Restructuring Agreement W/aventis Pharm

EXHIBIT 2.1


ARIAD PHARMACEUTICALS, INC. HAS OMITTED FROM THIS EXHIBIT 2.1 PORTIONS OF THE AGREEMENT FOR WHICH ARIAD PHARMACEUTICALS, INC. HAS REQUESTED CONFIDENTIAL TREATMENT FROM THE SECURITIES AND EXCHANGE COMMISSION. THE PORTIONS OF THE AGREEMENT FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED ARE MARKED WITH BRACKETS AND AN ASTERISK AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.


RESTRUCTURING AGREEMENT
(THE HOECHST-ARIAD GENOMICS CENTER, LLC)


THIS RESTRUCTURING AGREEMENT (this "Agreement") is entered into as of this 31st day of December, 1999, by and among AVENTIS PHARMACEUTICALS INC., a Delaware corporation (formerly known as Hoechst Marion Roussel, Inc.) ("HMRI"), THE HOECHST-ARIAD GENOMICS CENTER, a Delaware limited liability company (the "HAGC"), and ARIAD PHARMACEUTICALS, INC., a Delaware corporation ("ARIAD").


W I T N E S S E T H:


WHEREAS, HMRI and ARIAD entered into that certain Joint Venture Master Agreement dated as of March 4, 1997 (the "JV Master Agreement"), which provided for, among other things, the formation of the HAGC;


WHEREAS, in furtherance of the formation and operation of the HAGC, the parties entered into the following agreements: the Operating Agreement; the Stock Purchase, Standstill and Registration Rights Agreement; the Administrative Services Agreement; the Scientific Research Services Agreement; the ARIAD License Agreement; the HMRI License Agreement; the Cross License Agreement; and the Product Rights Agreement;


WHEREAS, the parties have determined that it is in their respective best interests to restructure the transactions related to the formation and operation of the HAGC; and


WHEREAS, on even date herewith, ARIAD and Hoechst Marion Roussel (France), a stock company formed under the laws of France ("HMR S.A."), have simultaneously herewith entered into that certain Src Restructuring Agreement (the "Src Restructuring Agreement") which provides for, among other things, the termination of the collaborative research program between ARIAD and HMR S.A. as set forth in the Collaborative Research and License Agreement between HMR S.A., as successor to Roussel Uclaf S.A., and ARIAD, dated as of November 6, 1995 (the "RU Agreement").


NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the parties hereto, intending to be legally bound, hereby agree as follows: 2


ARTICLE I
DEFINITIONS


Unless otherwise provided in this Agreement, all capitalized terms used herein shall have the meanings set forth in APPENDIX I.


ARTICLE II
ASSETS AND CONSIDERATION


2.1 ARIAD ASSETS. For the consideration set forth in Section 2.2, at the Closing, ARIAD shall, to the extent set forth in this Section 2.1, sell, assign, transfer and/or deliver to HMRI the following assets (collectively, the "ARIAD Assets"):


(a) ARIAD'S OWNERSHIP INTEREST IN THE HAGC. ARIAD shall execute and deliver the Assignment of Membership Interest in the form attached hereto as EXHIBIT A (the "Membership Interest Assignment"), pursuant to which ARIAD shall sell, assign and transfer to HMRI, free and clear of all liens and encumbrances, all of ARIAD's right, title and interest in and to ARIAD's membership interest in the HAGC (the "ARIAD Membership Interest"). In addition, ARIAD shall deliver to HMRI any other instruments and documents of conveyance and transfer, in form reasonably satisfactory to HMRI, as shall be necessary and effective to transfer and assign to, and vest in, HMRI all of ARIAD's right, title and interest in and to the ARIAD Membership Interest (including a release of any security interest covering the ARIAD Membership Interest and UCC-3 termination statements in connection with the release of liens against the ARIAD Membership Interest).


(b) PERSONAL PROPERTY.


(i) HMRI and ARIAD shall each execute the Bill of Sale and Undertaking in the form attached hereto as EXHIBIT B (the "Bill of Sale and Undertaking"), pursuant to which ARIAD shall sell to HMRI, and HMRI shall purchase from ARIAD, free and clear of all liens and encumbrances, all of the books and records, laboratory equipment, computers (hardware and software), furniture, office supplies, fixtures and other office equipment used by the HAGC and owned by ARIAD as of the Closing Date listed on SCHEDULE 2.1(b)(i) (as such schedule may be updated pursuant to Section 8.12) (collectively, the "ARIAD Owned HAGC Equipment"). The ARIAD Owned HAGC Equipment shall be transferred to HMRI on an "as is" basis. In addition, ARIAD shall deliver to HMRI any other instruments and documents of conveyance and transfer, in form reasonably satisfactory to HMRI, as shall be necessary and effective to transfer and assign to, and vest in, HMRI all of ARIAD's right, title and interest in and to the ARIAD Owned HAGC Equipment (including releases of any security interest covering such property and UCC-3 termination statements in connection with the release of liens against the ARIAD Owned HAGC Equipment).


(ii) At the Closing, ARIAD shall cause ARIAD Corporation to deliver to HMRI possession of all equipment ("ARIAD Leased HAGC Equipment") currently leased by


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ARIAD Corporation for the benefit of the HAGC pursuant to that Amended and Restated Master Lease Agreement (the "Current Transamerica Lease") by and between ARIAD Corporation and Transamerica Business Credit Corporation ("Transamerica") dated as of July 10, 1998. From the Closing Date until the close of business on December 31, 1999, ARIAD shall cause ARIAD Corporation to provide all of the ARIAD Leased HAGC Equipment to the HAGC and HMRI pursuant to the terms of the Scientific Research Services Agreement and Administrative Services Agreement. At the Closing, HMRI shall, and ARIAD shall cause ARIAD Corporation to, execute and deliver the Assumption Agreement by and among HMRI, ARIAD Corporation and Transamerica in the form attached hereto as EXHIBIT C-1 and agreed to by Transamerica (the "Transamerica Assumption Agreement"), pursuant to which ARIAD Corporation shall sell, assign, transfer and deliver unto HMRI all of its right, title and interest in, and HMRI shall assume ARIAD Corporation's obligations accruing as of January 1, 2000 with respect to, the ARIAD Leased HAGC Equipment. All ARIAD Leased HAGC Equipment is listed on SCHEDULE 2.1(b)(ii).


(iii) HMRI and ARIAD shall each execute the Assignment and Assumption Agreement in the form attached hereto as EXHIBIT C-2 (the "Assignment and Assumption Agreement"), pursuant to which ARIAD shall assign its interest, and HMRI shall assume ARIAD's obligations accrued as of the Closing Date, in (A) licenses for software used by the HAGC and licensed by ARIAD as of the Closing Date and (B) other assets paid for or otherwise beneficially owned by the HAGC, but for which the HAGC does not have title (collectively, the "Assigned HAGC Agreements"). The Assigned HAGC Agreements are listed on SCHEDULE 2.1(b)(iii) (as such schedule may be updated pursuant to Section 8.12).


(c) HAGC INTELLECTUAL PROPERTY.


(i) Subject to the licenses granted pursuant to Article VI, the ARIAD Membership Interest sold, assigned and transferred by ARIAD to HMRI at the Closing shall include, free and clear of all liens and encumbrances, all right, title and interest granted to ARIAD in and to targets, products, technology, know-how or other intellectual property (collectively, the "HAGC Intellectual Property") under all agreements to which ARIAD is a party as of the Closing with one or more of the HAGC, HMRI or current or former ARIAD employees (each such agreement, an "Agreement for New Employees") (in the case of such ARIAD employees only, specifically limited to HAGC Intellectual Property in existence as of the Closing and made by such ARIAD employees while providing services to the HAGC under the Scientific Research Services Agreement) and/or third parties, in each case insofar as, and to the extent that, such agreements relate to the HAGC, all of which agreements are listed on SCHEDULE 2.1(c)(i) (collectively, the "ARIAD/HAGC Agreements"). In addition, ARIAD shall deliver to HMRI any other instruments and documents of conveyance and transfer, in form reasonably satisfactory to HMRI, as shall be necessary and effective to transfer and assign to, and vest in, HMRI all of ARIAD's right, title and interest in and to the HAGC Intellectual Property (including releases of any security interest covering such property and UCC-3 termination statements in connection with the release of liens against the HAGC Intellectual Property). ARIAD represents and warrants that (A) SCHEDULE 2.1(c)(i) contains a true and complete list of ARIAD/HAGC Agreements and (B) all current and former ARIAD employees


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who provided services to the HAGC under the Scientific Research Services Agreement have executed an Agreement for New Employees in the form previously provided to HMRI.


(ii) For avoidance of doubt, the HAGC Intellectual Property transferred by ARIAD to HMRI pursuant to this Section 2.1(c): (i) specifically includes


[*]


. For purposes of this Agreement, (i) the term


(ii) the term


[*]
and (iii) the term


[*]


shall not be treated as [*] for purposes of this Agreement or any of the ancillary agreements contemplated hereby and shall [*]. ARIAD represents and warrants that there is no [*].


(d) RIGHTS TO FUTURE PAYMENTS. The purchase by HMRI of the ARIAD Membership Interest shall include any and all rights of ARIAD to receive, after the Closing, upfront payments, milestone fees, royalties or other payments under any of the ARIAD/HAGC Agreements or the Joint Venture Agreements.


(e) OTHER. ARIAD shall: (A) transfer to HMRI (i) pursuant to the Metagenome Agreement, certain agreements and intellectual property related to the Metagenome Program, and (ii) pursuant to the Sublease (as hereinafter defined), certain rights of ARIAD to the premises which are the subject of the Sublease; and (B) terminate certain ARIAD/HAGC Agreements as set forth in Article V.


2.2 HMRI CONSIDERATION. As full payment for the ARIAD Assets, at the Closing, HMRI shall pay or deliver to ARIAD the consideration set forth below:


(a) CASH CONSIDERATION. The total cash consideration to be paid by HMRI to ARIAD for the transactions contemplated by this Agreement shall be Forty Million Dollars ($40,000,000) (the "Cash Consideration") which shall consist of: (i) Five Million Dollars ($5,000,000) (the "Advance") paid by HMRI to ARIAD upon the signing of the letter of intent between HMRI and ARIAD dated as of October 12, 1999, as amended as of November 30, 1999


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(as amended, the "Letter of Intent"), and (ii) Thirty Five Million Dollars ($35,000,000) (the "Closing Payment") to be paid at the Closing by wire transfer of immediately available funds in accordance with ARIAD's written wire instructions.


(b) SERIES B PREFERRED STOCK. HMRI shall return to ARIAD one or more stock certificates representing all of the 3,004,436 shares of Series B Preferred Stock owned by HMRI as of the Closing Date (the "ARIAD Shares"), together with stock powers executed in blank.


(c) SUPPLEMENTAL CAPITAL LOANS. All principal and interest due under any Supplemental Capital Loans made by HMRI to ARIAD shall be cancelled and forgiven and all promissory notes evidencing such Supplemental Capital Loans shall be cancelled and discharged.


(d) ADVANCE; SECURITY INTEREST. Prior to the Closing, the Advance shall be secured by the ARIAD Membership Interest (the "Security Interest"). The Security Interest is subordinated only to a pre-existing first lien on ARIAD's assets (including the ARIAD Membership Interest) held by BankBoston, N.A. and is evidenced by a UCC-1 financing statement filed with the Secretary of the Commonwealth of Massachusetts and the Clerk of the City of Cambridge, Massachusetts. ARIAD agrees that at any time, and from time to time, upon the written request of HMRI, it will promptly and duly execute and deliver any and all such further instruments and documents and take such further action as HMRI may reasonably request in order to maintain the Security Interest. The Advance shall be immediately refundable by ARIAD to HMRI if a Change of Control or Acquisition occurs prior to the Closing; provided, however, that if the Advance is refunded by ARIAD to HMRI as a result of a Change of Control or Acquisition prior to the Closing, then the Security Interest in the ARIAD Membership Interest shall be released by HMRI at the time the Advance is refunded, and at the Closing HMRI shall pay to ARIAD the Forty Million Dollars ($40,000,000) in Cash Consideration for the ARIAD Assets. If no Change of Control or Acquisition of ARIAD has occurred as of the Closing, at the Closing, ARIAD shall retain the Advance as part of the Cash Consideration for the ARIAD Assets and the Security Interest in the ARIAD Membership Interest shall be released by HMRI.


(e) CONVERSION OF ADVANCE. In the event that the Closing has not occurred prior to December 31, 1999, then, at HMRI's option, HMRI may convert the Advance into a loan due on May 31, 2000 (the "Loan") to be evidenced by a promissory note bearing interest at 8.5% per annum from October 12, 1999. The Loan will be subject to prepayment at any time without penalty and further subject to mandatory prepayment in the event that a Change of Control or Acquisition shall occur prior to the Closing or if this Agreement has been terminated pursuant to Section 12.1. So long as any principal or interest is outstanding under the Loan, the Security Interest shall continue to secure all amounts due under the Loan. At any time after converting the Advance into the Loan, HMRI may apply the amount of outstanding principal and interest under the Loan as prepayment of a corresponding portion of its obligation to purchase Series B Preferred Stock in accordance with the Stock Purchase, Standstill and Registration Rights Agreement, upon which election ARIAD will deliver shares of Series B Preferred Stock to HMRI. If the Loan remains outstanding and no Change of Control or Acquisition has occurred as of the Closing, at the Closing, the outstanding principal and interest due under the Loan shall


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be cancelled and forgiven as part of the Cash Consideration for the ARIAD Assets and the Security Interest in the ARIAD Membership Interest shall be released by HMRI.


(f) ASSUMPTION OF OBLIGATIONS. As of the Closing, HMRI shall assume: (i) ARIAD's obligations pursuant to the Assigned HAGC Agreements as more fully described in Section 2.1(b)(iii) and as set forth in the Assignment and Assumption Agreement, (ii) pursuant to the Sublease, certain of ARIAD's obligations with respect to certain of the premises which are the subject of the Sublease, and (iii) pursuant to the Metagenome Agreement, certain of ARIAD's obligations with respect to the Metagenome Program.


ARTICLE III
CLOSING


3.1 DATE, TIME AND PLACE. The Closing (the "Closing") of the transactions contemplated by this Agreement shall take place at a time and on a date to be specified by the parties as soon as practicable following satisfaction (or waiver) of the last to occur of the conditions set forth in Article XI hereof, provided that the Agreement has not been terminated pursuant to Section 12.1 (the "Closing Date), at such place as the parties shall agree.


3.2 CLOSING DELIVERIES. At the Closing, subject to the terms and conditions herein contained, the following shall occur:


(a) HMRI shall deliver to ARIAD the Closing Payment.


(b) HMRI shall deliver to ARIAD the ARIAD Shares.


(c) HMRI shall deliver to ARIAD promissory notes evidencing the cancelled Supplemental Capital Loans.


(d) ARIAD shall execute and deliver to HMRI the Membership Interest Assignment in the form attached hereto as EXHIBIT A.


(e) The parties shall execute and deliver the Bill of Sale and Undertaking in the form attached hereto as EXHIBIT B.


(f) HMRI shall execute and deliver, and ARIAD shall cause ARIAD Corporation to execute and deliver, the Transamerica Assumption Agreement in the form attached hereto as EXHIBIT C-1.


(g) The parties shall execute and deliver the Assignment and Assumption Agreement in the form attached hereto as EXHIBIT C-2.


(h) The parties shall execute and deliver the Transition Services Agreement (the "Transition Services Agreement") in the form attached hereto as EXHIBIT D.


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(i) The parties shall execute and deliver the Metagenome Assignment Agreement (the "Metagenome Agreement") in the form attached hereto as EXHIBIT E.


(j) (i) ARIAD shall cause ARIAD Corporation to deliver to HMRI the Estoppel Letter (the "Estoppel Letter"), executed by Forest City Cambridge, Inc., in the form attached hereto as EXHIBIT F-1; (ii) HMRI shall, and ARIAD shall cause ARIAD Corporation to, execute and deliver the Consent to Sublease and the Sublease (together, the "Sublease") in the forms attached hereto as EXHIBIT F-2; and (iii) ARIAD shall cause ARIAD Corporation to terminate that certain Sublease entered into as of November 1, 1997, between ARIAD Corporation and HMRI (the "HMRI Office Sublease").


(k) HMRI shall execute and deliver to Incyte Pharmaceuticals, Inc. ("Incyte") the letter (the "Incyte Installation Site Designation Letter") in the form attached hereto as EXHIBIT G.


(l) ARIAD shall deliver to HMRI evidence of the release of any and all security interests covering the ARIAD Membership Interest and the ARIAD Owned HAGC Property.


(m) ARIAD shall deliver to HMRI all consents required pursuant to Section 4.1(g).


(n) ARIAD shall deliver to HMRI all releases of security interests, including UCC-3 termination statements, as contemplated by Sections 2.1(a) and 2.1(b)(i).


(o) ARIAD and HMRI shall execute and deliver the closing certificates contemplated by Section 11.1(a) and 11.2(a), respectively.


(p) Each party shall deliver all other documents, instruments and certificates as the other party may reasonably request.


ARTICLE IV
REPRESENTATIONS AND WARRANTIES


4.1 REPRESENTATIONS AND WARRANTIES OF ARIAD. ARIAD represents and warrants to HMRI as follows:


(a) ORGANIZATION. ARIAD is a corporation duly organized, validly existing and is in good standing under the laws of the State of Delaware.


(b) AUTHORIZATION. The execution, delivery and performance by ARIAD of this Agreement and the other agreements and transactions contemplated hereby have been duly authorized by all necessary corporate action and do not and will not (i) require any consent or approval of its stockholders or (ii) violate any provision of any law, rule, regulation, order, writ,


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judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter documents.


(c) BINDING AGREEMENT. This Agreement and the other agreements contemplated hereby are legal, valid and binding obligations of ARIAD enforceable against it in accordance with their terms, except as rights to indemnification hereunder and thereunder may be limited by applicable law and except as the enforcement hereof and thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.


(d) NO INCONSISTENT OBLIGATIONS. ARIAD is not under any obligation to any person, or entity, contractual or otherwise, that is materially conflicting or materially inconsistent in any respect with the terms of this Agreement or the other agreements contemplated hereby or that would materially impede the diligent and complete fulfillment of its obligations.


(e) ARIAD MEMBERSHIP INTEREST. The ARIAD Membership Interest constitutes one-half (1/2) of the outstanding membership interest in the HAGC, ARIAD is the sole beneficial owner of the ARIAD Membership Interest and, except as set forth on SCHEDULE 4.1(e), the ARIAD Membership Interest is free and clear of all liens and encumbrances.


(f) HAGC AGREEMENTS. SCHEDULE 4.1(f) lists all written and, to the best knowledge of ARIAD, oral agreements entered into by members of the Management Committee of the HAGC designated to the Management Committee by ARIAD, or employees (including contract employees) of ARIAD providing services to the HAGC under the Administrative Services Agreement or Scientific Research Services Agreement on behalf of the HAGC (the "HAGC Agreements") since formation of the HAGC, true and correct copies of which have been delivered to HMRI.


(g) CONSENTS. Except as set forth in SCHEDULE 4.1(g), no consent of any natural person, corporation, partnership, proprietorship, association, trust or other legal entity is required to be obtained by ARIAD to the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, including without limitation, consents to the assignment of the ARIAD Leased HAGC Property, the execution and performance of the Sublease and the Metagenome Agreement, or pursuant to the HAGC Agreements.


(h) ASSIGNED HAGC AGREEMENTS. ARIAD represents and warrants that (a) to the best of its knowledge, true and correct copies of each Assigned HAGC Agreement has been delivered to HMRI, (b) there have been no amendments to any Assigned HAGC Agreement, (c) each Assigned HAGC Agreement is in full force and effect in accordance with its terms, and (d) neither ARIAD nor, to the best of ARIAD's knowledge, the third party under any Assigned HAGC Agreement, is in default under the respective Assigned HAGC Agreement, and there exists no state of facts and no event has occurred which, with the passage of time or the giving of notice, or both, would constitute a default by either ARIAD or, to the best of ARIAD's knowledge, any third party under any Assigned HAGC Agreement.


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(i) EQUIPMENT. ARIAD represents and warrants that (A) all of the ARIAD Owned HAGC Equipment, (B) ARIAD Leased HAGC Equipment, (C) equipment subject to HAGC Agreements and (D) all books and records, laboratory equipment, computers (hardware and software), furniture, office supplies, fixtures and other office equipment owned by the HAGC (the "HAGC Owned Equipment") are, in each case, on an "as is" basis, usable in the ordinary course of the HAGC's business consistent with past practice and are located at the HAGC's principal place of business. ARIAD further represents and warrants that between the date hereof and the Closing Date it shall not sell or otherwise dispose of any ARIAD Owned HAGC Equipment, ARIAD Leased HAGC Equipment, equipment subject to HAGC Agreements or HAGC Owned Equipment, other than in the ordinary course of business.


(j) LITIGATION. ARIAD represents and warrants that there is no action, suit, proceeding, investigation, or arbitration pending before any court, arbitration panel or other governmental or regulatory body or, to ARIAD's knowledge, threatened against the HAGC or relating to the ARIAD Assets. To the best of ARIAD's knowledge, ARIAD has not received any notice alleging infringement of the rights of any third party relating to ARIAD's use of ARIAD Background Technology and the other Technology listed on SCHEDULE 6.1(a)(ii).


(k) OPERATION OF THE HAGC. ARIAD represents and warrants that it has conducted the operations of the HAGC pursuant to the Administrative Services Agreement and the Scientific Research Services Agreement and, to the best of ARIAD's knowledge, in material compliance with all applicable laws and regulations, and except as set forth in SCHEDULE 4.1(k), to the best of ARIAD's knowledge, the HAGC possesses all material approvals, consents, licenses, and permits required for the conduct of its business as now conducted.


(l) DISCLOSURE. ARIAD represents and warrants that no representation or warranty of ARIAD contained in this Agreement or the other agreements contemplated hereby and no information contained in any schedule hereto or thereto contain or will contain any untrue statement of a material fact.


4.2 REPRESENTATIONS AND WARRANTIES OF HMRI. HMRI represents and warrants to ARIAD as follows:


(a) ORGANIZATION. HMRI is a corporation duly organized, validly existing and is in good standing under the laws of the State of Delaware.


(b) AUTHORIZATION. The execution, delivery and performance by HMRI of this Agreement and the other agreements and transactions contemplated hereby have been duly authorized by all necessary corporate action and do not and will not (i) require any consent or approval of its stockholders or (ii) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter documents.


(c) BINDING AGREEMENT. This Agreement and the other agreements contemplated hereby are legal, valid and binding obligations of HMRI enforceable against it in accordance with their terms, except as rights to indemnification hereunder and thereunder may


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be limited by applicable law and except as the enforcement hereof and thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.


(d) NO INCONSISTENT OBLIGATIONS. HMRI is not under any obligation to any person, or entity, contractual or otherwise, that is materially conflicting or materially inconsistent in any respect with the terms of this Agreement or the other agreements contemplated hereby or that would materially impede the diligent and complete fulfillment of its obligations.


ARTICLE V
TERMINATION OF CERTAIN AGREEMENTS


5.1 TERMINATION OF CERTAIN AGREEMENTS AT CLOSING. As of the Closing, the following agreements shall be terminated in their entirety and the parties shall have no continuing rights or obligations thereunder: the Joint Venture Master Agreement (except Article 11 therein which shall survive); the Operating Agreement (except for Section 6.14 therein which shall survive, except that, with respect to the indemnification obligation pursuant to Section 6.14(a) therein, HMRI shall only be responsible for one-half (1/2) of such indemnification obligation); the HMRI Office Sublease; the Stock Purchase, Standstill and Registration Rights Agreement; the ARIAD License Agreement; the HMRI License Agreement; the Cross License Agreement; the Product Rights Agreement; the Scientific Research Services Agreement; Administrative Services Agreement; and the letter agreement dated as of December 2, 1999, among HMRI, ARIAD and ARIAD Corporation, with respect to interim facilities improvements.


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