(the "Buyer"), in favor
of, PARIVID, LLC, a Massachusetts limited liability company (the "Seller").
All
capitalized words and terms used in this Instrument of Assumption of Liabilities
and not defined herein shall have the respective meanings ascribed to them in
the Asset Purchase Agreement dated April 20, 2007 by and among the Seller, the
Buyer and S. Raguram (the "Agreement").
WHEREAS, pursuant to the Agreement, the Seller has agreed to sell, transfer,
convey, assign and deliver to the Buyer certain assets of the Seller; and
WHEREAS, in partial consideration therefor, the Agreement requires the Buyer to
assume certain of the liabilities of the Seller;
NOW, THEREFORE, in consideration of the mutual promises set forth in the
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Buyer hereby agrees as follows:
1.
THE BUYER HEREBY ASSUMES AND AGREES TO PERFORM, PAY AND DISCHARGE
THE ASSUMED LIABILITIES.
2.
THE BUYER DOES NOT HEREBY ASSUME OR AGREE TO PERFORM, PAY OR
DISCHARGE, AND THE SELLER SHALL REMAIN UNCONDITIONALLY LIABLE FOR, ANY AND ALL
LIABILITIES OR OBLIGATIONS (WHETHER KNOWN OR UNKNOWN, WHETHER ABSOLUTE OR
CONTINGENT, WHETHER LIQUIDATED OR UNLIQUIDATED, WHETHER DUE OR TO BECOME DUE,
AND WHETHER CLAIMS WITH RESPECT THERETO ARE ASSERTED BEFORE OR AFTER THE
CLOSING) OF THE SELLER WHICH ARE NOT ASSUMED LIABILITIES.
3.
NOTHING CONTAINED HEREIN SHALL REQUIRE THE BUYER TO PERFORM, PAY
OR DISCHARGE ANY LIABILITY, OBLIGATION OR COMMITMENT EXPRESSLY ASSUMED BY THE
BUYER HEREIN SO LONG AS THE BUYER IN GOOD FAITH CONTESTS OR CAUSES TO BE
CONTESTED THE AMOUNT OR VALIDITY THEREOF.
4.
NOTHING HEREIN SHALL BE DEEMED TO DEPRIVE THE BUYER OF ANY
DEFENSES, SET-OFFS OR COUNTERCLAIMS WHICH THE SELLER MAY HAVE HAD OR WHICH THE
BUYER SHALL HAVE WITH RESPECT TO ANY OF THE ASSUMED LIABILITIES (THE "DEFENSES
AND CLAIMS").
THE SELLER HEREBY TRANSFERS, CONVEYS AND ASSIGNS TO THE BUYER ALL
DEFENSES AND CLAIMS AND AGREES TO COOPERATE WITH THE BUYER TO MAINTAIN, SECURE,
PERFECT AND ENFORCE SUCH DEFENSES AND CLAIMS, INCLUDING THE SIGNING OF ANY
DOCUMENTS, THE GIVING OF ANY TESTIMONY OR THE TAKING OF ANY SUCH OTHER ACTION AS
IS REASONABLY REQUESTED BY THE BUYER IN CONNECTION WITH SUCH DEFENSES AND
CLAIMS.
5.
THE BUYER, BY ITS EXECUTION OF THIS INSTRUMENT OF ASSUMPTION OF
LIABILITIES, AND THE SELLER, BY ITS ACCEPTANCE OF THIS INSTRUMENT OF ASSUMPTION
OF LIABILITIES, EACH HEREBY ACKNOWLEDGES AND AGREES THAT NEITHER THE
REPRESENTATIONS AND WARRANTIES NOR THE RIGHTS, REMEDIES
OR OBLIGATIONS OF EITHER PARTY UNDER THE AGREEMENT SHALL BE DEEMED TO BE
ENLARGED, MODIFIED OR ALTERED IN ANY WAY BY THIS INSTRUMENT.
IN WITNESS WHEREOF, the Buyer and the Seller have caused this instrument to be
duly executed under seal as of and on the date first above written.
MOMENTA PHARMACEUTICALS, INC.
By:
/s/ Craig A. Wheeler
Name:
Craig A. Wheeler
Title:
President and Chief Executive Officer
Attest:
/s/ Lynette Herscha
ACCEPTED:
PARIVID, LLC
By:
/s/ S. Raguram
Name:
S. Raguram
Title:
Managing Member/CTO
[Signature Page to Instrument of Assumption]