts 50, 54, 56, 312, 314, and 320 of the Code of Federal Regulations and associated
regulatory guidance, (iv) federal and state laws or other regulatory authority standards for
restricting the use and disclosure of individually identifiable health information, (v) the
International Conference on Harmonisation Guideline on Good Clinical Practice (ICH Topic E6) and
associated regulatory guidance and (vi) communications or notices from Regulatory Authorities
regarding the conduct of such studies, trials and investigations. Except as set forth on Section
3.10(a) of the Seller Disclosure Letter, there have been no drug-related, adverse event or events
in patients in a clinical trial conducted or sponsored in relation to the Business, the effect of
which could reasonably be expected to (x) prevent the Company from obtaining approval from a
Regulatory Authority to market the product being studied by such clinical trial in the United
States or European Union or (y) delay such approval to such an extent that the delay (taking into
account the expected length of such delay and the basis or reasons therefor) would materially
impair the aggregate financial value to be derived by the Company from such product. All clinical
trial adverse events in patients in a clinical trial conducted or sponsored in relation to the
Business within the knowledge of Lucky Parent or any Seller have been disclosed to the Company and
all associated correspondence, including actual or potential claims for recompense, have been made
available to the Company.





          (b) Lucky Parent and the Sellers have provided or made available to the Company, as
of the date hereof, complete and correct copies of each investigational new drug
application filed by Lucky Parent or any of its subsidiaries with respect to any product
candidate of the Business currently being



24









 







developed by or on behalf of the Business, including any supplements and amendments
thereto, and no such application has been withdrawn, terminated or suspended, except to the
extent such withdrawal, termination or suspension has not had and could not be reasonably
expected to have, individually or in the aggregate, a Seller Material Adverse Effect.




          (c) Except as set forth on Section 3.10(c) of the Seller Disclosure Letter, no Phase
III clinical trial conducted or sponsored by the Business (i) has failed to achieve one or
more of its primary endpoints or (ii) has been terminated or suspended prior to completion
based on matters relating to the efficacy or safety of the relevant product (whether
voluntarily by or on behalf of Wyeth, Lucky Parent or any of their affiliates or pursuant
to an order of any safety board or other Regulatory Authority).




          (d) Except as set forth on Section 3.10(d) of the Seller Disclosure Letter, no
Regulatory Authority has commenced, or, to the knowledge of Lucky Parent and each Seller,
threatened to initiate, any action to place a clinical hold order on, or otherwise
terminate, delay or suspend any proposed or ongoing clinical studies, trials,
investigational new drug application or investigations conducted or proposed to be
conducted in connection with the Business. Except as set forth on Section 3.10(d) of the
Seller Disclosure Letter, neither Lucky Parent nor any of its affiliates has directly or
indirectly received any written information from any Regulatory Authority which would
reasonably be expected to lead to the denial or delay of approval of any application for
marketing approval currently pending or expected to be filed before such Regulatory
Authority of any product related to the Business.




          (e) Except as set forth on Section 3.10(e) of the Seller Disclosure Letter or as have
not had and could not reasonably be expected to have, individually or in the aggregate, a
Seller Material Adverse Effect, neither Lucky Parent nor any of its subsidiaries has
directly or indirectly received any oral or written communication (including any warning
letter, untitled letter, Form 483 or similar notice) from any Regulatory Authority, and to
knowledge of Lucky Parent and each Seller there is no Proceeding relating to the Business
pending or threatened (including any prosecution, injunction, seizure, civil fine,
suspension or recall), in each case (i) alleging that Lucky Parent, any of its affiliates,
any Seller, the Business or any of their employees is not currently in compliance with any
law administered or issued by any Regulatory Authority or (ii) regarding any debarment
action or investigation in respect of Lucky Parent, any of its affiliates, any Seller, the
Business or any of their employees undertaken pursuant to the Generic Drug Enforcement Act
of 1992 (21 U.S.C. Sections 335(a), (b) and (c)), or any similar regulation of a Regulatory
Authority. Except as set forth on Section 3.10(e) of the Seller Disclosure Letter or as
have not had and could not reasonably be expected to have, individually or in the
aggregate, a Seller Material Adverse Effect, there are no pending voluntary or involuntary
destruction orders, seizures or other regulatory enforcement actions related to the
Business.



25









 






          (f) Except as set forth on Section 3.10(f) of the Seller Disclosure Letter or as have
not had and could not reasonably be expected to have, individually or in the aggregate, a
Seller Material Adverse Effect, to the knowledge of Lucky Parent and each Seller, no data
relating to the Business that has been made public is the subject of any regulatory or
other action, either pending or threatened, by any Regulatory Authority relating to the
truthfulness or scientific adequacy of such data.




          (g) Except as set forth on Section 3.10(g) of the Seller Disclosure Letter, neither
Lucky Parent nor any of its subsidiaries, nor, to the knowledge of Lucky Parent and each
Seller, any officer, employee, agent or distributor of Lucky Parent or any of its
affiliates, has made an untrue statement of a material fact or a fraudulent statement to
any Regulatory Authority, failed to disclose a material fact required to be disclosed to
any Regulatory Authority, or committed an act, made a statement, or failed to make a
statement that, at the time such disclosure was made, would reasonably be expected to
provide a basis for any Regulatory Authority to invoke its policy respecting “Fraud, Untrue
Statements of Material Facts, Bribery, and Illegal Gratuities”, set forth in 56 Fed. Reg.
46191 (September 10, 1991) or any similar policy, in each case in connection with the
Business. Except as set forth on Section 3.10(g) of the Seller Disclosure Letter, neither
Lucky Parent nor any of its subsidiaries, nor, to the knowledge of Lucky Parent and each
Seller, any officer, employee or agent of Lucky Parent or any of its affiliates, has been
convicted of any crime or engaged in any conduct for which debarment is mandated by 21
U.S.C. § 335a(a) or any similar law or authorized by 21 U.S.C. § 335a(b) or any similar
law. Except as set forth on Section 3.10(g) of the Seller Disclosure Letter, neither Lucky
Parent nor any of its subsidiaries, nor, to the knowledge of Lucky Parent and each Seller,
any officer, employee or agent of Lucky Parent or any of its affiliates, has been convicted
of any crime or engaged in any conduct for which such person or entity could be excluded
from participating in the Federal health care programs under Section 1128 of the Social
Security Act of 1935, as amended, or any similar law.



          SECTION 3.11. Insurance. Lucky Parent and its subsidiaries maintain such policies
of fire, liability, product liability, workmen’s compensation, health and other forms of insurance
relating to the Business as are sufficient, in the reasonable judgment of Lucky Parent, for
compliance by Lucky Parent and its subsidiaries with (i) all requirements of Applicable Laws and
(ii) all Assigned Contracts, and each of Lucky Parent and its subsidiaries have complied in all
material respects with the provisions of each such policy under which it is an insured party.
Neither Lucky Parent nor any of its affiliates has been refused any insurance with respect to any
property or asset relating to, or any other aspect of, the Business, nor has its coverage been
limited by any insurance carrier to which it has applied for insurance or with which it has
carried insurance. No notice of cancellation or termination has been received with respect to any
such policy. Except as set forth on Section 3.11 of the Seller Disclosure Letter, as of the date
hereof, to the knowledge of Lucky Parent and each Seller, there are no existing claims under any
insurance policy relating to the Business.







26









 








          SECTION 3.12. Sufficiency of Acquired Assets. (a) Except as set forth on Section
3.12(a) of the Seller Disclosure Letter, the Acquired Assets comprise all the assets used, held
for use or intended to be used by Lucky Parent and its subsidiaries in connection with, or arising
from, the Business. Other than the Sellers, none of Lucky Parent and its affiliates (i) is
currently engaged in the operation or conduct of the Business or (ii) other than to the extent
consisting of Excluded Assets, owns any properties, assets, goodwill or rights of whatever kind
and nature, real or personal, tangible or intangible, that are used, held for use or intended to
be used in, or arising from, the operation or conduct of the Business.





          (b) The Acquired Assets are sufficient for the operation and conduct of the Business
by the Company in accordance with the terms of the Collaboration Agreement immediately
following the Closing in the same manner as currently conducted by Lucky Parent and its
subsidiaries.



          SECTION 3.13. Taxes. (a) All documents which establish or are necessary to
establish the title of any Seller to the Acquired Assets which require to be stamped have been
duly stamped and (where necessary) adjudicated.





          (b) There is no dispute with any Taxing Authority or other official department in
Ireland or elsewhere in relation to the Business or the Acquired Assets and there are no
circumstances which make it likely that such a dispute could arise. There are no Tax Liens
with respect to the Acquired Assets or the Business whether filed or otherwise.




          (c) The amount of Taxes chargeable on Lucky Parent or any of its subsidiaries in
respect of the Business during any accounting period ending on or within five years before
the Closing Date has not, to any material extent, depended upon any concession, agreement
or other formal or informal arrangement with any Taxing Authority.



          SECTION 3.14. Proceedings. Except as set forth on Section 3.14 of the Seller
Disclosure Letter or as have not had or could not reasonably be expected to have, individually or
in the aggregate, a Seller Material Adverse Effect, there are no material Proceedings (including
Environmental Claims) pending or, to the knowledge of Lucky Parent and each Seller, there are no
Proceedings threatened by or against or affecting Lucky Parent or any of its subsidiaries, nor is
there any material Judgment outstanding against, or, to the knowledge of Lucky Parent and each
Seller, material investigation by any Governmental Entity involving Lucky Parent or any of its
affiliates, in each case relating to the Business. Except as set forth on Section 3.14 of the
Seller Disclosure Letter or as have not had or could not reasonably be expected to have,
individually or in the aggregate, a Seller Material Adverse Effect, to the knowledge of Lucky
Parent and each Seller, there are no facts or circumstances forming the basis for a claim, nor are
there any unasserted claims, of the type that would conflict with the foregoing statements in this
Section 3.14 if the claimant (or its counsel) had contacted Lucky Parent or any of its affiliates
and which, if asserted, could reasonably be expected to be determined in a manner adverse to the
Business. There is not any Proceeding or claim



27









 






by Lucky Parent or any of its subsidiaries pending, or which Lucky Parent or any of its
subsidiaries intend to initiate, against any other person arising out of the operation or conduct
of the Business.




          SECTION 3.15. Benefit Plans. (a) Section 3.15(a) of the Seller Disclosure Letter
sets forth a true and complete list, as of the date of this Agreement, of each Seller Benefit
Plan. Lucky Parent has delivered or made available to the Company true, complete and correct
copies of (A) each Seller Benefit Plan (or, in the case of any unwritten Seller Benefit Plans,
written descriptions thereof), (B) any related trust agreement or funding instrument with respect
to any Assumed Benefit Plan, (C) the most recent annual report on Form 5500 (including all
schedules and attachments thereto) filed with the Internal Revenue Service (“IRS”) with
respect to each Assumed Benefit Plan (if any such report was required by Applicable Laws), (D) the
most recent IRS determination or opinion letter, if applicable, with respect to each Assumed
Benefit Plan and (E) the most recent financial statements and actuarial reports for each Seller
Benefit Plan.





          (b) Each Assumed Benefit Plan has been administered in accordance with its terms and
in compliance with the applicable provisions of ERISA, the Code, all other Applicable Laws
and the terms of all applicable collective bargaining agreements. Neither Lucky Parent nor
any of its subsidiaries has received written notice of any pending or in progress, and, to
the knowledge of Lucky Parent and each Seller, there are no threatened (A) investigations
by any Governmental Entity, termination proceedings or other claims with respect to any
Assumed Benefit Plan (except routine claims for benefits payable under the Assumed Benefit
Plans) or (B) litigation against or involving any Assumed Benefit Plan or asserting any
rights to or claims for benefits under any Assumed Benefit Plan.




          (c) Other than the Seller Benefit Plan disclosed on Section 3.15(c) of the Seller
Disclosure Letter, no Seller Benefit Plan is subject to Title IV of ERISA or Section 412 of
the Code or is otherwise a defined benefit pension plan under other Applicable Law of
similar import. No Seller Benefit Plan is a “multiemployer plan” within the meaning of
Section 3(37) of ERISA. Neither the Company nor any of its affiliates will incur any
liability under (A) Section 302 of ERISA, Title IV of ERISA or Section 412 of the Code or
(B) Section 601 et seq. of ERISA or Section 4980B of the Code
(collectively, “COBRA”), in each case, in connection with the Acquisition or any of
the other transactions contemplated by this Agreement or the Transaction Documents. All
payments, benefits, contributions and premiums relating to each Assumed Benefit Plan have
been timely paid or made in accordance with the terms of such Assumed Benefit Plan and the
terms of all Applicable Laws or have been accrued in accordance with GAAP.




          (d) No Assumed Benefit Plan is a “multiple employer welfare arrangement” (as defined
in Section 3(40) of ERISA) and no benefits under any Assumed Benefit Plan are or at any
time have been provided through a voluntary



28









 







employees’ beneficiary association (within the meaning of Section 501(c)(9) of the
Code).




          (e) Each Assumed Benefit Plan that is an employee welfare benefit plan may be amended
or terminated (including with respect to benefits provided to retirees and other former
employees) without material liability (other than for benefits then payable under such plan
without regard to such amendment or termination or for ordinary administrative expenses
typically incurred in a termination event) to the Company or any of its Subsidiaries at any
time after the Closing.




          (f) None of the execution and delivery of this Agreement or the Transaction Documents
or the consummation of the transactions contemplated by this Agreement or the Transaction
Documents (whether alone or as a result of any termination of employment on or following
the Closing) will, except as expressly contemplated by this Agreement or the Employment
Matters Agreement, (A) entitle any Business Employee to severance, termination, retention,
change in control or similar compensation or benefits, (B) accelerate the time of payment
or vesting, or trigger any payment or funding (through a grantor trust or otherwise) of,
compensation or benefits under, increase the amount payable or trigger any other material
obligation pursuant to any Seller Benefit Plan or (C) result in any breach or violation of,
or a default under, any Seller Benefit Plan.




          (g) No payment or deemed payment by Lucky Parent or any of its subsidiaries will
arise or be made as a result (alone or in combination with any other event) of the
execution, delivery and performance of this Agreement or the Transaction Documents by Lucky
Parent or any of its subsidiaries, or the consummation by Lucky Parent or any of its
subsidiaries of the transactions contemplated by this Agreement or the Transaction
Documents, that would constitute an “excess parachute payment” for purposes of Section 280G
of the Code.



          SECTION 3.16. Absence of Changes or Events. Except as set forth on Section 3.16 of
the Seller Disclosure Letter, since December 31, 2008, (a) there has not been any state of facts,
change, effect, condition, development, event or occurrence, in each case related to the Business,
that has had, or could reasonably be expected to have, individually or in the aggregate, a Seller
Material Adverse Effect, (b) Lucky Parent and its affiliates have caused the Business to be
conducted in the usual, regular and ordinary course and in substantially the same manner as
previously conducted (including with respect to research and development efforts, and capital
expenditures) and have made all commercially reasonable efforts to keep intact the Business, keep
available the services of the employees of the Business and preserve the relationships of the
Business with the customers, suppliers, licensors, licensees, distributors and others with whom
the Business deals and (c) to the date of this Agreement, neither Lucky Parent nor any of its
affiliates has taken any action that, if taken after the date of this Agreement without the
consent of the Company and Jupiter Parent, would constitute a breach of Section 5.01.







29









 








          SECTION 3.17. Compliance with Applicable Laws. Except as set forth on Section 3.17
of the Seller Disclosure Letter or as have not had and could not reasonably be expected to have,
individually or in the aggregate, a Seller Material Adverse Effect, the Business and all
activities performed by Lucky Parent or any of its affiliates in connection with the Business have
been and are in compliance in all material respects with all Applicable Laws (including
Environmental Laws), including those administered or issued by any Regulatory Authority. Except
as set forth on Section 3.17 of the Seller Disclosure Letter, neither Lucky Parent nor any of its
subsidiaries has directly or indirectly received any communication during the past three years
from a Governmental Entity or any other person that alleges that the Business is not in compliance
in any material respect with any Applicable Law, including those administered or issued by any
Regulatory Authority.




          SECTION 3.18. Employee and Labor Matters. (a) There is not any, and during the
past three years there has not been any, material labor strike, dispute, work stoppage or lockout
pending, or, to the knowledge of Lucky Parent and each Seller, threatened, against or affecting
the Business. None of the Business Employees is represented by a union or any other similar labor
organization and, to the knowledge of Lucky Parent and each Seller, as of the date of this
Agreement no union organizational campaign is in progress with respect to the Business Employees
and no question concerning representation of such employees exists. Lucky Parent and each Seller
are in compliance in all material respects with all Applicable Laws with respect to labor
relations, employment and employment practices, occupational safety and health standards, terms
and conditions of employment, payment of wages, classification of employees, immigration, visa,
work status, human rights, pay equity and workers’ compensation, and are not engaged in any unfair
labor practices in connection with the conduct of the Business.





          (b) No Business Employee is a party to or bound by any Contract, or subject to any
Judgment, that may interfere with the use of such person’s best efforts to promote the
interests of the Business, may conflict with the Business or the transactions contemplated
hereby or that has had or could reasonably be expected to have, individually or in the
aggregate, a Seller Material Adverse Effect. To the knowledge of Lucky Parent and each
Seller, no activity of any current or former Business Employee as or while a Business
Employee has caused a material violation of any employment contract, confidentiality
agreement, patent disclosure agreement or other Contract to which such employee was a
party. To the knowledge of Lucky Parent and each Seller, the execution and delivery of
this Agreement will not conflict in a material manner with or result in a material breach
of the terms, conditions or provisions of, or constitute a material default under, any
Contract, under which any such employee is now obligated.



          SECTION 3.19. Transactions with Affiliates. None of Lucky Parent, any Seller or any
of their affiliates will be a party to any Assigned Contract after the Closing. Except as
contemplated by the Transaction Documents, after the Closing, none of Lucky Parent, any Seller and
their respective affiliates will have any interest in any Acquired Asset.







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          SECTION 3.20. Collaboration Agreement. Except as set forth on Section 3.20 of the
Seller Disclosure Letter or as have not had and could not reasonably be expected to have,
individually or in the aggregate, a Seller Material Adverse Effect, since December 31, 2008, there
has not been any adverse change, or any indication of intent to cause any such change, in the
business relationship with Wyeth as it pertains to the Collaboration Agreement. Except as set
forth on Section 3.20 of the Seller Disclosure Letter or as have not had or could not reasonably
be expected to have, individually or in the aggregate, a Seller Material Adverse Effect, since
December 31, 2008, neither Lucky Parent nor any of its affiliates has received any complaint from
Wyeth concerning their performance or non-performance of their obligations in respect of the
Collaboration Agreement or any notice from Wyeth with respect to the termination of, or default
under, the Collaboration Agreement. Lucky Parent and its affiliates have a cooperative and good
working relationship with Wyeth as it pertains to the Collaboration Agreement, and neither Lucky
Parent nor any of its affiliates has waived any of the material rights expressly granted to them
under the Collaboration Agreement. Section 3.20 of the Seller Disclosure Letter sets forth a true
and complete list as of the date of this Agreement of each Research and Development Candidate,
including the structure and CAS Registry Number of each such candidate.




          SECTION 3.21. Brokers. No fees and expenses of any broker, investment banker,
financial advisor or other person engaged by Lucky Parent or any of its affiliates in connection
with this Agreement or the Transaction Documents or the transactions contemplated hereby or
thereby will be payable by the Company or Jupiter Parent or any of their affiliates.




          SECTION 3.22. Information Supplied. No document, material or other data requested
by or on behalf of Jupiter Parent or the Company in connection herewith and not made available by
Lucky Parent or any of its subsidiaries (due to applicable confidentiality obligations or
otherwise) contains any statement, fact or other information reflecting adversely on the Business
in any material respect.




          SECTION 3.23. Effect of Transaction. As of the date of this Agreement, no creditor,
employee, client, customer, supplier or other person having a material business relationship with
Lucky Parent or any of its subsidiaries has informed the Sellers that such person intends to
change such relationship in a manner that could reasonably be expected to result, individually or
in the aggregate, in a Seller Material Adverse Effect because of the Acquisition or any other
transaction contemplated by this Agreement or any Transaction Document.




          SECTION 3.24. No Other Warranties. Except for the representations and warranties
set forth in this Article III, neither Lucky Parent nor any Seller makes any other express or
implied representation or warranty with respect to Lucky Parent, such Seller, the Acquired Assets
or the Business.




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ARTICLE IV




Representations and Warranties of Jupiter Parent and the Company



          Jupiter Parent and the Company hereby jointly and severally represent and warrant to Lucky
Parent and each Seller that the statements contained in this Article IV are true and correct as of
the date of this Agreement and as of immediately prior to the Closing.




          SECTION 4.01. Organization, Standing and Power. Each of Jupiter Parent and the
Company is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and each has full corporate or other power and authority to own,
lease or otherwise hold its properties and assets and to conduct its business as currently
conducted. Attached as Exhibit K hereto are true and complete copies of the memorandum of
association and articles of association of the Company, in each case as amended through the date
of this Agreement.




          SECTION 4.02. Authority; Execution and Delivery; Enforceability. Each of Jupiter
Parent and the Company has all requisite corporate power and authority to execute this Agreement
and the Specified Collaboration Documents to which it is, or is specified to be, a party and to
consummate the Acquisition and the other transactions contemplated hereby and thereby. The
execution and delivery by Jupiter Parent and the Company of this Agreement and the Specified
Collaboration Documents to which it is, or is specified to be, a party and the consummation by
Jupiter Parent and the Company of the Acquisition and the other transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate or other action on the part of
Jupiter Parent and the Company, and no other proceedings on the part of Jupiter Parent or the
Company are necessary to authorize this Agreement and the Specified Collaboration Documents or the
consummation of the Acquisition and the other transactions contemplated hereby or thereby.
Jupiter Parent and the Company have duly executed and delivered this Agreement and prior to or
substantially simultaneously with the Closing will have duly executed and delivered each Specified
Collaboration Document to which it is, or is specified to be, a party, and, assuming the due
execution and delivery of this Agreement and each Specified Collaboration Document by the other
parties hereto and thereto, this Agreement constitutes, and each Specified Collaboration Document
to which it is, or is specified to be, a party will upon execution thereof constitute, its legal,
valid and binding obligation, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency or similar laws relating to creditors’ rights generally and to general
principles of equity.




          SECTION 4.03. No Conflicts; Consents. The execution and delivery by Jupiter Parent
and the Company of this Agreement and each Specified Collaboration Document to which it is, or is
specified to be, a party, the consummation by Jupiter Parent and the Company of the Acquisition
and the other transactions contemplated hereby and thereby and compliance by Jupiter Parent and
the Company with the terms hereof and thereof do not and will not conflict with, or result in any
violation of or default (with or without notice or lapse of time, or both) under, or give rise to
a right of



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termination, cancellation or acceleration of any obligation or to loss of a benefit under, or
to increased, additional, accelerated or guaranteed rights or entitlements of any person under, or
result in the creation of any Lien upon or transfer of any of the properties or assets of the
Company or any of its subsidiaries under, any provision of (i) the memorandum of association and
articles of association (or other comparable documents) of the Company or any of its subsidiaries,
(ii) any Contract to which the Company or any of its subsidiaries is a party or to which the
Company, any of its subsidiaries or any of their respective properties or assets is subject or
(iii) any Judgment or Applicable Law applicable to the Company or any of its subsidiaries or their
respective properties or assets, other than, in the case of clauses (ii) and (iii) above, any such
items that, individually or in the aggregate, have not had and could not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse Effect. Except as have not had
and could not reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect, no Consent of, or registration, declaration or filing with, any Governmental
Entity or any third parties or stockholders of Jupiter Parent is required to be obtained or made
by or with respect to Jupiter Parent, the Company or any of their subsidiaries in connection with
the execution and delivery of this Agreement or any Specified Collaboration Document, the
consummation of the Acquisition or the other transactions contemplated hereby and thereby or
compliance with the terms hereof and thereof, in each case other than compliance with and filings
under the HSR Act.




          SECTION 4.04. The Company Stock. As of the Closing Date, the Company shall have the
authorized share capital set forth in the Shareholders’ Agreement. The Company Stock deliverable
to Lucky Parent or any Seller hereunder will, when delivered, have been duly authorized, validly
issued, fully paid, free and clear of any Liens (other than as contemplated by this Agreement or
any Transaction Document or as a result of any Contract or arrangement entered into by or on
behalf of Lucky Parent or any Seller), and will not be issued in violation of any purchase option,
call option, right of first refusal, preemptive right, subscription right or any similar right or
provision under the Applicable Laws of the Company’s jurisdiction of organization, the Company’s
organizational documents or any Contract to which the Company is a party. The Company Stock
deliverable to Lucky Parent or any Seller hereunder will, when delivered, not be subject to any
voting trust agreement or any Contract restricting or otherwise relating to the voting,
distribution or governance rights of such Company Stock (other than as contemplated by this
Agreement, the Shareholders’ Agreement or any other Transaction Document or as a result of any
Contract or arrangement entered into by or on behalf of Lucky Parent or any Seller).




          SECTION 4.05. Business of the Company. Prior to the Closing, the Company will not
have engaged in any business activities other than activities contemplated by this Agreement and
the Transaction Documents and activities incidental to the maintenance of its existence. As of
the Closing Date, the Company will not have any liabilities or obligations of any nature (whether
accrued, absolute, contingent, unasserted or otherwise) other than pursuant to this Agreement or
the Transaction Documents.







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          SECTION 4.06. Brokers. No fees and expenses of any broker, investment banker,
financial advisor or other person engaged by Jupiter Parent or any of its affiliates in connection
with this Agreement or the Transaction Documents or the transactions contemplated hereby or
thereby will be payable by Lucky Parent or any of its affiliates.




          SECTION 4.07. No Other Warranties. Except for the representations and warranties
set forth in this Article IV, neither Jupiter Parent nor the Company makes any other express or
implied representation or warranty with respect to Jupiter Parent or the Company.




ARTICLE V




Covenants



          SECTION 5.01. Covenants of Lucky Parent and each Seller Relating to Operation and
Conduct of the Business. (a) Except as expressly permitted or required by the terms of this
Agreement, from the date of this Agreement to the Closing, Lucky Parent shall, and Lucky Parent
shall cause each of its subsidiaries and direct each of its affiliates to, conduct the Business in
the usual, regular and ordinary course in substantially the same manner as previously conducted
(including with respect to research and development efforts and capital expenditures) and to use
its commercially reasonable efforts to keep intact the Business, keep available the services of
the current employees of the Business and preserve the relationships of the Business with the
customers, suppliers, licensors, licensees, distributors and others with whom the Business deals
to the end that the Business shall be unimpaired at the Closing. In addition (and without
limiting the generality of the foregoing), except as expressly permitted or required by the terms
of this Agreement, Lucky Parent shall not, and Lucky Parent shall not permit any of its
subsidiaries or direct any of its affiliates to, do any of the following in connection with the
Business without the prior written consent of Jupiter Parent and the Company:





     (i) terminate, modify or amend (or grant a waiver under) (A) the Internal
Asset Purchase Agreement or (B) except as set forth in Section 5.01(c)(iii), the
Collaboration Agreement or any other Assigned Contract;




     (ii) adopt or amend in any material respect any Assumed Benefit Plan (or any
plan that would be an Assumed Benefit Plan if adopted) or enter into, adopt, extend
(beyond the Closing Date), renew or amend any collective bargaining agreement or
other Assigned Contract with any labor organization, union or association, except
in each case (A) as required by Applicable Law or (B) to the extent such Seller
Benefit Plan or Contract would not constitute an Assumed Benefit Plan or give rise
to an Acquired Asset or an Assumed Liability;



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     (iii) except to the extent required under Applicable Law, any Seller Benefit
Plan in effect on the date of this Agreement, (A) grant to any Business Employee
any increase in compensation, bonus or fringe or other benefits, other than in the
ordinary course of business consistent with practice, (B) grant or pay any
severance, retention, change in control or termination pay or increase in any
manner the severance, retention, change in control or termination pay of any
Business Employee, or (C) take any action to (1) fund or in any other way secure
the payment of compensation or benefits to any Business Employee or (2) accelerate
the vesting or payment of any compensation or benefit of any Business Employee;




     (iv) permit, allow or suffer any Acquired Asset to become subjected to any
Lien of any nature whatsoever other than a Permitted Lien;




     (v) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations
or Proceedings, in each case relating to the Business, other than in the ordinary
course of business consistent with past practice and in accordance with their
terms, or (B) waive, assign, transfer or release any claims or rights of material
value;




     (vi) sell, lease, license or otherwise dispose of any Acquired Asset;




     (vii) enter into any Contract of a type described in Section 3.07(a)(i),
3.07(a)(v), 3.07(a)(vii), 3.07(a)(x), 3.07(a)(xii), 3.07(a)(xiii), 3.07(a)(xiv),
3.07(a)(xvi), 3.07(a)(xviii) (other than any clinical trial Contracts entered into
in the ordinary course of business), 3.07(a)(xix) or 3.07(a)(xx) (other than
Contracts with customary restrictions on assignment, to the extent that such
Contracts are assignable in respect of the Acquisition without consent);




     (viii) engage in any practice which would have the effect of postponing to
post-Closing periods payments due in connection with the operation or conduct of
the Business that would otherwise be expected (based on past practice) to be made
in pre-Closing periods;




     (ix) take any Tax position or any other action which could increase the Tax
liability of the Company after the Closing Date; or




     (x) authorize any of, or commit or agree to take, whether in writing or
otherwise, to do any of, the foregoing actions.




          (b) Advice of Changes. Lucky Parent and each Seller shall promptly advise
Jupiter Parent and the Company in writing of (i) the occurrence of any change or event
that, individually or in the aggregate with all past changes or events, is material to the
Collaboration Agreement or the Business and (ii) the hiring of any new employees of the
Business. Upon obtaining knowledge thereof, Lucky Parent and each Seller shall give prompt
notice to Jupiter Parent and the



35









 







Company of any representation or warranty made by them contained in this Agreement
becoming untrue or inaccurate; provided, however, that no such notification
shall affect the representations, warranties, covenants, agreements in this Agreement or
the Transaction Documents for purposes of determining the satisfaction of the conditions
set forth in Article VI or of determining whether any person is entitled to indemnification
pursuant to Article VIII. Lucky Parent and each Seller shall promptly provide Jupiter
Parent and the Company with copies of all filings made by Lucky Parent or any of its
affiliates with any Governmental Entity in connection with this Agreement or the
Transaction Documents and the transactions contemplated hereby or thereby, other than the
portions of such filings that include confidential information not directly related to the
transactions contemplated hereby. Lucky Parent and each Seller shall provide to Jupiter
Parent and the Company immediate written notice and copies of all pleadings and
correspondence in connection with any Proceeding against Lucky Parent or any of its
affiliates or any of their respective directors relating to the transactions contemplated
by this Agreement or any of the Transaction Documents.




          (c) Affirmative Covenants. Until the Closing, Lucky Parent shall, and Lucky
Parent shall cause each of its subsidiaries and direct each of its affiliates to:




     (i) maintain the Acquired Assets in the ordinary course of business in good
operating order and condition, reasonable wear and tear excepted;




     (ii) upon any damage, destruction or loss to any Acquired Asset, apply any and
all insurance proceeds received with respect thereto to the prompt repair,
replacement and restoration thereof to the condition of such Acquired Asset before
such event or, if required, to such better condition as may be required by
Applicable Law; and




     (iii) subject to Section 5.01, use commercially reasonable efforts to obtain
an extension of the Research Term on terms reasonably satisfactory to the Company.




          (d) Consultation. Subject to the terms of the Collaboration Agreement and
applicable Antitrust Laws, in connection with the continuing operation of the Business
between the date of this Agreement and the Closing, Lucky Parent and each Seller shall
consult in good faith on a regular basis with Jupiter Parent and the Company to report
material operational developments (including in respect of research developments) and the
general status of ongoing operations of the Business. Lucky Parent and each Seller
acknowledge that any such consultation shall not constitute a waiver by Jupiter Parent or
the Company of any rights they may have under this Agreement, and that Jupiter Parent and
the Company shall not have any liability or responsibility for any actions of Lucky Parent
or any Seller with respect to matters that are the subject of such consultations.



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          SECTION 5.02. Covenants of Jupiter Parent and the Company.





          (a) Except to the extent expressly permitted or required by the terms of this
Agreement, (i) from the date of this Agreement to the Closing, the Company shall not (and
Jupiter Parent shall not permit the Company to) engage in any business activities and (ii)
prior to the Closing Date, the Company shall not, without the prior written consent of the
Sellers, engage in any conduct that would be a breach of any agreement or covenant set
forth in clause 5.1 of the Shareholders’ Agreement (assuming that the Shareholders’
Agreement was in effect at all times from and after the date hereof), in each case, other
than activities contemplated by this Agreement and the Transaction Documents and activities
incidental to the maintenance of its existence.




          (b) Advice of Changes. Jupiter Parent and the Company shall promptly advise
the Sellers in writing of the occurrence of any change or event prior to the Closing that,
individually or in the aggregate with all past changes or events, is material to the
business, assets, condition (financial or otherwise), prospects, working capital,
liabilities or results of operations of the Company. Upon obtaining knowledge thereof,
Jupiter Parent and the Company shall give prompt notice to the Sellers of any
representation or warranty made by them contained in this Agreement becoming untrue or
inaccurate; provided, however, that no such notification shall affect the
representations, warranties, covenants, agreements in this Agreement or the Transaction
Documents for purposes of determining the satisfaction of the conditions set forth in
Article VI or of determining whether any person is entitled to indemnification pursuant to
Article VIII. Jupiter Parent and the Company shall promptly provide Lucky Parent and each
Seller with copies of all filings made by Jupiter Parent or any of its affiliates with any
Governmental Entity in connection with this Agreement or the Transaction Documents and the
transactions contemplated hereby or thereby, other than the portions of such filings that
include confidential information not directly related to the transactions contemplated
hereby. Jupiter Parent and the Company shall provide to the Sellers immediate written
notice and copies of all pleadings and correspondence in connection with any Proceeding
against Jupiter Parent or any of its affiliates or any of their respective directors
relating to the transactions contemplated by this Agreement or any of the Transaction
Documents.



          SECTION 5.03. No Solicitation. Neither Lucky Parent nor any Seller shall, nor shall
any of them authorize or permit any of their affiliates or Representatives to, (i) solicit,
initiate or encourage any Competing Bid, (ii) enter into any agreement with respect to a Competing
Bid or (iii) participate in any discussions or negotiations regarding, or furnish to any person
any information with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead to, a Competing
Bid. Lucky Parent and each Seller shall promptly advise Jupiter Parent and the Company orally and
in writing of any Competing Bid or any inquiry with respect to or which could lead to a Competing
Bid and the identity of the person making any such bid or inquiry. As used in this






37









 







Section 5.03, “Competing Bid” shall mean any proposal to purchase or otherwise acquire any of
the Acquired Assets (other than pursuant to the transactions contemplated by this Agreement).




          SECTION 5.04. Access to Information. Subject to the terms of the Collaboration
Agreement and applicable Antitrust Laws, each Seller shall afford to Jupiter Parent, the Company
and their accountants, counsel and other Representatives reasonable access, upon reasonable notice
during normal business hours during the period prior to the Closing, to all the personnel,
properties, books, contracts, commitments and records of the Business (other than the Excluded
Assets), and during such period shall furnish promptly to Jupiter Parent and the Company any
information concerning the Business or the Acquired Assets as Jupiter Parent or the Company may
reasonably request.




          SECTION 5.05. Confidentiality. (a) The Company acknowledges that the information
being provided to it in connection with the Acquisition and the consummation of the other
transactions contemplated hereby and by the Transaction Documents is subject to the terms of the
confidentiality agreement between JNJ Pharmaceutical Services, LLC and Lucky Parent dated as of
October 29, 2008 (the “Confidentiality Agreement”), the terms of which are incorporated
herein by reference.





          (b) Lucky Parent and each Seller shall maintain in confidence (and ensure that their
respective affiliates and employees maintain in confidence) any Confidential Information,
and shall not disclose, use or grant a third party the right to use (or permit any of their
respective affiliates and employees to disclose, use or grant such a right to use) any
Confidential Information, except: (i) on a need-to-know basis to such party’s directors,
officers and employees, and to such party’s consultants working on such party’s premises,
to the extent such disclosure is reasonably necessary for a purpose related to the
operation of the Business; (ii) with the prior written consent of Jupiter Parent; (iii) as
may be required (and only to the extent required) by Applicable Law or by the rules of any
recognized stock exchange, or Governmental Entity, in which case Lucky Parent or such
Seller shall, if practicable, supply a copy of the required disclosure to Jupiter Parent
before it is disclosed and incorporate any amendments or additions reasonably required by
Jupiter Parent and which would not thereby prevent the disclosing party from complying with
its legal obligations; or (iv) to any Taxing Authority to the extent reasonably required
for the purposes of the Tax affairs of Lucky Parent or such Seller or any of their
respective affiliates. Lucky Parent and each Seller shall inform (and shall cause their
respective affiliates to inform) any director, officer, employee or consultant to whom it
provides Confidential Information that such information is confidential and shall require
them (i) to keep it confidential and (b) not to disclose it to any third party (other than
those persons to whom it has already been disclosed or may be disclosed, in each case, in
accordance with the terms of this Agreement). The covenant set forth in this Section
5.05(b) shall terminate upon the Closing, and thereafter Lucky Parent and each Seller shall
keep such information confidential in accordance with the terms of the Shareholders’
Agreement.



38









 





          SECTION 5.06. Required Actions. (a) Upon the terms and subject to the conditions
set forth in this Agreement and the Transaction Documents, each of the parties hereto agrees to
use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most expeditious manner
practicable, the Acquisition and the other transactions contemplated by this Agreement and the
Transaction Documents.





          (b) In connection with and without limiting Section 5.06(a), promptly following the
execution and delivery by the parties of this Agreement, the parties shall (i) make all
necessary registrations, declarations and filings with Governmental Entities that are
required (including the filing of a Notification and Report Form under the HSR Act as soon
as practicable but in any event not later than 10 Business Days following the date hereof)
in connection with the consummation of the Acquisition and the other transactions
contemplated by this Agreement and the Transaction Documents and (ii) take all other
actions required to be taken in order to obtain all Consents and nonactions required to be
obtained from Governmental Entities or private parties in connection with the consummation
of the Acquisition and the other transactions contemplated by this Agreement and the
Transaction Documents and in order to eliminate each other impediment that may be asserted
or obtained by such Governmental Entities or private parties, in each case with respect to
the Acquisition and the other transactions contemplated by this Agreement and the
Transaction Documents, in each case so as to enable the Closing to occur as soon as
reasonably possible. Notwithstanding anything to the contrary in this Section 5.06,
neither Jupiter Parent nor any of its affiliates shall be required to offer or agree to (A)
dispose of, hold separate or limit its operation of any portion of the Business or of its
other businesses, assets or properties, (B) limit its ability to acquire or hold, or
exercise full rights of ownership of, the Acquired Assets or any of its other businesses,
assets or properties or (C) limit its ability to effectively control the Business or any of
its other businesses, assets or properties; provided that nothing in this Section
5.06(b) shall limit the obligations of Jupiter Parent or any of its affiliates following
the Closing under clause 8.2 of the Shareholders’ Agreement.




          (c) Lucky Parent and each Seller shall (i) take all action necessary to ensure that
no state takeover statute or similar statute or regulation is or becomes applicable to this
Agreement, any of the Transaction Documents or any of the transactions contemplated by this
Agreement or the Transaction Documents and (ii) if any state takeover statute or similar
statute becomes applicable to this Agreement, any of the Transaction Documents or any of
the transactions contemplated by this Agreement or the Transaction Documents, take all
action necessary to ensure that the transactions contemplated by this Agreement and the
Transaction Documents may be consummated as promptly as practicable on the terms
contemplated by this Agreement and the Transaction Documents and otherwise to minimize the
effect of such statute or regulation on this Agreement, any of the Transaction Documents
and the transactions contemplated hereby and thereby.



39









 






          (d) In connection with and without limiting Section 5.06(a), prior to the Closing
and, to the extent Jupiter Parent and the Company waive Section 6.02(c), for a period of 12
months thereafter, each party shall, and shall cause its affiliates to, use its
commercially reasonable efforts (at its own expense) to obtain, and to cooperate in
obtaining, all consents from third parties and Governmental Entities necessary or
appropriate to permit the transfer of the Acquired Assets to, and the assumption of the
Assumed Liabilities by, the Company; provided, however, that the parties
shall not be required to pay or commit to pay any amount to (or incur any obligation in
favor of) any person from whom any such consent may be required (other than filing or
application fees).




          (e) Promptly, but in any event not more than two Business Days following the
execution and delivery by the parties of this Agreement, (i) the Company, Elan Pharma
International Limited and Lucky Collaboration Subsidiary shall provide to Wyeth the written
notice contemplated by Section 13.7.1 of the Collaboration Agreement, in the forms attached
hereto as Exhibits H-1 and H-2, as applicable, and (ii) the Company and Lucky Collaboration
Subsidiary shall provide to Wyeth the written confirmation contemplated by Section 13.7.3
of the Collaboration Agreement, in the forms attached hereto as Exhibits I-1 and I-2, as
applicable.




          (f) Notwithstanding anything in this Agreement to the contrary, nothing in this
Section 5.06 shall require Jupiter Parent or the Company to (i) consent to any action or
omission by Lucky Parent or any Seller that would be inconsistent with Section 5.01 absent
such consent or (ii) agree to amend or waive any provision of this Agreement or any
Transaction Document. Notwithstanding anything in this Agreement to the contrary, nothing
in this Section 5.06 shall require Lucky Parent or any Seller to (i) consent to any action
or omission by Jupiter Parent or the Company that would be inconsistent with Section 5.02
absent such consent or (ii) agree to amend or waive any provision of this Agreement or any
Transaction Document.




          (g) To the extent permitted by Applicable Law and the Collaboration Agreement, each
of the parties hereto shall use its commercially reasonable efforts to (i) cooperate in all
respects with each other in connection with any required action under Section 5.06(b),
including any filing or submission with any Governmental Entity in connection with the
Acquisition or any of the other transactions contemplated by this Agreement and the
Transaction Documents (including, to the extent permitted by Applicable Law, providing
copies of all such documents to the other parties prior to making such filing or submission
and considering all reasonable comments of the other parties suggested in connection
therewith) and in connection with any suit, action, proceeding, investigation or other
inquiry by or before any Governmental Entity or private party relating to the Acquisition
or any of the other transactions contemplated by this Agreement and the Transaction
Documents, and (ii) keep the other parties informed in all material respects and on a
reasonably timely basis of



40









 







any material communication (including meetings, telephonic conferences,
presentations and written correspondence) received by such party from, or given by
such party to, any Governmental Entity or private party relating to the Acquisition or any
of the other transactions contemplated by this Agreement and the Transaction Documents.
Lucky Parent and the Sellers agree not to participate in any scheduled meeting or
substantive discussion, either in person or by telephone, with any Governmental Entity in
connection with the proposed transactions unless they consult with Jupiter Parent and the
Company in advance and, to the extent not prohibited by such Governmental Entity, gives
Jupiter Parent and the Company the opportunity to attend and participate. Each of the
parties hereto agrees not to extend or restart any waiting period under the HSR Act or any
other Antitrust Laws or enter into any agreement with a Governmental Entity not to
consummate the transactions contemplated by this Agreement, except with the prior written
consent of the other party, which consent shall not be unreasonably withheld or delayed.




          (h) Prior to the Closing, each of the parties hereto agrees to negotiate in good
faith with the other parties hereto in order to enter into, or have a subsidiary enter
into, a lease agreement, containing fair market terms and conditions, relating to the
facilities set forth on Schedule 5.06(h) of the Seller Disclosure Letter (such facilities,
the “Leased Facilities”).



          SECTION 5.07. Expenses. Whether or not the Closing takes place, and except as
expressly set forth in Article VIII, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party incurring such
expense, including all costs and expenses incurred pursuant to Sections 1.04 and 5.06.




          SECTION 5.08. Post-Closing Cooperation. (a) The Company, Lucky Parent and each
Seller shall cooperate with each other, and shall cause their officers, employees, agents,
auditors and other Representatives to cooperate with each other to ensure the orderly transition
of the Business from each Seller to the Company and to minimize any disruption to the Business and
the other respective businesses of Lucky Parent and Jupiter Parent that might result from the
transactions contemplated hereby. In addition, Lucky Parent and its subsidiaries shall cooperate
in good faith to provide all customary transition service arrangements reasonably requested by the
Company, which services shall be provided by Lucky Parent and its subsidiaries at cost and upon
other customary terms and conditions to be agreed upon. After the Closing, upon reasonable written
notice, the Company, Lucky Parent and each Seller shall furnish or cause to be furnished to each
other and their employees, counsel, auditors and other Representatives access, during normal
business hours, to such information and assistance relating to the Business, including the
Retained Financial Records (to the extent within the control of such party) as is reasonably
necessary for financial reporting, business support, compliance and accounting matters (subject to
any applicable confidentiality obligations).




41









 









          (b) No party hereto shall be required by this Section 5.08 to take any action that
would unreasonably interfere with the conduct of its business or
unreasonably disrupt its normal operations (or, in the case of the Company, the
Business). Any information relating to the Business received by any Lucky Parent, any
Seller or any of their affiliates pursuant to this Section 5.08 shall be subject to Section
5.05.




          (c) Promptly, but in any event not more than two Business Days following the Closing,
the Company and Lucky Collaboration Subsidiary shall provide to Wyeth the written
confirmation contemplated by Section 13.7.3 of the Collaboration Agreement, in the forms
attached hereto as Exhibits J-1 and J-2, as applicable.




          (d) From and after the Closing, none of Lucky Parent, the Sellers or any of their
respective affiliates or Representatives shall engage in any discussions with Wyeth (or
otherwise take any action) pursuant to the Collaboration Agreement (it being agreed that
from and after the Closing, all such discussions and actions shall be undertaken by the
Company, its affiliates and Representatives of the foregoing); provided,
however, the Sellers, after consultation with Jupiter Parent and the Company, shall
be permitted to engage in discussions with Wyeth regarding matters related to the
Collaboration Agreement that are solely relevant to the period prior to the Closing, to the
extent that such matters were specifically identified to Jupiter Parent and the Company
during such consultation and the Sellers shall inform Jupiter Parent and the Company of the
substance and outcome of any such discussions as promptly as practicable thereafter.




          (e) Payment of Preclosing Collaboration Expenses; Proration.




     (i) Periods Ended Prior to the Closing Date. Lucky Collaboration Subsidiary
shall be (A) solely responsible for any Collaboration Expenses accruing in respect
of all full Calendar Quarters (as defined in the Collaboration Agreement) and
calendar years ended prior to the Closing Date (each such period, a “Completed
Period”) and (B) the sole beneficiary of all Reconciliation Payments due to
Lucky Collaboration Subsidiary and the sole obligor of all Reconciliation Payments
due to Wyeth, in each case, without giving effect to the Transactions, in respect
of such Completed Periods. To the extent that any Collaboration Expenses in
respect of a Completed Period are paid by the Company following the Closing Date,
then the Company shall provide Lucky Collaboration Subsidiary with reasonable
supporting documentation and Lucky Collaboration Subsidiary shall promptly (but in
any event within 30 days) remit an amount equal to such Collaboration Expenses to
the Company. To the extent that any Reconciliation Payment is due to or from Wyeth
under Section 4.3.4 of the Collaboration Agreement in respect of any Completed
Period, the Company shall provide Lucky Collaboration Subsidiary with the
supporting documentation received from Wyeth



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pursuant to Section 4.3.4 of the
Collaboration Agreement (the “Wyeth Supporting Documentation”) with respect
to such Completed Period and
to the extent that such Reconciliation Payment is due (X) to Wyeth, Lucky
Collaboration Subsidiary shall promptly (but in any event within 30 days) remit an
amount equal to such Reconciliation Payment to the Company or (Y) to Lucky
Collaboration Subsidiary (without giving effect to the Transactions), the Company
shall promptly (but in any event within 30 days) following receipt of such
Reconciliation Payment from Wyeth remit the amount of such Reconciliation Payment
actually received from Wyeth to Lucky Collaboration Subsidiary.




     (ii) With respect to the Calendar Quarter in which the Closing Date occurs
(the “Current Period”) (A) Lucky Collaboration Subsidiary shall be solely
responsible for any Collaboration Expenses accruing from the first day of the
Current Period to and including the day immediately preceding the Closing Date
(such period, the “Pre-Closing Stub Period”) and (B) the Company shall be
solely responsible for Collaboration Expenses accruing from and after the Closing
Date. To the extent that Collaboration Expenses accrued in respect of the
Pre-Closing Stub Period are paid by the Company following the Closing Date, then
the Company shall provide Lucky Collaboration Subsidiary with reasonable supporting
documentation and Lucky Collaboration Subsidiary shall promptly (but in any event
within 30 days) remit an amount equal to such Collaboration Expenses to the
Company. To the extent that any Reconciliation Payment is due to or from Wyeth
under Section 4.3.4 of the Collaboration Agreement in respect of the Current
Period, the Company shall provide Lucky Collaboration Subsidiary with the Wyeth
Supporting Documentation for the Current Period and to the extent such
Reconciliation Payment is due (X) to Wyeth, Lucky Collaboration Subsidiary shall
promptly (but in any event within 30 days) remit an amount equal to the product of
the Stub Period Percentage and such Reconciliation Payment to the Company or (Y)
from Wyeth, the Company shall promptly (but in any event within 30 days) following
receipt of such Reconciliation Payment from Wyeth remit an amount equal to the
product of the Stub Period Percentage and the amount actually received from Wyeth
in respect of such Reconciliation Payment to Lucky Collaboration Subsidiary.




     (iii) The Company shall be (A) solely responsible for any Collaboration
Expenses accruing in respect of all full Calendar Quarters and calendar years ended
after the Closing Date and (B) the sole beneficiary of all Reconciliation Payments
due to the Company and the sole obligor of all Reconciliation Payments due to
Wyeth, in respect of such Calendar Quarters and calendar years.




     (iv) From and after the Closing Date, the Company will be solely responsible
for complying with the requirements of Section 4.3 of the



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Collaboration Agreement;
provided that Lucky Parent and the Sellers shall upon reasonable request
provide the Company with assistance (including
reasonable access during normal business hours to the books, records and
personnel of Lucky Parent or any Seller) to the extent necessary to so comply with
respect to all Completed Periods.



          SECTION 5.09. Publicity. No party hereto will make or issue any announcement,
communication or prospectus to shareholders, employees (other than as may be reasonably necessary
for such party to exercise its rights or comply with its obligations hereunder), customers or
suppliers or to securities markets or other authorities or to the media or otherwise, regarding
the subject matter of this Agreement or any Specified Collaboration Document or any term or
provision of this Agreement or any Specified Collaboration Document without the prior written
approval of the other parties; provided, however, if, and to the extent that, such
announcement, communication or prospectus is required by (i) any Applicable Law, (ii) any
securities exchange on which the securities of such party are listed or traded, (iii) any
Governmental Entity having jurisdiction over the party making or issuing the announcement,
communication or prospectus, in each case, whether or not the requirement has the force of law,
such announcement, communication or prospectus shall be permitted after prior notification to the
other parties to this Agreement; provided, further, that if any party proposes to
make or issue an announcement, communication or prospectus pursuant to this Section 5.09, it will
provide copies of that proposed announcement, communication or prospectus to each of the other
parties to this Agreement before the announcement, communication or prospectus is made or issued
unless this would be in breach of any law or regulation, in which case a copy of the announcement,
communication or prospectus will be so provided to each party as soon as reasonably practicable or
in accordance with law or regulation. Attached hereto as Schedule B is the joint press release to
be issued by Lucky Parent and Jupiter Parent in respect of the signing of this Agreement.




          SECTION 5.10. Further Assurances. At any time from and after the Closing Date, as
and when requested by any party, each party shall execute and deliver, or cause to be executed and
delivered, all such documents and instruments and shall take, or cause to be taken, all such
further or other actions (subject to Section 5.06), as such other party may reasonably deem
necessary or desirable to more effectively transfer, convey or assign to the Company, and to
confirm the Company’s right to, title in and ownership of, the Acquired Assets and to place the
Company in actual possession and operating control thereof, including executing and delivering to
the Company such assignments, deeds, bills of sale, consents and other instruments, as the Company
or its counsel may reasonably request as necessary or appropriate for such purposes.




          SECTION 5.11. Tax Matters. (a) (i) Lucky Parent, each Seller, Jupiter Parent and
the Company have agreed to allocate for all purposes the Stock Consideration and Assumed
Liabilities (collectively, the “Purchase Price”) among the Acquired Assets as described in
Schedule C hereto (the “Allocation”).





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          (ii) All consideration as detailed in Section 1.01 is exclusive of VAT.




          (iii) Each of the parties hereto intends that section 3(5)(b)(iii) and section
5(8) Value Added Tax Act 1972 will apply to the sale of the Acquired Assets and
agrees to use its reasonable endeavors to secure that the sale of the Acquired
Assets is treated as neither a supply of goods nor a supply of services for the
purposes of those sections.




          (iv) If any VAT is payable on the sale of the Acquired Assets and the relevant
Taxing Authority have so confirmed in writing after full disclosure of all material
facts, each Seller shall promptly deliver to the Company a proper VAT invoice in
respect of the VAT payable. Following receipt of the VAT invoice, the Company
shall pay to each Seller the amount of that VAT on the later of 3 (three) Business
Days:




                    (A) before each Seller will be required to account to the
relevant Taxing Authority for the VAT; or




                    (B) after receipt of the VAT invoice by the Company.




          (v) For the purposes of disclosing all material facts to the relevant Taxing
Authority, each Seller shall give the Company a reasonable opportunity to comment
on any correspondence with the relevant Taxing Authority, and shall make such
amendments as the Company reasonably requires.




          (vi) If the Company pays each Seller an amount in respect of VAT under clause
(iv) above and the relevant Taxing Authority note that all or part of it was not
properly chargeable, each Seller shall repay the amount or relevant part of it to
the Company. Each Seller shall make the repayment promptly after the ruling,
unless it has already accounted to the relevant Taxing Authority for the VAT. In
that case, each Seller shall apply for a refund of the VAT (plus any interest
payable by the relevant Taxing Authority), use reasonable endeavors to obtain it as
speedily as practicable, and pay to the Company the amount of the refund and any
interest forthwith upon receipt, to the extent received, from the relevant Taxing
Authority.




          (vii) Lucky Parent, each Seller, Jupiter Parent and the Company shall prepare
and file their Tax Returns on a basis consistent with the Allocation and shall take
no position inconsistent with the Allocation on any applicable Tax Return or in any
proceeding before any Taxing Authority or otherwise. In the event that the
Allocation is disputed by any Taxing Authority, the party receiving notice of the
dispute shall promptly notify the other party hereto, and Lucky Parent, each
Seller, Jupiter Parent



45









 







and the Company agree to use their commercially reasonable efforts to defend
such Allocation in any audit or similar proceeding, and the matter shall be handled
as described in Section 8.04.




          (viii) Lucky Parent, each Seller, Jupiter Parent and the Company agree that
the Allocation shall be completed on or prior to the Closing.




               (b) (i) All Transfer Taxes applicable to the conveyance and transfer from each Seller
to the Company of the Acquired Assets and any other transfer or documentary Taxes or any
filing or recording fees applicable to such conveyance and transfer shall be paid by each
Seller. Each party shall use commercially reasonable efforts to avail itself of any
available exemptions from any such Taxes or fees, and to cooperate with the other party in
providing any information and documentation that may be necessary to obtain such
exemptions.




          (ii) Lucky Parent, each Seller and the Company shall cooperate in timely
making all filings, returns, reports and forms as may be required in connection
with each Seller’s payment of Transfer Taxes. Each party shall execute and deliver
all instruments and certificates reasonably necessary to enable the other to comply
with any filing requirements relating to any such Transfer Taxes.




               (c) Lucky Parent, each Seller and the Company agree, until the expiration of the
applicable statute of limitations, to provide each other with such information and
assistance as is reasonably necessary, including access to records and personnel, for the
preparation of any Tax Returns or for the defense of any Tax claim or assessment, whether
in connection with an audit or otherwise.



          SECTION 5.12. Post-Closing Insurance Claims. If any Assumed Liability could
reasonably be expected to give rise to a claim under an insurance policy of Lucky Parent, any
Seller or any other affiliate of Lucky Parent, Lucky Parent shall use its commercially reasonable
efforts to pursue such claim and shall promptly pay to Jupiter Parent (or its designee) any
amounts received under such claim; provided that neither Lucky Parent nor any Seller shall
be obligated to incur any out-of-pocket expenses or institute any Proceeding in pursuing such
insurance claim.




          SECTION 5.13. Lucky Parent Guarantee; Jupiter Parent Guarantee. Lucky Parent hereby
irrevocably guarantees, as principal and not as surety, (a) the due and punctual payment of all
monetary obligations now or hereafter due and payable by any Seller pursuant to this Agreement,
and (b) the full and complete performance of all covenants, agreements, duties and obligations
applicable to each Seller pursuant to this Agreement, whether such covenants, agreements, duties
or obligations are outstanding on the date hereof or arise or are incurred at any time or times
hereafter, in each case without setoff or reduction for any purpose. Jupiter Parent hereby
irrevocably guarantees, as principal and not as surety, (a) the due and punctual payment of all
monetary obligations now or hereafter due and payable by the Company pursuant to this Agreement,
and (b) the full and complete performance of all covenants, agreements,




46









 




duties and obligations applicable to the Company pursuant to this Agreement, whether such
covenants, agreements, duties or obligations are outstanding on the date hereof or arise or are
incurred at any time or times hereafter, in each case without setoff or reduction for any purpose.




          SECTION 5.14. Transaction Documents. (a) On the date of this Agreement, each of
Janssen Pharmaceutical, Lucky Parent and Keavy Holdings, plc shall execute and deliver a
subscription and transfer agreement in the form attached as Exhibit A hereto (such agreement, the
“Subscription and Transfer Agreement”).





               (b) On the Closing Date and concurrently with the Equity Closing, each of Janssen
Pharmaceutical and Lucky Parent shall execute and deliver an investment agreement in the
form attached as Exhibit B hereto (such agreement, the “Investment Agreement”).




               (c) On the Closing Date and concurrently with the Closing, each of Lucky Parent,
Lucky Collaboration Subsidiary, Elan Pharma International Limited, the Company, Juno
Neurosciences (Holding) Limited, Latam Properties Holdings, JNJ Irish Investments ULC and
Jupiter Parent shall execute and deliver a shareholders’ agreement substantially in the
form of Exhibit C hereto (such agreement, the “Shareholders’ Agreement”).




               (d) On the date of this Agreement, each of Lucky Parent, each Seller, Jupiter Parent,
the Company, Juno Holding Company, LLC, and the subsidiaries of Lucky Parent set forth
therein shall execute and deliver an employment matters agreement substantially in the form
of Exhibit D hereto (such agreement, the “Employment Matters Agreement”).




               (e) On the Closing Date and concurrently with the Closing, each of Elan Pharma
International Limited, Juno Neurosciences (Holding) Limited and the Company shall execute
and deliver a royalty letter agreement in the form attached as Exhibit E hereto (such
agreement, the “Royalty Agreement”).




               (f) On the Closing Date and concurrently with the Closing, each of Lucky Parent, Elan
Pharma International Limited, Elan Pharmaceuticals Inc. and the Company shall execute and
deliver the license and grant-back agreement in the form attached as Exhibit F hereto (such
agreement, the “License and Grant-Back Agreement”).




               (g) On the date of this Agreement, each of Elan Pharma International Limited, Elan
Pharmaceuticals, Inc., Neuralab Limited, Athena Neurosciences, Inc., Lucky Parent and Lucky
Collaboration Subsidiary shall execute and deliver an asset purchase agreement in the form
attached as Exhibit G hereto (such agreement, the “Internal Asset Purchase
Agreement”).




               (h) On the Closing Date and concurrently with the Closing, each of Latam Properties
Holdings and the Company shall execute and deliver a Loan



47









 







Agreement in the form attached as Exhibit F to the Shareholders’ Agreement (such
agreement, the “Loan Agreement”).




               (i) On the Closing Date and concurrently with the Closing, each of Juno Neurosciences
(Holding) Limited and the Company shall execute and deliver an Initial Contribution
Agreement in the form attached as Exhibit D to the Shareholders’ Agreement (such agreement,
the “Initial Contribution Agreement”).



ARTICLE VI




Conditions Precedent



          SECTION 6.01. Conditions to Each Party’s Obligation. The obligation of the Company
to purchase the Acquired Assets and assume the Assumed Liabilities and the obligation of each
Seller to sell the Acquired Assets to the Company is subject to the satisfaction or waiver on or
prior to the Closing of the following conditions:





     (a) HSR Act. The waiting period (and any extension thereof) under the HSR Act
applicable to the Acquisition and the other transactions contemplated by this Agreement or
the Transaction Documents shall have terminated or expired.




     (b) No Injunctions or Restraints. No Applicable Law or Judgment shall be in
effect that prohibits the consummation of the Acquisition and the other transactions
contemplated by this Agreement or the Transaction Documents (any such Applicable Law or
Judgment, a “Restraint”).




     (c) Transaction Documents. Prior to or substantially simultaneously with the
Closing, each Transaction Document shall have been duly executed by the parties thereto,
have become effective in accordance with its terms and the Equity Closing and the Internal
Asset Purchase Closing shall have occurred.



          SECTION 6.02. Conditions to Obligations of Jupiter Parent and the Company. The
obligation of the Company to purchase the Acquired Assets and assume the Assumed Liabilities is
subject to the satisfaction (or waiver by Jupiter Parent and the Company) on or prior to the
Closing Date of the following conditions:





     (a) Representations and Warranties. (i) Each of the Specified Seller
Representations qualified as to materiality or Seller Material Adverse Effect shall be true
and correct, and those not so qualified shall be true and correct in all
material respects, in each case as of the date hereof and as of the Closing Date as though
made on the Closing Date (except, in each case, to the extent such Specified Seller
Representation speaks as of an earlier date, in which case such Specified Seller
Representation, if qualified as to materiality or Seller Material Adverse Effect, shall be
true and correct as of such earlier date, and if not so qualified, shall be true and
correct in all material respects as of such earlier date) and (ii) the Non-Specified Seller
Representations (read without giving effect to
any qualifications or exceptions contained therein regarding materiality or Seller



48









 







Material Adverse Effect) shall be true and correct in all respects as of the date hereof
and as of the Closing Date as though such Non-Specified Seller Representations had been
made on the Closing Date, (except, in each case, to the extent such Non-Specified Seller
Representation speaks as of an earlier date, in which case such Non-Specified Seller
Representation shall be so true and correct in all respects as of such earlier date),
except, in the case of this clause (ii), where the facts or matters giving rise to any such
failure or failures to be true and correct have not had and could not reasonably be
expected to have, individually or in the aggregate, a Seller Material Adverse Effect. The
Company shall have received a certificate signed by an authorized officer of Lucky Parent
and each Seller to such effect.




     (b) Performance of Obligations of Lucky Parent and each Seller. All
covenants, agreements and obligations contained in this Agreement to be complied with or
performed by Lucky Parent or any Seller on or prior to the Closing Date shall have been
complied with or performed in all material respects, and the Company shall have received a
certificate signed by an authorized officer of Lucky Parent and each Seller to such effect.




     (c) Other Conditions. All of the conditions set forth on Section 6.02(c) of
the Seller Disclosure Letter shall have been satisfied.




     (d) Collaboration Agreement. At least sixty days shall have elapsed since the
delivery to Wyeth of the notice required by Section 5.06(e).



          SECTION 6.03. Conditions to Obligations of Lucky Parent and each Seller. The
obligation of each Seller to sell, assign, convey, and deliver the Acquired Assets is subject to
the satisfaction (or waiver by Lucky Parent and each Seller) on or prior to the Closing Date of
the following conditions:





     (a) Representations and Warranties. (i) Each of the Specified Company
Representations qualified as to materiality or Company Material Adverse Effect shall be
true and correct, and those not so qualified shall be true and correct in all material
respects, in each case as of the date hereof and as of the Closing Date as though made on
the Closing Date (except, in each case, to the extent such Specified Company Representation
speaks as of an earlier date, in which case such Specified Company Representation, if
qualified as to materiality or Company Material Adverse Effect, shall be true and correct
as of such earlier date, and if not so qualified, shall be true and correct in all material
respects as of such earlier date) and (ii) the Non-Specified Company Representations (read
without giving effect to any qualifications or exceptions contained therein regarding
materiality or Company Material Adverse Effect) shall be true and correct in all respects
as of the date hereof and as of the Closing Date as though such Non-Specified Company
Representations had been made on the Closing Date (except, in each case, to the extent such
Non-Specified Company Representation speaks as of an earlier date, in which case such
Non-Specified Company Representation shall be so true and correct in all respects as of such



49









 







earlier date), except, in the case of this clause (ii), where the facts or matters giving rise to
any such failure or failures to be true and correct have not had and could not reasonably
be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Lucky Parent shall have received a certificate signed by an authorized officer of Jupiter
Parent and the Company to such effect.




     (b) Performance of Obligations of Jupiter Parent and the Company. All
covenants, agreements and obligations contained in this Agreement to be complied with or
performed by Jupiter Parent and the Company on or prior to the Closing Date shall have been
complied with or performed in all material respects, and Lucky Parent shall have received a
certificate signed by an authorized officer of Jupiter Parent and the Company to such
effect.



          SECTION 6.04. Frustration of Closing Conditions. Neither Jupiter Parent, the
Company, Lucky Parent nor any Seller may rely on the failure of any condition set forth in this
Article VI to be satisfied if such failure was caused by such party’s failure to act in good faith
or to take the actions required by Section 5.06 to be taken in order to cause the Closing to
occur.




ARTICLE VII




Termination, Amendment and Waiver



          SECTION 7.01. Termination. (a) Notwithstanding anything to the contrary in this
Agreement, this Agreement may be terminated and the Acquisition and the other transactions
contemplated by this Agreement abandoned at any time prior to the Closing:





          (i) by written consent of Lucky Parent, each Seller, Jupiter Parent and the
Company;




          (ii) by either Jupiter Parent and the Company, on one hand, or the Sellers and
Lucky Parent, on the other hand, if the Closing shall not have occurred on or
before September 15, 2009 (the “Outside Date”); provided, that if
on the Outside Date, the condition set forth in Section 6.01(a) has not been
fulfilled but each other condition has been fulfilled or waived to the satisfaction
of each of the parties, any party may by notice to each of the other parties extend
the Outside Date until the date that is 75 days after the Outside Date;
provided, however, that the right to terminate this Agreement or
extend the Outside Date pursuant to this Section 7.01(a)(ii) will not be available
to a party if the failure of the Closing to occur on or before the Outside Date is
due to a breach by any such party (or any of its affiliates) of its (or any of
their) obligations under this Agreement;




          (iii) by Lucky Parent or Sellers, if Jupiter Parent or the Company breaches or
fails to perform any of its covenants or agreements contained
in this Agreement, or if any of the representations or warranties of Jupiter



50









 







Parent or the Company contained herein fails to be true and correct, which breach
or failure (A) would give rise to the failure of a condition set forth in Section
6.03(a) or Section 6.03(b) and (B) is not capable of being cured by the Outside
Date;




          (iv) by Jupiter Parent or the Company, if either Lucky Parent or any Seller
breaches or fails to perform any of its covenants or agreements contained in this
Agreement, or if any of the representations or warranties of Lucky Parent or any
Seller contained herein fails to be true and correct, which breach or failure (A)
would give rise to the failure of a condition set forth in Section 6.02(a) or
Section 6.02(b) and (B) is not capable of being cured by the Outside Date; or




          (v) by either Jupiter Parent and the Company, on one hand, or the Sellers and
Lucky Parent, on the other hand, if any Restraint shall be in effect and shall have
become final and nonappealable.




               (b) In the event of termination by Lucky Parent, any Seller, Jupiter Parent or the
Company pursuant to this Section 7.01, written notice thereof shall forthwith be given to
the other and the transactions contemplated by this Agreement shall be terminated, without
further action by any party. If the transactions contemplated by this Agreement are
terminated as provided herein:




          (i) Jupiter Parent and the Company shall return all documents and other
material received from Lucky Parent or any Seller relating to the transactions
contemplated hereby, whether so obtained before or after the execution hereof, to
Lucky Parent; and




          (ii) all confidential information received by Jupiter Parent and the Company
with respect to the Business shall be treated in accordance with the
Confidentiality Agreement, which shall remain in full force and effect
notwithstanding the termination of this Agreement.



          SECTION 7.02. Effect of Termination. If this Agreement is terminated and the
transactions contemplated hereby are abandoned as described in Section 7.01, this Agreement shall
become null and void and of no further force and effect, except for the provisions of (i) Section
5.05 (relating to confidentiality), (ii) Section 5.07 (relating to certain expenses), (iii)
Sections 3.21 and 4.06 (relating to finder’s fees and broker’s fees), (iv) Section 7.01(b) and
this Section 7.02, (v) Section 5.09 (relating to publicity), (vi) Section 9.02 (relating to no
third-party beneficiaries), (vii) Section 9.03 (relating to notices), (viii) Section 9.06
(relating to the entirety of this Agreement), (ix) Section 9.08 (relating to consent to
jurisdiction), (x) Section 9.09 (relating to governing law) and (xi) Section 9.11 (relating to the
enforcement in equity and at law). Nothing in this Section 7.02 shall be deemed to release any
party from any liability for any breach by such party of the terms and provisions of this
Agreement or to impair the right of any party to compel specific performance by any other party of
its obligations under this Agreement.







51









 








          SECTION 7.03. Amendments and Waivers. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto. By an instrument in
writing Jupiter Parent and the Company, on the one hand, or Lucky Parent and each Seller, on the
other hand, may waive compliance by the other party with any term or provision of this Agreement
that such other party was or is obligated to comply with or perform.




ARTICLE VIII




Indemnification



          SECTION 8.01. Indemnification by Lucky Parent and each Seller. Lucky Parent and
each Seller, jointly and severally, shall indemnify Jupiter Parent, the Company, their affiliates
and each of their respective Representatives against, and hold them harmless from, any Losses, as
incurred (payable promptly upon written request), arising from, in connection with or otherwise
with respect to:





     (a) any inaccuracy in, or breach of, any representation or warranty of Lucky Parent or
any Seller contained in this Agreement or any document delivered in connection herewith (it
being agreed and acknowledged by the parties that for purposes of determining the existence
of any such inaccuracy or breach or the amount of any Loss with respect thereto, the
representations and warranties of Lucky Parent and the Sellers shall be deemed not
qualified by any references therein to materiality or Seller Material Adverse Effect);




     (b) any failure by Lucky Parent or any Seller to perform any covenant, agreement,
obligation or undertaking contained in this Agreement or in any document delivered in
connection herewith;




     (c) any Excluded Liability; and




     (d) any and all actions, suits, proceedings, demands, assessments, judgments, damages,
awards, costs and expenses (including third-party fees and expenses) incident to any of the
foregoing or incurred in connection with the enforcement of the rights of any such
indemnified party with respect to the foregoing.



          SECTION 8.02. Indemnification by Jupiter Parent and the Company. (a) Jupiter
Parent and the Company, jointly and severally, shall indemnify Lucky Parent, each Seller, their
affiliates and each of their respective Representatives against, and hold them harmless from, any
Losses, as incurred (payable promptly upon written request), for or on account of or arising from
or in connection with or otherwise with respect to:





          (i) any inaccuracy in, or breach of, any representation or warranty of Jupiter
Parent or the Company contained in this Agreement or any document delivered in
connection herewith (it being agreed and



52









 







acknowledged by the parties that for purposes of determining the existence of
any such inaccuracy or breach or the amount of any Loss with respect thereto, the
representations and warranties of Jupiter Parent and the Company shall be deemed
not qualified by any references therein to materiality or Company Material Adverse
Effect);




          (ii) any failure by Jupiter Parent or the Company to perform any covenant,
agreement, obligation or undertaking contained in this Agreement or in any document
delivered in connection herewith; and




          (iii) any and all actions, suits, proceedings, demands, assessments,
judgments, damages, awards, costs and expenses (including third-party fees and
expenses) incident to any of the foregoing or incurred in connection with the
enforcement of the rights of any such indemnified party with respect to the
foregoing.




     (b) the Company shall indemnify Lucky Parent, each Seller, their affiliates and each
of their respective Representatives against, and hold them harmless from, any Losses, as
incurred (payable promptly upon written request), for or on account of or arising from or
in connection with or otherwise with respect to any Assumed Liability and any and all
actions, suits, proceedings, demands, assessments, judgments, damages, awards, costs and
expenses (including third-party fees and expenses) incident to, or incurred in connection
with the enforcement of the rights of any such indemnified party with respect to any
Assumed Liability.


Notwithstanding the foregoing, the parties agree that any Losses incurred by Lucky Parent or any of
its subsidiaries which are indemnifiable pursuant to this Section 8.02 shall be paid to the
applicable party (or its designee).




          SECTION 8.03. Termination of Indemnification. Except with respect to any fraud,
intentional misrepresentation, intentional misconduct or intentional concealment by or on behalf
of any party, such party’s obligations to indemnify and hold harmless any other party pursuant to
Section 8.01(a) (other than with respect to any inaccuracy in, or breach of, any representation or
warranty contained in Sections 3.01, 3.02, 3.03, 3.05, 3.07(b) and 3.20) or Section 8.02(a) (other
than with respect to any inaccuracy in, or breach of, any representation or warranty contained in
Sections 4.01, 4.02 and 4.03) shall, in each case, terminate on the date that is two years after
the Closing Date (except in the case of any Specified Cap Indemnification Obligation, which shall
terminate on the date that is five years after the Closing Date); provided,
however, that such obligations to indemnify and hold harmless shall not terminate with
respect to any item as to which the applicable indemnified party shall have, before the expiration
of the applicable period, previously made a claim by delivering a notice of such claim pursuant to
Section 8.04 to the applicable indemnifying party, which notice shall specify the basis of the
claim in reasonable detail to the extent known to the indemnified party. Any other obligation to
indemnify and hold harmless any party shall terminate upon the expiration of the relevant statute
of limitations, taking into account


53









 







extensions thereof; provided, however, that such obligations shall not
terminate with respect to any item as to which the applicable indemnified party has, before the
expiration of the relevant period, taking into account extensions thereof, previously made a claim
by delivering a notice of such claim pursuant to Section 8.04 to the applicable indemnifying
party, which notice shall specify the basis of the claim in reasonable detail to the extent known
to the indemnified party.




          SECTION 8.04. Procedures. (a) Third Party Claims. If a claim by a third
party is made against a party hereto or any of its affiliates (the “indemnified party”) in
respect of, arising out of or involving a matter for which the indemnified party is entitled to be
indemnified by another party hereto (the “indemnifying party”) pursuant to this Article
VIII (a “Third Party Claim”), such indemnified party must notify the indemnifying party in
writing of the Third Party Claim promptly following receipt by such indemnified party of written
notice of the Third Party Claim, which notice shall specify the basis of the claim in reasonable
detail to the extent known to the indemnified party; provided, however, that
failure to give such notification shall not affect the indemnification provided hereunder except
to the extent (and only to the extent) the indemnifying party shall have been actually and
materially prejudiced as a result of such failure. Thereafter, the indemnified party shall
deliver to the indemnifying party, promptly following the indemnified party’s receipt thereof,
copies of all notices and documents (including court papers) received by the indemnified party
relating to the Third Party Claim.





          (b) Assumption. If a Third Party Claim is made against an indemnified party,
the indemnifying party shall be entitled to participate in the defense thereof and, if it
so chooses, to assume the defense thereof with counsel selected by the indemnifying party;
provided, however, that such counsel is not reasonably objected to by the
indemnified party. Should the indemnifying party so elect to assume the defense of a Third
Party Claim, the indemnifying party shall not be liable to the indemnified party for any
legal expenses subsequently incurred by the indemnified party in connection with the
defense thereof (except as provided below). If the indemnifying party assumes such
defense, the indemnified party shall have the right to participate in the defense thereof
and to employ counsel, separate from the counsel employed by the indemnifying party, at its
own expense (except that the legal expenses of such separate counsel shall be borne by the
indemnifying party if (i) the indemnified party shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to those
available to the indemnifying party or (ii) the named parties in any Proceeding (including
any impleaded parties) related to such Third Party Claim include both the indemnifying
party and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between them). The
indemnifying party shall be liable for the reasonable fees and expenses of counsel employed
by the indemnified party for any period during which the indemnifying party has not assumed
the defense thereof. If the indemnifying party chooses to defend or prosecute a Third
Party Claim, all the indemnified parties shall cooperate in the defense or prosecution
thereof. Such cooperation shall include the retention and



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(upon the indemnifying party’s request) the provision to the indemnifying party of
records and information that are reasonably relevant to such Third Party Claim, and making
employees available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder. If the indemnifying party assumes the
defense of a Third Party Claim, (A) the indemnified party shall agree to any settlement,
compromise or discharge of a Third Party Claim that the indemnifying party may recommend
and that by its terms obligates the indemnifying party to pay the full amount of the
liability in connection with such Third Party Claim, which releases the indemnified party
completely in connection with such Third Party Claim and that would not otherwise adversely
affect the indemnified party, and (B) the indemnified party shall not enter into any
settlement, compromise or discharge of a Third Party Claim without the prior written
consent of the indemnifying party (which shall not be unreasonably withheld, conditioned or
delayed). Notwithstanding the foregoing, (i) the indemnifying party shall not be entitled
to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees
and expenses of counsel incurred by the indemnified party in defending such Third Party
Claim) if (x) the Third Party Claim seeks an order, injunction or other equitable relief or
relief for other than money damages against the indemnified party that the indemnified
party reasonably determines, after conferring with its outside counsel, cannot be separated
from any related claim for money damages or (y) the indemnified party reasonably believes
itself to be exposed, in the event that such Third Party Claim is not resolved in the
indemnified party or indemnifying party’s favor, to Losses in excess of amounts reasonably
expected to be received from the indemnifying party and (ii) the Company shall be entitled
to assume the defense with respect to any Third Party Claim that relates to any
Intellectual Property of the Company or any of its affiliates (including, after the
Closing, the Business Intellectual Property) or that is brought by Wyeth or any of its
affiliates in respect of the Collaboration Agreement; provided that, in the case of
both clauses (i) and (ii) above, the Company shall not settle any Third Party Claim without
the indemnified party’s prior written consent (such consent not to be unreasonably withheld
or delayed). In the case of any Third Party Claim referred to in clause (i)(x) of the
immediately preceding sentence, if such equitable relief or other relief portion of such
Third Party Claim can be so separated from that for money damages, the indemnifying party
shall be entitled to assume the defense of the portion of such Third Party Claim relating
to money damages.




          (c) Other Claims. In the event any indemnified party should have a claim
against any indemnifying party under Section 8.01 or 8.02 that does not involve a Third
Party Claim being asserted against or sought to be collected from such indemnified party,
the indemnified party shall deliver notice of such claim with reasonable promptness to the
indemnifying party. Subject to Sections 8.03 and 8.05, the failure by any indemnified
party so to notify the indemnifying party shall not relieve the indemnifying party from any
liability that it may have to such indemnified party under Section 8.01 or 8.02, except to
the extent that the indemnifying party demonstrates that it has been actually and
materially



55









 







prejudiced by such failure. If the indemnifying party does not notify the
indemnified party within thirty (30) days following its receipt of such notice that
the indemnifying party disputes its liability to the indemnified party under Section 8.01
or 8.02, such claim specified by the indemnified party in such notice shall be conclusively
deemed a liability of the indemnifying party under Section 8.01 or 8.02 and the
indemnifying party shall pay the amount of such liability to the indemnified party on
demand or, in the case of any notice in which the amount of the claim (or any portion
thereof) is estimated, on such later date when the amount of such claim (or such portion
thereof) becomes finally determined.




          (d) Quantifying Company Losses. Except as set forth in the proviso to this
sentence and notwithstanding anything else in this Agreement to the contrary, the parties
agree that any Losses incurred by the Company or any of its subsidiaries which are
indemnifiable pursuant to Section 8.01 shall be paid to Jupiter Parent (or its designees);
provided, however, that the Company shall receive all payment (or portions
thereof) in respect of Losses indemnifiable pursuant to Section 8.01 to the extent, and
only to the extent, (i) such payment (or portion thereof) is made at any time prior to the
Positive Cash Flow Date and (ii) such Losses were funded or covered by the Company with the
proceeds of a repayment of the Loan by Jupiter Sub-2. In the event of any Loss incurred by
the Company or any of its subsidiaries for which the Company or such subsidiary is entitled
to indemnification under Section 8.01, (A) to the extent such Loss is paid, funded,
satisfied or discharged directly or indirectly, in whole or in part, with the proceeds of a
capital contribution, loan, repayment of the Loan by Jupiter Sub-2 or other payment or
advance by Jupiter Parent or any of its affiliates (other than the Company and its
subsidiaries) (any of the foregoing, a “Loss Funding Contribution”), the liability
of Lucky Parent and the Sellers in respect of the portion of such Loss so funded, satisfied
or discharged shall not exceed the amount of such Loss Funding Contribution and (B) to the
extent such Loss is paid, funded, satisfied or discharged with any other asset of the
Company or any of its subsidiaries, or the Company or any of its subsidiaries is required
to concede anything of value in satisfaction or discharge of such Loss other than cash in
respect of a Loss Funding Contribution, the liability of Lucky Parent and the Sellers in
respect of such Loss shall not exceed 50.1% of the aggregate economic value of such Loss.
For any Loss in respect of which both subclauses (A) and (B) of this clause (d) would
apply, such Loss shall be addressed first by the application of subclause (A), with any
remaining Loss being addressed by the application of subclause (B).




          (e) Deductible and Limitations of Lucky Parent and the Sellers.
Notwithstanding any other provision of this Article VIII, Lucky Parent and the Sellers
shall not have any liability:




          (i) under clause (a) of Section 8.01 (and, to the extent relating thereto,
clause (d) of Section 8.01) for any Losses unless and until the aggregate amount of
all such Losses exceeds $3,500,000, in which case



56









 







Lucky Parent or any such Seller
shall be liable for all such Losses only in excess of such amount; and




          (ii) under clause (a) of Section 8.01 (and, to the extent relating thereto,
clause (d) of Section 8.01), individually or in the aggregate, in excess of (x)
$140,000,000 in the case of the General Cap Indemnification Obligations (the
“General Cap”) or (y) $350,000,000 in the case of the Specified Cap
Indemnification Obligations (the “Specified Cap”); provided, that
the General Cap shall be reduced by any amount in excess of $210,000,000 actually
paid in respect of the Specified Cap Indemnification Obligations and the Specified
Cap shall be reduced by any amount actually paid in respect of the General Cap
Indemnification Obligations; provided, further, that the
limitations set forth in this clause (ii) shall not apply to any claim for
indemnification to the extent arising out of an inaccuracy or breach of any
representation or warranty contained in Sections 3.01, 3.02, 3.03, 3.05, 3.07(b) or
3.20 or to any Loss incurred due to fraud, intentional misrepresentation,
intentional misconduct or intentional concealment by or on behalf of Lucky Parent
or any Seller. In no event shall the liability of Lucky Parent and the Sellers
pursuant to clause (a) of Section 8.01 (and, to the extent relating thereto, clause
(d) of Section 8.01) include Losses to the extent based on lost profits or on
diminution in the value (or prospective value) of the Company (or an indemnified
party’s or its affiliate’s investment in the Company); provided,
however, that the foregoing shall not limit or otherwise affect the
liability of Lucky Parent and the Sellers thereunder in respect of the Losses
suffered by Jupiter Parent or the Company involving the expenditure of money or the
loss or transfer of assets (including rights in respect of Intellectual Property)
or other concession of value (including the grant of any royalty or similar right).




               (f) Deductible of Jupiter Parent and the Company. Notwithstanding any other
provision of this Article VIII, Jupiter Parent and the Company shall not have any liability
under clause (i) of Section 8.02(a) (and, to the extent relating thereto, clause (iii) of
Section 8.02(a)) for any Losses unless and until the aggregate amount of all such Losses
exceeds $3,500,000, in which case Jupiter Parent or the Company shall be liable for all
such Losses only in excess of such amount. In no event shall the liability of Jupiter
Parent and the Company pursuant to clause (i) of Section 8.02(a) (and, to the extent
relating thereto, clause (iii) of Section 8.02(a)) include Losses to the extent based on
lost profits or on diminution in the value (or prospective value) of the Company (or an
indemnified party’s or its affiliate’s investment in the Company); provided,
however, that the foregoing shall not limit or otherwise affect the liability of
Jupiter Parent and the Company thereunder in respect of the Losses suffered by Lucky Parent
or the Sellers involving the expenditure of money or the loss or transfer of assets
(including rights in respect of Intellectual Property) or other concession of value
(including the grant of any royalty or similar right).



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          SECTION 8.05. Survival of Representations and Covenants. (a) The representations,
warranties, covenants and agreements contained in this Agreement and in any document delivered in
connection herewith shall survive the Closing and remain
in full force and effect until the indemnification obligation therefor terminates in
accordance with Section 8.03.





          (b) The obligations of Lucky Parent and each Seller under Section 8.01 and the
obligations of Jupiter Parent and the Company under Section 8.02 shall not be affected by
any knowledge by any indemnified party at or prior to the Closing of any breach of
representation or warranty, whether such knowledge came from Lucky Parent, a Seller,
Jupiter Parent, the Company or any other person, or any waiver of Section 6.02 or 6.03.



          SECTION 8.06. Tax Treatment of Indemnification Payments. For all Tax purposes, the
parties agree to treat, to the extent permitted by Applicable Law, any indemnity payment under
this Agreement as an adjustment to the Purchase Price.




          SECTION 8.07. Exemplary or Punitive Damages. To the extent permitted by Applicable
Law, none of the parties hereto shall assert, and each of the parties hereto hereby waives, any
claim against any other party hereto, on any theory of liability, for exemplary, punitive or
special damages arising out of, in connection with, or as a result of, this Agreement or any
indemnification claim, except to the extent payable to a Third Party.




          SECTION 8.08. Claims under Collaboration Agreement; Turnover. (a) In the event of
any Loss incurred by the Company or any of its subsidiaries (other than any Loss arising from the
gross negligence or willful misconduct of Lucky Parent or any of its affiliates) for which (i) the
Company or such subsidiary is entitled to indemnification under Section 8.01 and (ii) the Company
or such subsidiary is entitled to indemnification from, or has a bona fide claim against, Wyeth
under the Collaboration Agreement, the Company or such subsidiary, as applicable, shall use
reasonable efforts to pursue recovery of such Loss from Wyeth before the Company or such
subsidiary shall be entitled to indemnification under Section 8.01 (it being agreed that nothing
in this Section 8.08 shall limit the Company’s or such subsidiary’s right to indemnification under
this Article in the event, and to the extent, full recovery of such Loss is not obtained from
Wyeth (including with respect to costs and expenses incurred in connection with pursuing recovery
from Wyeth, and, for clarity, the applicable survival period for indemnification under Section
8.03 in respect of such Loss shall be tolled for so long as the Company or such subsidiary is
pursuing recovery from Wyeth)).





          (b) In the event any person receives an indemnification payment under this Article
VIII in respect of any Loss and thereafter such person receives a payment in respect of
such Loss by way of insurance proceeds, other indemnification or any other available
remedy, then, in each such case, such person shall promptly pay-over to the applicable
indemnifying party under this Article VIII any and all amounts so recovered from any such
alternative sources



58









 







to the extent necessary so that such person does not recover more than
the entire amount of the Loss at issue (or, if less, to the extent necessary so that the
applicable indemnifying party recovers the entire amount of indemnification paid
hereunder to such person in respect of such Loss). In furtherance of the foregoing,
and subject only to Section 8.08(a), no person entitled to indemnification hereunder shall
be required to first pursue recovery of a Loss from any such alternative sources as a
condition to receiving indemnification under this Article VIII.



          SECTION 8.09. Sole Remedy. In the absence of fraud, intentional misrepresentation,
intentional misconduct or intentional concealment, the indemnification provisions set forth herein
shall constitute the sole remedy for any breach of this Agreement or for any Losses arising out of
or relating to this Agreement, and applicable indemnified parties expressly waive any other remedy
with respect to such Losses, whether in contract or tort or otherwise, including any right to
rescind this Agreement; provided that this Section 8.09 shall not limit in any way the
rights of any party pursuant to or under the express terms of any Transaction Document.




ARTICLE IX




General Provisions



          SECTION 9.01. Assignment. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned by any party hereto without the prior written consent of the
other party hereto and any attempt to do so will be void, except that an indemnified party under
Article VIII may assign any of its rights, benefits or obligations hereunder, by operation of law
or otherwise, (a) to any of its affiliates, provided such indemnified party continues to be
responsible for all of its obligations hereunder, (b) to a person that (i) purchases all or
substantially all of the assets being conveyed hereunder or (ii) merges with the indemnified party
or (c) in connection with a collateral assignment, to the lenders of the indemnified party and its
successors or assigns. This Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and permitted assigns. Any
attempted assignment in violation of this Section 9.01 shall be void.




          SECTION 9.02. No Third-Party Beneficiaries. Except as provided in Article VIII,
this Agreement is for the sole benefit of the parties hereto and their permitted assigns and
nothing herein expressed or implied shall give or be construed to give to any person, other than
the parties hereto and such assigns, any legal or equitable rights hereunder. Nothing in this
Agreement shall constitute an amendment or supplement to any other Contract or Seller Benefit Plan
that is enforceable by any person other than the parties hereto or their permitted assigns.




          SECTION 9.03. Notices. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand or


59









 







sent by facsimile or sent, postage prepaid, by registered, certified or express mail or overnight courier service and
shall be deemed given when received, as follows:



(i) if to Jupiter Parent or the Company,



Janssen Pharmaceutical

State Road 933 KM 0.1

Mamey Ward

Gurabo, Puerto Rico 00778



or



Janssen Pharmaceutical

HC 02, Box 19250

Gurabo, Puerto Rico 00778

Fax: 787-272-7691



Attention: Ivan Cartagena, Director



with a copy to:



Johnson & Johnson

One Johnson & Johnson Plaza

New Brunswick, NJ 08933

Tel: 732-524-0400

Fax: 732-846-2058



Attention: Tom Heyman, Managing Director JPH NV

                  Global Head Business Development



with a copy to:



Johnson & Johnson

One Johnson & Johnson Plaza

New Brunswick, NJ 08933

Tel: 732-524-0400

Fax: 732-524-2788



Attention: Office of General Counsel



with a copy to:



Juno Neurosciences

Little Island Industrial Estate

Little Island, County Cork

Republic of Ireland





60









 







Fax: 353 (0) 21 4978 552



Attention: Corporate Secretary



and a copy to:



Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019-7475

Tel.: 212-474-1000

Fax: 212-474-3700



Attention: George E. Zobitz, Esq.

                  Damien R. Zoubek, Esq.



(ii) if to Lucky Parent or any Seller,



Elan Corporation, plc

Treasury Building

Lower Grand Canal Street

Dublin 2

Ireland

Tel: +353 1 709 4000

Fax: +353 1 709 4713



Attention: Liam Daniel, Company Secretary



with a copy to:



Cahill Gordon & Reindel llp

80 Pine Street

New York, New York 10005

Tel.: 212-701-3000

Fax: 212-269-5420



Attention: Christopher T. Cox, Esq.




          SECTION 9.04. Interpretation; Exhibits and Schedules; Certain Definitions. (a)
Each party acknowledges that it has been advised by counsel during the course of negotiation of
this Agreement, and, therefore, that this Agreement shall be interpreted without regard to any
presumption or rule requiring construction against the party causing this Agreement to be drafted.
When a reference is made in this Agreement to an Article or Section, such reference shall be to
an Article or Section of this Agreement unless otherwise indicated. The table of contents, index
of defined terms and headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. Any


61









 







capitalized term used in any Exhibit but not otherwise defined therein shall have the meaning assigned to such term
in this Agreement. Whenever the words “include”, “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation”. The words
“hereof”, “hereto”, “hereby”,
“herein” and “hereunder” and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this Agreement. The term “or”
is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which
a subject or other thing extends, and such phrase shall not mean simply “if”. The definitions
contained in this Agreement are applicable to the singular as well as the plural forms of such
terms. Any agreement, instrument or law defined or referred to herein means such agreement,
instrument or law as from time to time amended, modified or supplemented, unless otherwise
specifically indicated. References to a person are also to its permitted successors and assigns.
Unless otherwise specifically indicated, all references to “dollars” and “$” will be deemed
references to the lawful money of the United States of America. Whenever the words “made
available to the Company” or similar words are used in this Agreement with respect to any
documents or other information, such words shall mean that such documents or information are
available to Jupiter Parent prior to and through the date of this Agreement in the electronic data
room maintained by Merrill Corporation.





          (b) For all purposes hereof:



          “Aß” shall have the meaning given to such term in the Collaboration Agreement.




          “Aß Antibody Derivative” means any fragment, portion or derivative of an antibody, or
any antibody mimetic (including a peptidomimetic or mimetibody that is an antibody mimetic), in
each case that binds specifically one or more Aß Epitopes (alone or in addition to any epitopes of
one or more other protein targets), including a Fab, Fab’, F(ab’)2, facb, pFc’, Fd, Fv or scFV
fragment, a complementarity determining region (CDR) of a heavy or light chain or a ligand binding
portion thereof, a heavy or light chain variable region, a heavy or light chain constant region, a
framework region, or a peptidic molecule comprising a portion of an immunoglobulin molecule.




          “Aß-Directed Patent Rights” means any Patent Rights Controlled by Lucky Parent, any
Seller, or any of their respective affiliates containing any claim covering any Company Product,
any process for making a Company Product, or any method of using a Company Product.




          “Aß Epitope” means any epitope of Aß in any form, including an epitope to the Aß
sequence existing on the Aß portion of APP prior to proteolytic processing of APP to Aß, an epitope
to any fragments, oligomers, or multimers of Aß, an epitope to Aß in plaques, or an epitope to any
naturally occurring variant thereof, such variants including post-translational modification of Aß
(such as cyclization of glutamyl 3 to pyroglutamyl, isomerization of aspartyls 1 or 7, and
oxidation of methionyl 35).




62









 








          “affiliate” of any person means another person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common control with, such first
person. For purposes of this definition, “control” (including, with correlative meanings, the
terms “controlling,” “controlled by” and “under common control with”), as used with respect to any
person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of
such person, whether through the ownership of voting securities by agreement or otherwise.




          “AIP Intellectual Property” means (a) the Patent Rights listed in Section
1.02(a)(i)(A)(1) of the Seller Disclosure Letter and all Patent Rights related thereto, (b) the
Patent Rights licensed to Lucky Parent or any of its affiliates pursuant to the Contracts listed in
Section 1.02(a)(i)(A)(2) of the Seller Disclosure Letter and (c) the ELAN Intellectual Property
assignable to the Company.




          “Antitrust Laws” means the HSR Act and any other applicable supranational, national,
federal, state, provincial or local law designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolizing or restraining trade or lessening competition
of any country or jurisdiction, to the extent applicable to the transactions contemplated by this
Agreement.




          “Applicable Law” means any and all applicable laws (whether civil, criminal or
administrative) including common law, statutes, subordinate legislation, treaties, regulations,
rules, directives, decisions, by-laws, circulars, codes, orders, notices, demands, decrees,
injunctions, guidance, judgments or resolutions of a parliamentary government, quasi-government,
federal, state or local government, statutory, administrative or regulatory body, securities
exchange, court or agency in any part of the world.




          “Assigned Intellectual Property” means the AIP Intellectual Property and the General
Immunotherapy Patent Rights, including any assignable Aß-Directed Patent Rights such as pursuant to
Section 2.1.2 of the License and Grant-Back Agreement.




          “Assumed Benefit Plan” means each Seller Benefit Plan or portion thereof that the
Company or any of its affiliates has explicitly agreed to assume pursuant to the Employment Matters
Agreement.




          “Business” means the business relating to the subject matter of the Collaboration
Agreement.




          “Business Day” means any day on which banks are generally open for business in New
York, New York, excluding Saturdays and Sundays.




          “Business Employee” shall have the meaning given to such term in the Employment
Matters Agreement.




63









 








          “Business Intellectual Property” means (a) the Assigned Intellectual Property, (b) the
Licensed Intellectual Property and (c) any Company Products and associated Intellectual Property.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Collaboration Expenses” means all costs and expenses incurred pursuant to and in
connection with the Collaboration Agreement.




          “Commonly Controlled Entity” means each other person that, together with a Seller, is
treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.




          “Company Material Adverse Effect” means any event, development, change, state of
facts, effect, condition or occurrence that materially and adversely affects (i) the ability of
each of Jupiter Parent or the Company to perform its obligations under this Agreement and the
Transaction Documents to which it is a party or (ii) the ability of each of Jupiter Parent or the
Company to consummate the Acquisition and the other transactions contemplated by this Agreement and
the Transaction Documents to which it is a party.




          “Company Product” means (i) any R&D Candidate or Product or (ii) any other product
candidate or product, other than an R&D Candidate or Product, useful in the treatment and/or
prevention of neurodegenerative conditions in humans associated with ß-amyloid deposition using an
immunological approach directed at one or more Aß Epitopes, including a vaccine, antibody (whether
directed to any Aß Epitope(s) alone, or directed to Aß Epitope(s) and epitope(s) of other protein
target(s)), or Aß Antibody Derivative. For purposes of this Agreement, such R&D Candidates,
Products, antibodies and Aß Antibody Derivatives, shall be deemed immunologic approaches whether or
not they elicit any immune response. For the avoidance of doubt, antibodies directed to amyloid
protein A (cleavage product of serum amyloid A protein) that are not directed to any Aß Epitope,
including 2A4, 8G9 and 7D8 comprising the amino acid sequences disclosed in U.S. Patent Application
Serial No. 12/345,650, scyllo-inositol (also known as ELND-005) and small molecule modulators of
gamma-secretase and beta-secretase are not included within the scope of Company Products.




          “Confidential Information” means any information (a) which any party may have or
acquire (whether before or after the date of this Agreement) in relation to the customers,
suppliers, business, assets or affairs of the Business; or (b) which relates to the contents of
this Agreement (or any agreement or arrangement entered into in connection with this Agreement).
Notwithstanding the foregoing, Confidential Information shall not include information which: (a) is
or becomes public knowledge other than as a direct or indirect result of the information being
disclosed in breach of this Agreement; (b) any party can establish to the reasonable satisfaction
of the other parties that it acquired the information from a source not connected with the other
parties or their Affiliates and that such source was not then under any obligation of confidence in
respect of the




64









 







information; (c) any party can establish to the reasonable satisfaction of the other
parties that the information was known to the first party before the date of this Agreement and
that, at the time of disclosure, it was not under any obligation of confidence in respect of the
information (for purposes of this subclause (c), Lucky Parent and its affiliates shall be deemed to
not have knowledge of any matters relating to the Acquired Assets); or (d) the parties agree in
writing that it is not confidential.




          “Contract” means any loan or credit agreement, bond, debenture, note, mortgage,
indenture, lease, supply agreement, license agreement, development agreement, distribution
agreement or other contract, agreement, obligation, purchase order, commitment, arrangement,
understanding, instrument, permit, franchise or license, whether oral or written, including all
amendments thereto.




          “Control” means, with respect to particular Intellectual Property, ownership or
possession (including through control of an affiliate or through a license from an affiliate or
third party) of the right or ability to assign title or grant a license or sublicense to
Intellectual Property without violating the terms of any Contracts with any third parties.




          “ELAN Intellectual Property” shall have the meaning given to such term in the
Collaboration Agreement; provided, however, that for purposes of the transactions
comtemplated by this Agreement or any Specified Collaboration Document, ELAN Intellectual Property
shall include Lucky Parent’s and its affiliates’ interest in Patent Rights which claim Lucky
Parent’s or any of its affiliates’ Non-Collaboration Inventions (as defined in the Collaboration
Agreement) solely to the extent necessary for the Company to research, develop, manufacture, or
commercialize any Company Products, including for purposes of performing under the Collaboration
Agreement, subject to the terms and conditions of the License and Grant-Back Agreement and the
Non-Compete Obligations (as defined in the License and Grant-Back Agreement).




          “ELAN/Lilly Patent Rights” shall have the meaning given to such term in the
Collaboration Agreement, and include the Patents set forth on Section 1.02(a)(i)(B)(5) of the
Seller Disclosure Letter.




          “EMEA” means the European Medicines Agency.




          “Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, Judgments, demands, directives, claims, Liens, investigations, proceedings or
written or oral notices of noncompliance or violation by or from any person alleging liability of
any kind or nature (including liability or responsibility for the costs of enforcement proceedings,
investigations, cleanup, governmental response, removal or remediation, natural resource damages,
property damages, personal injuries, medical monitoring, penalties, contribution, indemnification
and injunctive relief) arising out of, based on or resulting from (y) the presence or Release of,
or exposure to, any Hazardous Material at any location, or (z) the failure to comply with any
Environmental Law.




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          “Environmental Law” means any Applicable Law, Judgment, legally binding agreement or
Permit issued, promulgated or entered into by or with any Governmental Entity relating to
pollution, the environment (including ambient air, surface water, groundwater, land surface or
subsurface strata), natural resources, the climate, human health and safety or the protection of
endangered or threatened species.




          “Equity Closing” shall have the meaning given to the term “Completion” under the
Subscription and Transfer Agreement.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.




          “Excluded Collaboration Liabilities” means liabilities, obligations or commitments
which are proximately caused by the gross negligence or willful misconduct of Lucky Parent or any
subsidiary or affiliate of Lucky Parent and as a result Wyeth is not required to share the losses
associated with Product Liability Claims as provided for in Section 14.1 of the Collaboration
Agreement.




          “GAAP” means United States generally accepted accounting principles.




          “General Cap Indemnification Obligation” means an obligation of a party to indemnify
and hold harmless any other person pursuant to clause (a) of Section 8.01 (and, to the extent
relating thereto, clause (d) of Section 8.01), other than with respect to any inaccuracy in, or
breach of, any representation or warranty contained in Sections 3.01, 3.02, 3.03, 3.05, 3.06,
3.07(b), 3.12 or 3.20.




          “General Immunotherapy Patent Rights” shall mean the Patent Rights set forth on
Section 1.02(a)(i)(B)(1) of the Seller Disclosure Letter.




          “Governmental Entity” means any Federal, state or local government authority, any
court of competent jurisdiction, administrative agency or commission or other governmental or
regulatory authority or instrumentality, in each case whether domestic or foreign.




          “Guarantee” of or by any person means any obligation, contingent or otherwise, of such
person guaranteeing any Indebtedness of any other person (the “primary obligor”) in any
manner, whether directly or indirectly, and including any obligation of such person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness or (iii) to maintain
working capital, equity capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness; provided,
however, that the term Guarantee shall not include endorsements for collection or deposit,
in each case in the ordinary course of business.




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          “Hazardous Materials” means any petroleum or petroleum products, radioactive materials
or wastes, asbestos in any form, polychlorinated biphenyls, hazardous or toxic substances and any
other chemical, material, substance or waste that is prohibited, limited or regulated under any
Environmental Law.




          “Indebtedness” of any person means (i) all obligations of such person for borrowed
money, (ii) all obligations of such person evidenced by bonds, debentures,
notes or similar instruments, (iii) all obligations of such person upon which interest charges
are customarily paid by such person, other than trade credit incurred in the ordinary course of
business, (iv) all obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (v) all obligations of such
person issued or assumed as the deferred purchase price of property or services, (vi) all
indebtedness of others secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (vii) all capital lease
obligations of such person, (viii) the notional amount of all obligations of such person in respect
of interest rate protection agreements, commodity hedging agreements, foreign currency exchange
agreements or other interest or exchange rate hedging arrangements and (ix) all obligations of such
person as an account party in respect of letters of credit and bankers’ acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in which such person
is a general partner.




          “Indentures” means (a) the Indenture dated as of November 16, 2004, among Elan Finance
Public Limited Company, Elan Finance Corp., Elan Corporation, plc, the subsidiary note guarantors
party thereto and the Bank of New York, as trustee, as amended from time to time, and (b) the
Indenture dated as of November 22, 2006, among Elan Finance Public Limited Company, Elan Finance
Corp., Elan Corporation, plc, the subsidiary note guarantors party thereto and the Bank of New
York, as trustee, as amended from time to time.




          “Internal Asset Purchase Closing” means the consummation of the transactions
contemplated by the Internal Asset Purchase Agreement.




          “Intellectual Property” means (a) all inventions (whether or not patentable and
whether or not reduced to practice), records of inventions, test information, developments,
applications, improvements, formulae, concepts, ideas, methods or processes, research property
rights, all improvements to any of the foregoing, and all patents, patent applications, and patent
disclosures, together with all reissuances, continuations, continuations-in-part, revisions,
extensions, and reexaminations thereof, (b) all trademarks, trademark rights, service marks,
service mark rights, trade dress, logos, slogans, trade names, trade name rights, Internet domain
names and subdomains (including all website content associated therewith), together with all
translations, adaptations, derivations, and combinations thereof and including all goodwill
associated therewith, and all applications, registrations, and renewals in connection therewith,
(c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in
connection therewith, (d) all trade secrets, know-how rights and confidential information




67









 







(including all ideas, concepts, research and development, know-how, composition information and
embodiments, manufacturing and production processes, techniques and information, specifications,
technical and business data, designs, drawings, supplier lists, pricing and cost information, and
data and know-how embodied in business and marketing plans and proposals), (e) all computer
software, firmware and applications (including source code, executable code, data, databases,
programming and notes and documents and other related documentation), other than commercial
off-the-shelf
software, (f) all works and designs embodied in advertising and promotional materials, and
(g) all other proprietary rights and (h) all copies and tangible embodiments of the foregoing in
whatever form or medium.




          “Invention” shall have the meaning given to such term in the Collaboration Agreement.




          “Judgment” means any judgment, order, writ, injunction, stipulation or decreed issued
by, or any legally binding agreement with, a Governmental Entity of competent jurisdiction, whether
preliminary, temporary or permanent.




          “Jupiter Sub-2” shall have the meaning given to such term in the Shareholders’
Agreement.




          “knowledge” means, with respect to Lucky Parent or any Seller and with respect to any
matter in question, that any employee listed on Section 9.04(b) of the Seller Disclosure Letter,
any employee having a title equal to or more senior than “Senior Vice President”, or, with respect
to Section 3.06 only, any internal counsel (including any internal patent counsel), in each case,
of Lucky Parent or any of its subsidiaries has or would have knowledge of such matter after a
reasonable investigation.




          “Licensed Intellectual Property” means (a) the ELAN Intellectual Property that is not
assignable to the Company, (b) the ELAN/Lilly Patent Rights, (c) the Research Tool Patent Rights
and (d) any other Intellectual Property within the scope of the Business Controlled by Lucky Parent
or any of its affiliates, including any licensable Aß-Directed Patent Rights such as pursuant to
Section 2.2.1 of the License and Grant-Back Agreement.




          “Loan” shall have the meaning given to such term in the Shareholders’ Agreement.




          “Losses” of any person means any and all demands, claims, suits, actions, causes of
action, proceedings, assessments, losses, damages, liabilities, costs and expenses incurred by such
person, including interest, penalties and attorneys’ fees, third-party expert and consultant fees
and expenses, fines, Judgments, awards and financial responsibility for investigation, removal and
clean-up costs and natural resource damages.




          “Non-Specified Company Representations” shall mean the representations and warranties
of Jupiter Parent and the Company contained in Article IV, other than the Specified Company
Representations.




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          “Non-Specified Seller Representations” shall mean the representations and warranties
of Lucky Parent and the Sellers contained in Article III, other than the Specified Seller
Representations.




          “Patent Rights” means, with respect to a particular invention, any and all original
(priority-establishing) patents and patent applications filed anywhere in the world
including any claim covering the invention, including provisional and nonprovisional
applications, and all related applications thereafter filed including any claim covering such
invention or including a common priority right, including any continuations, continuations-in-part,
divisional and substitute applications, any patents issued or granted from any such patent
applications, and any reissues, renewals, reexaminations, extensions (including by virtue of any
supplementary protection certificates) of any such patents, and any confirmation patents,
inventor’s certificates or registration patents or patents of addition based on any such patents,
and all foreign counterparts or equivalents in any country or jurisdiction of any of the foregoing.




          “Permit” means any certificate, franchise, license, permit, authorization, variance,
exemption, order or approval, including any Registration Information.




          “person” means any individual, firm, company, corporation, partnership, limited
liability company, trust, joint venture, business association, Governmental Entity or other entity.




          “Positive Cash Flow Date” shall have the meaning given to such term in the
Shareholders’ Agreement.




          “Pre-Closing Tax Period” means any taxable period (or portion thereof) ending on or
prior to the Closing Date.




          “Proceeding” means any suit, claim, action, arbitration or other proceeding
(including, with respect to Intellectual Property, any reexaminations or other actions before any
Governmental Entity).




          “Product” shall have the meaning given to such term in the Collaboration Agreement.




          “R&D Candidates” shall have the meaning given to such term in the Collaboration
Agreement.




          “Reconciliation Payments” means any payments made or received by a party to the
Collaboration Agreement to or from the other party to the Collaboration Agreement in accordance
with Section 4.3.4 of the Collaboration Agreement.




          “Registration Information” means all Permits or Judgments relating to the marketing of
any product (including pending applications for the same), together with copies of related
correspondence between any Seller or any of its affiliates and the applicable Governmental Entity,
current approved packaging (if any) and any other existing files and dossiers, in each case
relating to the marketing of any product and/or to




69









 







the underlying data or information used to
support, maintain or obtain marketing authorization of the underlying product.




          “Regulatory Authority” means the FDA, the EMEA and any other federal, state, local or
foreign Governmental Entity that is concerned with the marketing, sale, use
handling and control, safety, efficacy, reliability, or manufacturing of drug or biological
products or medical devices.




          “Release” means any actual or threatened release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through
the environment or within any building, structure, facility or fixture.




          “Representatives” means, with respect to any person, such person’s directors, officers
and employees and its and their respective investment bankers, accountants, attorneys, consultants
and other advisors, agents and representatives.




          “Research and Development Candidate” shall have the meaning given to such term in the
Collaboration Agreement.




          “Research Term” shall have the meaning given to such term in the Collaboration
Agreement.




          “Research Tool Patent Rights” means (a) the Patent Rights set forth in Section
1.02(a)(i)(B)(2) of the Seller Disclosure Letter, which Lucky Parent or certain of its affiliates
licensed from third parties, and all Patent Rights related thereto, (b) the Patent Rights set forth
in Section 1.02(a)(i)(B)(3) of the Seller Disclosure Letter and all Patent Rights related thereto,
(c) the Patent Rights set forth in Section 1.02(a)(i)(B)(4) of the Seller Disclosure Letter and all
Patent Rights related thereto and (d) the Patent Rights Controlled by Lucky Parent or any of its
affiliates by virtue of the sublicensable license rights acquired under the ARTI Agreement (as
defined in the License and Grant-Back Agreement).




          “Seller Benefit Plan” means each individual employment, retention, indemnification,
severance, change of control and consulting agreement with any Business Employee to which any
Seller is a party, each “employee benefit plan” within the meaning of Section 3(3) of ERISA and
each severance, retention, employment, consulting, “change of control”, bonus, incentive
(equity-based, equity-related or otherwise), deferred compensation, severance pay, retirement,
employee stock ownership, indemnification, perquisite, employee loan, welfare benefit, fringe
benefit and other benefit plan, agreement, program, policy, commitment or other arrangement, in
each case sponsored, maintained or contributed to, or required to be sponsored, maintained or
contributed to, by any Seller or Commonly Controlled Entity, or with respect to which a Seller or
any Commonly Controlled Entity has any liability, in each case providing any compensation or
benefits to any Business Employee.




          “Seller Material Adverse Effect” means any event, development, change, state of facts,
effect, condition or occurrence (an “Effect”) that materially and adversely affects (i) the
business, assets, condition (financial or otherwise) or results of operations




70









 







of the Business, (ii)
the ability of each of Lucky Parent or its subsidiaries to perform its obligations under this
Agreement and the Transaction Documents to which it is a party or (iii) the ability of each of
Lucky Parent or its subsidiaries to consummate the Acquisition and the other transactions
contemplated by this Agreement and the Transaction
Documents to which it is a party; provided, however, that (A) any Effect
resulting from the following events shall not be considered when determining whether a Seller
Material Adverse Effect has occurred or could reasonably be expected to occur: (i) any change or
development in U.S., U.K. or Irish financial, credit or securities markets, general economic or
business conditions, or political or regulatory conditions; (ii) any act of war, armed hostilities
or terrorism or any worsening thereof; (iii) any change in Applicable Law, GAAP, IFRS or the
interpretation or enforcement thereof; (iv) any change in the pharmaceutical (including
biotechnology) industry; (v) any failure of Lucky Parent or any of its subsidiaries to meet, with
respect to any period or periods, any internal or industry analyst projections, forecasts or
estimates of revenues, operating income (loss), cash flow or other financial performance
projections, forecasts or estimates (it being agreed that the facts and circumstances giving rise
to such failure that are not otherwise excluded from the definition of Seller Material Adverse
Effect may be taken into account in determining whether a Seller Material Adverse Effect has
occurred); or (vi) any change in the market price or trading volume of the ordinary shares of Lucky
Parent (including as represented by American depositary shares) (it being agreed that the facts and
circumstances giving rise to such change that are not otherwise excluded from the definition of
Seller Material Adverse Effect may be taken into account in determining whether a Seller Material
Adverse Effect has occurred); and (B) solely for the purposes of determining whether Section
6.02(a) has been satisfied and for no other purpose, no Effect (other than an Effect (x) under any
Contract required to be disclosed pursuant to the terms of this Agreement and not so disclosed or
(y) resulting from the failure to obtain any consent with respect to the transfer of any Business
Intellectual Property) resulting from the negotiation, execution, delivery, performance,
consummation or public announcement of this Agreement, the Transaction Documents or the
transactions contemplated hereby or thereby, including any Proceeding, whether pending or
threatened, resulting therefrom or with respect thereto, and any adverse change in customer,
distributor, employee, supplier, licensor, licensee, sub-licensee, shareholder, co-promotion,
collaboration or joint venture partner or similar relationships resulting therefrom or with respect
thereto, including as a result of the identity of the other parties to the transactions
contemplated by this Agreement and the Transaction Documents, in each case, shall be considered
when determining whether a Seller Material Adverse Effect has occurred or could reasonably be
expected to occur. Notwithstanding subclause (A) of the proviso in the preceding sentence, if an
Effect described in clauses (i), (ii), (iii) or (iv) of subclause (A) of such proviso has a
disproportionate effect on Lucky Parent, the Sellers and their respective subsidiaries, taken as a
whole, relative to other participants in the pharmaceutical (including biotechnology) industry,
then such Effect may be taken into account for purposes of determining whether a Seller Material
Adverse Effect has occurred or could reasonably be expected to occur.




          “Specified Collaboration Documents” means, collectively, the Internal Asset Purchase
Agreement, the Shareholders’ Agreement, the Employment Matters Agreement, the Royalty Agreement,
the License and Grant-Back Agreement, the Loan




71









 







Agreement, and all other instruments executed and
delivered in connection with such agreements.




          “Specified Company Representations” means the representations and warranties of
Jupiter Parent and the Company contained in Sections 4.01 and 4.02.




          “Specified Cap Indemnification Obligation” means an obligation of a party to indemnify
and hold harmless any other person pursuant to clause (a) of Section 8.01 (and, to the extent
relating thereto, clause (d) of Section 8.01) with respect to any inaccuracy in, or breach of, any
representation or warranty contained in Sections 3.06 or 3.12.




          “Specified Seller Representations” means the representations and warranties of Lucky
Parent and the Sellers contained in Sections 3.01, 3.02, 3.12(a), 3.19 and 3.20 (in respect of the
third sentence contained therein only).




          “Stub Period Percentage” means a percentage, the numerator of which shall be the
number of days in the Pre-Closing Stub Period and the denominator of which shall be the number of
days in the Current Period.




          “subsidiary” means, with respect to any person, any corporation, partnership, joint
venture, limited liability company or other entity (i) of which such person or a subsidiary of such
person is a general partner or (ii) of which a majority of the voting securities or other voting
interests, or a majority of the securities or other interests of which having by their terms
ordinary voting power to elect a majority of the board of directors or persons performing similar
functions with respect to such entity, is directly or indirectly owned by such person and/or one or
more subsidiaries thereof.




          “Tax” or “Taxes” means all forms of taxes, levies, duties, charges,
surcharges, imposts and withholdings of any nature whatsoever imposed by any Federal, state,
provincial, local, foreign or other Taxing Authority, including income, franchise, property, sales,
use, excise, employment, unemployment, payroll, social security, estimated, value added, ad
valorem, transfer, recapture, withholding, health and other taxes of any kind, whether disputed or
not, and including any interest, penalties and additions thereto whether payable in Ireland or
elsewhere.




          “Taxing Authority” means any Governmental Entity exercising any authority to impose,
regulate or administer the imposition of Taxes.




          “Tax Return” means any report, return, document, declaration or other information or
filing required to be supplied to any Taxing Authority with respect to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.




          “Transaction Documents” means, collectively, the Specified Collaboration Documents,
the Subscription and Transfer Agreement, the Investment Agreement and all other instruments
executed and delivered in connection with such agreements.




72









 








          “Transferred Employee” shall have the meaning given to such term in the Employment
Matters Agreement.




          “VAT” means value added tax.




          SECTION 9.05. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and shall become
effective when one or more such counterparts have been signed by each of the parties and delivered
to the other parties.




          SECTION 9.06. Entire Agreement. This Agreement, the Transaction Documents and the
Confidentiality Agreement, along with the Seller Disclosure Letter and the Exhibits hereto and
thereto, contain the entire agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersede all prior agreements and understandings relating to such
subject matter. Neither party shall be liable or bound to any other party in any manner by any
representations, warranties or covenants relating to such subject matter except as specifically
set forth herein or in the Transaction Documents or the Confidentiality Agreement.




          SECTION 9.07. Severability. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to any person or
circumstance shall be held invalid, illegal or unenforceable in any respect by a court of
competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any
other provision hereof (or the remaining portion thereof) or the application of such provision to
any other persons or circumstances. Upon such determination that any term or other provision is
invalid, illegal on unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent
possible.




          SECTION 9.08. Consent to Jurisdiction. Each party hereto irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New York County, and (b)
the United States District Court for the Southern District of New York, for the purposes of any
suit, action or other proceeding arising out of this Agreement or any transaction contemplated
hereby. Each party hereto agrees to commence any such action, suit or proceeding either in the
United States District Court for the Southern District of New York or if such suit, action or
other proceeding may not be brought in such court for jurisdictional reasons, in the Supreme Court
of the State of New York, New York County. Each party hereto further agrees that service of any
process, summons, notice or document by U.S. registered mail to such party’s respective address
set forth above shall be effective service of process for any action, suit or proceeding in New
York with respect to any matters to which it has submitted to jurisdiction in this Section 9.08.
Without limiting the foregoing, each party hereby irrevocably designates, appoints and empowers CT
Corporation, with offices as of the date hereof at 111 Eighth Avenue, New York, NY 10011, as its
designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and all legal process, summons, notices and documents
which




73









 







may be served in any action, suit or proceeding relating to the transactions contemplated
hereby. Promptly following the date hereof, Lucky Parent and each Seller shall provide Jupiter
Parent and the Company, and Jupiter Parent and the Company shall provide
Lucky Parent and each Seller, in each case with a letter from CT Corporation indicating its
consent to its appointment as designee, appointee and agent as provided above. Each party hereto
irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement or the transactions contemplated hereby in (i) the
Supreme Court of the State of New York, New York County, or (ii) the United States District Court
for the Southern District of New York, and hereby and thereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient forum.




          SECTION 9.09. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH
STATE.




          SECTION 9.10. Waiver of Jury Trial. Each party hereby waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect to any litigation
directly or indirectly arising out of, under or in connection with this Agreement, any Specified
Collaboration Document or any transaction contemplated hereby or thereby. Each party (a)
certifies that no representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek to enforce that
foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced to
enter into this Agreement and the Specified Collaboration Documents, as applicable, by, among
other things, the mutual waivers and certifications in this Section 9.10.




          SECTION 9.11. Enforcement in Equity and at Law. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties hereto shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement,
this being in addition to any other remedy to which they are entitled at law or in equity.




          SECTION 9.12. Other Subsidiaries. In the event that any subsidiary of Lucky Parent
(other than a Seller) owns, leases or licenses any assets that are used, held for use or intended
to be used in, or arising from, the operation or conduct of the Business and that would constitute
Acquired Assets but for the fact that such assets are owned, leased or licensed by such subsidiary
(and not a Seller), Lucky Parent and each Seller agree (a) that such assets shall be deemed to
constitute Acquired Assets and (b) to cause such subsidiary to sell such assets to the Company and
to otherwise comply with the terms of this Agreement.




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[Remainder of page intentionally left blank]




75









 





          IN WITNESS WHEREOF, Jupiter Parent, the Company, Lucky Parent and each Seller have duly
executed this Agreement as of the date first written above.




	 	 	 	 	 
	 	JANSSEN PHARMACEUTICAL,

 	 
	 	by       /s/ Ivan Cartagena 

	 
	 	    Name:  	Ivan Cartagena 	 
	 	    Title:  	Director 	 
	 
	 	JUNO NEUROSCIENCES,

 	 
	 	by  /s/ Bryan Mohaun 

	 
	 	    Name:  	Bryan Mohaun 	 
	 	    Title:  	Director 	 
	 
	 	ELAN CORPORATION, PLC,

 	 
	 	by  /s/ William Daniel 

	 
	 	    Name:  	William Daniel 	 
	 	    Title:  	EVP, Company Secretary 	 
	 
	 	ATHENA NEUROSCIENCES, INC.,

 	 
	 	by  /s/ John L. Donahue 

	 
	 	    Name:  	John L. Donahue 	 
	 	    Title:  	Assistant Secretary 	 
	 
	 	CRIMAGUA LIMITED

 	 
	 	by  /s/ William Daniel 

	 
	 	Name:  	William Daniel 	 
	 	Title:  	Director 	 
	 




76









 





	 	 	 	 	 
	 	ELAN PHARMACEUTICALS, INC.

 	 
	 	by   /s/ John L. Donahue 

	 
	 	Name:  	John L. Donahue 	 
	 	Title:  	Assistant Secretary 	 
	 




77









 





ANNEX I

to Asset Purchase Agreement




Index of Defined Terms




	 	 	 
	Term	 	 
	Aß

	 	Section 9.04(b)
	Aß Antibody Derivative

	 	Section 9.04(b)
	Aß-Directed Patent Rights

	 	Section 9.04(b)
	Aß Epitope

	 	Section 9.04(b)
	Acquired Assets

	 	Section 1.02(a)
	Acquisition

	 	Section 1.01
	affiliate

	 	Section 9.04(b)
	Agreement

	 	Preamble
	AIP Intellectual Property

	 	Section 9.04(b)
	Allocation

	 	Section 5.11(a)(i)
	Antitrust Laws

	 	Section 9.04(b)
	Acquired Records

	 	Section 1.02(a)(viii)
	Applicable Law

	 	Section 9.04(b)
	Assigned Contracts

	 	Section 1.02(a)(ii)
	Assigned Intellectual Property

	 	Section 9.04(b)
	Assumed Benefit Plan

	 	Section 9.04(b)
	Assumed Liabilities

	 	Section 1.03(a)
	Business

	 	Section 9.04(b)
	Business Day

	 	Section 9.04(b)
	Business Employee

	 	Section 9.04(b)
	Business Intellectual Property

	 	Section 9.04(b)
	Closing

	 	Section 2.01
	Closing Date

	 	Section 2.01
	COBRA

	 	Section 3.15(c)
	Code

	 	Section 9.04(b)
	Collaboration Agreement

	 	Recitals
	Collaboration Expenses

	 	Section 9.04(b)
	Commonly Controlled Entity

	 	Section 9.04(b)
	Company

	 	Preamble
	Company Material Adverse Effect

	 	Section 9.04(b)
	Company Product

	 	Section 9.04(b)
	Company Stock

	 	Section 1.01
	Competing Bid

	 	Section 5.03
	Completed Period

	 	Section 5.08(e)(i)
	Confidential Information

	 	Section 9.04(b)
	Confidentiality Agreement

	 	Section 5.05(a)
	Consent

	 	Section 3.03
	Contract

	 	Section 9.04(b)
	Control

	 	Section 9.04(b)
	Covered Employee Liabilities

	 	Section 1.03(a)(iv)






78









 






	 	 	 
	Term	 	 
	Current Period

	 	Section 5.08(e)(ii)
	Effect

	 	Section 9.04(b)
	ELAN Intellectual Property

	 	Section 9.04(b)
	ELAN/Lilly Patent Rights

	 	Section 9.04(b)
	EMEA

	 	Section 9.04(b)
	Employment Matters Agreement

	 	Section 5.14(d)
	Environmental Claims

	 	Section 9.04(b)
	Environmental Law

	 	Section 9.04(b)
	Equity Closing

	 	Section 9.04(b)
	ERISA

	 	Section 9.04(b)
	Excluded Assets

	 	Section 1.02(b)
	Excluded Collaboration Liabilities

	 	Section 9.04(b)
	Excluded Liabilities

	 	Section 1.03(b)
	FDA

	 	Section 3.09
	FDCA

	 	Section 3.09
	GAAP

	 	Section 9.04(b)
	General Cap

	 	Section 8.04(e)(ii)
	General Cap Indemnification Obligation

	 	Section 9.04(b)
	General Immunotherapy Patent Rights

	 	Section 9.04(b)
	Governmental Entity

	 	Section 9.04(b)
	Guarantee

	 	Section 9.04(b)
	Hazardous Materials

	 	Section 9.04(b)
	HSR Act

	 	Section 3.03
	Indebtedness

	 	Section 9.04(b)
	indemnified party

	 	Section 8.04(a)
	indemnifying party

	 	Section 8.04(a)
	Indentures

	 	Section 9.04(b)
	Intellectual Property

	 	Section 9.04(b)
	Internal Asset Purchase Agreement

	 	Section 5.14(g)
	Internal Asset Purchase Closing

	 	Section 9.04(b)
	Inventions

	 	Section 9.04(b)
	Inventory

	 	Section 1.02(a)(iv)
	Investment Agreement

	 	Section 5.14(b)
	IRS

	 	Section 3.15(a)
	Judgment

	 	Section 9.04(b)
	Jupiter Parent

	 	Preamble
	Jupiter Sub-2

	 	Section 9.04(b)
	knowledge

	 	Section 9.04(b)
	Leased Facilities

	 	Section 5.06(h)
	License and Grant-Back Agreement

	 	Section 5.14(f)
	Licensed Intellectual Property

	 	Section 9.04(b)
	Liens

	 	Section 3.05
	Loan

	 	Section 9.04(b)
	Loan Agreement

	 	Section 5.14(h)






79









 






	 	 	 
	Term	 	 
	Losses

	 	Section 9.04(b)
	Loss Funding Contribution

	 	Section 8.04(d)
	Lucky Collaboration Subsidiary

	 	Recitals
	Lucky Parent

	 	Preamble
	Non-Specified Company Representations

	 	Section 9.04(b)
	Non-Specified Seller Representations

	 	Section 9.04(b)
	Outside Date

	 	Section 7.01(a)(ii)
	Patent Rights

	 	Section 9.04(b)
	Permit

	 	Section 9.04(b)
	Permitted Liens

	 	Section 3.05
	person

	 	Section 9.04(b)
	Personal Property

	 	Section 1.02(a)(v)
	Positive Cash Flow Date

	 	Section 9.04(b)
	Pre-Closing Licensed Intellectual Property

	 	Section 3.06(a)
	Pre-Closing Owned Intellectual Property

	 	Section 3.06(a)
	Pre-Closing Stub Period

	 	Section 5.08(e)(ii)
	Pre-Closing Tax Period

	 	Section 9.04(b)
	primary obligor

	 	Section 9.04(b)
	Proceeding

	 	Section 9.04(b)
	Product

	 	Section 9.04(b)
	Purchase Price

	 	Section 5.11(a)(i)
	R&D Candidate

	 	Section 9.04(b)
	Reconciliation Payments

	 	Section 9.04(b)
	Registration Information

	 	Section 9.04(b)
	Regulatory Authority

	 	Section 9.04(b)
	Release

	 	Section 9.04(b)
	Representatives

	 	Section 9.04(b)
	Research and Development Candidate

	 	Section 9.04(b)
	Research Term

	 	Section 9.04(b)
	Research Tool Patent Rights

	 	Section 9.04(b)
	Restraint

	 	Section 6.01(b)
	Retained Financial Records

	 	Section 1.02(b)(vi)
	Royalty Agreement

	 	Section 5.14(e)
	Securities Act

	 	Section 1.05
	Seller

	 	Preamble
	Sellers

	 	Preamble
	Seller Benefit Plan

	 	Section 9.04(b)
	Seller Disclosure Letter

	 	Article III
	Seller Material Adverse Effect

	 	Section 9.04(b)
	Seller Supplier

	 	Section 3.06(p)
	Shareholders’ Agreement

	 	Section 5.14(c)
	Specified Cap

	 	Section 8.04(e)(ii)
	Specified Cap Indemnification Obligation

	 	Section 9.04(b)
	Specified Collaboration Documents

	 	Section 9.04(b)






80









 






	 	 	 
	Term	 	 
	Specified Company Representations

	 	Section 9.04(b)
	Specified Seller Representations

	 	Section 9.04(b)
	Stock Consideration

	 	Section 1.01
	Stub Period Percentage

	 	Section 9.04(b)
	Subscription and Transfer Agreement

	 	Section 5.14(a)
	subsidiary

	 	Section 9.04(b)
	Supplier Rights

	 	Section 3.06(p)
	Tax

	 	Section 9.04(b)
	Taxes

	 	Section 9.04(b)
	Taxing Authority

	 	Section 9.04(b)
	Tax Return

	 	Section 9.04(b)
	Third Party Claim

	 	Section 8.04(a)
	Transaction Documents

	 	Section 9.04(b)
	Transferred Benefit Plan Assets

	 	Section 1.02(a)(ix)
	Transferred Employee

	 	Section 9.04(b)
	Transferred Permits

	 	Section 1.02(a)(iii)
	Transfer Taxes

	 	Section 1.03(b)(vi)
	VAT

	 	Section 9.04(b)
	Wyeth

	 	Recitals
	Wyeth Supporting Documentation

	 	Section 5.08(e)(i)







81