EX-99.A 2 0002.txt Exhibit A to Ophidian Pharmaceuticals, Inc. Proxy Statement EXECUTION COPY ASSET PURCHASE AGREEMENT dated as of September 1, 2000, by and between OPHIDIAN PHARMACEUTICALS, INC., as the Seller, and PROMEGA CORPORATION, as the Buyer TABLE OF CONTENTS Page ARTICLE I PURCHASE AND SALE OF ASSETS 1 1.1 Defined Terms 1 1.2 Purchased Assets 1 1.3 Excluded Assets 2 1.4 Closing 3 1.5 Assets Not Assignable 3 ARTICLE II PURCHASE PRICE 4 2.1 Payment of the Purchase Price 4 2.2 Purchase Price Allocation 4 2.3 Sales and Transfer Taxes 4 2.4 Prorations 4 2.5 Terms of the Note 5 ARTICLE III LIABILITIES 5 3.1 Assumption of Liabilities 5 3.2 Non-Assumption of Liabilities 5 3.3 Forbearance of Seller's Obligations Under Lease 5 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLER 6 4.1 Ownership, Organization and Qualification 6 4.2 Authorization 6 4.3 Enforceability 6 4.4 Conflicting Obligations 6 4.5 Subsidiaries 7 4.6 Title to Assets 7 4.7 Third Party Consents 7 4.8 Financial Statements 7 4.9 Real Property; Leases 7 4.10 Personal Property 8 4.11 Intellectual Property 8 4.12 Insurance 10 4.13 Permits 10 4.14 Material Contracts 10 4.15 Litigation 11 4.16 Compliance With Law 11 4.17 Environmental Matters 11 4.18 Events Subsequent to Latest Balance Shee Date 13 4.19 Brokerage 13 4.20 Bankruptcy 13 4.21 No Bulk Sales Laws 13 4.22 Commission Filings 13 4.23 Representations and Warranties True and Correct 13 ARTICLE V REPRESENTATIONS OF THE BUYER 14 5.1 Ownership, Organization and Qualification 14 5.2 Authorization 14 5.3 Enforceability 14 5.4 Conflicting Obligations 14 5.5 Litigation 14 5.6 Brokerage 14 ARTICLE VI COVENANTS OF THE SELLER 15 6.1 Access 15 6.2 Operation of Business 15 6.3 Insurance and Maintenance of Property 15 6.4 Compliance with Laws 15 6.5 Supplemental Disclosure 15 6.6 Fulfill Conditions 15 6.7 Release of Liens 15 6.8 Documents of Transfer 15 6.9 Other Deliveries 16 6.10 Exclusive Dealing 16 6.11 Further Assurances 17 6.12 Brokerage 17 6.13 Intellectual Property Assignments 17 6.14 Transfer of Sponsorship of IND 18 ARTICLE VII COVENANTS OF THE BUYER 18 7.1 Certified Resolutions 18 7.2 Assignment, Bill of Sale and Assumption Agreement 18 ARTICLE VIII CONDITIONS OF THE BUYER'S OBLIGATION TO CLOSE 18 8.1 Representation and Warranties 18 8.2 Performance of Covenants and Obligations 18 8.3 Proceedings and Instruments Satisfactory 18 8.4 Adverse Change 18 8.5 No Litigation 19 8.6 Consents, Approvals, Certifications, Licenses and Permits 19 8.7 Good Standing Certificates 19 8.8 Opinion of Counsel 19 8.9 Financing 19 8.10 Due Diligence 19 ARTICLE IX CONDITIONS TO THE SELLER'S OBLIGATION TO CLOSE 20 9.1 Representations and Warranties 20 9.2 Performance of Covenants and Obligations 20 9.3 Proceedings and Instruments Satisfactory 20 9.4 No Litigation 20 ARTICLE X INDEMNIFICATION BY SELLER 20 10.1 Indemnification 20 10.2 Procedures for Making Claims 21 10.3 Participation in Defense of Third Party Claims 21 10.4 Survival of Representations and Indemnification 21 10.5 Offset 21 10.6 Limitation on Indemnification 22 10.7 Other Indemnification Provisions 22 ARTICLE XI TERMINATION 22 11.1 Rights to Terminate 22 11.2 Effects of Termination 23 ARTICLE XII DEFINITIONS 23 12.1 Certain Defined Terms 23 12.2 Interpretation 28 12.3 Other Terms 28 ARTICLE XIII MISCELLANEOUS 28 13.1 Survival of Representations and Warranties 28 13.2 Benefit and Assignment 28 13.3 Governing Law 28 13.4 Expenses 29 13.5 Submission to Jurisdiction 29 13.6 Notices 29 13.7 Counterparts 30 13.8 Headings 30 13.9 Amendment, Modification and Waiver 30 13.10 Mutual Release of Certain Liabilities of Each Party to the Other Upon Closing 30 13.11 Entire Agreement 30 13.12 Third-Party Beneficiaries 31 13.13 Publicity 31 13.14 Specific Performance 31 SCHEDULES: Schedule 1.2(c) - Real Estate Schedule 1.2(d) - Equipment Schedule 1.2(e) - Contracts Schedule 2.2 - Purchase Price Allocation Schedule 4.1 - Organization and Qualification Schedule 4.6 - Title to Assets Schedule 4.7 - Third Party Consents Schedule 4.8 - Financial Statements Schedule 4.9(a) - Real Estate Schedule 4.9(c) - Capital Expenditures Schedule 4.10 - Personal Property Schedule 4.11(a) - Patents Schedule 4.11(c) - Patent Exceptions Schedule 4.11(d) - Patent Infringements Schedule 4.11(e) - Patent Challenges Schedule 4.12(a) - Insurance Policies Schedule 4.13 - Permits Schedule 4.14 - Material Contracts Schedule 4.16 - Compliance With Law Schedule 4.17(a) - Environmental Compliance Schedule 4.17(d) - Disposal Practices Schedule 4.17(e) - Environmental Condition Schedule 4.18 - Subsequent Events Schedule 4.19 - Brokerage Schedule 4.22 - Commission Filings Schedule 6.3 - Ophidian Patent/Patent Application Due Dates Between 8/21/00 and 1/1/01 Schedule 8.8 - Forms of Opinion of Counsel ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of the 1st day of September, 2000, by and between PROMEGA CORPORATION, a Wisconsin corporation (the "Buyer"), and OPHIDIAN PHARMACEUTICALS, INC., a Delaware corporation (the "Seller"). RECITALS WHEREAS, the Seller is engaged in the development and manufacture of pharmaceutical products (the "Business"); WHEREAS, the Seller leases certain real property and owns and uses certain tangible and intangible assets used in the Business, including certain intellectual property, leasehold improvements, laboratory equipment and supplies, machinery and equipment, and contract rights; WHEREAS, the Buyer desires to purchase certain assets used in the Business and to assume only certain specific liabilities associated with the Business, and the Seller desires to sell and transfer to the Buyer certain of the assets used in the Business, while retaining environmental and other liabilities, all as more fully set forth below. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Seller hereby agree as follows: ARTICLE I PURCHASE AND SALE OF ASSETS 1.1 Defined Terms. Capitalized terms used herein have the meanings set forth in Section 12.1. 1.2 Purchased Assets. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, covenants and agreements made in this Agreement by the Seller and the Buyer, the Buyer shall purchase, accept and acquire from the Seller, and the Seller shall sell, transfer, convey, assign and deliver to the Buyer, all of the assets and properties of the Seller (but excluding the Excluded Assets) set forth below including the schedules attached hereto (the "Purchased Assets"), including the following: (a) All Intellectual Property (except the Ophidian corporate name and the goodwill associated with the Ophidian corporate name), including without limitation the Intellectual Property set forth in Schedule 4.11(a), all goodwill associated with respect to the Intellectual Property, licenses and sublicenses granted and obtained with respect thereto and rights thereunder, remedies against infringements thereof and rights to protection of interests therein under the laws of all jurisdictions; (b) All deposits under the Leases; (c) All leaseholds and subleaseholds, improvements, construction in progress, fixtures and appurtenances thereto, including the parcels of land the legal description of which is described on Schedule 1.2(c) attached hereto (the "Real Estate"); (d) All equipment (laboratory, farm or building), machinery, reactors, chemical manufacturing equipment, prototypes, parts, components, projects in process, furniture (except free- standing office filing cabinets), appliances, artwork, laboratory computers and computer terminals and printers (except office computer equipment), laboratory supplies, office supplies and office equipment set forth on Schedule 1.2(d) attached hereto (the "Equipment"); (e) All leases, subleases, arrangements, and other agreements of the Seller pertaining to Intellectual Property, Equipment and Real Estate, including, without limitation, installation and maintenance agreements, hardware lease or rental agreements, and those items which are listed on Schedule 1.2(e) (the "Contracts"); (f) All qualifications, registrations, filings, privileges, franchises, immunities, licenses, permits, authorizations and approvals of Governmental Authorities which pertain to the Purchased Assets and which are currently held by the Seller (the "Permits"); (g) All Records pertaining to the Intellectual Property, the Real Estate, the Equipment, the Contracts and the Permits and the master file for Seller's IND (excluding all other Records of Seller, including but not limited to, business plans, corporate financial records, corporate employment records, correspondence not pertaining to the Intellectual Property, the Real Estate, the Equipment, the Contracts, and the Permits, shareholder records and communications, corporate minute book, and batch records and amendments pertaining to Seller's IND) (the "Records"); (h) All of the Seller's rights and remedies, under warranty or otherwise, against a manufacturer, vendor or other Person for any defects in any Purchased Asset; and (i) All causes of action, choses in action and rights of recovery with respect to any of the foregoing to the extent applicable to the Purchased Assets. 1.3 Excluded Assets. The Purchased Assets shall not include, and the Seller shall retain, the following assets (the "Excluded Assets"): (a) The Seller's rights under this Agreement; (b) All of Seller's records not pertaining to the Intellectual Property, the Real Estate, the Equipment, the Contracts or the Permits, including business plans, business textbooks, business software, corporate financial records, corporate employment records, correspondence not pertaining to the Intellectual Property, the Real Estate, the Equipment, the Contracts or the Permits, shareholder records and communications, corporate minute book, and batch records and FDA amendments pertaining to the application for an IND; (c) All of Seller's prepaid insurance premiums on all of its policies, including without limitation its directors and officers insurance; (d) The Seller's environmental policies and procedures; (e) All of Sellers trademarks and associated good will; (f) The Seller's office computer equipment and free-standing filing cabinets (and their contents not otherwise included among the Purchased Assets as described herein) located in the administrative areas; (g) Any and all assets of Seller not specifically set forth as Purchased Assets herein, including but not limited to its cash and cash equivalents; and (h) The Seller's sponsorship of the IND, and the batch records and FDA amendments relating to its application for an IND. 1.4 Closing. The closing (the "Closing") of the purchase and sale of the Purchased Assets shall take place at 10:00 a.m., local time, on the Closing Date, at the offices of Michael Best & Friedrich LLP, One South Pinckney Street, Suite 700, Madison, Wisconsin 53703, or at such other time and place as may be mutually agreed to by the Buyer and the Seller. The "Closing Date" means the second business day following the satisfaction or waiver of all conditions to the obligations of the Seller to consummate the transactions contemplated hereby (other than conditions with respect to action the respective parties will take at the Closing), or such other date as may be mutually agreed to by the Buyer and the Seller. The Closing shall be effective as of 12:01 a.m. on the Closing Date; provided, however, that the Buyer shall have no further obligation under this Agreement if the conditions set forth in Article VIII have not been satisfied by the Seller or expressly waived by the Buyer on or before November 30, 2000. 1.5 Assets Not Assignable. (a) To the extent that any interest in any of the Purchased Assets is not capable of being assigned, transferred or conveyed without the consent, waiver or authorization of a third person (including a governmental, regulatory or administrative authority), or if such assignment, transfer or conveyance or attempted assignment, transfer or conveyance would constitute a breach of the terms of the agreement governing any Purchased Asset, or a violation of any law, statute, decree, rule, regulation or other governmental edict or is not immediately practicable, this Agreement shall not constitute an assignment, transfer or conveyance of such interest, or an attempted assignment, transfer or conveyance of such interest (such interests being hereinafter collectively referred to as "Restricted Interests"). The entire beneficial interest in any Purchased Assets subject to a restriction as described above, and any other interest in such Purchased Assets which are transferable notwithstanding such restriction, shall be transferred from the Seller to the Buyer as provided in this Section 1.5. (b) Anything in this Agreement to the contrary notwithstanding, the Seller shall not be obligated to transfer to the Buyer any Restricted Interests without the Buyer or the Seller first having obtained all consents, waivers and authorizations necessary for such transfers. In consultation with the Buyer as to the practicalities of proposed actions, the Seller shall use its reasonable best efforts to assist the Buyer in obtaining such consents, waivers and authorizations and to resolve any impracticalities of assignment referred to in Section 1.5(a) hereof. ARTICLE II PURCHASE PRICE 2.1 Payment of the Purchase Price. (a) The payment by the Buyer to the Seller for the Purchased Assets on the Closing Date (the "Purchase Price") shall be Three Million Five Hundred Thousand Dollars ($3,500,000) payable on the Closing Date in the following manner: (i) The assumption of two Senior Secured Notes of the Seller by the Buyer in the original principal amount of Two Million Dollars ($2,000,000); (ii) A promissory note (the "Note") from the Buyer to the Seller in the amount of Two Hundred Fifty Thousand Dollars ($250,000); and (iii) The balance of the Purchase Price shall be paid in cash to the Seller. (b) The amounts paid in cash pursuant to Section 2.1(a) shall be by wire transfer of same-day funds to an account designated in writing to the Buyer by the Seller prior to the Closing. 2.2 Purchase Price Allocation. The parties acknowledge and agree that the Purchase Price was negotiated and concluded on the basis of the component prices set forth on Schedule 2.2 in accordance with the respective fair market values of the Purchased Assets. The parties agree to report and allocate, for all federal, state and local income tax purposes (including IRS Form 8594), the Purchase Price as so allocated and will not take any inconsistent or contrary position therewith for any other purpose. 2.3 Sales and Transfer Taxes. The Seller shall pay any and all transfer, sales, purchase, use, value added, excise or similar tax imposed under the laws of the United States, or any state or political subdivision thereof, which arises out of the transfer by the Seller to the Buyer of any of the Purchased Assets. 2.4 Prorations. (a) Personal property taxes for the Purchased Assets for 2000 shall be prorated on the Closing Date based upon the taxes assessed for 2000; but if the taxes assessed for 2000 are not known on the Closing Date, such taxes shall be prorated based upon the taxes assessed for 1999. (b) The Seller shall order final readings for utility services, such as gas, electricity, water and sewer as of the Seller's close of business on the date before the Closing Date, and prorated charges for such utility services shall be reflected on the Closing Balance Sheet. 2.5 Terms of the Note. The Note shall be payable in a single installment of principal due ninety days from the Closing Date. Interest on the Note shall accrue at the lowest rate necessary to avoid the imputation of interest under the Code. ARTICLE III LIABILITIES 3.1 Assumption of Liabilities. As additional consideration for the Purchased Assets, the Buyer shall, on the Closing Date, by its execution and delivery of the Assignment, Bill of Sale and Assumption Agreement, assume and agree to pay and perform only (the "Assumed Liabilities"): (a) subject to the Buyer's due diligence rights contained herein, all written obligations of the Seller under the Leases listed on Schedule 1.2(e); (b) subject to the agreement of the holders of the Senior Secured Notes to renegotiate the terms of the Senior Secured Notes and to subordinate the notes to the Buyer's existing lenders, all on terms approved by the Buyer in its sole discretion, the Seller's obligations under the Senior Secured Notes; provided, however, that the Buyer shall not assume any obligation to the extent the existence thereof violates or is in breach of any of the representations, warranties and covenants of the Seller in this Agreement. 3.2 Non-Assumption of Liabilities. Except for the Assumed Liabilities, the Buyer shall not be responsible for, assume, pay, perform, discharge, or accept any liabilities, debts or obligations of the Seller of any kind whatsoever, whether actual, contingent, accrued, known or unknown, including, without limitation, any relating to accounts payable, interest-bearing debt, notes to Affiliates or other related Persons, interest and termination penalties on indebtedness, taxes, employee compensation, severance, pension, profit-sharing, vacation, health insurance, disability insurance or other employee benefit plans and programs, worker's compensation, breach or negligent performance of any contract, or breach of warranty relating thereto, liabilities resulting from breach of contract, torts (including, without limitation, product liability claims), illegal activity, unlawful employment or business practice, infringement of intellectual property rights, claim for environmental liability or remediation or any other liability or obligation whatsoever. All such non-assumed liabilities, debts and obligations shall remain the responsibility of the Seller which shall pay and discharge the same when and as due. 3.3 Forbearance of Seller's Obligations Under Lease. Buyer, as landlord under Seller's Lease of office and laboratory space at 5445 East Cheryl Parkway, Madison, Wisconsin, agrees to forebear all obligations of Seller arising under and pursuant to such lease from and after the date that Buyer takes full possession of the space subject to said lease, and to forgive such obligations upon Closing. In the event this Agreement is terminated, such obligations through the date of termination shall become due and payable, and if paid within 5 days thereafter, and the Lease shall continue in full force and effect without default. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLER In order to induce the Buyer to enter into this Agreement, the Seller makes the following representations and warranties to the Buyer, each of which shall be deemed to be independently material and relied upon by the Buyer, regardless of any investigation made by, or information known to, the Buyer. Any matter described on the disclosure schedules attached hereto and incorporated herein shall be set forth with reference to each separate Section of this Agreement to which the matter relates. 4.1 Ownership, Organization and Qualification. The Seller is a corporation duly incorporated and validly existing under the laws of the State of Delaware, has filed with the appropriate state agency the most recent annual report required to be filed by it, has not filed articles of dissolution and has a perpetual period of existence. The Seller is qualified to transact business as foreign corporation in the jurisdictions set forth on the Schedule 4.1, and the Seller is not otherwise required to be so qualified in any other jurisdiction. 4.2 Authorization. The Seller has all necessary power and authority to enter into and perform the transactions contemplated hereby in accordance with the terms and conditions hereof. The execution and delivery of this Agreement, and the performance by the Seller of each of its obligations contained herein, have been duly approved by the Board of Directors of the Seller. Except only the vote of the shareholders of Seller, no other corporate authorization from the Seller is required for the execution and delivery of this Agreement or the performance of its obligations hereunder. 4.3 Enforceability. This Agreement and all other agreements of the Seller contemplated hereby are or, upon the execution and delivery thereof will be, the valid and binding obligations of the Seller, enforceable against it in accordance with their terms. 4.4 Conflicting Obligations. The execution and delivery of this Agreement does not, and the consummation of the sale and purchase of the Purchased Assets contemplated hereby will not: (a) conflict with or violate any provisions of the articles or certificate of incorporation or bylaws of the Seller, as amended and in effect on and as of the date hereof and on and as of the Closing Date; (b) conflict with or violate any provisions of, or result in the maturation or acceleration of, any obligations under any contract, agreement, instrument, document, lease, license, permit, indenture, or obligation, or any law, statute, ordinance, rule, regulation, code, guideline, order, arbitration award, judgment or decree, to which the Seller is subject or to which the Seller is a party; or (c) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which the Seller is a party or by which it is bound or to which any of its assets are subject (or result in the imposition of any Lien upon any of the Purchased Assets). 4.5 Subsidiaries.The Seller has no Subsidiaries. 4.6 Title to Assets. Except as set forth on Schedule 4.6, the Seller has good and marketable fee simple title to all of the Purchased Assets, free and clear of any Lien (other than Permitted Liens) or restriction on transfer. 4.7 Third Party Consents. Except as set forth on Schedule 4.7, no third party consents, approvals or authorizations are necessary for the execution and consummation of the transactions contemplated hereby, nor are any such consents, approvals or authorizations required in order for any of the Purchased Assets, including without limitation, the Leases and the Permits, to be assigned to the Buyer. 4.8 Financial Statements. Attached as Schedule 4.8 are complete copies of the unaudited balance sheet for June 30, 2000 (the "Latest Balance Sheet Date"). 4.9 Real Property; Leases. (a) Good Title; Condition. The Seller does not own any real property. Schedule 4.9(a) sets forth a true and correct summary description of all Real Estate leased or rented by the Seller. The description of each parcel of Real Estate describes such parcel fully and adequately. All buildings, structures and other improvements on the Real Estate are in good condition and repair (normal wear and tear excepted). The use and operation of the Real Estate as currently conducted conform to all applicable building, zoning, safety, and other laws, statutes, ordinances, rules, regulations, codes, licenses, permits, and all other restrictions and conditions. The Seller has not received any written or oral notice of, and the Seller does not know of any assessments for public improvements against the Real Estate or any written or oral notice or order by any governmental, regulatory or administrative authority, any insurance company which has issued a policy with respect to any of such properties or any board of fire underwriters or other body exercising similar functions that: (i) relates to violations of building, safety or fire ordinances or regulations; (ii) claims any defect or deficiency with respect to any of such properties; or (iii) requests the performance of any repairs, alterations or other work to or in any of such properties or in the streets bounding the same. There are no arrangements for the deferral of taxes or assessments for any of the Real Estate. There is no condemnation, expropriation, eminent domain or similar proceeding affecting all or any portion of the Real Estate pending or, to the Knowledge of the Seller, threatened. Those public utilities (including water, gas, electric, storm and sanitary sewage, and telephone utilities) required to operate the facilities of the Seller are available to such facilities, and such utilities enter the boundaries of such facilities through adjoining public streets or easement rights-of-way. Such public utilities are all connected pursuant to valid licenses or permits, are all in good working order and are adequate to service the operations of such facilities as currently conducted and permit full compliance with all requirements of law. Except where the Seller is lessee, there are no leases, subleases, licenses, concessions or other agreements (written or oral) granting to any party or parties the right to use or occupancy of any portion of each parcel of Real Estate. (b) Real Estate. On the Closing Date, for each parcel of the Real Estate that is the subject of a written lease agreement, such written agreements shall be in full force and effect, and there shall be no oral terms or other agreements in effect. (c) Capital Expenditures and Repairs. Except as set forth on Schedule 4.9(c), no capital expenditures relating to the Real Estate (excluding only normal maintenance and repair made consistently with past practice and which are required to be expended for federal income tax purposes) or remediations suggested or required by any applicable governmental, administrative or regulatory authority or insurer, in the next twelve (12) months in an amount exceeding $10,000, are necessary to conduct business at the Real Estate as it is presently conducted, nor are any such expenditures planned. 4.10 Personal Property. Schedule 4.10 sets forth all personal property of the Seller which constitute Purchased Assets. The Seller owns all property reflected on Schedule 4.10. All tangible personal property of the Seller is located upon the Seller's premises, except as otherwise set forth on Schedule 4.10. All of such tangible personal property is actually on hand. All such tangible personal property is in good condition and repair (normal wear and tear excepted). Except as set forth on Schedule 4.10, no capital expenditures relating to personal property (excluding only normal maintenance repairs made consistently with past practice and which are required to be expended for federal income tax purposes) or remediations suggested or required by any applicable governmental, administrative or regulatory authority or insurer, in the next twelve (12) months in an amount exceeding $10,000 in the aggregate, are necessary to conduct business using the personal property as it is presently conducted, nor are any such expenditures planned. 4.11 Intellectual Property. (a) Schedule 4.11(a) identifies each patent or registration which has been issued to the Seller with respect to any of its Intellectual Property, identifies each pending patent application or application for registration which the Seller has made with respect to any of its Intellectual Property, and identifies each license, agreement, or other permission that is currently in effect and which has been granted to any third party with respect to any of its Intellectual Property (together with any exceptions). The Seller has made available to the Buyer correct and complete copies of all such patents and registrations, and those applications, licenses, agreements, and permissions currently in effect (as amended to date) and has made available to the Buyer correct and complete copies of all other written documentation evidencing ownership and prosecution (if applicable) of each such item. (b) The Seller owns or has the right to use pursuant to license, sublicense, agreement, or permission all Intellectual Property. Each item of Intellectual Property owned or used by the Seller immediately prior to the Closing hereunder will be owned or available for use by the Buyer immediately subsequent to the Closing hereunder. The Seller has taken all actions that the Seller deemed commercially reasonable to maintain and to protect each item of Intellectual Property that it owns or uses, including, but not limited to, payment of any and all maintenance fees and annuities. (c) Except as disclosed in Schedule 4.11(c), with respect to each item of Intellectual Property required to be identified in Section 4.11(a): (i) the Seller possesses all right, title and interest in and to the item, free and clear of any Lien, license, or other restriction; (ii) the item is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge; (iii) no action, suit, opposition or reexamination proceeding, hearing, investigation, charge, complaint, claim, or demand is pending or is threatened which challenges the legality, validity, enforceability, use, or ownership of the item; and (iv) the Seller is not now subject to any indemnity obligation to any Person for or against any interference, infringement, misappropriation, reexamination, opposition or other conflict with respect to the item. (d) Except as disclosed in Schedule 4.11(d), the Seller has no Knowledge of any products, inventions or procedures of competitors which infringe or misappropriate any Intellectual Property of the Seller. Except as disclosed in Schedule 4.11(d), the Seller has not given formal or informal notice of infringement or sent a demand to "cease and desist" to any third party. (e) Schedule 4.11(e) identifies each and every item of Intellectual Property that any third party owns or licenses and that the Seller has pursuant to license, sublicense, agreement, or permission. The Seller has delivered to the Buyer correct and complete copies of all such licenses, sublicenses, agreements, and permissions (as amended to date). With respect to each item of Intellectual Property required to be identified in Section 4.11(e): (i) the license, sublicense, agreement, or permission covering the item is legal, valid, binding, enforceable, and in full force and effect; (ii) the license, sublicense, agreement, or permission will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in Section 1.2 above), subject to the rights of third parties listed in Schedule 4.7; (iii) no party to the license, sublicense, agreement, or permission is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default or permit termination, modification, or acceleration thereunder; (iv) no party to the license, sublicense, agreement, or permission has repudiated any provision thereof; (v) with respect to each sublicense, the representations and warranties set forth in subsections (i) through (iv) above are true and correct with respect to the underlying license; (vi) to the Seller's Knowledge, the underlying item of Intellectual Property is not subject to any outstanding injunction, judgment, order, decree, ruling or charge; (vii) except as set forth in Schedule 4.11(e), no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand is pending or is threatened which challenges the legality, validity, or enforceability of the underlying item of Intellectual Property; and (viii) the Seller has not granted any sublicense or similar right with respect to the license, sublicense, agreement, or permission that is now in effect. 4.12 Insurance. Schedule 4.12(a) lists and contains a description of each policy of insurance owned or held by the Seller currently in effect relating to the Purchased Assets or the Real Estate (including without limitation, policies for fire and casualty, liability, umbrella coverage, and other forms of insurance) specifying the insurer, amount of coverage, type of insurance, policy number, deductible limits and any pending claim in excess of $5,000, whether or not covered by insurance (the "Insurance"). The Insurance is in full force and effect, all premiums with respect thereto covering all periods up to and including the date hereof have been paid, and no notice of cancellation or termination has been received by the Seller with respect to any such policy. The Insurance is sufficient for compliance with all requirements of law. The policies evidencing the Insurance are valid, outstanding and enforceable policies subject to the terms and conditions contained therein, and there has not occurred any act or omission of the Seller which could result in cancellation of any such policy prior to its scheduled expiration date. 4.13 Permits. Schedule 4.13 sets forth a list of all of the Permits and true and complete copies of each written document evidencing or affecting any of the Permits will be delivered to the Buyer during due diligence prior to Closing. The Seller is in compliance with the terms and conditions of all of the Permits. Except as set forth in Schedule 4.13, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will result in the revocation, or an adverse change in the terms or conditions, of any of the Permits, and all Permits shall continue in full force and effect in accordance with their present terms unaffected by the consummation of the transactions contemplated hereby. 4.14 Material Contracts. Schedule 4.14 identifies the following contracts and other agreements to which the Seller is a party: (a) Leases. All leases of real or personal property, including the leases described in Section 4.9 hereof; (b) Purchase Orders. A list of written or oral agreements relating to the purchase of products, services or supplies by the Seller and pertaining to the Purchased Assets; (c) Loans and Borrowing Agreements. A list of each written or oral (i) loan, credit or borrowing arrangement or agreement or (ii) agreement by which the Seller has guaranteed or otherwise became liable or contingently liable for the debt of another; and (d) Capital Expenditures. A list of all outstanding written or oral commitments by the Seller to make a capital expenditure, capital addition or capital improvement, in each case with respect to the Purchased Assets. The Seller will deliver to the Buyer a correct and complete copy of each written agreement listed on Schedule 4.14 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 4.14 during due diligence prior to Closing. With respect to each such agreement: (i) the agreement is legal, valid, binding, enforceable and in full force and effect; (ii) subject to Section 1.5, the agreement will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (including the assignment and assumptions referred to in Articles I and III); (iii) no party is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration under the agreement; and (iv) no party has repudiated any provision of the agreement. 4.15 Litigation. There is not now any litigation, claim, proceeding or investigation pending, or, to the Seller's Knowledge, threatened against or relating to the ability of the Seller to perform its obligations under this Agreement. 4.16 Compliance With Law. The conduct of business at the Real Estate as currently conducted by Seller does not violate, nor is the Seller in default under, any law, statute, ordinance, rule, regulation, code, license, permit, guideline, order, arbitration award, judgment or decree, and Buyer will not after the Closing incur any Liability or obligation as a result of any such violation or default existing at the Closing or arising or accruing thereafter but based upon conditions existing at the Closing. Except as set forth on Schedule 4.16, no expenditures are anticipated which are necessary or appropriate for the continuation of the business at the Real Estate in compliance with any such law, statute, rule, regulation, code, license, permit, guidelines, order, arbitration award, judgment or decree. 4.17 Environmental Matters. (a) Environmental Compliance. Except as set forth in Schedule 4.17(a), (i) the Seller and the Leased Property have been and are in compliance with all applicable Environmental Laws; (ii) neither the Seller nor, to the Knowledge of Seller, any other Person has received any communication (either written or oral) from a Governmental Authority or other Person which alleges that the Seller or the Leased Property is not in compliance with any applicable Environmental Law; (iii) neither the Seller nor, to the Knowledge of Seller, any other person has received any notice of, nor does the Seller have Knowledge of, any past, present or future event, condition, circumstance, activity, practice, incident, action or plan which may interfere with or prevent continued compliance with all applicable Environmental Laws; (iv) neither the Seller nor, to the Knowledge of Seller, any other person is under investigation by any Governmental Authority for the failure to comply with any Environmental Law; (v) neither the Seller nor, to the Knowledge of Seller, any other person is required to take any Remedial Action by any Governmental Authority or Environmental Law; and (vi) neither the Seller nor, to the Knowledge of Seller, any other person has made any statements, warranties, or representations in any documents submitted to any Governmental Authority or submittal created pursuant to an obligation imposed by Environmental Law containing any untrue statement of material fact or omitting any statement of material fact which render the statements made misleading in connection with any Environmental Law. (b) Environmental Permits. The Seller has obtained all Environmental Permits necessary for its operations on the Leased Property as currently conducted, and all such Environmental Permits are in good standing, current, transferable, and the Seller are in compliance with all terms and conditions of such Environmental Permits. (c) Pending Litigation. There is no Environmental Claim pending or, to the Knowledge of the Seller, threatened against the Seller in connection with the Leased Property, operations or actions of the Seller or against any Person whose liability for any Environmental Claim the Seller has or may have retained or assumed either contractually or by operation of law. The Seller has not received any notice of any past, present or future event, condition, circumstance, activity, practice, incident, action or plan which may give rise to any Environmental Claim based on or related to the Leased Property. (d) Disposal Practices. Except as set forth in Schedule 4.17(d), neither the Seller nor any other Person has arranged for the disposal, treatment or recycling of, or transported for disposal, treatment or recycling, any Hazardous Waste, PCB-containing Material, petroleum substance (including crude oil or any fraction thereof), or petroleum product from the Leased Property to any other location. Except to the extent described in Schedule 4.17(d), neither the Seller nor any other Person or entity has arranged for the disposal, treatment or recycling of, or transported for disposal, treatment or recycling, any other Environmental Material from the Leased Property to any other location. With respect to any Environmental Materials identified in Schedule 4.17(d), the Seller has no notice or Knowledge that such Environmental Materials were not properly transported or disposed of at a facility authorized to receive such Environmental Materials pursuant to all Environmental Laws. (e) Environmental Condition of Property. To the Knowledge of Seller, except as described in Schedule 4.17(e), the Leased Property, including any improvements thereon, and any soil or groundwater under such properties, (i) does not contain any Environmental Material; (ii) specifically does not contain PCB- containing Material, petroleum substances, petroleum products, asbestos (or substances containing asbestos), lead or urea formaldehyde foam; (iii) does not contain any storage tanks, vessels or other facilities at, under or on the Leased Property which contain or previously contained Environmental Material; (iv) has never been used for the storage, treatment, disposal, deposit, recycling, landfilling, or dumping of any Environmental Material; (v) has never been affected by an Environmental Release of any Environmental Material; (vi) does not contain a condition that is or may be a threat to the health, safety or welfare of the public or environment; (vii) does not face any risk of contamination by any Environmental Material from any nearby property; (viii) has never been the subject of an environmental investigation, audit or assessment by a Governmental Authority; and (ix) and has never been the subject of a Remedial Action, or action to remove any Environmental Material, or an action to abate, restore, repair or remedy any condition affecting the environment. 4.18 Events Subsequent to Latest Balance Sheet Date. Except as set forth on Schedule 4.18, since the Latest Balance Sheet Date: (a) The Seller has not sold, leased, transferred, or assigned any of its assets, tangible or intangible; (b) No party (including the Seller) has accelerated, terminated, modified, or cancelled any of the Leases; (c) The Seller has not imposed any Lien upon any of its assets, tangible or intangible; (d) The Seller has not granted any license or sublicense of any rights under or with respect to any Intellectual Property; (e) The Seller has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property; (f) The Seller has not entered into any contract for the sale of the Purchased Assets or any part thereof, whether by merger, consolidation, exchange of capital stock or otherwise (other than with respect to this Agreement); and (g) The Seller has not committed to any of the foregoing. 4.19 Brokerage. Except as described on Schedule 4.19, the Seller has not incurred, or made commitments for, any brokerage, finders' or similar fee in connection with the transaction contemplated by this Agreement. 4.20 Bankruptcy. The Seller has not filed a petition for relief under the United States Bankruptcy Code or under any state insolvency statute. 4.21 No Bulk Sales Laws. Neither the provisions of Chapter 406 of the Wisconsin Statutes nor other similar "bulk sales" laws are applicable to the acquisition of the Purchased Assets or the other transactions contemplated by this Agreement. 4.22 Commission Filings. The Seller has filed with the Commission certain reports, registration statements, proxy statements and other filings (including all notes, exhibits and schedules thereto and documents incorporated by reference therein) with the Commission since December 31, 1999 (such reports, registration, statements and other filings, together with any amendments thereto, are sometimes collectively referred to as the "Commission Filings"). Attached on Schedule 4.22 is a true and complete list of all Commission filings since December 31, 1999. 4.23 Representations and Warranties True and Correct. The representations and warranties contained herein, and all other documents, certifications, materials and statements or information given to the Buyer by or on behalf of the Seller or disclosed in this Agreement, do not include any untrue statement of a material fact or omit to state a material fact required to be stated herein or therein in order to make the statements herein or therein, in light of the circumstances under which they are made, not misleading. ARTICLE V REPRESENTATIONS OF THE BUYER In order to induce the Seller to enter into this Agreement, the Buyer makes the following representations and warranties to the Seller, each of which shall be deemed to be independently material and relied upon by the Seller, regardless of any investigation made by, or information known to, the Seller. 5.1 Ownership, Organization and Qualification. The Buyer is a corporation duly incorporated and validly existing under the laws of the State of Wisconsin, has filed with the appropriate state agency the most recent annual report required to be filed by it, has not filed articles of dissolution and has a perpetual period of existence. 5.2 Authorization. The Buyer has all necessary power and authority to enter into and perform the transactions contemplated hereby in accordance with the terms and conditions hereof. The execution and delivery of this Agreement, and the performance by the Buyer of each of its obligations contained herein, have been duly approved by the Buyer's Board of Directors. No other corporate authorization from the Buyer is required for the execution and delivery of this Agreement or the performance of its obligations hereunder. 5.3 Enforceability. This Agreement and all other agreements of the Buyer contemplated hereby are or, upon the execution thereof, will be the valid and binding obligations of the Buyer enforceable against it in accordance with their terms. 5.4 Conflicting Obligations. The execution and delivery of this Agreement do not, and the consummation of the sale and purchase of the Purchased Assets contemplated hereby will not: (a) conflict with or violate any provisions of the certificate of incorporation of the Buyer; (b) conflict with or violate any provisions of, or result in the maturation or acceleration of, any obligations under any contract, agreement, instrument, document, lease, license, permit, indenture, or obligation, or any law, statute, ordinance, rule, regulation, code, guideline, order, arbitration award, judgment or decree, to which the Buyer is subject to or which the Buyer is a party; or (c) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which the Buyer is a party or by which it is bound or to which any of its assets is subject. 5.5 Litigation. There is no litigation, claim, proceeding or investigation pending, or to the Buyer's Knowledge, threatened, against the Buyer relating to its ability to perform its obligations under this Agreement. 5.6 Brokerage. The Buyer has not incurred, nor made commitment for, any brokerage, finders or similar fee in connection with the transactions contemplated by this Agreement. ARTICLE VI COVENANTS OF THE SELLER The Seller covenants and agrees with the Buyer as follows: 6.1 Access. From the date hereof and until the Closing Date, the Buyer and its authorized officers, agents and representatives shall have full access (upon reasonable prior notice) to the Real Estate and the Purchased Assets. The Seller shall cooperate with the Buyer by responding to and causing the Seller's outside auditors promptly to respond to all questions posed by the Buyer concerning the Purchased Assets. 6.2 Operation of Business. From the date hereof and until the Closing Date, without the express prior written consent of the Buyer, the Seller shall not engage in any practice, take any action or enter into any transaction involving the Purchased Assets or the Leases. Without limiting the generality of the foregoing, the Seller shall not otherwise engage in any practice, take any action or enter into any transaction of the sort described in Section 4.18. 6.3 Insurance and Maintenance of Property. From the date hereof and until the Closing Date, the Seller shall cause all property owned or leased by it to be insured against all ordinary insurable risks and shall maintain in effect all the Insurance, and shall maintain and repair all of its property in a manner consistent with past practice; provided, that the Seller, with prior consultation with Buyer, shall take those actions it deems commercially reasonable to maintain and prosecute its patents, patent applications, and other Intellectual Property and the Buyer shall pay all costs related to the same. The actions required to maintain the Intellectual Property from the date of this Agreement to the end of 2000 are shown on Schedule 6.3 to this Agreement. In addition, Seller may dispose of the Equipment currently located on the Farm Facility in the manner Seller deems reasonable, with the prior written consent of the Buyer, provided the proceeds of any such disposition, reduced by the reasonable costs incurred by Seller, be applied as a credit to Buyer at Closing. 6.4 Compliance with Laws. From the date hereof and until the Closing Date, the Seller shall comply with all applicable laws, statutes, ordinances, rules, regulations, guidelines, orders, arbitration awards, judgments and decrees applicable to, or binding upon, the Seller or its business or properties. 6.5 Supplemental Disclosure. On the Closing Date, the Seller shall inform the Buyer in writing of all information, events or actions which, if this Agreement were signed on the Closing Date, would be required to be disclosed on the Schedules in order to make the Seller's representations and warranties contained herein true and not misleading. The delivery thereof by the Seller shall not absolve the Seller from liability for breach of any representation or warranty which was untrue when made. 6.6 Fulfill Conditions. The Seller shall use its best efforts to cause to be fulfilled on or prior to the Closing each of the conditions set forth in Article VIII hereof. 6.7 Release of Liens. The Seller shall on or prior to the Closing Date deliver to the Buyer such documents as are necessary to terminate and release all Liens on the Purchased Assets except for Permitted Liens, which documents shall be in form and substance acceptable to the Buyer and shall include without limitation, all documents necessary to terminate of record any such Liens. 6.8 Documents of Transfer. On the Closing Date, the Seller shall duly execute and deliver to the Buyer the Assignment, Bill of Sale and Assumption Agreement. Any applicable sales tax, use tax or transfer fees shall be paid by the Seller at the Closing. In addition, the Seller shall execute and deliver to the Buyer at the Closing, in form and substance reasonably satisfactory to counsel for the Buyer, assignments assigning to the Buyer the following: (a) All Intellectual Property, provided that any form required by the patent office of any jurisdiction to transfer the ownership of the Intellectual Property shall be prepared at Buyer's expense; (b) All Contracts; (c) All assignable Permits; and (d) Such other Purchased Assets as the Buyer may reasonably request. 6.9 Other Deliveries. On the Closing Date, the Seller shall deliver to the Buyer the following: (a) The resolutions of the Board of Directors of the Seller authorizing and approving the execution, delivery and performance of this Agreement and the transactions contemplated hereby, certified by the secretary or the president of the Seller and evidence, satisfactory in form and substance to the Seller of the approval of the transactions contemplated by this Agreement by the Seller's shareholders; (b) Current Uniform Commercial Code and state, local and federal tax, sales and unemployment compensation tax, judgment, bankruptcy and similar lien searches showing no Liens against the Purchased Assets other than Permitted Liens; (c) All consents for the assignment of all Permits, which are necessary in order for said Permits to be assigned to the Buyer upon their present terms and the Seller shall pay all fees, charges and other costs that are required or imposed in connection with obtaining any such consent; (d) All consents for the assignment of all Leases, which are necessary in order for said Leases to be assigned to the Buyer upon their present terms and the Seller shall pay all fees, charges and other costs that are required or imposed in connection with obtaining any such consent; (e) An affidavit that the Seller is not a "foreign person" within the meaning of Section 1445 of the Code, and stating the Seller's federal taxpayer identification number, in form and substance acceptable to counsel for the Buyer; and (f) All other documents reasonably requested by counsel for the Buyer to consummate the transactions herein contemplated. 6.10 Exclusive Dealing. Neither the Seller, nor any of its agents or representatives will take, directly or indirectly, any action to initiate, continue, assist, solicit, receive, negotiate, encourage or accept any offer or inquiry from any Person (a) to engage in any Business Combination, (b) to reach any agreement or understanding (whether or not such agreement or understanding is absolute, revocable, contingent or conditional) for, or otherwise attempt to consummate, any Business Combination or (c) to furnish or cause to be furnished any information with respect to the Seller or its assets to any Person (other than as contemplated in this Agreement) who the Seller knows or has reason to believe is in the process of considering any Business Combination; provided that prior to the Closing Date, if the Board of Directors of the Seller reasonably determines the Business Combination constitutes a Superior Proposal (as defined below), then, to the extent required by the fiduciary obligations of the Board of Directors of the Seller, as determined in good faith by a majority thereof after consultation with independent counsel (who may be the Seller's regularly engaged independent counsel), the Seller may, in response to an unsolicited request, furnish non-public information, and afford access to the properties, books, records, officers, employees and representatives of the Seller, participate in discussions or negotiations regarding the Superior Proposal and, provided that the Seller has complied with the provisos to its rights to terminate this Agreement pursuant to Section 11.1(c) hereof, enter into an agreement with respect to or approve or recommend to its shareholders a Superior Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any officer or director of the Seller or any financial advisor, attorney or other advisor or representative of the Seller, whether or not such person is purporting to act on behalf of the Seller or otherwise, shall be deemed to be a breach of this Section 6.10 by the Seller. For purposes of this Agreement, "Business Combination" means any merger, consolidation or combination to which the Seller is a party which would adversely affect the Seller's ability to transfer the Purchased Assets to the Buyer, any sale, dividend, split or other disposition of capital stock or other equity interest of the Seller which would adversely affect the Seller's ability to transfer the Purchased Assets to the Buyer or any sale, dividend or other disposition of the Purchased Assets, and "Superior Proposal" means a bona fide proposal made by a third party to acquire the Seller pursuant to a tender or exchange offer, a merger, a sale of all or substantially all its assets or otherwise on terms which a majority of the members of the Board of Directors of the Seller determines, at a duly constituted meeting of the Board of Directors or by unanimous written consent, in its reasonable good faith judgment (after consultation with its financial advisor) to be more favorable to the Seller's shareholders than the transactions contemplated hereby and for which financing, to the extent required, is then committed or which, in the reasonable good faith judgment of a majority of such disinterested members of the Board of Directors of the Seller, as expressed in a resolution adopted at a duly constituted meeting of such directors, is reasonably capable of being obtained by such third party. 6.11 Further Assurances. The Seller, upon request of the Buyer, shall execute, acknowledge and deliver such other instruments as reasonably may be requested to more effectively transfer and vest in the Buyer, the Purchased Assets or to otherwise carry out the terms and conditions of this Agreement. 6.12 Brokerage. Any brokerage, finders' or similar fee incurred in connection with the transactions contemplated by this Agreement shall be promptly paid by the Seller. 6.13 Intellectual Property Assignments. On the Closing Date, the Seller shall execute and deliver to the Buyer an Intellectual Property Assignment. 6.14 Transfer of Sponsorship of IND. The Seller, upon request of the Buyer, shall execute and deliver such instruments and take other actions necessary to transfer sponsorship of its IND to Buyer or a third party identified by Buyer. ARTICLE VII COVENANTS OF THE BUYER The Buyer covenants and agrees with the Seller as follows: 7.1 Certified Resolutions. On the Closing Date, the Buyer shall deliver to the Seller a copy of the resolutions of the Buyer's Board of Directors, authorizing and approving the execution of this Agreement and the performance by the Buyer of the transactions contemplated hereby, certified by an officer of the Buyer. 7.2 Assignment, Bill of Sale and Assumption Agreement. On the Closing Date, the Buyer shall execute and deliver to the Seller the Assignment, Bill of Sale and Assumption Agreement. ARTICLE VIII CONDITIONS OF THE BUYER'S OBLIGATION TO CLOSE The obligation of the Buyer to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction and fulfillment, prior to and on the Closing Date, of the following express conditions precedent: 8.1 Representation and Warranties. The representations and warranties in this Agreement made by the Seller shall be true and correct in all material respects as of and at the Closing Date with the same force and effect as though said representations and warranties had been again made on the Closing Date, and the Buyer shall have been furnished a certificate signed by the president of the Seller to that effect. 8.2 Performance of Covenants and Obligations. The Seller shall have performed and complied with all of its covenants and obligations under this Agreement which are to be performed or complied with by it prior to or on the Closing Date, and the Buyer shall have been furnished a certificate signed by the president of the Seller to that effect. 8.3 Proceedings and Instruments Satisfactory. All proceedings, corporate or otherwise, to be taken in connection with the transactions contemplated by this Agreement, and all documents incident thereto, shall be reasonably satisfactory in form and substance to the Buyer. The Seller shall have made available to the Buyer, either directly or through its patent counsel, for examination the originals or true and correct copies of all documents which the Buyer reasonably may request in connection with the transactions contemplated by this Agreement. 8.4 Adverse Change. From and after the date of this Agreement and until the Closing Date, the Buyer (in its sole and absolute discretion) shall have determined that there has been no material adverse change in the Purchased Assets, or the Real Estate, from that disclosed to the Buyer in this Agreement, nor shall there have been any casualty to the Purchased Assets, in an amount exceeding $10,000, as a result of any loss, taking, destruction or physical damage, whether or not covered by insurance, occasioned by fire, flood, explosion, earthquake, act of God or the public enemy, or otherwise. The Buyer shall have been furnished with a certificate signed by the president of the Seller to that effect. 8.5 No Litigation. No investigation, suit, action or other proceeding shall be threatened or pending before any court or governmental agency in which it is sought to restrain, prohibit or obtain damages or other relief in connection with this Agreement or the consummation of the transactions contemplated hereby. 8.6 Consents, Approvals, Certifications, Licenses and Permits. All necessary consents, approvals, certifications, licenses and permits with respect to the transaction contemplated hereby, including, without limitation, the transfer of the Purchased Assets to the Buyer, the absence of which would have a material adverse effect on the Buyer's rights under this Agreement, or which would constitute a breach pursuant to the provision of, or which would result in the termination or loss of any right under, any material Contract, Permit, or other obligation, or without which the Buyer would be precluded or materially impeded from obtaining the benefit of the Purchased Assets, shall have been received by the Buyer on or before the Closing Date. 8.7 Good Standing Certificates. The Seller shall have delivered to the Buyer a current certificate of good standing relative to the Seller recently certified by the Secretary of State or other appropriate governmental authority of each state or jurisdiction in which the Seller is organized or qualified to transact business. 8.8 Opinion of Counsel. On the Closing Date, the Seller shall have delivered to the Buyer the legal opinion of LaFollette Godfrey & Kahn, the Seller's corporate counsel in the form set forth on Schedule 8.8. 8.9 Financing. The Buyer shall have renegotiated the terms of the Senior Secured Notes, in each case on such terms and subject to such conditions as are satisfactory to the Buyer in its sole discretion. 8.10 Due Diligence. The Buyer shall have conducted a due diligence investigation and review of the Purchased Assets, the Assumed Liabilities, the Business and all matters pertaining thereto that the Buyer deems relevant and the results of such investigation and review shall be satisfactory to the Buyer in its sole and absolute discretion, including, without limitation, any due diligence investigation relating to the Seller's Intellectual Property (which shall be limited to the ownership and assignability thereof) and existing Environmental Claims; provided however, that the condition to closing set forth in this Section 8.10 shall be deemed waived by the Buyer unless the Buyer notifies the Seller in writing within forty-five (45) days following the date of this Agreement of its intent to terminate this Agreement. ARTICLE IX CONDITIONS TO THE SELLER'S OBLIGATION TO CLOSE The obligation of the Seller to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction and fulfillment, prior to and on the Closing Date, of the following express conditions precedent: 9.1 Representations and Warranties. The representations and warranties in this Agreement made by the Buyer shall be true and correct in all material respects as of and at the Closing Date with the same force and effect as though said representations and warranties had been again made on the Closing Date, and the Seller shall have been furnished a certificate signed by the president of the Buyer to that effect. 9.2 Performance of Covenants and Obligations. The Buyer shall have performed and complied with all of its covenants and obligations under this Agreement which are to be performed or complied with by it prior to or on the Closing Date, and the Seller shall have been furnished a certificate signed by the president of the Buyer to that effect. 9.3 Proceedings and Instruments Satisfactory. The shareholders of the Seller shall have approved the transactions contemplated by this Agreement. All proceedings, corporate or otherwise, to be taken in connection with the transactions contemplated by this Agreement, and all documents incident thereto, shall be reasonably satisfactory in form and substance to the Seller; and, the Buyer shall have made available to the Seller for examination the originals or true and correct copies of all documents which the Buyer reasonably may request in connection with the transactions contemplated by this Agreement. 9.4 No Litigation. No investigation, suit, action or other proceeding shall be threatened or pending before any court or governmental agency in which it is sought to restrain, prohibit or obtain damages or other relief in connection with this Agreement or the consummation of the transactions contemplated hereby. ARTICLE X INDEMNIFICATION BY SELLER 10.1 Indemnification. Notwithstanding the Closing, and regardless of any investigation made by, or on behalf of, the Buyer, or any information known to the Buyer, the Seller, subject to the terms and conditions of this Article X, indemnifies and saves the Buyer, its shareholders, officers, directors or employees (collectively, the "Buyer" as used in this Article X) harmless from and against any and all losses, claims, damages, liabilities, costs, expenses or deficiencies including, but not limited to, reasonable attorneys' fees and other costs and expenses reasonably incident to proceedings or investigations or the defense or settlement of any claim or claims, incurred by or asserted against the Buyer or the Purchased Assets due to or resulting from any of the following: (a) the inaccuracy or breach of any representation or warranty of the Seller given in or pursuant to this Agreement; (b) any breach or default in the performance by the Seller of any of its covenants, obligations or agreements in or pursuant to this Agreement; (c) any liability or obligation of the Seller not expressly assumed by the Buyer pursuant to this Agreement; and (d) the ownership or use of the Seller's assets at any time prior to the Closing, or any incident, occurrence, condition or claim existing, arising or accruing prior to the Closing and relating to the operation or conduct of the Business or the ownership or use of the Seller's assets other than any liability or obligation of the Seller expressly assumed by the Buyer pursuant to this Agreement. The foregoing are collectively referred to as "Indemnifiable Damages." The term "Indemnifiable Damages" shall also include an amount of interest on the amount of such Indemnifiable Damages (computed before the application of this sentence), which interest shall be computed at the Applicable Rate in simple interest per annum from the Closing Date and until paid by the Seller. 10.2 Procedures for Making Claims. If and when the Buyer desires to assert a claim for Indemnifiable Damages against the Seller pursuant to the provisions of this Article X, the Buyer shall deliver to the Seller, reasonably promptly after the Buyer's receipt of a claim or specific and affirmative awareness of a potential claim, a certificate signed by an officer (the "Notice of Claim"): (a) stating that the Buyer has paid or accrued (or intends to pay or accrue) Indemnifiable Damages to which it is entitled to indemnification pursuant to this Article X and the amount thereof (to the extent then known); and (b) specifying to the extent possible (i) the individual items of loss, damage, liability, cost, expense or deficiency included in the amount so stated, (ii) the date each such item was or will be paid or accrued and (iii) the basis upon which Indemnifiable Damages are claimed. If the Seller shall object to such Notice of Claim, the Seller shall simultaneously deliver written notice of objection (the "Notice of Objection") to the Buyer within thirty (30) days after the Buyer's delivery of the Notice of Claim. The Notice of Objection shall set forth the grounds upon which the objection is based and state whether the Seller object to all or only a portion of the matter described in the Notice of Claim. If the Notice of Objection shall not have been so delivered within such fifteen (15) day period, all Seller shall be conclusively deemed to have acknowledged the correctness of the claim or claims specified in the Notice of Claim for the full amount thereof, and the Indemnifiable Damages set forth in the Notice of Claim shall be paid to the Buyer, on demand, in cash. 10.3 Participation in Defense of Third Party Claims. If any third party shall assert any claim against the Buyer which, if successful, might result in an obligation of the Seller to pay Indemnifiable Damages and which can be remedied to the sole satisfaction of the Buyer by the payment of money damages without further adverse consequence to the Buyer, the Seller, at the sole expense of the Seller, may assume the primary defense thereof with counsel reasonably acceptable to the Buyer, but only if and so long as: (i) the Seller diligently pursue the defense of such claim; and (ii) the Seller acknowledges to the Buyer in writing that the claim, if resolved or settled adversely to the Buyer, is one for which the Seller is obligated to indemnify the Buyer hereunder. If the Seller fails or is unable to so elect to assume the primary defense of any such claim, the Buyer may (but need not) do so, in which event the Buyer may defend, settle or compromise the claim, at the expense and cost of the Seller, in any such manner as the Buyer reasonably deems appropriate. 10.4 Survival of Representations and Indemnification. The Seller's obligation to pay Indemnifiable Damages shall survive the Closing of this transaction for ninety (90) days. 10.5 Offset. The Buyer shall be entitled to offset against the Note or any obligations owed by the Buyer to the Seller the sum of all Indemnifiable Damages that the Buyer is entitled to pursuant to Article X and all other obligations owed by the Buyer to the Seller under any other agreement, contract or other arrangement. No offset made by the Buyer pursuant to this Section shall constitute a default under the Note or, even if it is subsequently determined that no Indemnifiable Damages were due the Buyer, give rise to any right of acceleration under the Note or on the part of the Seller by reason of such offset. 10.6 Limitation on Indemnification. The maximum amount of Indemnifiable Damages which may be recovered by Buyer is $250,000. 10.7 Other Indemnification Provisions. The foregoing indemnification provisions are in addition to, and not in derogation of, any statutory, equitable, or common law remedy (including without limitation any such remedy arising under Environmental Law) the Buyer may have with respect to the Seller, or the transactions contemplated by this Agreement. ARTICLE XI TERMINATION 11.1 Rights to Terminate. This Agreement may be terminated at any time prior to the Closing only as follows: (a) by mutual written consent of the Seller and the Buyer; (b) by the Seller by giving written notice to the Buyer if the Buyer is in breach of any representation, warranty or covenant under this Agreement (and the Seller is not then in breach of any representation, warranty or covenant); (c) by the Seller if the Seller enters into a merger, acquisition or other agreement (including an agreement in principle) to effect a Superior Proposal or the Board of Directors of the Seller resolves to do so; provided, however, that the Seller may not terminate this Agreement pursuant to this Section 11.1(c) unless (i) the Seller has delivered to Buyer a written notice of the Seller's intent to enter into such an agreement to effect the Superior Proposal, (ii) ten business days have elapsed following delivery to Buyer of such written notice by the Seller and (iii) during such ten-business- day period the Seller has fully cooperated with Buyer, including informing Buyer of the terms and conditions of the Business Combination and the identity of the person making the proposal for the Business Combination, with the intent of enabling Buyer to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected; provided, further, that the Company may not terminate this Agreement pursuant to this Section 11.1(c) unless at the end of such ten-business-day period the Board of Directors of the Seller continues reasonably to believe that the Business Combination constitutes a Superior Proposal when compared to the transactions contemplated hereby (taking into account any such modification as may be proposed by Buyer) and concurrently with such termination the Seller pays to Buyer the Termination Fee; (d) by the Buyer by giving written notice to the Seller if the Seller is in breach of any representation, warranty or covenant under this Agreement (and the Buyer is not then in breach of any representation, warranty or covenant); or (e) by the Buyer by giving written notice to the Seller if the Closing shall not have occurred on or before November 30, 2000. Each party's right to termination hereunder is in addition to any of the rights it may have hereunder or otherwise. 11.2 Effects of Termination. Notwithstanding any other provision of this Agreement, no termination of this Agreement shall release (i) the Seller from its obligation under Section 6.10 or Section 13.4 or (ii) any party of any Liabilities arising hereunder for any pre-termination breaches hereof or intentional misrepresentations made herein. ARTICLE XII DEFINITIONS 12.1 Certain Defined Terms. As used in this Agreement, the following terms shall have the meanings specified in this Section 12.1 unless the context otherwise requires. "Affiliate" has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act. "Agreement" means this Asset Purchase Agreement, together with all Exhibits and Schedules hereto, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof. "Assignment, Bill of Sale and Assumption Agreement" means that Assignment, Bill of Sale and Assumption Agreement, dated as of the Closing Date, between the Seller and the Buyer. "Assumed Liabilities" has the meaning set forth in Section 3.1. "Business" has the meaning set forth in the recitals to this Agreement. "Business Combination" has the meaning set forth in Section 6.10. "Buyer" has the meaning set forth in the first paragraph to this Agreement. "Closing" has the meaning set forth in Section 1.4. "Closing Date" has the meaning set forth in Section 1.4. "Code" means the Internal Revenue Code of 1986, as amended. "Commission" means the United States Securities and Exchange Commission. "Commission Filings" has the meaning set forth in Section 4.22. "Contracts" has the meaning set forth in Section 1.2(e). "Environmental Claim" means any and all claims, demands, suits, actions, orders, directives, notices of noncompliance or violation, liens, investigations or administrative, regulatory or judicial proceedings by any person alleging potential liability or responsibility for enforcement, penalties, fines, forfeitures, damages, losses, costs, costs for Remedial Action, governmental response costs, natural resource damages, property damages, personal injury or bodily injury arising out of, based on or resulting from: (A) the presence, use, manufacture, processing, distribution, production, generation, handling, transport, storage, disposal, labeling, discharge, release, threatened release, treatment, control or cleanup of any Environmental Material at any location; or (B) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law; or (C) any and all claims by any person or Governmental Authority seeking damages, contribution, indemnification, costs, compensation or injunctive relief resulting from the presence or Environmental Release of any Environmental Material. "Environmental Law" means any Legal Requirement which relates to or otherwise imposes liability, obligations, responsibility, or standards with respect to zoning, land use, pollution, or the restoration, repair, remediation or protection of natural resources, human health or the environment (including ambient air, surface water, groundwater, land surface, subsurface soil strata), including without limitation, any Legal Requirement relating to the presence, use, manufacture, processing, distribution, production, generation, handling, transport, storage, disposal, labeling, discharge, release, threatened release, treatment, control or cleanup of any Environmental Material. "Environmental Material" means: (A) any petroleum substance, petroleum product, underground storage tank, underground cistern, radioactive material, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, PCB-containing Material; (B) any Hazardous Substance, Hazardous Material, Hazardous Waste or any other material, substance, chemical, waste, contaminant or pollutant which is now or hereafter defined as or determined to be hazardous, extremely hazardous, toxic, dangerous, restricted, or a nuisance, or words of similar import, under any Environmental Law; (C) any other material, substance, chemical, waste, contaminant, pollutant or exposure to which is now prohibited, limited or regulated by any Governmental Authority. "Environmental Permits" means all permits, licenses, authorizations, certifications, notices, approvals or authorizations under any Environmental Law. "Environmental Release" shall mean any release, spill, emission, leaking, injection, deposit, disposal, discharge, dispersal, leaching or migration into the atmosphere, soil, surface water, groundwater or soil. "Equipment" has the meaning set forth in Section 1.2(d). "Excluded Assets" has the meaning set forth in Section 1.3. "GAAP" means United States generally accepted accounting principles as in effect from time to time. "Governmental Authority" means the government of the United States of America and any other country, and any state, province, municipality or other governmental unit, or any agency, board, bureau, instrumentality, department or commission (including any court or other tribunal) of any of the foregoing. "Hazardous Material" means hazardous materials as defined under the regulations adopted pursuant to the Hazardous Materials Transportation Act. Such regulations appear at 49 C.F.R. Part 171, et seq. "Hazardous Substance" means hazardous substances as defined under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq. and under comparable state laws. "Hazardous Waste" means hazardous waste as defined under the Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq. 144.60, et seq. and other comparable state laws. "IND" means U.S. Food and Drug Administration ("FDA") Investigational New Drug application of Seller identified by the FDA as BB-IND 7423, together with all amendments thereto, whether active or inactive. "Indemnifiable Damages" has the meaning set forth in Section 10.1. "Insurance" has the meaning set forth in Section 4.12(a). "Intellectual Property" means all United States and foreign patents and patent applications (including international applications) that have been filed by Seller set forth in Schedule 4.11(a), including those abandoned by Seller after filing, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (ii) supporting documentation for the patents and patent applications identified in the preceding subsection (i), including laboratory notebooks, drug master documents, and similar documents, as are reasonably available to Seller, (iii) all trade secrets and know- how set forth or described in the supporting documentation identified in the preceding subsection (ii); (iv) all computer software owned or licensed by the Seller and that is either necessary to the operation of the Equipment or which was developed by or for the Seller for use with the intellectual property described in the foregoing subsections of this paragraph, (v) all copies and tangible embodiments thereof (in whatever form or medium) located at Seller's office or the office of Seller's patent counsel. Intellectual Property to be assigned includes, without limitation, the Intellectual Property set forth in the Intellectual Property Assignment. "Intellectual Property Assignment" means that certain Intellectual Property Assignment dated as of the Closing Date, between the Buyer and the Seller, in the form approved by the Buyer, as the same may be amended, restated, supplemented or otherwise modified from time to time. "IRS" means the Internal Revenue Service. "Knowledge" means, with respect to any party, the knowledge of such party after due inquiry and, if such party fails to make such inquiry, shall include the constructive knowledge of such facts as would have been learned had such due inquiry been made. "Latest Balance Sheet" means the balance sheet for the Seller dated as of the Latest Balance Sheet Date and attached in Schedule 4.8. "Latest Balance Sheet Date" has the meaning set forth in Section 4.8. "Leases" means that certain Lease Agreement dated May 26, 1999, between the Seller and Ben Scharpf, the Lease for the farm property located in Jefferson County, Wisconsin and the Lease between Buyer and Seller. "Leased Property" shall mean the Real Estate, as well as any other real estate heretofore owned or used by Seller in the conduct of the Business. "Legal Requirement" means any and all statutes, laws, codes, ordinances, regulations, rules, directives, policy, orders, judgments, writs, injunctions, rulings, decrees, bylaws or common law (whether presently in effect or hereinafter enacted, adopted, promulgated or issued) of any Governmental Authority. "Liability" means any liability or obligation (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including, without limitation, any liability for Taxes. "Lien" means any mortgage, pledge, lien, encumbrance, charge or other security interest of any kind. "Note" shall mean Buyer's non-negotiable promissory note payable to the Seller. "Notice of Claim" has the meaning set forth in Section 10.2. "Notice of Objection" has the meaning set forth in Section 10.2. "Owner" has the meaning set forth in the definition of "Subsidiary" set forth in Section 12.1. "PCB-containing Material" means polychlorinated biphenyls, including PCB-laden lubricating or hydraulic oils or transformers or other equipment which contain dielectric fluid containing polychlorinated biphenyls. "Permits" has the meaning set forth in Section 1.2(f). "Permitted Liens" means municipal and zoning ordinances, recorded easements, covenants and restrictions provided the same do not prohibit or materially interfere with the present use, or materially affect the present value, of the Real Estate and general taxes levied on or after January 1, 2000 and not yet due or payable. "Person" means an individual, partnership, corporation, limited liability company, firm, enterprise, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature. "Purchase Price" has the meaning set forth in Section 2.1(a). "Purchased Assets" has the meaning set forth in Section 1.2. "Real Estate" has the meaning set forth in Section 1.2(c). "Records" means books of account, ledgers, forms, records, documents, files, invoices, lab notebooks, archived batch records, chemical waste disposal records, vendor or supplier lists, plans and other data which are necessary to or desirable for the ownership, use, maintenance or operation of the Purchased Assets and which are owned or used by the Seller, including, without limitation, all blueprints and specifications, all environmental control records, environmental impact reports, statements, studies and related documents, handbooks, technical manuals and data, engineering specifications and work papers, all cost information, asset history records and files, all maintenance and repair records, all correspondence, notices, citations and all other documents received from, sent to or in the Seller's possession related to the Purchased Assets in connection with any Governmental Authority (including, without limitation, federal, state, county or regional environmental protection, air or water quality control, occupational health and safety, land use, planning or zoning and any alcohol, beverage or fire prevention authorities), all plans, maps and surveys of the Real Estate, and all plans and designs of buildings, structures, fixtures and equipment. "Remedial Action" means any action taken or required to be taken as a result of Environmental Law or by demand of Governmental Authority in response to a known or suspected condition in the environment (including ambient air, surface water, groundwater, land surface or subsurface soil strata), including, without limitation, sampling, investigation, monitoring, remedial action, remediation, removal, response, restoration, repair, replacement, treatment, clean-up and corrective action. "Restricted Interests" has the meaning set forth in Section 1.5(a). "Securities Act" means the Securities Act of 1993, as amended, including any rules and regulations promulgated thereunder. "Securities Exchange Act" means the Securities Exchange Act of 1934, as amended, including any rules and regulations promulgated thereunder. "Seller" has the meaning set forth in the first paragraph to this Agreement. "Senior Secured Notes" has the meaning set forth in Section 2.1(a). "Subsidiary" means, with respect to any Person (the "Owner") any corporation or other Person of which securities or other interests having the power to elect a majority of that Person's board of directors of similar governing body, or otherwise having the power to direct the business and policies of that Person are held by the Owner or one or more of its Subsidiaries. When used without reference to a particular Person, Subsidiary" means a Subsidiary of the Seller. "Superior Proposal" has the meaning set forth in Section 6.10. "Tax" means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not. "Termination Fee" has the meaning set forth in Section 13.4. 12.2 Interpretation. Unless otherwise expressly provided or unless the context requires otherwise, (a) all references in this Agreement to Articles, Sections, Schedules and Exhibits shall mean and refer to Articles, Sections, Schedules and Exhibits of this Agreement; (b) all references to statutes and related regulations shall include all amendments of the same and any successor or replacement statutes and regulations; (c) words using the singular or plural number also shall include the plural and singular number, respectively; (d) references to "hereof," "herein," "hereby" and similar terms shall refer to this entire Agreement (including the Schedules and Exhibits hereto); and (e) references to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Authority, Persons succeeding to the relevant functions of such Person). 12.3 Other Terms. Except as otherwise specifically provided, each accounting term used herein shall have the meaning given to it under GAAP. ARTICLE XIII MISCELLANEOUS 13.1 Survival of Representations and Warranties. All of the representations and warranties of the parties contained in this Agreement shall survive the Closing hereunder for a period of ninety (90) days. 13.2 Benefit and Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, successors, assignees, and beneficiaries in interest; provided, however, that this Agreement may not be assigned by the either party without the prior written consent of the other party. 13.3 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Wisconsin (regardless of such State's conflict of laws principles), and without reference to any rules of construction regarding the party responsible for the drafting hereof. 13.4 Expenses. (a) Except as otherwise herein provided, all expenses incurred in connection with this Agreement or the transactions herein provided for shall be paid by the party incurring such expenses and costs. (b) Notwithstanding any provision in this Agreement to the contrary, if this Agreement is terminated by the Seller pursuant to Section 11.1(c) after receipt of a Superior Proposal, then the Seller shall reimburse the Buyer upon demand for all out-of- pocket fees and expenses incurred by or on behalf of the Buyer in connection with this Agreement and the transactions contemplated herein, including all reasonable fees of counsel, accountants, consultants, and the Seller shall pay to the Buyer the Termination Fee, as defined below, in cash, such payment to be made promptly, but not less than the second business day following the date of such termination. For purposes of this Agreement, "Termination Fee" means $100,000. 13.5 Submission to Jurisdiction. Each of the Buyer and the Seller submits to the jurisdiction of any state or federal court sitting in Madison, Wisconsin, in any action or proceeding arising out of or relating to this Agreement and all agreements and transactions contemplated hereby, and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. Each of the Buyer and the Seller also agrees not to bring any action or proceeding arising out of or relating to this Agreement or any agreement or transaction contemplated hereby in any other court. Each of the Buyer and the Seller waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other party with respect thereto. Each party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or in equity. 13.6 Notices. Any and all notices, demands, and communications provided for herein or made hereunder shall be given in writing and shall be deemed given to a party at the earlier of (i) when actually delivered to such party, (ii) when facsimile transmitted to such party to the facsimile number indicated for such party below (or to such other facsimile number for a party as such party may have substituted by notice pursuant to this Section 13.6) or (iii) when mailed to such party by registered or certified U.S. Mail (return receipt requested) or sent by overnight courier, confirmed by receipt, and addressed to such party at the address designated below for such party (or to such other address for such party as such party may have substituted by notice pursuant to this Section 13.6): (a) If to the Buyer: General Counsel Promega Corporation 2800 Woods Hollow Road Madison, WI 53711-5399 Facsimile Number: (608) 277-2660 With a copy to: Tod B. Linstroth, Esq. Michael Best & Friedrich LLP One South Pinckney Street Suite 700 Madison, WI 53703 Facsimile Number: (608) 283-2275 (b) If to the Seller: Susan Maynard, Secretary Ophidian Pharmaceuticals, Inc. 5445 East Cheryl Parkway Madison, WI 53711 With a copy to: Michael Skindrud, Esq. LaFollette Godfrey & Kahn One East Main Street Madison, WI 53701 13.7 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, provided that all such counterparts, in the aggregate, shall contain the signatures of all parties hereto. 13.8 Headings. All Section headings herein are inserted for convenience only and shall not modify or affect the construction or interpretation of any provision of this Agreement. 13.9 Amendment, Modification and Waiver. This Agreement may not be modified, amended or supplemented except by mutual written agreement of all the parties hereto. Any party may waive in writing any term or condition contained in this Agreement and intended to be for its benefit; provided, however, that no waiver by any party, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed as a further or continuing waiver of any such term or condition. Each amendment, modification, supplement or waiver shall be in writing signed by the party or the parties to be charged. 13.10 Mutual Release of Certain Liabilities of Each Party to the Other Upon Closing. Upon completion of Closing and without any further action to be taken by either party, each party to this Agreement hereby releases the other party, fully and completely, from those obligations and liabilities that may be owed to the other on the date of Closing under their Lease Agreement for office and laboratory space and related furniture and fixtures at 5445 East Cheryl Parkway, Madison, Wisconsin, and their Disclosure of Technology with Application to Incidental Markets Agreement dated September 23, 1991. All other liabilities between the parties, including liabilities under this Agreement, the Note and the Assignment, Bill of Sale and Assumption Agreement, shall survive the Closing as set forth herein and therein. 13.11 Entire Agreement. This Agreement and the Exhibits and Schedules attached hereto represent the full and complete agreement of the parties with respect to the subject matter hereof and supersede and replace any prior understandings and agreements among the parties with respect to the subject matter hereof and no provision or document of any kind shall be included in or form a part of such agreement unless signed and delivered to the other party by the parties to be charged. 13.12 Third-Party Beneficiaries. No third parties are intended to benefit from this Agreement, and no third-party beneficiary rights shall be implied from anything contained in this Agreement. 13.13 Publicity. The Buyer and the Seller agree that no publicity announcements concerning the terms of this Agreement or concerning the transactions contemplated hereby shall be made without the mutual consent of the Buyer and the Seller, except that Seller may make disclosures it deems necessary as a publicly traded company. 13.14 Specific Performance. Each of the Buyer and the Seller acknowledges and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each of the Buyer and the Seller agrees that the other parties shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and all agreements and transactions contemplated hereby, and to enforce specifically this Agreement and all agreements and transactions contemplated hereby, and the terms and provisions hereof or thereof in any action instituted in any court of the United States or any state thereof having jurisdiction over the parties and the matter (subject to the provisions set forth in Section 13.5), in addition to any other remedy to which it may be entitled, at law or in equity. [Signature Page Follows] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. PROMEGA CORPORATION By: /s/ William A. Linton -------------------------------- William A. Linton, President OPHIDIAN PHARMACEUTICALS, INC. By: /s/ Margaret van Boldrik ------------------------------------ Margaret van Boldrik, Vice President [Exhibits and Schedules have been omitted based on Rule 601(b)(2) of Regulation S-K. Such Exhibits and Schedules are described in the Agreement. The Registrant hereby agrees to furnish to the Securities and Exchange Commission, upon request, any or all of such omitted Exhibits or Schedules.]