performance liability claims
relating to the Acquired Assets which arose prior to and/or on the Closing Date;
and
(v)
any liability or obligation of the Valentis, absolute
or contingent, known or unknown not expressly agreed to be assumed by Medarex
pursuant to this Agreement.
SECTION 1.04
CLOSING; CLOSING DELIVERIES
(A)
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
(THE "CLOSING") WILL TAKE PLACE ON THE CLOSING DATE.
(B)
ON THE CLOSING DATE, VALENTIS SHALL DELIVER OR CAUSE TO BE
DELIVERED TO MEDAREX THE FOLLOWING:
(I)
THE ACQUIRED ASSETS IN SUCH MUTUALLY AGREEABLE FORMAT AS
REASONABLY REQUESTED; AND
(II)
COPIES OF ALL FILES AND RECORDS RELATING TO THE ACQUIRED ASSETS.
(C)
ON THE CLOSING DATE, MEDAREX, SUBJECT TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT, SHALL DELIVER TO VALENTIS THE FOLLOWING:
(i)
The full and complete Purchase Price, payable to Valentis by wire
transfer of immediately available funds to a bank account designated in writing
by Valentis.
(d)
If the Closing does not occur on the Closing Date, or such later
date upon which Medarex and Valentis may agree to in writing, this Agreement
shall terminate upon written notice of termination given by either Party that is
not in default of its obligations hereunder, and thereupon this Agreement shall
become null and void and no Party will have any further rights or obligations
under this Agreement, except with respect to the Survival of Covenants
obligations.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF VALENTIS
Valentis represents and warrants to Medarex as follows:
4
SECTION 2.01
ORGANIZATION VALENTIS IS DULY ORGANIZED, VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE.
SECTION 2.02
AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY VALENTIS HAS THE
REQUISITE CORPORATE POWER AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT
AND TO PERFORM ALL OF ITS OBLIGATIONS HEREUNDER.
THE EXECUTION AND DELIVERY OF
THIS AGREEMENT AND THE PERFORMANCE BY VALENTIS OF ITS OBLIGATIONS HEREUNDER HAVE
BEEN AUTHORIZED BY ALL REQUISITE CORPORATE ACTION ON ITS PART.
THIS AGREEMENT
HAS BEEN VALIDLY EXECUTED AND DELIVERED BY VALENTIS.
ASSUMING THAT THIS
AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY MEDAREX, THIS
AGREEMENT CONSTITUTES A VALID AND BINDING OBLIGATION OF VALENTIS, ENFORCEABLE
AGAINST VALENTIS IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY
BE LIMITED BY (A) BANKRUPTCY, INSOLVENCY, MORATORIUM, REORGANIZATION OR OTHER
LAWS OF GENERAL APPLICABILITY RELATING TO OR AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND GENERAL PRINCIPLES OF EQUITY; AND (B) LAWS
LIMITING THE AVAILABILITY OF SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF OR OTHER
EQUITABLE REMEDIES. NONE OF THE FOLLOWING:
THE EXECUTION AND DELIVERY OF THIS
AGREEMENT BY VALENTIS, THE PERFORMANCE BY VALENTIS OF ITS OBLIGATIONS UNDER THIS
AGREEMENT OR THE CONSUMMATION OF THE ACQUISITION, KNOWINGLY:
(I)
VIOLATES THE CERTIFICATE OF INCORPORATION, BY-LAWS OR OTHER
ORGANIZATIONAL DOCUMENTS OF VALENTIS;
(II)
CONFLICTS IN ANY RESPECT WITH OR RESULTS IN A VIOLATION OR BREACH
OF, OR CONSTITUTES A DEFAULT UNDER, ANY CONTRACT, AGREEMENT OR INSTRUMENT TO
WHICH VALENTIS IS A PARTY OR BY WHICH VALENTIS OR ANY ACQUIRED ASSET