RECEIPT OF APPROVALS TO ASSIGNMENT FROM THE PARTIES TO THE MATERIAL
CONTRACTS IDENTIFIED IN EXHIBIT L (THE "MATERIAL CONTRACTS") TO THE TRANSACTIONS
CONTEMPLATED HEREIN SUCH THAT ALL MATERIAL CONTRACTS AND OTHER RIGHTS OF SELLER
REMAIN IN FULL FORCE AND EFFECT AFTER THE CLOSING.
5.12
EMPLOYEE AGREEMENTS.
THE BUYER'S OFFERS OF EMPLOYMENT MADE
PURSUANT TO ARTICLE 8 SHALL HAVE BEEN ACCEPTED IN WRITING BY:
ARIEL LOUWRIER,
PING CHENG YE, LIJUAN SUN AND FIFTEEN (15) OF THE OTHER EMPLOYEES AS DEFINED IN
ARTICLE 8 AND EACH OF THE TRANSFERRING EMPLOYEES AS DEFINED IN ARTICLE 8 SHALL
HAVE EXECUTED THE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT IN THE FORM
PROVIDED BY BUYER AND ITS COUNSEL.
5.13
GUARANTY AGREEMENT.
PARTNERS AND BUYER SHALL HAVE ENTERED INTO THE
GUARANTY AGREEMENT IN SUBSTANTIALLY THE SAME FORM ATTACHED HERETO AS EXHIBIT H.
5.14
LICENSE WITH BROOKHAVEN.
SELLER SHALL HAVE ENTERED INTO A LICENSE
OR LICENSES WITH BROOKHAVEN NATIONAL LABORATORY OR ITS AFFILIATES PROVIDING ALL
RIGHTS NECESSARY UNDER U.S. PATENTS 4,952,496, 5,693,489 AND 5,869,320 COVERING
ITS USE OF THE T7 TECHNOLOGY FOR THE PRODUCTION AND SALE OF
16
PROTEINS AND ANTIBODIES TO THE RESEARCH MARKET IN A MANNER ACCEPTABLE TO BUYER,
AND SHALL USE ITS COMMERCIALLY REASONABLE BEST EFFORTS TO EFFECTIVELY ASSIGN
SUCH LICENSE OR LICENSES TO BUYER ON OR PRIOR TO CLOSING.
ARTICLE 6
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF SELLER
Each and every obligation of Seller under this Agreement to be performed on or
before the Closing Date shall be subject to the satisfaction, on or before the
Closing Date, of each of the following conditions precedent, except to the
extent that the Seller shall have waived in writing such satisfaction.
6.1
PERFORMANCE.
BUYER SHALL HAVE PERFORMED AND COMPLIED WITH ALL
AGREEMENTS, COVENANTS AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED
AND COMPLIED WITH BY BUYER ON OR BEFORE THE CLOSING DATE.
SELLER SHALL HAVE
RECEIVED A CERTIFICATE OF THE PRESIDENT OR CHIEF FINANCIAL OFFICER OF THE BUYER
DATED AS OF THE CLOSING DATE AND CERTIFYING TO THE FULFILLMENT OF THE FOREGOING,
IN A FORM REASONABLY ACCEPTABLE TO SELLER AND ITS COUNSEL.
6.2
APPROVAL.
THIS AGREEMENT AND THE RELATED DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL HAVE BEEN APPROVED BY THE
GENERAL PARTNER OF SELLER, BY THE BOARD OF DIRECTORS OF SBC AND BY BUYER'S BOARD
OF DIRECTORS.
6.3
GOVERNMENTAL APPROVALS.
AS OF THE CLOSING, ALL AUTHORIZATIONS,
APPROVALS OR PERMITS OF OR FILINGS WITH ANY GOVERNMENTAL AUTHORITY THAT WERE
REQUIRED BY LAW PRIOR TO AND IN CONNECTION WITH THE TRANSFER OF THE ASSETS OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE RELATED DOCUMENTS SHALL
HAVE BEEN DULY OBTAINED OR MADE AND SHALL BE EFFECTIVE AS OF THE CLOSING.
ARTICLE 7
INDEMNIFICATION AND ESCROW AGREEMENT
7.1
GRANT OF INDEMNITY.
AFTER THE CLOSING, THE INDEMNIFICATION RIGHTS
PROVIDED IN THIS ARTICLE 7 SHALL BE THE EXCLUSIVE REMEDY OF BUYER, SELLER AND
THE BUYER AFFILIATES AND SELLER AFFILIATES (AS DEFINED BELOW) WITH RESPECT TO
THE MATTERS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN NON-MONETARY REMEDIES
SOUGHT WITH