DOUBT, THE
OPERATION OF THE BUSINESS BY SELLER THROUGH AND INCLUDING THE MANUFACTURING
CLOSING DATE BUT EXCLUDING LIABILITIES OR OBLIGATIONS RESULTING FROM EITHER
MODIFICATIONS TO THE PRODUCT MADE BY PURCHASER OR ADDITIONAL WARRANTIES EXTENDED
BY PURCHASER FOLLOWING THE TECHNOLOGY CLOSING DATE);
(V)
ANY LIABILITIES OR OBLIGATIONS (WHETHER ASSESSED OR UNASSESSED) OF
SELLER FOR ANY TAXES, ANY TRANSFER TAXES IMPOSED ON SELLER, ANY TAXES OF THE
BUSINESS FOR ANY PERIOD (OR PORTION THEREOF) ENDING ON OR PRIOR TO THE
TECHNOLOGY CLOSING DATE AND ANY TAXES OF THE BUSINESS RELATED TO THE
MANUFACTURING ASSETS FOR ANY PERIOD (OR PORTION THEREOF) ENDING ON OR PRIOR TO
THE MANUFACTURING CLOSING DATE;
(VI)
ANY LIABILITIES OR OBLIGATIONS RELATING TO OR ARISING OUT OF A
BREACH OR FAILURE OF SELLER TO PERFORM UNDER AN ASSUMED CONTRACT PRIOR TO THE
DATE ON WHICH ANY SUCH ASSUMED CONTRACT IS TRANSFERRED BY SELLER TO PURCHASER IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT;
(VII)
ANY LIABILITIES OR OBLIGATIONS RELATING TO OR ARISING UNDER ANY
ENVIRONMENTAL LAW OR REGULATION TO THE EXTENT ARISING OUT OF THE OPERATION OF
THE BUSINESS PRIOR TO THE TECHNOLOGY CLOSING DATE WITH RESPECT TO THE TECHNOLOGY
ASSET AND THE MANUFACTURING CLOSING DATE WITH RESPECT TO THE MANUFACTURING
ASSETS; AND
(VIII)
ANY LIABILITIES OR OBLIGATIONS OF SELLER INCURRED, ARISING FROM OR
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE MANUFACTURING AGREEMENT, THE
LICENSE AGREEMENT, THE BILL OF SALE - TECHNOLOGY ASSETS, THE BILL OF SALE -
MANUFACTURING ASSETS, THE IP ASSIGNMENT AGREEMENT - PATENTS AND THE IP
ASSIGNMENT AGREEMENT - TRADEMARKS (TOGETHER, THE "TRANSACTION DOCUMENTS") OR THE
EVENTS OR NEGOTIATIONS LEADING UP TO THE EXECUTION AND CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
Section 1.3
Technology Closing; Manufacturing Closing.
The
consummation of the Technology Asset Transfer (the "Technology Closing") shall
be held as soon as reasonably practicable upon satisfaction of the conditions
set forth in Article V of this Agreement or such other date and time as
Purchaser and Seller shall agree (the "Technology Closing Date").
The
consummation of the Manufacturing Asset Transfer (the "Manufacturing Closing")
shall be held as soon as reasonably practicable following the earlier to occur
of (i) the termination of the Manufacturing Agreement by Purchaser pursuant to
Section 7.1 of the Manufacturing Agreement and (ii) the expiration of the "Term"
(as that term is defined in the Manufacturing Agreement) of the Manufacturing
Agreement (the "Manufacturing Closing Date").
The Technology Closing
4
and the Manufacturing Closing shall be held at the offices of DLA Piper US LLP,
4365 Executive Drive, San Diego, California (or via exchange of documents via
PDF and overnight mail courier).
Section 1.4
Initial Purchase Price.
At the Technology Closing,
Purchaser shall (i) assume the Assumed Liabilities related to the Technology
Assets, and (ii) pay to Seller an aggregate of Thirty Five Million
Dollars ($35,000,000) (the "Initial Purchase Price").
Purchaser shall pay the
Initial Purchase Price to Seller by bank or cashiers check or, provided that
Seller has delivered wire transfer instructions to Purchaser not less