Exhibit 10.45
ASSET PURCHASE AGREEMENT
This Agreement is dated as of the 18th day of December, 2008.
AMONG:
ONCOTHYREON CANADA INC., a Canadian corporation with offices located at
Edmonton, Alberta ("Oncothyreon Canada")
AND:
BIOMIRA MANAGEMENT, INC., a Delaware corporation with offices located at
Seattle, Washington ("Biomira Management")
AND:
ONCOTHYREON INC., a Delaware corporation with offices located at Seattle,
Washington ("Oncothyreon Parent")
(Oncothyreon Canada, Biomira Management and Oncothyreon Parent hereinafter
collectively referred to as "Oncothyreon")
AND:
MERCK KGaA, a German corporation with offices located at Darmstadt, Germany
("Merck")
AND:
EMD SERONO CANADA INC., an Ontario corporation with offices located at 2695
North Sheridan Way, Suite 200, Mississauga, Ontario ("EMD"), an affiliate of
Merck
WHEREAS Merck and Biomira Management will be entering into an amended and
restated license agreement pursuant to which Biomira Management will license to
Merck, inter alia, certain manufacturing rights in relation to the manufacture
of BLP25;
AND WHEREAS Oncothyreon Canada and Biomira Management have agreed to sell
certain assets related to the manufacture of BLP25 to EMD and Merck and EMD and
Merck have agreed to purchase such assets from Oncothyreon Canada and Biomira
Management, all upon the terms and subject to the conditions set forth in this
Agreement;
AND WHEREAS EMD and Oncothyreon Canada have agreed on certain matters in
respect of certain employees of Oncothyreon Canada;
NOW THEREFORE in consideration of the representations, warranties,
covenants and agreements set forth in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged by the
parties hereto, the parties hereto covenant and agree as follows:
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DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION
2
ARTICLE 1
INTERPRETATION
Section 1.1 Definitions
In this Agreement, unless otherwise provided, the following terms shall
have the following meanings:
1.1.1
"Adjustment Date" has the meaning set out in Section 5.4;
1.1.2
"Affiliate" means any business entity that directly or indirectly controls, is
controlled by, or is under common control with either party to this Agreement. A
business entity shall be deemed to "control" another business entity if it owns,
directly or indirectly, more than fifty (50%) percent of the outstanding voting
securities, capital stock, or other comparable equity or ownership interest of
such business entity. If the laws of the jurisdiction in which such business
entity operates prohibit ownership by a party of more than fifty percent (50%),
control shall be deemed to exist at the maximum level of ownership allowed by
such jurisdiction;
1.1.3
"Agreement" means this asset purchase agreement,
together with any amendments to or replacements of or substitutions for this
asset purchase agreement;
1.1.4
"Applicable Law" means
any applicable domestic or foreign law including any statute,
subordinate legislation or treaty, and
any applicable guideline,
directive, rule, standard, requirement, policy, order, judgment, injunction,
award or decree of a Governmental Authority having the force of law;
1.1.5
"Assets" means all of Oncothyreon's right, title and interest in and
to all