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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 10-K
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 28, 1997
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO .
COMMISSION FILE NUMBER: 0-26126
SEROLOGICALS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 58-2142225
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
780 PARK NORTH BLVD., STE. 110 30021
CLARKSTON, GEORGIA (Zip Code)
(Address of principal
executive offices)
(404) 296-5595
(Registrant Telephone Number Including Area Code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
TITLE OF EACH CLASS
Common Stock, $.01 par value
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past (90) days. Yes /X/ No / /
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K / /
The aggregate market value of the shares of common stock held by
non-affiliates (based upon the closing sale price on The Nasdaq Stock Market) on
March 20, 1998 was approximately $427,315,000. As of March 20, 1998, there were
15,727,035 shares of Common Stock, $0.01 par value per share, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE.
Portions of the definitive proxy statement for the Annual Meeting of
Stockholders (which will be filed pursuant to Regulation 14A within 120 days of
the close of the Registrant's fiscal year ended December 28, 1997) shall be
deemed to be incorporated by reference in Part III.
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TABLE OF CONTENTS
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PART I.
Item 1. Business.................................................................... 4
Item 2. Properties.................................................................. 14
Item 3. Legal Proceedings........................................................... 15
Item 4. Submission of Matters to a Vote of Security Holders......................... 15
Item 4a. Executive Officers and Key Employees of the Registrant...................... 15
PART II.
Item 5. Market for the Registrant's Common Equity and Related Stockholder Matters... 17
Item 6. Selected Financial Data..................................................... 18
Item 7. Management's Discussion and Analysis of Financial Condition and Results of
Operations.................................................................. 19
Item 7a. Quantitative and Qualitative Disclosures about Market Risk.................. 25
Item 8. Financial Statements and Supplementary Data................................. 25
Item 9. Changes in and disagreements with accountants on Accounting and Financial
Disclosure.................................................................. 25
PART III.
Item 10. Directors and Executive Officers of the Registrant.......................... 26
Item 11. Executive Compensation...................................................... 26
Item 12. Security Ownership of Certain Beneficial Owners and Management.............. 26
Item 13. Certain Relationships and Related Transactions.............................. 26
PART IV.
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K............. 26
SIGNATURES............................................................................. 29
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PART I.
THIS ANNUAL REPORT ON FORM 10-K CONTAINS CERTAIN "FORWARD-LOOKING
STATEMENTS" WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT
OF 1995, WHICH GENERALLY CAN BE IDENTIFIED BY THE USE OF FORWARD LOOKING
TERMINOLOGY SUCH AS "MAY," "WILL," "EXPECT," "INTEND," "ESTIMATE," "ANTICIPATE,"
"BELIEVE" OR "CONTINUE" OR THE NEGATIVE THEREOF OR OTHER VARIATIONS THEREON OR
SIMILAR TERMINOLOGY, AND/OR WHICH INCLUDE WITHOUT LIMITATION, STATEMENTS
REGARDING THE FOLLOWING:
- SEROLOGICALS CORPORATION'S (AND ITS SUBSIDIARIES, COLLECTIVELY, THE
"COMPANY") INTERNAL AND EXTERNAL GROWTH STRATEGIES, INCLUDING THE ABILITY
OF THE COMPANY TO OBTAIN ADDITIONAL LICENSES FOR THE HYPERIMMUNIZATION OF
DONORS AND THE COLLECTION OF SPECIALTY ANTIBODIES; THE COMPANY'S ABILITY
TO IDENTIFY, FINANCE AND COMPLETE ACQUISITIONS AND TO CREATE ECONOMIES OF
SCALE;
- CERTAIN TRENDS IN THE INDUSTRY, INCLUDING INCREASED DEMAND FOR AND LIMITED
SUPPLY OF ANTIBODIES AND ANTIBODY-BASED PRODUCTS IN GENERAL; INCREASED
REGULATORY SCRUTINY BY THE FOOD AND DRUG ADMINISTRATION ("FDA"), ITS
EFFECT ON THE DONOR POPULATION AND THE COMPANY'S ABILITY TO RESPOND;
CHANGING CUSTOMER SPECIFICATIONS AND EVOLVING INDUSTRY AND CUSTOMER
STANDARDS AND CUSTOMER DEMAND FOR HIGHER QUALITY AND VALUE ADDED SERVICES;
- THE IMPACT OF THE YEAR 2000 ISSUE, THE ABILITY OF THE COMPANY TO ACHIEVE
YEAR 2000 COMPLIANCE IN A TIMELY AND EFFECTIVE MANNER AND THE RELATED COST
TO ACHIEVE SUCH COMPLIANCE;
- THE IMPACT OF THE POTENTIAL LOSS OF DONORS DUE TO THE IMPOSITION OF NEW
BLOOD SAFETY MEASURES;
- INCREASED DEMAND FOR ANTI-D, AND THE COMPANY'S ADVANTAGE REGARDING ITS
ON-GOING ABILITY TO CONTINUE TO PRODUCE ADEQUATE QUANTITIES OF ITS
PROPRIETARY ANTI-D VACCINES;
- THE IMPACT OF DELAYED OR REDUCED SALES TO CERTAIN CUSTOMERS ON THE COMPANY
AND ITS OPERATIONS;
- CERTAIN POTENTIAL PRODUCT AND SERVICE DEVELOPMENT EFFORTS THE COMPANY MAY
PURSUE OR WHICH ARE CURRENTLY UNDERWAY, INCLUDING WITHOUT LIMITATION, THE
COMPANY'S INTENT TO ACQUIRE CLINICAL TRIAL SITES;
- THE LEVEL OF CAPITAL EXPENDITURES IN 1998 AND THE SUFFICIENCY OF CAPITAL
AND LIQUIDITY TO MEET WORKING CAPITAL, CAPITAL EXPENDITURE AND OTHER
ANTICIPATED CASH REQUIREMENTS OVER THE NEXT TWELVE MONTHS AND THE
AVAILABILITY OF CAPITAL RESOURCES FOR USE IN THE COMPANY'S ACQUISITION
STRATEGY;
- THE RENEWAL OF CERTAIN AGREEMENTS, INCLUDING LEASES COVERING ITS DONOR
CENTERS AND THE AUTOMATIC RENEWAL OF CERTAIN LONG-TERM CUSTOMER CONTRACTS;
AND
- THE ADEQUACY OF THE COMPANY'S MONOCLONAL PRODUCTION FACILITIES.
THESE FORWARD-LOOKING STATEMENTS ARE SUBJECT TO CERTAIN RISKS, UNCERTAINTIES
AND OTHER FACTORS WHICH COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY,
INCLUDING BUT NOT LIMITED TO :
- THE COMPANY'S ABILITY TO GENERATE SUFFICIENT CASH FLOWS OR RAISE
ADDITIONAL FUNDING TO SUPPORT ITS INTERNAL AND EXTERNAL GROWTH STRATEGIES;
- THE COMPANY'S ABILITY TO IDENTIFY AND RECRUIT SUITABLE ACQUISITION
CANDIDATES IN THE FUTURE AND TO INTEGRATE AND MANAGE THEM;
- CHANGES IN LAWS AND REGULATIONS THAT COULD AFFECT THE COMPANY'S ABILITY TO
OBTAIN ADDITIONAL AND MAINTAIN EXISTING REGULATORY LICENSES AND APPROVALS;
- THE EFFECT OF COMPETITION AND REGULATORY SCRUTINY AND CHANGES IN THE
COMPANY'S ABILITY TO MAINTAIN AND EXPAND ITS DONOR AND CUSTOMER BASES;
- POTENTIAL FUTURE TECHNOLOGIES THAT COULD LESSEN OR ELIMINATE THE NEED FOR
ANTIBODIES AND OTHER PLASMA-BASED PRODUCTS;
- CHANGES IN INDUSTRY TRENDS, CUSTOMER SPECIFICATIONS, MARKET DEMAND AND
POTENTIAL FOREIGN RESTRICTIONS OF THE IMPORTATION OF THE COMPANY'S
PRODUCTS THAT COULD IMPACT INTERNAL AND EXTERNAL GROWTH, EARNINGS AND
MARKET SHARE;
- THE COMPANY'S DEPENDENCE ON A FEW MAJOR CUSTOMERS AND ITS ABILITY TO
MAINTAIN FAVORABLE SUPPLIER AGREEMENTS AND RELATIONSHIPS; AND
- THE COMPANY'S SUBSTANTIAL RELIANCE ON TWO PRODUCTS, ANTI-D AND IVIG.
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ITEM 1. BUSINESS
The Company is a leading worldwide provider of specialty human antibodiezs
and related services to major healthcare companies. The Company's services,
including donor recruitment, donor management and clinical testing services,
enable the Company to provide value-added specialty products that are used as
the active ingredients in therapeutic products for the treatment and management
of such medical indications as Rh incompatibility in newborns, rabies and
hepatitis and in diagnostic products such as blood typing reagents and
diagnostic test kits. In addition, the Company collects and supplies antibodies
for the manufacture of intravenous immune globulin (IVIG), a product containing
a broad spectrum of antibodies used in the treatment of a wide variety of
medical indications. As of March 20, 1998, the Company conducted its operations
through a national network of 59 donor centers and through laboratories located
in the United States and the United Kingdom. The Company also operates two
monoclonal manufacturing facilities in Scotland. The majority of the Company's
16 specialty donor centers are strategically located on or near medical
campuses, enhancing the Company's ability to source specialty antibodies from
medical community referrals.
INDUSTRY OVERVIEW
The human blood products and services industry encompasses a number of
markets, with products ranging from whole blood, which is used for direct
transfusions, to blood components, such as source plasma, specialty and
non-specialty antibodies found in source plasma and other specialty biologic
components. Source plasma (the clear liquid portion of blood characterized by
non-specific concentrations of antibodies) is used to manufacture many products
that treat a variety of medical indications. Antibodies are soluble components
contained in plasma which are produced by the immune system to fight specific
diseases.
The largest sector of the industry is comprised of non-profit organizations,
such as the American Red Cross and community blood banks, which supply whole
blood and other transfusible products to hospitals. The other sector of the
market, the commercial sector, is focused primarily on supplying source plasma,
specialty and non-specialty antibodies found in source plasma and other
specialty biologic components to healthcare companies for use as the active
ingredients in therapeutic and diagnostic products. According to the Marketing
Research Bureau, Inc., an independent market research company, the worldwide
market for finished products made from plasma-based products grew from
approximately $1.5 billion in 1984 to approximately $5.4 billion in 1996.
The specialty segment of the commercial sector includes products consisting
of specialty antibodies and cells. Specialty antibodies are typically used to
manufacture products for treating persons exposed to, or at risk of, contracting
a specific disease and to make diagnostic products used to screen patients for
prior exposure to a specific disease or to determine blood type. Specialty
antibodies range from those used to treat medical indications such as tetanus,
respiratory syncytial virus (RSV) and cytomegalovirus (CMV), which the Company
believes generally sell for approximately $90 to $110 per liter, to high-end
products such as anti-D, an antibody used to treat Rh incompatibility in
newborns, anti-hepatitis and blood typing reagents, which the Company believes
generally sell for approximately $400 to $800 per liter. By comparison, the
average industry gross price of source plasma, from which IVIG and other
products are derived, is approximately $75 to $85 per liter. The Company's
pricing for its specialty antibodies averaged approximately $493 per liter in
1997, an increase of approximately 10% from 1996.
The Company believes that there are a number of factors increasing the
demand for antibody-based products in general. In the treatment of certain
diseases such as rabies and Rh incompatibility in newborns, antibody-based
products are recognized as the only generally accepted treatment or prevention
for such diseases. In addition, medical and scientific advances are increasing
the demand for antibodies for new indications and improved therapies. The
Company also believes that cost containment in healthcare is spurring the demand
for alternatives to antibiotics and vaccines, such as the use of antibody-based
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products for disease management. Additionally, increasing regulation and
concerns relating to blood safety are causing demand for a broader array of
antibody-based diagnostic tests used to evaluate blood samples. The demand for
more diverse diagnostic tests is also increasing as world population migration
is spreading diseases, which were once confined to specific geographic areas.
The Company also believes that the aging of the U.S. population is increasing
the demand for antibody-based products that are as efficacious as, but less
toxic than, many current treatment regimens.
The Company believes that there are a number of factors that are limiting
the supply of commercially available antibodies. The supply of antibodies has
been adversely affected by the more rigorous screening procedures required by
regulatory authorities, in particular the FDA, industry trade organizations and
manufacturers of these products. These procedures, which include a more
extensive investigation into a donor's background and new tests to detect the
presence of disease-causing organisms, have disqualified numerous potential
donors and discouraged other donors who may be reluctant to undergo the
screening procedures. Second, as customers require increasingly higher
concentrations of specialty antibodies, the qualified pool of donors is further
reduced. These customer requirements have resulted in an increasing need to
boost the concentration of specialty antibodies in donors through vaccination or
hyperimmunization. Furthermore, the length of time required to be granted
regulatory licenses for antibody collection sites (donor centers), testing
facilities and biological products is significant.
In addition to the demand and supply factors discussed above, the industry
continues to experience a number of trends. One such trend is the movement by
healthcare companies towards obtaining antibodies and other biologic products
from a fewer number of suppliers who can supply a wider array of products and
services. The resulting enhanced relationships between healthcare companies and
these suppliers have resulted in an increased tendency of some major healthcare
companies to outsource essential complex regulatory, testing and specialized
manufacturing. In addition, the increased regulatory environment, as well as the
increasing preference of customers for value-added services, requires suppliers
to have a high level of expertise and capital resources. As a result of these
trends, the industry has been undergoing a consolidation for several years.
OPERATIONS
As of March 20, 1998, the Company conducted its operations through a
national network of 59 donor centers and through laboratories located in the
United States and the United Kingdom. The Company also operates two monoclonal
production facilities in Scotland. The majority of the Company's 16 specialty
donor centers are strategically located on or near medical campuses, enhancing
the Company's ability to source specialty antibodies from medical community
referrals.
DONOR RECRUITMENT. The Company obtains the significant majority of its
specialty antibodies from donors with high concentrations of the antibodies
sought. The Company maintains an active communication network with medical
professionals and healthcare organizations nationwide to assist in identifying
these donors. In addition, the Company is able to identify and react rapidly to
disease outbreaks in order to recruit suitable donors for specialty antibodies
created by such specific diseases. The Company actively seeks to maintain and
replenish its donor base for its therapeutic and diagnostic products and
maintains an ongoing communications program to recruit donors and make medical
professionals aware of its capabilities and needs.
DONOR SCREENING AND PRODUCT COLLECTION. Each donor candidate undergoes a
process that includes an explanation of the program, extensive physiological and
biological screening, a physical examination and the collection of test samples.
In addition, donors of specialty antibodies undergo qualification profiling.
Once a candidate is accepted as a donor, the Company may collect antibodies from
the donor at its donor centers through a FDA approved collection procedure known
as plasmapheresis, which lasts between 40 and 60 minutes and is very similar to
donating blood. However, as red blood cells are returned to the donor by means
of centrifugation, individuals may donate as frequently as twice per week. Each
donation is
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quarantined at the donor center while test samples are sent to the Company's, or
its customers', clinical laboratory for FDA mandated viral marker screening
tests (hepatitis, HIV, etc.) and characterization (i.e., special analytical
tests to identify and measure the quality and concentration of the targeted
antibodies). Beginning July 1, 1997, new industry specifications require that
each donor's ("Applicant Donor") donation be quarantined until such time that a
second donation is received from the Applicant Donor and appropriate tests
results are obtained on both donations. If a second donation is not received
from the Applicant Donor within six months, the previous donation must be
destroyed. Once these two donations and their tests are complete and acceptable,
the Applicant Donor becomes a "qualified donor" and all future donations are
generally available for immediate shipment once the mandated tests have been
completed.
PRODUCT CHARACTERIZATION. The Company characterizes its specialty
antibodies to ensure that concentrations meet customer specifications. The
Company maintains extensive data on each of its donors for both regulatory
compliance and quality assurance. This database enhances the Company's donor
tracking and monitoring capabilities, which help assure the quality of the
antibodies for its customers. The ability to accurately characterize and trace
the source of antibodies adds value to the products for the customer by
replacing steps the customer might otherwise have to perform.
DONOR MANAGEMENT. Through communication and incentive programs and an
emphasis on customer service, the Company encourages full and continuing
participation by its donors. As an integral part of donor management, the
Company's staff continually communicates with donors to reinforce their
commitment. The Company has personnel and programs designed to make each visit
to the donor center a smooth, comfortable and safe experience. The Company's
expertise in donor management has enabled it to retain many donors for years of
repeated, regular donations, thereby enhancing the Company's profitability. The
Company's specialty donors typically donate once or twice per week, with many
having continued as donors for as long as ten years. A significant portion of
the Company's donors of rare specialty antibodies have entered into contracts
with the Company pursuant to which they have agreed to donate antibodies
exclusively to the Company for a three-year period.
HYPERIMMUNIZATION. In response to customer demands to produce higher
quality products, all of the Company's 16 specialty donor centers are actively
involved in the hyperimmunization of their specialty antibody donors. The
Company is also approved to hyperimmunize donors for anti-D and ship such
product at eight of its non-specialty donor centers. Hyperimmunization is the
use of FDA-approved vaccines to stimulate the development or heighten the
concentration of already existing specialty antibodies in the donor. Although
vaccines to conduct hyperimmunization for several of the Company's products are
commercially available, the Company believes it has a key competitive advantage
through its existing inventory of, and ongoing ability to produce, its own
proprietary FDA-approved vaccine to produce anti-D antibodies in donors. In some
cases, antibody-producing white cells are also collected from hyperimmunized
donors and used to develop monoclonal products for diagnostic use. The Company
intends to continue its strategy of adding hyperimmunization capabilities at its
historically non-specialty donor centers.
MONOCLONAL ANTIBODY PRODUCTION. In addition to collecting antibodies from
its donors, the Company, through its Bioscot, Ltd. ("Bioscot") subsidiary,
produces monoclonal, or cloned, antibodies from approximately 45 cell lines,
which generated nearly $14 million in net sales in 1997. The Company's
FDA-licensed monoclonal manufacturing facilities in Edinburgh and Livingston,
Scotland produce monoclonal antibodies from cells derived through the Company's
donor network or acquired from other laboratories. Once suitable donors are
identified by personnel at the Company's donor centers, activated white cells
are collected and delivered to its research and development laboratory. The
white blood cells are cultivated into a proliferating cell line and then moved
to the Company's monoclonal manufacturing facility where the cell line is
further developed until it can be used for commercial production. Through this
monoclonal manufacturing capability, the Company has been able to introduce new,
second generation, human
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monoclonal products and also begin to sell more profitable finished products
outside the United States, such as its value-added line of OEM and branded blood
typing reagents for use by healthcare workers in countries outside the United
States.
PRODUCTS
Through its value-added services, the Company provides the antibodies that
serve as the active ingredients in certain therapeutic and diagnostic products
manufactured by major healthcare companies. The Company's customers generally
further process the Company's products. The finished materials are then packaged
and distributed as intramuscular and intravenous therapeutic or diagnostic
products. The Company also sells certain antibodies for blood typing reagents
directly to end-users. In 1997, the Company derived approximately 81% of its net
sales from its therapeutic product line, a substantial majority of which related
to IVIG and anti-D antibodies, and approximately 19% of its net sales from its
diagnostic product line, the majority of which relates to blood typing reagents.
End products produced by the Company's customers for which it supplies
antibodies include the following:
SPECIALTY THERAPEUTIC PRODUCTS
ANTI-D IMMUNE GLOBULIN ("ANTI-D"). Since 1968, anti-D immune globulin, also
known as Rh immune globulin, has been prescribed by obstetricians to prevent Rh
incompatibility in newborns ("RhHDN"). This sometimes-fatal condition affecting
Rh positive infants born to Rh-negative women is due to the incompatibility of
the blood of an Rh-negative mother and her Rh-positive child. Anti-D immune
globulin is also used in the treatment of Idiopathic Thrombocytopenic Purpura
("ITP") in immunocompromised patients. ITP, which is common in HIV positive
patients, is a disease that is characterized by destruction of the patient's
platelets, which, if untreated, can result in internal hemorrhaging and
ultimately, death. This condition may affect up to 100,000 Americans.
The Company believes that demand for anti-D antibodies used in the treatment
of RhHDN have generally followed the birth rate of developed countries.
Continuing supply shortages of anti-D antibodies have resulted in industry-wide
price increases over the past several years. Moreover, due to the relatively
recent use of anti-D antibodies for the treatment of ITP, the Company believes
that worldwide demand for anti-D antibodies has increased more rapidly over the
past several years.
ANTI-RABIES IMMUNE GLOBULIN ("RIG"). Anti-rabies immune globulin therapy is
prescribed for individuals suspected of recent exposure to the rabies virus.
Rabies is commonly transmitted by infectious saliva from the bite of a rabid
animal. RIG is administered as promptly as possible after exposure and consists
of antibodies directed against the live virus particles with which the patient
may be infected. In the post-exposure treatment regimen, RIG is administered in
conjunction with a rabies vaccine, which is used to provide the patient with an
additional active immunity to the rabies virus.
ANTI-HEPATITIS IMMUNE GLOBULIN. The traditional use for anti-hepatitis
immune globulin ("anti-HBs") is for the prevention of hepatitis in individuals
who are at risk of contracting, or have had recent exposure to, the hepatitis B
virus. In addition, anti-HBs is used for intensive treatment of liver transplant
patients.
ANTI-RESPIRATORY SYNCYTIAL VIRUS IMMUNE GLOBULIN ("ANTI-RSV"). Anti-RSV is
used in the prevention of serious lower respiratory tract infections caused by
RSV. RSV is the leading cause of pneumonia and bronchiolitis (an infection of
the small airways of the lung) in infants, causing approximately 90,000
hospitalizations and 4,500 fatalities in the United States annually. Certain
populations, such as premature infants and infants with lung problems, are at
increased risk for developing severe RSV disease. The Company commenced
collecting antibodies for anti-RSV during 1997.
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ANTI-CYTOMEGALOVIRUS IMMUNE GLOBULIN (ANTI-CMV). Anti-CMV is used in the
treatment of patients with compromised immune systems and thus most at risk for
severe CMV infection, such as AIDS patients, transplant recipients and cancer
patients undergoing chemotherapy. CMV is a herpes virus affecting a significant
portion of the population but usually going unnoticed in people with healthy
immune systems. The Company does not anticipate significant growth in providing
antibodies for this product beyond 1997.
NON-SPECIALTY THERAPEUTIC PRODUCTS
INTRAVENOUS IMMUNE GLOBULIN ("IVIG") IVIG is derived from source plasma and
is comprised of a broad spectrum of antibodies. IVIG is used in the treatment of
many medical indications, primarily for patients with suppressed immune systems,
to help build the body's defense against exposure to life threatening diseases.
SPECIALTY DIAGNOSTIC PRODUCTS
ANTIBODIES FOR BLOOD TYPING REAGENTS. Blood typing reagents are used by
blood banks and hospital transfusion services worldwide to assure compatibility
between the recipient and the donor's blood type. Traditionally, blood typing
reagents were made primarily from human sourced, or polyclonal, antibodies. Over
the past several years, monoclonal antibodies have been developed to provide
certain high quality antibodies on a consistent basis, and many of these are now
FDA-approved for diagnostic purposes. The Company currently provides over 80
different antibodies used in the production of blood typing reagents that the
Company believes provide it with a competitive advantage in this market due to
the desire of customers to buy an entire panel of different antibodies for blood
typing reagents from one manufacturer. While the majority of these antibodies
are in monoclonal form, the Company continues to collect human sourced
polyclonal antibodies and expanded its ability to do so as a result of the
September 1997 acquisition of Bio-Lab, Inc. and Med-Lab, Inc. (collectively,
"Bio-Lab").
CLINICAL DIAGNOSTIC ANTIBODIES. Through its expertise in donor recruiting,
the Company is able to locate and recruit donors who can provide antibodies and
other biological specimens that are known to be positive or negative for a
specific disease or infection. The Company provides these biological specimens
for use in clinical diagnostic test kit controls. The diseases for which the
Company sources clinical diagnostic antibodies include, among others, CMV,
rheumatoid arthritis, toxoplasmosis, hepatitis and HIV. The Company's recruiting
capability is complemented by extensive in-house experience in the laboratory
disciplines of immunohematology, immunology, serology and clinical chemistry to
characterize human specimens to meet manufacturers' requirements.
PRODUCT AND SERVICE DEVELOPMENT
PRODUCTS
The Company is engaged in a number of near-term development projects
designed to enhance its existing product lines. These projects include the
development of more efficacious donor immunization protocols to increase yields
and the development of more efficient techniques for the manufacture of both
polyclonal and monoclonal antibodies. The Company is also exploring the
opportunity of providing monoclonal antibodies for use in diagnostic test kit
controls using the same approach that led to the Company's ability to
commercialize monoclonal antibodies for use in blood typing reagents.
On a longer-term basis, the Company is evaluating several alternatives for
the development of a therapeutic monoclonal anti-D product. Monoclonal
production techniques eliminate the need for fractionation of the product and
may give the Company the ability to market more value-added finished therapeutic
products directly to end-users. During 1997, the Company effectively ceased
research and development activities with the Scottish National Blood Transfusion
Service for the joint development and clinical trial of a therapeutic monoclonal
anti-D product. This decision was based in part on concerns with the commercial
viability of the Company's project in particular and in part on the market
potential for any
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such product. However, the Company continues to monitor the therapeutic
monoclonal anti-D market and is pursuing strategic alternatives, including
future collaborations or partnerships with existing research projects, to bring
such a product to market.
SERVICES
In the near-term, the Company intends to utilize its expertise in regulatory
and protocol compliance, multi-site management, quality assurance, data
management, donor recruitment and acquisitions to exploit what it believes are
significant internal and external growth opportunities in the management and
conduct of clinical trials for the pharmaceutical and biotech industries. Based
on various industry data available, the Company believes that the global market
for clinical site services is potentially $5-6 billion, yet is highly fragmented
and will begin consolidating. The Company intends to enter this industry through
the acquisition of clinical trial sites and, eventually, through the
introduction of these services at its existing donor centers. There are no
assurances, however, that the Company will successfully complete acquisitions of
clinical trial sites, or successfully integrate any such acquisition into its
existing operations.
On a longer-term basis, the Company has identified and investigated several
potential niche service offerings including, but not limited to, the collection
of or therapy involving therapeutic apheresis or plasma exchange and autologous
blood and cell collections. The Company believes it can take advantage of its
existing regulatory and donor center infrastructure to provide a lower-cost,
value-added setting for these services.
The Company believes a number of these and several other specialty service
areas also represent external growth opportunities where it can further leverage
its infrastructure and expertise. These include, but are not limited to, the
consolidation of existing therapeutic apheresis, cell salvage and other
transfusion related services which the Company believes currently are all highly
fragmented and emerging segments of the healthcare services industry.
MARKETING AND CUSTOMERS
The Company markets its antibody products to over 200 customers worldwide,
including several major healthcare companies. However, in 1995, 1996 and 1997,
sales to the Company's top ten customers accounted for approximately 82%, 87%
and 84%, respectively, of net sales. One of the Company's customers, Bayer
Corporation ("Bayer"), accounted for approximately 50%, 56% and 47% of the
Company's net sales in 1995, 1996 and 1997, respectively, while another
customer, Centeon, accounted for approximately 13%, 15% and 11% of net sales in
1995, 1996 and 1997, respectively. In connection with the acquisition of Nations
Biologics, Inc., and its affiliates (the "Nations Group") in 1997, the Company
commenced selling IVIG antibodies to Alpha Therapeutic Corporation, which
accounted for approximately 12% of net sales during 1997. During 1995, 1996 and
1997, no other single customer of the Company accounted for greater than 10% of
net sales. In 1995, 1996 and 1997, the Company's domestic sales represented
approximately 68%, 68% and 74%, respectively, of net sales.
THERAPEUTIC MARKETING AND CUSTOMERS
The majority of the Company's therapeutic products are sold through its own
sales force and, in certain markets, through independent brokers, to major
biological product manufacturers. The majority of the Company's specialty
antibodies for therapeutic use are sold pursuant to annual purchase orders, and
prices are negotiated annually. The Company is a party to three five-year supply
contracts with Bayer for the sale of IVIG antibodies produced at the majority of
its non-specialty donor centers. Such contracts, which in 1997 accounted for
approximately 31% of the Company's net sales, expire in 1999 and provide for the
sale of specified amounts on an escalating basis over the terms of the
contracts. After 1999, the contracts are subject to one-year renewals. At its
option, Bayer may also purchase any production in excess of the stipulated
minimums. Effective July 1, 1997, the Company negotiated an increased, uniform
price
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under the contracts, its first since December 1994, which is henceforth subject
to annual negotiations. Targeted amounts to be purchased by Bayer are subject to
up to 20% reductions; however, the Company is eligible to sell such production
to other customers. The contracts are subject to the maintenance of certain
quality criteria, certain termination events and production incentives. In
addition, either Bayer or the Company can reduce, by up to 10%, the quantity
supplied upon notification. Early termination of the agreements by Bayer could
have a material adverse effect on the Company. The Company has been notified by
Bayer of its intent to reduce certain purchase commitments under the contracts.
As the Company has already received purchase orders from other customers for the
majority of this material, it does not believe that such reductions will have a
material adverse effect on it or its operations.
In connection with the Company's acquisition of the Nations Group in 1997,
the Company acquired several supply contracts with Alpha Therapeutics
Corporation for the sale of IVIG antibodies collected at certain of the donor
centers operated by the Nations Group. The contracts vary in term, price and
volume levels, but are generally similar to the Company's other supply contracts
for IVIG antibodies.
DIAGNOSTIC MARKETING AND CUSTOMERS
The Company's monoclonal and polyclonal antibodies are sold to more than 50
manufacturers or suppliers of blood typing reagents and independent brokers. The
polyclonal blood typing reagent market can be characterized as a spot market
with limited advance sales and commitments to purchase typically made orally
after the customer receives a sample. Monoclonal antibodies used to manufacture
blood typing reagents represent a relatively new technology and require a highly
trained and technical sales staff. The Company's sales and technical support
staff for this product is located in Scotland. The capabilities of the Company's
facilities and staff allow for the marketing of monoclonal antibodies for blood
typing in many forms, from unfinished product to finished, vialed and branded
product.
In 1997, the Company's clinical diagnostic antibodies were sold to more than
60 customers in 10 countries. Clinical diagnostic antibodies are primarily sold
to manufacturers of diagnostic test kits for incorporation as controls or for
use in product development projects. The Company maintains a separate sales
group dedicated to this product line due to the large number of customers
requiring personalized treatment and the special product knowledge required. The
Company is a "Preferred Provider" and sells a significant portion of its
clinical diagnostic antibodies pursuant to a supply contract with Abbott
Laboratories, Inc. ("Abbott") which was renegotiated during 1996 and expires in
December 1999. The agreement with Abbott is subject to termination on 30 days
notice upon the occurrence of certain events related to an uncured breach of
such agreement or immediately upon the acquisition of control of the Company by
a competitor of Abbott.
ACQUISITIONS
The commercial sector of the blood products and services industry is
undergoing a consolidation driven largely by the rising cost and complexity
related to increased regulatory compliance requirements. A significant component
of the Company's business strategy has and continues to include acquisitions
which enable the Company to participate in the consolidation of the industry and
to add complementary products and services which will expand the Company's
current product and service portfolio.
A significant factor in the Company's recent growth has been the acquisition
of donor centers. The Company intends to continue to implement its strategy to
acquire additional donor center locations throughout the United States in order
to expand its antibody-sourcing network. The Company believes that acquiring
additional donor center operations will allow it to leverage its general and
administrative costs over a greater volume of production, thereby creating
economies of scale. In addition, the Company believes that these acquisitions
will enable the Company to leverage its core competencies and infrastructure to
allow the acquired businesses to provide, on an incremental basis, additional
higher-margin specialty products and services that the Company offers. The
Company also intends to pursue acquisitions
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of businesses that provide services and products that are complementary to its
existing businesses. However, there can be no assurance that the Company will be
able to complete suitable acquisitions in the future or successfully integrate
any such acquisitions into its existing operations.
In accordance with this strategy, in March 1997 the Company acquired the
Nations Group for approximately $10.2 million in cash and a $4.0 million
convertible note plus additional consideration based primarily on the future
performance of the acquired business. The Nations Group operated 16 donor
centers specializing primarily in the collection of non-specialty IVIG
antibodies but also maintained a significant donor base of anti-CMV donors.
In September 1997, the Company acquired Bio-Lab for approximately $5.95
million in cash and a $2.55 million convertible note. The acquisition of Bio-Lab
added two specialty donor centers which increased the Company's donor base for
specialty antibodies.
QUALITY ASSURANCE
The Company maintains quality assurance programs designed to assure the
efficacy and safety of its products and compliance with the requirements of
regulatory authorities, industry trade associations and its customers. Through
the Company's Quality Assurance Program, an internally maintained regulatory
compliance program, the Company conducts periodic audits of each facility to
monitor staff adherence to regulations and protocols. These audits are designed
to ensure adherence to Company procedures and effectiveness of staff training
efforts. The Company subscribes to the Quality Plasma Program ("QPP"), which is
a certification program administered by the American Blood Resources Association
("ABRA"), an industry trade organization. ABRA certifies only those facilities
that meet its standards and provide the highest quality products. Most of the
Company's customers require their suppliers to be QPP certified. All of the
Company's donor center facilities are currently QPP certified.
COMPETITION
The Company is engaged in the business of providing antibodies, which is a
competitive and rapidly changing field. The Company competes for customers with
other antibody suppliers on the basis of price, reliability and quality of
product, breadth of product line and the ability to provide value-added
services. The Company competes for donors, primarily on a local level, by means
of financial incentives which the Company offers for the donation of the
antibodies it collects, by providing donor services, by implementing programs
designed to attract and retain donors through education as to the uses for
collected antibodies, by encouraging groups to have their members become
antibody donors, and by improving the attractiveness of the Company's donor
centers. Certain of the Company's specialty antibodies are derived from donors
with rare antibody characteristics, resulting in increased competition for such
donors. If the Company is unable to maintain and expand its donor base, its
business and future prospects may be adversely affected. Additionally, several
companies are attempting to develop and market products to treat diseases based
upon technology that may lessen or eliminate the need for certain antibodies or
other plasma-based products. Such products, if successfully developed and
marketed, could adversely affect the demand for antibodies and other
plasma-based products. There can be no assurance that competition will not
adversely affect the Company.
The Company believes it takes on average 10-12 months to obtain FDA approval
for a non-specialty donor center, and takes on average 16-18 months to obtain
the necessary regulatory approvals in order to begin shipping product from a
specialty donor center which hyperimmunizes its donors. In addition to these
regulatory requirements, once the center is operational, a stable donor base
must be established and maintained as repeat donors are critical to success for
both quality control and profitability. A significant volume of donated
antibodies and sophisticated screening and immunization procedures also are
necessary in order to provide the diversity and quality of antibody products
demanded by the market. Due to
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<PAGE>
increasing quality requirements and more stringent testing procedures, there is
an increasing need for economies of scale, which generally only larger companies
can provide.
GOVERNMENT AND INDUSTRY REGULATION
GENERAL. The Company's activities are subject to significant regulation by
numerous governmental authorities in the U.S. and internationally. These
regulatory authorities govern the collection, testing, manufacturing, safety,
efficacy, labeling, storage, record keeping, transportation, approval,
advertising and promotion of the Company's products. The Company believes it is
in substantial compliance with all relevant laws and regulations.
The Company is subject to extensive FDA regulation. All of the Company's 59
donor centers and the Company's monoclonal manufacturing facilities hold FDA
establishment licenses and the Company's 16 specialty donor centers have
numerous product licenses, which are granted by the FDA for products shipped in
interstate commerce. The Company is also licensed to hyperimmunize donors for
anti-D and to ship such product at eight of its non-specialty donor centers. The
Company is seeking FDA license amendments to commence shipping anti-D currently
being collected from hyperimmunized donors at an additional five non-specialty
donor centers.
New facilities, products and operating procedures at each location must
undergo approval processes through the FDA. Significant changes to existing
facilities, products or operating procedures must also undergo FDA review prior
to implementation. The Company's FDA-licensed collection, testing and
manufacturing operations in the United States and abroad are required to adhere
to FDA current Good Manufacturing Practices (cGMP) and are routinely inspected
by the FDA. Donor centers must meet detailed standards for, among other things,
the screening of donors, obtaining informed consents from donors, the collection
of antibodies, training of personnel and the testing, handling and disposal of
biologic products. If the FDA believes that a company is not in compliance with
applicable laws and regulations, it typically issues a deficiency notice known
as a Form 483 and, subsequently, a warning letter if such deficiencies are not
adequately responded to or addressed in an appropriate and timely manner. An
inadequate response to a warning letter could ultimately result in the
detainment or seizure of products, issuance of a recall, enjoinment of future
operations and the assessment of civil and criminal penalties against the
Company, its officers or its employees. In addition, approvals or licenses could
be withdrawn in certain circumstances. Failure to comply with regulatory
requirements or a significant adverse regulatory action could have a material
adverse effect on the Company. There has been an increasing level of regulatory
scrutiny in the industry by the FDA resulting in more detailed and frequent
inspections, and a greater number of observations cited per inspection,
deficiency notices and warning letters. On occasion, the Company has received
notifications and warning letters from the FDA of possible deficiencies in the
Company's compliance with FDA requirements. To date, the Company believes that
it has adequately addressed or corrected such deficiencies. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations-Overview".
The Company is also subject to additional inspections by customer quality
assurance auditors, ABRA auditors, the Health Care Financing Administration
("HCFA") and state health departments. HCFA regulates and certifies all clinical
testing performed at each donor center and the Company's clinical testing
laboratory under the Clinical Laboratories Improvement Act of 1988. The
Company's clinical testing laboratory in Atlanta (Clarkston), Georgia is
licensed by the FDA and the State of Georgia.
Outside the United States, sales of the Company's products are subject to
additional regulatory requirements, which vary widely from country to country.
In the United Kingdom, the Company is subject to the U.K. Health and Safety at
Work Act, which regulates the safety precautions required of manufacturers in
the United Kingdom, and to various other regulations covering the use of
genetically engineered organisms in laboratory and manufacturing processes. In
certain countries, the Company's customers are subject to regulatory
requirements that require additional inspection and approval of the Company's
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<PAGE>
facilities prior to the shipment of products to such countries. Changes in
existing federal, state or foreign laws or regulations could have an adverse
effect on the Company's business.
The Company is also subject to numerous industry and customer-mandated
standards. Industry groups such as ABRA and the Company's customers continually
evaluate their practices and procedures regarding new information or public
concerns over diseases which may be transmitted from donors through their blood
or blood components. Based upon such evaluation, a certain portion of the
population may be prohibited from donating in the future, or certain new testing
and screening procedures may be required to be performed with respect to certain
donors.
One specific concern currently facing the industry is Creutzfeld-Jakob
disease ("CJD"), an often fatal disease occurring sporadically in the world at
an incidence of about one per million population per year and which has been
reportedly linked in some cases to bovine spongiform encephalopathy, also known
as "mad cow disease". However, no evidence currently exists that CJD can be
transmitted by blood and plasma products and the risk, if any, is believed to be
small and at present only theoretical. While no acceptable testing or screening
procedure currently exists to detect CJD, it has generally been found to have a
higher incidence in the older population. In response to this concern, effective
April 1997 and with respect to certain products, one of the Company's customers
ceased accepting antibodies collected from donors over the age of 59.
Another new standard voluntarily accepted by the industry, which was adopted
in July 1997, relates to the acceptance of new donors. In an effort to further
minimize the potential that infected plasma could enter the manufacturing
process undetected, all donors' plasma is excluded from further manufacture
until a second, negative set of test results is also obtained on a second
donation within six months, essentially precluding one-time donations. Also, in
order to further shorten the "window period" during which time a donor is
potentially infectious but is not detected as such by current screening tests
that measure antibody response to the viruses, certain of the Company's
customers are considering implementing a testing method using Polymerase Chain
Reaction ("PCR") technology. PCR testing is a method used to detect the presence
of genetic material of problem viruses before antibodies against those viruses
can be formed.
Although the Company does not believe that the potential loss of donors
resulting from these new standards will have a material impact on its operating
results, there is no assurance that the long-term impact of these standards, or
the imposition of other blood safety measures, will not have a material adverse
effect on future operations.
PRODUCT APPROVALS. Before new specialty antibody collection activities can
be initiated at any donor center, separate approvals for each type of specialty
antibody to be collected must be obtained from the FDA. There can be no
assurance that difficulties or delays will not arise in connection with
applications for approval to conduct expanded antibody collection activities.
Federal, state and foreign laws and regulations regarding the manufacture
and sale of blood products are subject to future change. The Company cannot
predict what impact, if any, such change might have on its business. However,
such changes could have a material impact on the Company's business.
OTHER. The Company is also subject to government regulations enforced under
the Environmental Protection Act, the Clean Air Act, the Clean Water Act, the
National Environmental Policy Act, the Toxic Substances Control Act, the
Resource Conservation and Recovery Act, the Medical Waste Tracking Act, and
other national, state or local restrictions. The Company is also subject to
workplace safety regulations under the Occupational Safety and Health Act
(OSHA). The Company believes that it is in substantial compliance with all
applicable regulations.
13
<PAGE>
THIRD PARTY REIMBURSEMENT
In both domestic and foreign markets, sales by the Company's customers may
depend in part on the availability of reimbursement from third-party payors such
as government health administration authorities, private health insurers and
other similar organizations. Third-party payors are increasingly challenging the
price and cost-effectiveness of medical products and services. There can be no
assurance that pricing pressures which may be experienced by the Company's
customers will not adversely affect the Company because of a determination that
these products are not cost effective or because of inadequate third-party
reimbursement levels to such customers. Moreover, the Company's profitability
may be directly affected by the availability of third party reimbursement for
any finished monoclonal product it seeks to sell.
EMPLOYEES
As of March 20, 1998, the Company employed approximately 1,100 persons,
approximately 1,020 of whom were located in the United States and approximately
80 of whom were located in the United Kingdom. None of the Company's employees
is covered by a collective bargaining agreement. The Company believes that its
relationship with its employees is generally satisfactory.
PRODUCT LIABILITY AND INSURANCE
The sourcing, processing and sale of the Company's antibody-based products
involve a risk of product and professional liability claims. The Company has
product liability insurance in an amount of $3.0 million per incident and $3.0
million in the aggregate per annum for each of the Company's facilities on an
occurrence basis and professional liability insurance in the same amounts on a
claims made basis. The Company also has a $5.0 million excess liability umbrella
insurance policy. There can be no assurance that the coverage limits of the
Company's insurance policies and/or any rights of indemnification and
contribution that the Company may have will offset potential claims. A
successful claim against the Company in excess of insurance coverage and not
subject to indemnification could have a material adverse effect on the Company.
ITEM 2. PROPERTIES
The Company's 59 donor centers are located in 20 states and the District of
Columbia, principally in the South, Southwest, Midwest and Northwest United
States. The donor centers range in size from approximately 1,000 to 10,000
square feet and are generally leased with five-year terms. A majority of these
leases contain renewal options which permit the Company to renew the leases for
a five-year period at the then fair rental value. The Company believes that in
the normal course of its business, it will be able to renew its existing leases
or relocate its operations subject to regulatory approval. See Item 1,
"Business-Operations."
The Company's clinical testing laboratory and international headquarters are
located in Atlanta (Clarkston), GA; its monoclonal research and development
laboratories and the Company's FDA licensed monoclonal antibody manufacturing
facilities are located in Edinburgh, Scotland (large scale monoclonal
production) and Livingston, Scotland (vialing and labeling). All of these
facilities are leased with terms expiring through 2021.
During 1997, the Company completed the expansion of its monoclonal antibody
production facility to meet current and anticipated future demand for its
diagnostic products. During 1997, the Company also completed a significant
expansion of its laboratory testing facility and international headquarters in
Clarkston, Georgia.
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ITEM 3. LEGAL PROCEEDINGS
The Company is a party to litigation in the ordinary course of business. The
Company does not believe that such litigation is likely to have a material
adverse effect on its financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter was submitted to a vote of security holders in the fourth quarter
of the fiscal year ended December 28, 1997.
ITEM 4A. EXECUTIVE OFFICERS AND KEY EMPLOYEES OF THE REGISTRANT
The following table sets forth the names, ages and all positions and offices
with the Company held by the Company's present executive officers. Unless
otherwise indicated below, each person has held the office indicated for more
than five years:
<TABLE>
<CAPTION>
NAME AGE POSITIONS AND OFFICES PRESENTLY HELD
- - ----------------------------------------------------- --- -----------------------------------------------------
<S> <C> <C>
Harold J. Tenoso, Ph.D. ............................. 59 President, Chief Executive Officer and Director
Samuel A. Penninger, Jr. ............................ 56 Chairman of the Board of Directors
Terry Dobson......................................... 52 Vice President, International Development
Charles P. Harrison.................................. 50 Vice President, Healthcare Services
Russell H. Plumb..................................... 39 Vice President, Finance and Administration, Chief
Financial Officer and Treasurer
P. Ann Hoppe......................................... 58 Vice President, Regulatory Affairs
Toby L. Simon, M.D. ................................. 53 Vice President, Medical and Scientific Affairs
Keith J. Thompson.................................... 40 Vice President, Diagnostic Products
</TABLE>
HAROLD J. TENOSO, PH.D. has served as President and Chief Executive Officer
of the Company since March 1993 and as a director since August 1993. From 1984
until April 1993, he served in various capacities at UNIMED, Inc., a publicly
held pharmaceutical company, including as Chief Executive Officer from January
1989 to April 1992, chairman from January 1991 to April 1992 and consultant from
May 1992 to April 1993.
SAMUEL A. PENNINGER, JR. has served as Chairman of the Board of Directors of
the Company since March 1993, and from March 1983 until March 1993 he served as
President and a director of the Company. Mr. Penninger founded the Company in
1971. He has served as a director of ABRA and is a member of the American
Association of Blood Banks ("AABB").
TERRY DOBSON has served as Vice President, International Development of the
Company since January 1995. Mr. Dobson was Managing Director of Bioscot Limited
("Bioscot") from January 1990 to January 1995. Prior to joining the Company upon
the Company's acquisition of Bioscot, Mr. Dobson served as the Business Manager,
FDA Responsible Head and a director of Bioscot.
CHARLES P. HARRISON has served as Vice President, Healthcare Services of the
Company since February 1996. Prior to joining the Company he was the President,
Chief Executive Officer, Chief Financial Officer and a director of Creative
Products Resource, Inc., a drug delivery firm from January 1993 until January
1996. Prior to that time, he was the President, Chief Financial Officer and a
director of UNIMED, Inc., a publicly held pharmaceutical company, from May 1986
until May 1992 and a consultant from May 1992 until April 1993. Mr. Harrison is
presently a director of Creative Products Resource, Inc.
RUSSELL H. PLUMB has served as Vice President, Finance and Administration,
Chief Financial Officer and Treasurer since joining the Company in April 1994.
Prior to joining the Company, he was a Senior Manager in the Corporate Finance
Group at Ernst & Young from April 1991 to April 1994. Prior to
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<PAGE>
joining Ernst and Young, he was a Managing Director for Tunstall Consulting, a
business advisory firm, from October 1987 to July 1990.
P. ANN HOPPE has served as Vice President, Regulatory Affairs since March
1997. From September 1994 until she joined the Company, Ms. Hoppe served as
President, Hoppe Regulatory Consulting, a private consulting firm servicing the
blood and blood products industries. From 1974 until September 1994, Ms. Hoppe
served in various capacities with the FDA, most recently as Assistant Director,
Office of Blood Research and Review, Center for Biologics Evaluation and
Research from September 1993 until September 1994 and Director, Division of
Blood Collection and Processing, from October 1990 until September 1993.
TOBY L. SIMON, M.D. has served as Vice President, Medical and Scientific
Affairs since March 1997. From March 1990 until joining the Company, Dr. Simon
served in various capacities with Blood Systems, Inc., an organization of blood
and plasma centers ("BSI"), and its research affiliate, Blood Systems Foundation
("BSF"), most recently as President of BSF from March 1995 until March 1997 and
President and Chief Executive Officer of BSI from March 1991 until March 1995.
Dr. Simon is certified in the internal medicine and hematology by the American
Board of Internal Medicine and in blood banking by the American Board of
Pathology.
KEITH J. THOMPSON has served as Vice President, Diagnostic Operations since
January 1998. Prior to his appointment as Vice President, Mr. Thompson served in
various capacities at Bioscot since 1985, including as Managing Director from
January 1995 until December 1997 and as Operations Director from November 1992
until December 1994.
In addition, the following individuals served as key employees of the
Company:
TIMM M. HURST, 56, has served as Vice President of the Company since May
1997. From April 1994 until May 1997, Mr. Hurst served as Vice President, Sales
and Marketing of the Company and from 1984 until April 1994, as Vice President
in charge of disease state products, technical services and administration of
the Company. Prior to joining the Company, Mr. Hurst was the Director of Sales
and Marketing for Blood Products of Delmed, Inc. Mr. Hurst is a member of AABB.
JAMES F. SOWINSKI, 48, has served as Vice President of the Company since May
1997. From 1988 until May 1997, Mr. Sowinski served as Vice President,
Operations of the Company. Mr. Sowinski joined the Company in 1977 as a donor
center Executive Director and Responsible Head. In addition to being a member of
AABB, Mr. Sowinski is a licensed medical technologist with a sub-specialty in
immunohematology and is a member of the Florida Association of Blood Banks.
MICHAEL P. LAKEMAN, 37, has served as Vice President, Information Systems
since January 1998. From when he joined the Company in February 1996 until
January 1998, Mr. Lakeman served as Director, Information Systems. Prior to
joining the Company, Mr. Lakeman served in various capacities at Healthdyne,
Inc., including as Director, Information Systems from December 1993 to February
1996 and Operational Audit Manager from August 1988 until February 1996. Prior
to joining Healthdyne, Inc., Mr. Lakeman served in several information systems
capacities with Hayes Microcomputer Products, Inc.
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<PAGE>
PART II.
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS.
The Company's common stock was initially offered to the public on June 15,
1995 at a price of $7.67 per share and trades on the Nasdaq Stock Market
("Nasdaq") under the symbol "SERO."
The Company declared a three-for-two split of its common stock effective
February 28, 1997 for shareholders of record on February 10, 1997. All price and
share amounts herein are adjusted to reflect the effect of such split.
On September 9, 1997, the Company sold 950,000 shares of its common stock,
at a price of $19.50 per share, to institutional investors in a private
placement transaction made in reliance upon the exemption from the registration
requirements of the Securities Act of 1933, as amended, afforded by Section 4(2)
thereof. The net proceeds to the Company from the sale of the shares were
approximately $17.5 million, and will be used for general corporate purposes,
including strategic acquisitions and investments. Pursuant to the same
transaction, one of the Company's shareholders sold 250,000 shares of common
stock; the Company did not receive any of the proceeds from this sale. A
registration statement relating to the resale by the purchasers of the shares of
common stock sold by the Company was declared effective by the Securities and
Exchange Commission on September 3, 1997.
On March 20, 1998, the closing price of the common stock was $27.19 per
share. As of March 20, 1998, there were 132 holders of record and approximately
1,750 beneficial holders of the Company's common stock.
The Company has not paid any cash dividends on its common stock to date. The
payment of cash dividends, if any, in the future is within the discretion of the
Board of Directors and will depend on the Company's earnings, its capital
requirements and financial condition. It is the present intention of the Board
of Directors to retain all earnings, if any, for use in the Company's business
operations and, accordingly, the Board of Directors does not expect to declare
or pay any cash dividends in the foreseeable future. In addition, under the
Company's Second Amended and Restated Credit Agreement dated as of October 16,
1997, with NationsBank, N.A., there are limitations on the Company's ability to
pay cash dividends.
The following table sets forth the high and low sale prices for the
Company's common stock for the periods indicated as reported by Nasdaq.
<TABLE>
<CAPTION>
HIGH LOW
--------- ---------
<S> <C> <C>
Year Ended December 28, 1997
Quarter Ended
March 30............................................................... $ 23.58 $ 15.13
June 29................................................................ 22.00 13.75
September 28........................................................... 23.50 18.88
December 28............................................................ 26.00 18.00
Year Ended December 29, 1996
Quarter Ended
March 31............................................................... $ 18.50 $ 9.83
June 30................................................................ 20.67 14.83
September 29........................................................... 25.50 16.00
December 29............................................................ 26.33 18.00
</TABLE>
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ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
1993 1994 1995 1996 1997
--------- --------- --------- --------- ----------
<S> <C> <C> <C> <C> <C>
(IN THOUSANDS, EXCEPT PER SHARE DATA)
STATEMENT OF OPERATIONS DATA:
Net sales................................................. $ 22,938 $ 30,100 $ 52,124 $ 65,571 $97,534
Costs and Expenses
Cost of sales........................................... 14,487 16,796 31,525 38,752 62,065
Selling, general and administrative expenses............ 4,076 6,290 8,216 9,394 12,222
Product development expenses............................ 728 829 1,974 2,242 2,000
Corporate relocation expenses........................... 1,500 -- -- -- --
Other expense, net...................................... 142 12 1,328 1,847 2,713
Interest expense (income), net.......................... 426 407 2,116 220 (532)
--------- --------- --------- --------- ----------
Income before income taxes, extraordinary loss and
cumulative effect of accounting change.................. 1,579 5,766 6,965 13,116 19,066
Provision for income taxes................................ 680 2,227 2,499 4,866 7,064
--------- --------- --------- --------- ----------
Income before extraordinary loss and cumulative effect of
accounting change....................................... 899 3,539 4,466 8,250 12,002
Extraordinary loss on early retirement of debt, net of
income taxes............................................ -- (103) (1,823) (14) --
Cumulative effect of change in accounting for income
taxes................................................... 301 -- -- -- --
--------- --------- --------- --------- ----------
NET INCOME................................................ 1,200 3,436 2,643 8,236 12,002
Accretion of common stock put warrants.................... -- 186 46 -- --
--------- --------- --------- --------- ----------
NET INCOME available for common stockholders.............. $ 1,200 $ 3,250 $ 2,597 $ 8,236 $12,002
--------- --------- --------- --------- ----------
--------- --------- --------- --------- ----------
NET INCOME PER COMMON SHARE--BASIC:
Income before extraordinary loss and cumulative effect
of accounting change.................................. $ 0.17 $ 0.54 $ 0.41 $ 0.61 $ 0.81
Extraordinary loss...................................... -- (0.02) (0.17) -- --
Cumulative effect of accounting change.................. 0.06 -- -- -- --
--------- --------- --------- --------- ----------
Net income.............................................. $ 0.23 $ 0.52 $ 0.24 $ 0.61 $ 0.81
--------- --------- --------- --------- ----------
--------- --------- --------- --------- ----------
NET INCOME PER COMMON SHARE-- DILUTED:
Income before extraordinary loss and cumulative effect
of accounting change.................................. $ 0.09 $ 0.36 $ 0.39 $ 0.58 $ 0.76
Extraordinary loss...................................... -- (0.01) (0.16) -- --
Cumulative effect of accounting change.................. 0.03 -- -- -- --
--------- --------- --------- --------- ----------
Net income.............................................. $ 0.12 $ 0.35 $ 0.23 $ 0.58 $ 0.76
--------- --------- --------- --------- ----------
--------- --------- --------- --------- ----------
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING:
Basic................................................... 5,323 6,197 10,773 13,474 14,833
--------- --------- --------- --------- ----------
--------- --------- --------- --------- ----------
Diluted (1)............................................. 9,723 9,375 11,469 14,322 15,860
--------- --------- --------- --------- ----------
--------- --------- --------- --------- ----------
BALANCE SHEET DATA:
Working capital......................................... $ 3,157 $ 6,060 $ 6,174 $ 20,705 $ 37,555
Total assets............................................ 12,811 50,135 50,234 80,837 123,492
Long-term debt, less current maturities................. 3,076 32,708 6,751 147 4,446
Stockholders' equity.................................... 3,534 6,842 36,593 67,883 103,415
</TABLE>
- - ------------------------
(1) The dilutive effect of stock options and warrants has been calculated
according to the treasury stock method using the IPO price of $7.67 per
share for all periods presented prior to June 14, 1995.
18
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
The Company is a leading worldwide provider of specialty human antibodies
and related services to major healthcare companies. The Company also collects
antibodies for the manufacture of intravenous immune globulin (IVIG), a product
containing a broad spectrum of antibodies used in the treatment of a wide
variety of medical indications. As of March 20, 1998, the Company operated 59
donor centers, 16 of which specialize in specialty antibody collections and 43
of which primarily collect IVIG antibodies from which a number of products are
produced. Through the Company's Bioscot, Ltd. ("Bioscot") subsidiary, it also
operates two FDA-licensed monoclonal antibody manufacturing facilities in
Scotland.
A significant component of the Company's external growth strategy has been
the acquisition of donor centers. The Company continued to implement this
strategy in 1997 with the March acquisition of the Nations Group for
approximately $10.2 million in cash and a $4.0 million convertible note plus
additional consideration contingent on the future performance of the Nations
Group. The acquisition of the Nations Group added 16 non-specialty donor centers
and a significant new customer, Alpha Therapeutics Corporation. In September
1997, the Company acquired Bio-Lab for approximately $5.95 million in cash and a
$2.55 million convertible note. The Bio-Lab acquisition added two new specialty
donor centers and increased the Company's donor base for anti-D and diagnostic
polyclonal antibodies. Each of these acquisitions was accounted for using the
purchase method of accounting.
In September 1997, the Company sold 950,000 shares of its common stock, at a
price of $19.50 per share, in a private placement transaction. The net proceeds
to the Company from the sale of the shares were approximately $17.5 million and
will be used for general corporate purposes, including strategic acquisitions
and investments. Pursuant to the same transaction, one of the Company's
shareholders sold 250,000 shares of common stock; the Company did not receive
any of the proceeds from the sale of these shares.
In February 1997, the Company declared a 3-for-2 split of its common stock
effected in the form of a 50% stock dividend paid on February 28, 1997 to
holders of record as of February 10, 1997. All share and per share amounts
herein have been retroactively adjusted to reflect such split.
Increasing regulatory scrutiny continues to be a significant factor shaping
the industry, resulting in more detailed and frequent FDA inspections of the
Company's and its customers' operations, a potentially greater number of
observations, deficiency notices and warning letters per inspection, and more
product recalls and temporary or permanent closures of facilities. One factor
contributing to this trend is the FDA's implementation of a new approach to
inspections of donor centers and manufacturing facilities, including the
Company's customers', entitled "Team Biologics". Under this new approach,
substantially all such inspections will be performed by highly trained field
investigators who will focus more extensively on the FDA's current good
manufacturing practices (GMP) and the Quality Assurance guidelines adopted by
the FDA in 1995. This approach was first applied to the plasma fractionation
industry and subsequently to other biologic product areas, including the
Company's operations. Several large fractionators, including certain of the
Company's customers, have been affected in varying degrees, from complete
shutdowns of manufacturing facilities to operating under a consent decree to
bring their facilities into compliance. Furthermore, certain manufacturers are
currently experiencing a longer than anticipated FDA approval process of new
facilities in order to expand production. While such actions have, in some
cases, temporarily delayed or reduced the Company's sales to certain of its
customers, to date, they have not had a material adverse effect on the Company
or its operations as demand for the end products remains strong. However, there
can be no assurance that such actions will not have an adverse effect on the
Company or its operations in the future. See Item 1., "Business -- Government
and Industry Regulation."
19
<PAGE>
On occasion, the Company has received notifications and deficiency notices
from the FDA of possible deficiencies in the Company's compliance with FDA
regulations or its own internal standard operating procedures. To date, the
Company believes that it has adequately addressed or corrected such
deficiencies.
RESULTS OF OPERATIONS
The following discussion and analysis of the Company's financial condition
and results of operations should be read in conjunction with the Consolidated
Financial Statements and Notes thereto.
The following table sets forth certain operating data of the Company as a
percentage of net sales for the years indicated below.
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Net sales............................................................ 100.0% 100.0% 100.0%
Gross profit......................................................... 39.5 40.9 36.4
Selling, general and administrative expenses......................... 15.8 14.3 12.5
Product development.................................................. 3.8 3.4 2.1
Income before extraordinary loss..................................... 8.6 12.6 12.3
Net income available for common stockholders......................... 5.0 12.6 12.3
</TABLE>
YEARS ENDED DECEMBER 29, 1996 AND DECEMBER 28, 1997
Net sales increased 48.7%, or $32.0 million, from $65.6 in 1996 to $97.5
million in 1997. Of the increase, approximately $15.4 million was the result of
acquisitions completed during 1997, while approximately $3.8 million related to
the full-year effect of acquisitions completed throughout the prior year. The
remainder of the increase, or approximately $12.8 million, resulted primarily
from increased sales of the Company's specialty antibodies, in particular,
anti-D, monoclonal antibodies and clinical diagnostic antibodies, and to a
lesser extent, the increased sales of non-specialty IVIG antibodies.
Contributing to the increased sales in 1997 was approximately $1.6 million of
antibodies for respiratory syncytial virus, or RSV, a new product which
commenced shipping in 1997, and approximately $1.1 million of incremental anti-
HBs produced at the Company's non-specialty donor centers that were approved
during 1997 to commence shipping such product.
During 1997, therapeutic and diagnostic antibodies represented approximately
81% and 19% of net sales, respectively, versus 78% and 22%, respectively, in the
prior year.
Gross profit increased 32.3%, or $8.7 million, from $26.8 million in 1996 to
$35.5 million during the current year. The majority of the increase, or
approximately $6.4 million, was attributable to additional sales of, and higher
margins on, specialty antibodies, in particular anti-D and monoclonal
antibodies, and to a lesser extent, additional sales of non-specialty IVIG
antibodies. The remainder of the increase, or approximately $2.2 million,
related to acquisitions completed during 1997 and 1996. Contributing to the
increase in gross profit was approximately $1.1 million relating to the
Company's introduction of RSV antibodies and to the first shipments of anti-HBs
from the Company's non-specialty donor centers. Gross profit as a percentage of
net sales ("gross margin") decreased from 40.9% in 1996 to 36.4% in 1997,
primarily attributable to an increase in net sales of relatively lower-margin
IVIG antibodies as a percentage of total net sales from approximately 34% in
1996 to 42% in 1997, offset in part by higher margins on anti-D antibodies.
Selling, general and administrative expenses increased 30.1%, or $2.8
million, from $9.4 million in 1996 to $12.2 million in the current year. The
increase was primarily attributable to a larger sales, financial and, in
particular, information systems and regulatory infrastructure needed to support
the Company's acquisitions and internal growth. However, selling, general and
administrative expenses, as a percentage of net sales, decreased from 14.3% to
12.5% as the Company continued to effectively leverage its corporate
infrastructure.
20
<PAGE>
Product development expenses decreased $242,000, or 10.8%, from $2.2 million
in 1996 to $2.0 million in 1997, due primarily to a reduction in expenditures
relating to the development of a therapeutic monoclonal anti-D product. As a
result, product development expenses as a percentage of net sales decreased from
3.4% in 1996 to 2.1% in 1997.
Other expense increased $867,000, or 47.0%, from approximately $1.8 million
in 1996 to $2.7 million in 1997, substantially all due to the amortization of
goodwill and other intangible assets resulting from acquisitions completed
during 1997 and 1996.
Interest expense, net, decreased $752,000, from net interest expense of
$220,000 in 1996 to net interest income of $532,000 in the current year. The
change was primarily a result of higher cash balances during the year and the
September 1997 receipt of approximately $17.5 million in net proceeds from a
private placement of the Company's common stock, offset in part by the
additional interest expense attributable to convertible notes issued in
acquisitions.
YEARS ENDED DECEMBER 31, 1995 AND DECEMBER 29, 1996
Net sales increased by 25.8%, or $13.4 million, from $52.1 million in 1995
to $65.6 million in 1996. Approximately $6.9 million of the increase was the
result of acquisitions completed in 1996 and the fourth quarter of 1995. The
remainder of the increase, or approximately $6.5 million, resulted from
additional net sales of the Company's specialty antibodies, the majority of
which was anti-D and, to a lesser extent, additional net sales of the Company's
non-specialty and monoclonal antibodies. Net sales of the Company's therapeutic
and diagnostic products increased 35.3% and 1.3%, respectively, from the prior
year.
Gross profit increased 30.2%, or $6.2 million, from $20.6 million in 1995 to
$26.8 million in 1996. Of the increase, approximately $4.0 million was
attributable to additional sales of, and higher margins on, the Company's
specialty antibodies, while approximately $1.8 million was attributable to
acquisitions completed in 1996 and the fourth quarter of 1995. Gross margins
increased from 39.5% to 40.9%, reflecting the higher margins on the Company's
specialty antibodies (primarily a result of a favorable product mix), offset in
part by increased sales of the Company's non-specialty IVIG antibodies, which
generally generate lower gross margins. Gross margins from the Company's
specialty antibodies increased from 48.8% in 1995 to 53.3% in 1996.
Selling, general and administrative expenses increased 14.3%, or $1.2
million from $8.2 million in 1995 to $9.4 million in 1996. Recurring expenses
increased $1.5 million, or 19.4%, from $7.9 million to $9.4 million in 1996. The
increase is primarily attributable to increased professional and administrative
expenses associated with being a public company, the hiring of an additional
Vice President during the first quarter of 1996, an expanded sales and marketing
staff at the Company's Bioscot subsidiary and the general corporate
infrastructure needed to support the Company's acquisitions and growth.
Non-recurring expenses in 1995 consisted of a $346,500 charge for compensation
expense related to the acceleration of vesting of an officer's stock options in
connection with the Company's initial public offering ("IPO"). As a percentage
of sales, selling, general and administrative expenses decreased from 15.8% to
14.3%.
Product development expenses increased 13.6%, or $268,000, from $2.0 million
in 1995 to $2.2 million in 1996, due primarily to increased spending to develop
additional monoclonal antibodies for blood typing reagents.
Other expense increased 39.0%, or $519,000, from $1.3 million in 1995 to
$1.8 million in 1996, due primarily to the amortization of intangible assets
resulting from acquisitions completed in 1996 and the fourth quarter of 1995
and, to a lesser extent, non-capitalizable expenses incurred in the expansion of
the Company's monoclonal production capacity.
Interest expense, net decreased 89.6%, or $1.9 million, from $2.1 million in
1995 to $220,000 in 1996, due primarily to the retirement of approximately $25
million of debt in June 1995 with proceeds from the
21
<PAGE>
IPO, the retirement of approximately $7.9 million of debt in June 1996 with the
proceeds of a secondary offering of common stock and the subsequent investment
of the remaining proceeds.
In 1996, the Company recorded an extraordinary loss (net of income taxes) of
$14,206 related to the write off of previously capitalized debt issuance costs
upon the early extinguishment of certain indebtedness.
LIQUIDITY AND CAPITAL RESOURCES
The following table sets forth certain indicators of financial condition and
liquidity of the Company as of the following year-ends:
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ----------
<S> <C> <C> <C>
Cash and cash equivalents................................... $ 2,887 $ 21,232 $ 31,812
Working capital............................................. 6,174 20,705 37,555
Long-term debt and capital lease obligations................ 7,023 3,714 6,798
Stockholders' equity........................................ 36,593 67,883 103,415
Total debt to equity ratio.................................. 19.2% 5.5% 6.6%
</TABLE>
The Company has three principal sources of near-term liquidity: (i) existing
cash and cash equivalents; (ii) cash generated by operations, and (iii)
borrowing capacity under the Revolver (as defined below). Management believes
the Corporation's liquidity and capital resources are sufficient to meet its
working capital, capital expenditure and other anticipated cash requirements
over the next twelve months and will be available for use in its acquisition
strategy. However, the Company anticipates that future acquisition and growth
opportunities may require supplementary funding, including the issuance of
equity or debt securities.
During 1997, the Company's sales to one customer, Bayer Corporation,
accounted for approximately 47% of its total sales. Sales of specialty
antibodies to Bayer Corporation are generally made pursuant to annual purchase
orders while the sale of non-specialty antibodies are generally made pursuant to
three, five-year supply contracts. The revenues and cash flows generated from
these supply contracts are significant; early termination or material revisions
in the supply requirements or other terms of these contracts could adversely
affect the Company's ability to meet its financial obligations in the short
term.
Net cash provided by operating activities in 1997 was $12.3 million as
compared to $11.7 million in the prior year, an increase of $603,000. This
increase was primarily attributable to increased net income of $3.8 million and
$1.5 million of additional non-cash depreciation and amortization expense,
offset by an increased investment in working capital of approximately $4.7
million over the prior year. The increase in working capital was in large part
due to a larger increase in accounts receivable of $4.0 million, primarily
resulting from increased sales volume, as days sales outstanding remained
relatively unchanged from the prior year. The Company was also required to fund
a $1.1 million larger investment in inventory which resulted primarily from the
introduction of anti-RSV and the increased production of anti-CMV, which
generally have a longer testing and customer approval process before shipping,
and from temporary delays in shipping non-specialty IVIG antibodies due to the
transitioning of several donor centers, previously under supply contracts, to
other customers.
Net cash used in investing activities in 1997 was $20.9 million as compared
to $11.1 in the previous year. Investing activities in 1996 primarily consisted
of the acquisitions of Southeastern Biologics, Inc. and its affiliates, Am-Rho
Laboratories, Inc. and Simi Biologics, Inc. for aggregate cash consideration of
approximately $6.9 million (net of cash acquired) in addition to approximately
$4.2 million in capital expenditures. Investing activities in 1997 consisted
primarily of the acquisitions of the Nations Group and Bio-Lab for aggregate
consideration of approximately $15.7 million (net of cash acquired) as well as
capital expenditures of approximately $4.4 million.
22
<PAGE>
Capital expenditures relate primarily to the Company's facilities, related
equipment and information systems. Capital expenditures made in 1997 were
primarily funded through cash flow from operations. The significant expenditures
of 1997 included the expansion of the Company's laboratory testing facility and
international headquarters in Clarkston, Georgia, the completion of the
expansion of the Company's monoclonal production facility and the upgrading of
the Company's information system.
During 1998, the Company has plans for capital expenditures of approximately
$9.0 million, $4.2 million of which relates to the continued expansion and
upgrading of the Company's information systems.
Net cash provided by financing activities in 1997 was approximately $19.2
million as compared to $17.7 million in the prior year. Financing activities in
1996 primarily consisted of the Company's June 1996 public stock offering which
raised approximately $22.0 million in net proceeds. Financing activities in 1997
consisted primarily of net proceeds of approximately $17.5 million from a
private placement sale of 950,000 shares of the Company's common stock in
September 1997.
Total long-term debt and capital lease obligations were $6.8 million at
December 28, 1997, an increase of $3.1 million from December 29, 1996. This
increase was primarily due to the issuance of approximately $6.6 million of
convertible promissory notes as partial acquisition consideration, offset by the
conversion of a $3.5 million note into the Company's common stock.
During 1997, the Company amended its revolving credit facility (the
"Revolver"), increasing the total borrowing capacity from $20 million to $35
million, of which $30 million may be used for acquisitions. The Company
anticipates using the proceeds from the Revolver primarily to fund acquisitions.
There were no amounts outstanding under the Revolver at December 29, 1997.
YEAR 2000
The Year 2000 issue results from computer based-systems that use two digits
rather than four to define the applicable year. If not corrected, many computer
applications could fail or create erroneous results after December 31, 1999, or
before, to the extent a system references future dates. This Year 2000 issue is
believed to affect the majority of all companies and organizations worldwide,
including the Company.
In response to increasing regulatory scrutiny and to improve customer
service and increase its operating performance and efficiency, the Company has
recently undertaken a number of significant information system initiatives.
These initiatives include the installation of a new laboratory system during
1997 and the development of a donor center operating system (DCOS) expected to
be completed in the next 18 months. An ancillary benefit of these initiatives is
that the resulting systems are Year 2000 compliant. The Company is in the
process of evaluating all other owned and leased products and will upgrade those
products that are intended for continued use beyond the year 1999. Furthermore,
the Company is analyzing the Year 2000 issue as it relates to its customers and
suppliers and what, if any, impact that could have on the Company. Analysis and
evaluation activities were begun in 1997 and are currently in varying stages of
completion.
The Company does not expect that the cost of its Year 2000 compliance
program will be material to its business, results of operations or financial
condition. The Company believes that it will be able to achieve compliance by
the end of 1999 and does not currently anticipate any material disruption of its
operations as the result of any failure by the Company to be in compliance.
Although the impact on the Company caused by the failure of the Company's
significant suppliers or customers to achieve Year 2000 compliance in a timely
or effective manner is uncertain, the Company's business and results of
operations could be materially adversely affected by such failure.
23
<PAGE>
FOREIGN OPERATIONS
The Company's foreign operations are primarily conducted through Bioscot. In
1995, 1996 and 1997, foreign operations accounted for 17.8%, 15.4% and 14.1% of
net sales and 25.2%, 17.0%, and 15.4% of income from operations, respectively.
Export sales from the United States were $11.6 million, $14.0 million and $16.8
million during 1995, 1996 and 1997, respectively.
The functional currency of Bioscot is the British pound sterling.
Fluctuations in foreign exchange rates can impact operating results, including
total revenues and expenses, when translations of the subsidiary financial
statements are made in accordance with SFAS No. 52, "Foreign Currency
Translation." It has not been the Company's practice to hedge its assets and
liabilities in the U.K. or its intercompany transactions due to the inherent
risks associated with foreign currency hedging transactions and the timing of
payment between the Company and Bioscot. In 1995, 1996 and 1997, the Company
recorded foreign currency transaction gains (losses) of approximately $29,000,
$46,000, and ($10,000), respectively.
OUTLOOK
The Company's strategy is to continue to expand its specialty and
non-specialty business and to take advantage of emerging opportunities relating
to the provision of other biologic products and services. The key elements of
this strategy include (i) expanding its core business by increasing its donor
base and broadening the range of antibodies it sources and the services it
provides; (ii) pursuing selective acquisitions to capitalize on opportunities in
a consolidating industry; (iii) expanding customer relationships by providing
additional services, allowing the Company to become more deeply involved in its
customers' product development, regulatory compliance and quality assurance
programs; (iv) seeking to increase the quality of antibodies and production
efficiencies; and (v) utilizing its existing donor center network and expertise
in biologic product development, manufacturing techniques and regulatory
compliance to capitalize on emerging opportunities in other specialty biologic
based products and services. However, there can be no assurance that the Company
will be successful in achieving any or all of the elements of its strategy.
External growth through acquisitions is a significant component of the
Company's strategic plan. The Company's strategy includes acquisitions of
selected specialty and non-specialty donor centers, as well as businesses that
provide services and products that are complementary to its existing business.
The Company believes that these acquisitions will enable it to leverage its core
competencies and its general and administrative infrastructure, thereby creating
economies of scale. However, there can be no assurance that the Company will be
able to complete suitable acquisitions in the future or successfully integrate
such acquisitions into the Company's business to achieve economies of scale.
The Company intends to utilize its expertise in regulatory and protocol
compliance, multi-site management, quality assurance, data management, donor
recruitment and acquisitions to exploit what it believes are significant
internal and external growth opportunities in the management and conduct of
clinical trials for the pharmaceutical and biotech industries. The Company
intends to enter this industry through the acquisition of clinical trial sites
and, eventually, through the introduction of these services to its existing
donor center network. However, there can be no assurance that the Company will
be successful in implementing its strategy.
The Company intends to capitalize on its existing monoclonal technology to
take advantage of the increasing preference of its customers for more consistent
and uniform antibody yields achievable through monoclonal manufacturing
techniques. During 1997, the Company completed the expansion of its monoclonal
antibody production facilities in Scotland. This expansion will enable the
Company to implement more efficient manufacturing techniques, as well as provide
additional production capacity for diagnostic monoclonal products.
24
<PAGE>
The industry in which the Company operates is subject to strict regulation
and licensing by the FDA. Similar regulation exists in many of the states and
foreign countries where the Company conducts business. Changes in existing
federal, state or foreign laws or regulations could have an adverse effect on
the Company's business. See Item 1.-Business-"Government and Industry
Regulation".
RECENT ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings per
Share" ("SFAS No. 128"), which the Company adopted in its fiscal quarter and
year ending December 28, 1997. This statement established new, simplified
standards for computing and presenting earnings per share. SFAS No. 128 replaced
the traditional presentations of primary earnings per share and fully diluted
earnings per share with basic earnings per share and diluted earnings per share,
respectively. Basic earnings per share excludes the dilutive effect of stock
options, warrants, convertible indebtedness and similar instruments while
diluted earnings per share is computed similarly to fully diluted earnings per
share. All earnings per share reported herein have been restated pursuant to the
provisions of SFAS No. 128.
In July 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive Income"
("SFAS No. 130"), which establishes standards for reporting and display of
"comprehensive income", which is the total of net income and all other non-owner
changes in stockholders' equity, and its components. The Company is in the
process of evaluating SFAS No. 130 and its impact and will adopt the standard in
the first quarter of its 1998 fiscal year.
In July 1997, the FASB issued SFAS No. 131, "Disclosures About Segments of
an Enterprise and Related Information" ("SFAS No. 131"). SFAS No. 131, which
supersedes SFAS Nos. 14, 18, 24 and 30, establishes new standards for segment
reporting, using the "management approach," in which reportable segments are
based on the same criteria on which management disaggregates a business for
making operating decisions and assessing performance. The Company is in the
process of evaluating SFAS No. 131 and its impact and will adopt the standard
for its 1998 fiscal year.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Information with respect to this item is contained in the Company's
consolidated financial statements indicated in the Index on Page F-1 of this
Annual Report on Form 10-K and is incorporated herein by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
25
<PAGE>
PART III.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
ITEM 11. EXECUTIVE COMPENSATION
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information called for by Items 10, 11, 12 and 13 will be contained in
the Company's definitive proxy statement which the Company intends to file
within 120 days after the end of the Company's fiscal year ended December 28,
1997 and such information is incorporated herein by reference. Certain
information concerning the executive officers and certain key employees of the
Company is set forth in Part I under the caption "Executive Officers and Key
Employees of the Registrant."
PART IV.
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS AND REPORTS ON FORM 8-K
(a) Financial Statements
The financial statements listed in the accompanying Index to
Consolidated Financial Statements are filed as part of this Annual Report on
Form 10-K.
(b) Reports on Form 8-K
The Company did not file any reports on Form 8-K during the fourth
quarter of the fiscal year ended December 28, 1997.
(c) Exhibits
<TABLE>
<C> <S>
3.1 Amended and Restated Certificate of Incorporation (Exhibit 3.1 to the Registrant's
Registration Quarterly Report on Form 10-Q for the period ended June 29, 1997, is
hereby incorporated by reference).
3.2 Amended and Restated By-laws (Exhibit 3.4 to the Registrant's Registration Statement
on Form S-1 (File No. 33-91176), effective June 14, 1995, is hereby incorporated by
reference).
4.1 Specimen Common Stock Certificate (Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (File No. 33-91176), effective June 14, 1995, is hereby
incorporated by reference).
4.2 Amended and Restated Shareholders Agreement, dated as of August 31, 1993, as amended
(Exhibit 4.2 to the Registrant's Registration Statement on Form S-1 (File No.
33-91176), effective June 14, 1995, is hereby incorporated by reference).
4.2.1 Amendment No. 3 to Amended and Restated Shareholders Agreement (Exhibit 4.2.1 to the
Registrant's Registration Statement on Form S-1 (File No. 33-91176), effective June
14, 1995, is hereby incorporated by reference).
4.2.2 Amendment No. 4 to Amended and Restated Shareholders Agreement (Exhibit 4.2.2 to the
Registrant's Annual Report on Form 10-K for the period ended December 31, 1995 is
hereby incorporated by reference).
10.1.1 Second Amended and Restated Credit Agreement, dated as of October 16, 1997, between
the Company and NationsBank NA.*
10.1.2 Revolving Note, dated October 16, 1997, from the Company in favor of NationsBank
NA.*
</TABLE>
26
<PAGE>
<TABLE>
<C> <S>
10.2 Convertible Subordinated Promissory Note, dated December 23, 1994, from the Company
in favor of Gagnard & Marceaux Flint, Inc. (Exhibit 10.8 to the Registrant's
Registration Statement on Form S-1 (File No. 33-91176), effective June 14, 1995, is
hereby incorporated by reference).
10.2.1 Agreement to Amend Convertible Subordinated Promissory Note and Amended and Restated
Convertible Subordinated Promissory Note from the Company in favor of Gagnard and
Marceaux Flint, Inc., dated January 18, 1996. (Exhibit 10.5.1 to the Registrant's
Annual Report on Form 10-K for the period ended December 31, 1995 is hereby
incorporated by reference).
10.2.2 Agreement to Amend Convertible Subordinated Promissory Note and Amended and Restated
Convertible Subordinated Promissory Note from the Company in favor of Gagnard and
Marceaux Flint, Inc., dated January 24, 1997 (Exhibit 10.3.2 to the Registrants
Annual Report on Form 10-K for the period ended December 31, 1995 is hereby
incorporated by reference).
10.3 Warrant of the Company dated March 9, 1993 issued to State Street Bank & Trust
Company (Exhibit 10.10 to the Registrant's Registration Statement on Form S-1 (File
No. 33-91176), effective June 14, 1995, is hereby incorporated by reference).
10.3.1 Amendment to Warrant of the Company issued to State Street Bank & Trust Company
(Exhibit 10.10.1 to the Registrant's Registration Statement on Form S-1 (File No.
33-91176), effective June 14, 1995, is hereby incorporated by reference).
10.3.2 Amendment to Warrant of the Company issued to State Street Bank & Trust Company
(Exhibit 10.10.2 to the Registrant's Registration Statement on Form S-1 (File No.
33-91176), effective June 14, 1995, is hereby incorporated by reference).
10.4 Plasma Purchase Agreement, dated as of December 20, 1994, between Seramune, Inc.
(now known as Seramed, Inc.) and Bayer, Inc. (Exhibit 10.11 to the Registrant's
Registration Statement on Form S-1 (File No. 33-91176), effective June 14, 1995, is
hereby incorporated by reference).
10.5 Technical Collaboration Agreement, dated February 10, 1995, between Bioscot Limited
and The Common Services Agency (Exhibit 10.12 to the Registrant's Registration
Statement on Form S-1 (File No. 33-91176), effective June 14, 1995, is hereby
incorporated by reference).
10.5.1 IP Acquisition Agreement, dated February 10, 1995, between Bioscot Limited and The
Common Services Agency (Exhibit 10.12.1 to the Registrant's Registration Statement
on Form S-1 (File No. 33-91176), effective June 14, 1995, is hereby incorporated by
reference).
10.6 Employment Agreement, dated as of March 8, 1993, between Serologicals, Inc. and
Harold J. Tenoso, as amended (Exhibit 10.13 to the Registrant's Registration
Statement on Form S-1 (File No. 33-91176), effective June 14, 1995, is hereby
incorporated by reference).+
10.7 1994 Amended and Restated Omnibus Incentive Plan (Exhibit 10.11.1 to the
Registrant's Annual Report on Form 10-K for the period ended December 31, 1995, is
hereby incorporated by reference).+
10.8 Forms of Stock Option Agreement (Exhibit 10.15 to the Registrant's Registration
Statement on Form S-1 (File No. 33-91176), effective June 14, 1995, is hereby
incorporated by reference).+
10.8.1 Forms of First Revised Stock Option Agreements (Exhibit 10.12.1 to the Registrant's
Annual Report on Form 10-K for the period ended December 31, 1995, is hereby
incorporated by reference).+
10.8.2 Forms of Second Revised Stock Option Agreements (Exhibit 10.10.2 to the Registrant's
Annual Report on Form 10-K for the period ended December 29, 1996, is hereby
incorporated by reference).+
10.9 1995 Non-Employee Directors' Stock Option Plan, as amended (Exhibit 10.13 to the
Registrant's Annual Report on Form 10-K for the period ended December 31, 1995, is
hereby incorporated herein by reference).+
10.10 Form of Indemnification Agreement (Exhibit 10.16 to the Registrant's Registration
Statement on Form S-1 (File No. 33-91176), effective June 14, 1995, is hereby
incorporated by reference).
10.11 1996 Employee Stock Purchase Plan (Exhibit 10.18 to the Registrant's Annual Report
on Form 10-K for the period ended December 31, 1995, is hereby incorporated by
reference).+
</TABLE>
27
<PAGE>
<TABLE>
<C> <S>
10.12 Employment Agreement between the Company and Charles P. Harrison (Exhibit 10.19 to
the Registrant's Annual Report on Form 10-K for the period ended December 31, 1995,
is hereby incorporated by reference).+
10.13 Stock and Asset Purchase Agreement, dated March 6, 1996, among Seramune, Inc. and
Concho Biologics, Inc., a Delaware corporation and Southeastern Biologics, Inc.,
Plasma Management, Inc., Concho Biologics, Inc., a Texas corporation, Daryl Burke,
Richard Devoll and Adrian P. Scallan (Exhibit 2.1 to the Company's current report on
Form 8-K, dated March 20, 1996, is hereby incorporated by reference).
10.14 Purchase Agreement, dated March 6, 1997, among Serologicals Corporation, Seramune,
Inc., Seronat Plasma, Inc., Nations Biologics, Inc., Decatur Plasma, Inc.,
Bloomington Plasma, Inc., Lake Forest Plasma Center, Inc., Southwest Plasma Company,
Inc., Riverfront Plasma Company, Inc., Green Street Biological Corp., Silver State
Plasma Products, Inc., Rodney L. Savoy, Barry J. Heinen, Noel P. Dragon, Jr. and La
Savoy Famille, L.C. (Exhibit 2.1 to the Company's Current Report on Form 8-K, dated
March 21, 1997, is hereby incorporated by reference).
10.15 Promissory Note, dated March 6, 1997 from the Company in favor of Rodney L. Savoy
(Exhibit 99 to the Company's Current Report on form 8-K, dated March 21, 1997, is
hereby incorporated by reference).
10.16 Employment Agreement between the Company and Terence Dobson (Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended September 29, 1996, is
hereby incorporated by reference).+
10.17 Serologicals Corporation 1996 UK Sharesave Scheme (Exhibit 10.9 to the Registrant's
Annual Report on Form 10-K for the period ended December 29, 1996, is hereby
incorporated by reference).+
10.18 Employment Agreement between the Company and P. Anne Hoppe (Exhibit 10.1 to the
Company's Quarterly Report on Form 10Q for the quarter ended June 29, 1997, is
hereby incorporated by reference).+
10.19 Employment Agreement between the Company and Toby L. Simon, M.D. (Exhibit 10.2 to
the Company's Quarterly Report on Form 10Q for the quarter ended June 29, 1997, is
hereby incorporated by reference).+
21 Subsidiaries of the Company.*
23.1 Consent of Arthur Andersen LLP.*
27.1 Financial Data Schedule for the fiscal year ended December 28, 1997.*
27.2 Restated Financial Data Schedule for the fiscal years ended December 31, 1995 and
December 29, 1996 and the fiscal quarters ended March 31, 1996, June 30, 1996 and
September 29, 1996*.
27.3 Restated Financial Data Schedule for the fiscal quarters ended March 30, 1997, June
29, 1997 and September 28, 1997.*
</TABLE>
- - ------------------------
* Filed herewith
+ Compensatory Plan or Arrangement
28
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, Serologicals Corporation has duly caused this annual
report on Form 10-K to be signed on its behalf by the undersigned, thereunto
duly authorized on March 24, 1998.
<TABLE>
<S> <C> <C>
SEROLOGICALS CORPORATION
(REGISTRANT)
By: /s/ HAROLD J. TENOSO, PH.D.
-----------------------------------------
Harold J. Tenoso, Ph.D.
PRESIDENT & CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of Serologicals
Corporation and in the capacities indicated on March 24, 1998:
SIGNATURE TITLE
- - ------------------------------ ---------------------------
/s/ HAROLD J. TENOSO, PH. D.
- - ------------------------------ President (Chief Executive
Harold J. Tenoso, Ph. D. Officer)
Vice President/Chief
/s/ RUSSELL H. PLUMB Financial Officer
- - ------------------------------ (Principal Financial and
Russell H. Plumb Accounting Officer)
/s/ SAMUEL A. PENNINGER, JR.
- - ------------------------------ Chairman of the Board of
Samuel A. Penninger, Jr. Directors
/s/ JAMES L. CURRIE
- - ------------------------------ Director
James L. Currie
/s/ GEORGE M. SHAW, MD.,
PH.D.
- - ------------------------------ Director
George M. Shaw, MD., Ph.D.
/s/ LAWRENCE E. TILTON
- - ------------------------------ Director
Lawrence E. Tilton
/s/ MATTHEW C. WEISMAN
- - ------------------------------ Director
Matthew C. Weisman
/s/ WADE FETZER, III
- - ------------------------------ Director
Wade Fetzer, III
29
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
<TABLE>
<S> <C>
Report of Independent Public Accountants.............................................. F-2
Consolidated Balance Sheets--December 29, 1996 and December 28, 1997.................. F-3
Consolidated Statements of Income--For the years ended December 31, 1995, December 29,
1996 and December 28, 1997........................................................... F-4
Consolidated Statements of Stockholders' Equity--For the years ended December 31,
1995, December 29, 1996 and December 28, 1997........................................ F-5
Consolidated Statements of Cash Flows--For the years ended December 31, 1995, December
29, 1996 and December 28, 1997....................................................... F-6
Notes to Consolidated Financial Statements............................................ F-7
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Serologicals Corporation:
We have audited the accompanying consolidated balance sheets of SEROLOGICALS
CORPORATION (a Delaware corporation) AND SUBSIDIARIES as of December 29, 1996
and December 28, 1997 and the related consolidated statements of income,
stockholders' equity and cash flows for each of the three years in the period
ended December 28, 1997. These financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Serologicals Corporation and
subsidiaries as of December 29, 1996 and December 28, 1997 and the results of
their operations and their cash flows for each of the three years in the period
ended December 28, 1997 in conformity with generally accepted accounting
principles.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
March 2, 1998
F-2
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 29, 1996 AND DECEMBER 28, 1997
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1996 1997
--------- ----------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents................................................................ $ 21,232 $ 31,812
Trade accounts receivable, less allowance for doubtful accounts of $242 at December 29,
1996 and $531 at December 28, 1997..................................................... 5,235 9,991
Inventories.............................................................................. 5,746 10,154
Other current assets..................................................................... 1,130 865
--------- ----------
Total current assets................................................................. 33,343 52,822
--------- ----------
PROPERTY AND EQUIPMENT, NET................................................................ 9,800 13,682
OTHER ASSETS:
Goodwill, net............................................................................ 33,541 51,006
FDA licenses, net........................................................................ 2,813 4,347
Noncompete agreements, net............................................................... 965 761
Other.................................................................................... 375 874
--------- ----------
Total other assets................................................................... 37,694 56,988
--------- ----------
$ 80,837 $ 123,492
--------- ----------
--------- ----------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of long-term debt and capital lease obligations....................... $ 3,567 $ 2,352
Accounts payable......................................................................... 2,795 3,654
Accrued liabilities...................................................................... 6,207 8,363
Deferred revenue......................................................................... 69 898
--------- ----------
Total current liabilities............................................................ 12,638 15,267
--------- ----------
LONG-TERM DEBT AND CAPITAL LEASE OBLIGATIONS, LESS CURRENT MATURITIES...................... 147 4,446
--------- ----------
OTHER LIABILITIES.......................................................................... 169 364
--------- ----------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value; 1,000,000 shares authorized, no shares issued........... -- --
Common stock, $.01 par value; 50,000,000 shares authorized, 14,121,143 and 15,697,748
shares issued and outstanding at December 29, 1996 and December 28, 1997,
respectively........................................................................... 141 157
Additional paid-in capital............................................................... 52,163 75,536
Retained earnings........................................................................ 15,368 27,370
Cumulative translation adjustment........................................................ 211 352
--------- ----------
Total stockholders' equity........................................................... 67,883 103,415
--------- ----------
$ 80,837 $ 123,492
--------- ----------
--------- ----------
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
F-3
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE YEARS ENDED DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1995 1996 1997
------------ ------------ ------------
<S> <C> <C> <C>
NET SALES............................................................... $ 52,124 $ 65,571 $ 97,534
COSTS AND EXPENSES:
Cost of sales......................................................... 31,525 38,752 62,065
Selling, general and administrative expenses.......................... 8,216 9,394 12,222
Product development expenses.......................................... 1,974 2,242 2,000
Other expense......................................................... 1,328 1,847 2,713
Interest expense (income), net........................................ 2,116 220 (532)
------------ ------------ ------------
INCOME BEFORE INCOME TAXES AND
EXTRAORDINARY LOSS.................................................... 6,965 13,116 19,066
PROVISION FOR INCOME TAXES.............................................. 2,499 4,866 7,064
------------ ------------ ------------
INCOME BEFORE EXTRAORDINARY LOSS........................................ 4,466 8,250 12,002
EXTRAORDINARY LOSS ON EARLY RETIREMENT OF DEBT, NET OF INCOME TAXES..... (1,823) (14) --
------------ ------------ ------------
NET INCOME.............................................................. 2,643 8,236 12,002
ACCRETION OF COMMON STOCK PUT WARRANTS.................................. 46 -- --
------------ ------------ ------------
NET INCOME AVAILABLE FOR COMMON STOCKHOLDERS............................ $ 2,597 $ 8,236 $ 12,002
------------ ------------ ------------
------------ ------------ ------------
NET INCOME PER COMMON SHARE-BASIC:
Income before extraordinary loss...................................... $ 0.41 $ 0.61 $ 0.81
Extraordinary loss.................................................... (0.17) -- --
------------ ------------ ------------
Net income............................................................ $ 0.24 $ 0.61 $ 0.81
------------ ------------ ------------
------------ ------------ ------------
NET INCOME PER COMMON SHARE-DILUTED:
Income before extraordinary loss...................................... $ 0.39 $ 0.58 $ 0.76
Extraordinary loss.................................................... (0.16) -- --
------------ ------------ ------------
Net income............................................................ $ 0.23 $ 0.58 $ 0.76
------------ ------------ ------------
------------ ------------ ------------
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING:
Basic................................................................. 10,772,546 13,473,600 14,832,773
------------ ------------ ------------
------------ ------------ ------------
Diluted............................................................... 11,469,092 14,321,645 15,859,526
------------ ------------ ------------
------------ ------------ ------------
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
F-4
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
COMMON STOCK PREFERRED STOCK
------------------ ---------------
SHARES AMOUNT SHARES AMOUNT
---------- ------ ------- ------
<S> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1994, AS
RESTATED FOR A 3-FOR-2 COMMON
STOCK SPLIT EFFECTED IN THE
FORM OF A STOCK DIVIDEND
(NOTE 5)..................... 6,196,515 $ 62 12,587 $--
Net Income................... -- -- -- --
Exercise of common stock
warrants..................... 545,703 5 -- --
Conversion of preferred
stock........................ 2,265,659 23 (12,587) --
Accretion of common stock put
warrants................... -- -- -- --
Exercise of stock options.... 1,500 -- -- --
Accelerated vesting of stock
options...................... -- -- -- --
Retirement of common stock
put warrants............... -- -- -- --
Initial public offering of
common stock, net of
issuance costs............. 3,600,000 36 -- --
Change in cumulative
translation adjustment..... -- -- -- --
---------- ------ ------- ------
BALANCE, DECEMBER 31, 1995..... 12,609,377 126 -- --
Net Income................... -- -- -- --
Exercise of common stock
warrants..................... 23,314 -- -- --
Exercise of stock options.... 138,452 1 -- --
Tax effect of stock option
exercise..................... -- -- -- --
Secondary offering of common
stock, net of issuance
costs...................... 1,350,000 14 -- --
Change in cumulative
translation adjustment..... -- -- -- --
---------- ------ ------- ------
BALANCE, DECEMBER 29, 1996..... 14,121,143 141 -- --
Net Income................... -- -- -- --
Conversion of promissory
note......................... 375,000 4 -- --
Exercise of stock options and
warrants..................... 246,443 2 -- --
Tax effect of stock option
exercise..................... -- -- -- --
Shares issued from employee
stock purchase plan........ 5,162 -- -- --
Proceeds from sale of common
stock, net of issuance
costs...................... 950,000 10 -- --
Change in cumulative
translation adjustment..... -- -- -- --
---------- ------ ------- ------
BALANCE, DECEMBER 28, 1997..... 15,697,748 $157 -- $--
---------- ------ ------- ------
---------- ------ ------- ------
<CAPTION>
ADDITIONAL CUMULATIVE
PAID-IN RETAINED TRANSLATION UNEARNED
CAPITAL EARNINGS ADJUSTMENT COMPENSATION TOTAL
---------- -------- ---------- ------------ --------
<S> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1994, AS
RESTATED FOR A 3-FOR-2 COMMON
STOCK SPLIT EFFECTED IN THE
FORM OF A STOCK DIVIDEND
(NOTE 5)..................... $ 2,550 $ 4,535 $ 42 ($ 347) $ 6,842
Net Income................... -- 2,643 -- -- 2,643
Exercise of common stock
warrants..................... (5) -- -- -- --
Conversion of preferred
stock........................ (23) -- -- -- --
Accretion of common stock put
warrants................... -- (46) -- -- (46)
Exercise of stock options.... 12 -- -- -- 12
Accelerated vesting of stock
options...................... -- -- -- 347 347
Retirement of common stock
put warrants............... 2,234 -- -- -- 2,234
Initial public offering of
common stock, net of
issuance costs............. 24,530 -- -- -- 24,566
Change in cumulative
translation adjustment..... -- -- (5) -- (5)
---------- -------- ----- ------ --------
BALANCE, DECEMBER 31, 1995..... 29,298 7,132 37 -- 36,593
Net Income................... -- 8,236 -- -- 8,236
Exercise of common stock
warrants..................... -- -- -- -- --
Exercise of stock options.... 402 -- -- -- 403
Tax effect of stock option
exercise..................... 807 -- -- -- 807
Secondary offering of common
stock, net of issuance
costs...................... 21,656 -- -- -- 21,670
Change in cumulative
translation adjustment..... -- -- 174 -- 174
---------- -------- ----- ------ --------
BALANCE, DECEMBER 29, 1996..... 52,163 15,368 211 -- 67,883
Net Income................... -- 12,002 -- -- 12,002
Conversion of promissory
note......................... 3,496 -- -- -- 3,500
Exercise of stock options and
warrants..................... 1,460 -- -- -- 1,462
Tax effect of stock option
exercise..................... 813 -- -- -- 813
Shares issued from employee
stock purchase plan........ 79 -- -- -- 79
Proceeds from sale of common
stock, net of issuance
costs...................... 17,525 -- -- -- 17,535
Change in cumulative
translation adjustment..... -- -- 141 -- 141
---------- -------- ----- ------ --------
BALANCE, DECEMBER 28, 1997..... $75,536 $27,370 $352 $-- $103,415
---------- -------- ----- ------ --------
---------- -------- ----- ------ --------
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
F-5
<PAGE>
STATEMENTSSEROLOGICALS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1995, DECEMBER 29, 1996
AND DECEMBER 28, 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income..................................................................... $ 2,643 $ 8,236 $ 12,002
--------- --------- ---------
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization................................................ 2,628 3,417 4,908
Deferred income tax provision................................................ 8 190 214
Extraordinary loss, net of income taxes...................................... 1,823 14 --
Accelerated vesting of stock options......................................... 347 -- --
Changes in operating assets and liabilities, net of acquisitions of businesses
Trade accounts receivable, net............................................... (3,028) 121 (4,076)
Inventories.................................................................. 563 (1,527) (2,584)
Other current assets......................................................... (232) (469) 249
Accounts payable............................................................. 1,106 403 276
Accrued liabilities.......................................................... 1,977 1,363 1,311
Deferred revenue............................................................. (457) (15) 13
--------- --------- ---------
Total adjustments.......................................................... 4,735 3,497 311
--------- --------- ---------
Net cash provided by operating activities.................................. 7,378 11,733 12,313
--------- --------- ---------
INVESTING ACTIVITIES:
Purchases of property and equipment............................................ (1,495) (4,187) (4,370)
Purchases of businesses, net of cash acquired.................................. (2,697) (6,935) (15,714)
Other.......................................................................... (388) 44 (801)
--------- --------- ---------
Net cash used in investing activities...................................... (4,580) (11,078) (20,885)
--------- --------- ---------
FINANCING ACTIVITIES:
Net proceeds (payments) on revolving line of credit............................ 2,059 (2,059) --
Proceeds from long-term debt and capital lease obligations..................... 21,748 89 --
Payments on long-term debt and capital lease obligations....................... (55,156) (2,587) (64)
Payment of debt issuance costs................................................. (35) -- --
Proceeds from stock plans and warrants......................................... 12 403 1,541
Net proceeds from sales of common stock........................................ 24,566 21,670 17,535
Other.......................................................................... (6) 174 140
--------- --------- ---------
Net cash provided by (used in) financing activities........................ (6,812) 17,690 19,152
--------- --------- ---------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS............................. (4,014) 18,345 10,580
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR..................................... 6,901 2,887 21,232
--------- --------- ---------
CASH AND CASH EQUIVALENTS, END OF YEAR........................................... $ 2,887 $ 21,232 $ 31,812
--------- --------- ---------
--------- --------- ---------
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES:
Debt assumption................................................................ -- $ 1,154 --
Forgiveness of note receivable................................................. -- $ 500 --
Accrued acquisition consideration.............................................. -- $ 724 --
Tax effect of stock option exercise............................................ -- $ 808 --
Issuance of promissory notes as acquisition consideration...................... -- -- $ 6,650
Conversion of promissory note into common stock................................ -- -- $ 3,500
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
F-6
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
1. ORGANIZATION AND BUSINESS OPERATIONS
Serologicals Corporation (a Delaware corporation) (the "Company") is a
leading worldwide provider of specialty human antibodies and related services to
major healthcare companies. The Company's services, including donor recruitment,
donor management and clinical testing services, enable the Company to provide
value-added antibodies that are used as the active ingredients in therapeutic
and diagnostic pharmaceutical products.
The Company, through its wholly-owned subsidiaries, operates a national
network of 59 donor centers, 16 of which specialize in the collection of
specialty antibodies and 43 of which primarily collect non-specialty plasma from
which a number of therapeutic products, primarily intravenous immune globulin
("IVIG"), are derived. The Company also operates laboratories in the United
States and Scotland and two U.S. Food and Drug Administration ("FDA") licensed
monoclonal antibody manufacturing facilities in Scotland.
The industry in which the Company operates is subject to strict regulation
and licensing by the FDA. Similar regulation exists in many of the states and
foreign countries where the Company conducts business. Changes in existing
federal, state or foreign laws or regulations could have an adverse effect on
the Company's business.
The industry is also characterized by sales to a relatively few major
healthcare companies. One of the Company's customers, Bayer Corporation
("Bayer"), accounted for approximately 47% of the Company's net sales in 1997
(Note 11). The Company has three, five-year supply contracts with Bayer for the
sale of non-specialty IVIG antibodies which accounted for approximately 31% of
the Company's net sales in 1997; however, there can be no assurance that the
contracts will not be terminated or that Bayer will not materially change its
supply requirements pursuant to the agreements.
Export sales from the United States represented approximately 17% of net
sales in 1997 (Note 13). Concern over the safety of blood products has led to
movements in a number of European and other countries to restrict the
importation of blood and blood derivatives, including antibodies, collected
outside the countries' borders or, in the case of certain European countries,
outside Europe. To date, these efforts have not led to any meaningful
restriction on the importation of blood and blood derivatives and have not
adversely affected the Company. However, there can be no assurance that the
imposition of new restrictions will not have a material adverse effect on the
Company.
The Company's business is dependent upon its ability to attract and retain
qualified antibody donors. A significant portion of the industry's potential
donor population has been disqualified due in large part to more rigorous
testing and screening procedures required by regulatory authorities, industry
trade associations and the Company's customers. The potential donor population
with certain specialty antibodies has also decreased due to aging and attrition.
The inability to maintain and replenish its donor base could adversely affect
the Company.
The Company generates significant sales outside the United States and is
subject to risks generally associated with international operations. The
Company's Bioscot, Ltd. ("Bioscot") subsidiary, which accounted for
approximately 14% of the Company's net sales in 1997 (Note 13), generates net
sales and incurs expenses in foreign currencies. Accordingly, the Company's
financial results from international operations may be affected by fluctuations
in currency exchange rates.
F-7
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
The accompanying consolidated financial statements include the accounts of
the Company and its wholly-owned subsidiaries. All significant intercompany
accounts and transactions have been eliminated in consolidation. The Company's
fiscal period end for financial reporting purposes is the last Sunday of each
period. Certain prior year amounts have been reclassified to conform to the
current year presentation.
USE OF ESTIMATES
The preparation of these consolidated financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
INVENTORIES
Inventories are stated at the lower of cost or market, cost being determined
on a first-in, first-out basis. Market for antibody inventories is net
realizable value and for supplies is replacement cost.
Inventories at December 29, 1996 and December 28, 1997 consisted of the
following (in thousands):
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Antibody products........................................................ $ 5,028 $ 9,036
Supplies................................................................. 718 1,118
--------- ---------
$ 5,746 $ 10,154
--------- ---------
--------- ---------
</TABLE>
PROPERTY AND EQUIPMENT
Fixed assets are stated at cost and are depreciated using straight-line and
accelerated methods over their estimated useful lives for financial reporting
purposes. For income tax purposes, the Company uses only accelerated
depreciation methods. Depreciable lives for equipment, furniture and fixtures
range from three to ten years. Leasehold improvements are amortized over the
shorter of the lease term or the economic lives of the assets. Expenditures for
maintenance and repairs are charged to expense as incurred.
F-8
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Property and equipment at December 29, 1996 and December 28, 1997 consisted
of the following (in thousands):
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Construction in progress................................................. $ 2,578 $ 2,400
Leasehold improvements................................................... 3,978 4,754
Laboratory and office equipment and furniture and fixtures............... 8,521 13,843
--------- ---------
Total property and equipment............................................. 15,077 20,997
Accumulated depreciation and amortization................................ (5,277) (7,315)
--------- ---------
Property and equipment, net.............................................. $ 9,800 $ 13,682
--------- ---------
--------- ---------
</TABLE>
Construction in progress at December 29, 1996 consisted primarily of
expenditures relating to the expansion of the Company's monoclonal manufacturing
facilities, which was completed during 1997. Construction in progress at
December 28, 1997 consisted primarily of expenditures relating to the expansion
of the Company's laboratory testing facility and international headquarters in
Clarkston, Georgia.
ACCRUED LIABILITIES
Accrued liabilities at December 29, 1996 and December 28, 1997 consisted of
the following (in thousands):
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Income taxes payable....................................................... $ 476 $ --
Accrued payroll, bonuses and payroll taxes................................. 1,109 2,725
Acquisition consideration payable.......................................... 724 --
Other...................................................................... 3,898 5,638
--------- ---------
$ 6,207 $ 8,363
--------- ---------
--------- ---------
</TABLE>
REVENUE RECOGNITION AND DEFERRED REVENUE
The Company's policy is to record revenue upon the shipment of its products.
On occasion, the Company receives advance payments from customers for future
delivery of specified products. The revenue related to these advance payments is
deferred until the specified products are shipped.
CASH EQUIVALENTS
For financial reporting purposes, the Company considers all investments
purchased with an original maturity of three months or less to be cash
equivalents.
FOREIGN OPERATIONS
The financial statements of Bioscot have been translated into U.S. dollars
in accordance with Statement of Financial Accounting Standards ("SFAS") No. 52,
"Foreign Currency Translation" ("SFAS
F-9
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
No. 52"). Under SFAS No. 52, all balance sheet accounts are translated at the
exchange rate at year-end. Income statement items are translated at the average
exchange rate for the year. Translation adjustments are not included in
determining net income but are accumulated and reported as a separate component
of stockholders' equity. Gains and losses, which result from foreign currency
transactions, are included in the accompanying consolidated statements of income
and were not material to the Company in any of the years presented.
DEBT DISCOUNTS
The Company recorded an original issue discount ("OID") of approximately
$2.0 million in connection with the issuance of a subordinated note and a
related warrant (Note 7) in 1994. In 1995, the subordinated note was repaid in
full with proceeds from the Company's initial public offering ("IPO") (Note 3)
and the remaining OID was expensed. The write-off of approximately $1.4 million
(net of income taxes) was recorded as an extraordinary loss.
GOODWILL
The excess of cost over the fair market value of the net assets acquired
("goodwill") is being amortized to income on a straight-line basis over a period
of 25 years. The goodwill relates primarily to the acquisition of donor centers.
The Company periodically reviews the carrying values assigned to goodwill based
upon expectations of future cash flows and operating income generated by the
underlying assets in determining whether goodwill is recoverable.
FDA LICENSES
In connection with the Company's acquisitions (Note 4), it acquired the
licenses of the FDA-approved donor centers. The estimated fair value of the FDA
licenses is capitalized and amortized to income on a straight-line basis over a
period of 25 years.
NONCOMPETE AGREEMENTS
In connection with certain of the Company's acquisitions (Note 4), it
entered into noncompete agreements with the sellers. Such agreements are
recorded at their estimated fair market value and are being amortized to income
on a straight-line basis over the terms of the respective agreements, which
range from three to five years.
DEBT ISSUANCE COSTS
The Company incurred debt issuance costs in connection with certain of its
long-term debt (Note 7). These costs were capitalized and amortized to interest
expense over the term of the debt.
During 1995 and 1996, the Company recorded extraordinary losses (net of
income taxes) of approximately $454,000 and $14,000, respectively, related to
the write off of previously capitalized debt issuance costs upon early
extinguishment of certain indebtedness.
F-10
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
EARNINGS PER SHARE
As of December 28, 1997, the Company adopted SFAS No. 128, "Earnings per
Share" ("SFAS No. 128"), which requires a dual presentation of basic earnings
per share and diluted earnings per share on the face of the consolidated
statements of income. All prior period earnings per share data have been
restated to comply with the provisions of SFAS No. 128. SFAS No. 128 establishes
new, simplified standards for computing earnings per share and replaces the
traditional presentations of primary earnings per share and fully diluted
earnings per share with basic earnings per share and diluted earnings per share,
respectively. Basic earnings per share excludes the dilutive effect of stock
options, warrants, convertible indebtedness and similar instruments while
diluted earnings per share is computed similarly to fully diluted earnings per
share. The impact to the Company of adopting SFAS No. 128 was an increase to
basic earnings per share over the previously reported primary earnings per share
of $0.01 and $0.03 for 1995 and 1996, respectively. Diluted earnings per share
is the same as the Company's previously reported primary earnings per share.
The following table sets forth the calculation of basic and diluted earnings
per share ("EPS") (in thousands, except per share amounts):
<TABLE>
<CAPTION>
1995 1996
--------------------- ---------------------
INCOME SHARES EPS INCOME SHARES EPS
------ ------ ----- ------ ------ -----
<S> <C> <C> <C> <C> <C> <C>
Basic EPS................................. $2,597 10,773 $0.24 $8,236 13,474 $0.61
Dilutives:
Stock options/warrants.................... -- 696 -- -- 848 --
Convertible notes......................... -- -- -- -- -- --
------ ------ ----- ------ ------ -----
Diluted EPS............................... $2,597 11,469 $0.23 $8,236 14,322 $0.58
------ ------ ----- ------ ------ -----
------ ------ ----- ------ ------ -----
<CAPTION>
1997
----------------------
INCOME SHARES EPS
------- ------ -----
<S> <C> <C> <C>
Basic EPS................................. $12,002 14,833 $0.81
Dilutives:
Stock options/warrants.................... -- 822 --
Convertible notes......................... 112 205 --
------- ------ -----
Diluted EPS............................... $12,114 15,860 $0.76
------- ------ -----
------- ------ -----
</TABLE>
The EPS calculation for 1995 and 1996 excludes 480,549 and 375,000 shares,
respectively, for convertible notes as their inclusion would have been
antidilutive.
STOCK-BASED COMPENSATION PLANS
The Company accounts for its stock-based compensation plans under Accounting
Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees"
("APB No. 25"). Effective in 1996, the Company adopted the disclosure
requirements of SFAS No. 123, "Accounting for Stock-Based Compensation" ("SFAS
No. 123"). SFAS No. 123 requires that companies that do not choose to account
for stock-based compensation as prescribed by the statement shall disclose the
pro forma effects on earnings and earnings per share as if SFAS No. 123 had been
adopted as of January 1, 1995. Additionally, certain other disclosures are
required with respect to stock compensation and the assumptions used to
determine the pro forma effects of SFAS No. 123 (Note 6).
RECENT ACCOUNTING PRONOUNCEMENTS
In July 1997, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 130, "Reporting Comprehensive Income" ("SFAS No. 130"), which establishes
standards for reporting and display of
F-11
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
"comprehensive income", which is the total of net income and all other non-owner
changes in stockholders' equity, and its components. The Company is in the
process of evaluating SFAS No. 130 and its impact and will adopt the standard in
the first quarter of its 1998 fiscal year.
In July 1997, the FASB issued SFAS No. 131, "Disclosures About Segments of
an Enterprise and Related Information" ("SFAS No. 131"). SFAS No. 131, which
supersedes SFAS Nos. 14, 18, 24 and 30, establishes new standards for segment
reporting, using the "management approach," in which reportable segments are
based on the same criteria on which management disaggregates a business for
making operating decisions and assessing performance. The Company is in the
process of evaluating SFAS No. 131 and its impact and will adopt the standard
for its 1998 fiscal year.
3. SALES OF COMMON STOCK
On June 14, 1995, the Company completed an IPO of 3.6 million shares of its
common stock at a price of $7.67 per share, which resulted in proceeds of $27.6
million (before underwriting discounts and other offering expenses). The net
proceeds of approximately $24.6 million were used to reduce long-term debt. This
early retirement of debt resulted in an extraordinary loss of approximately $1.8
million (net of income taxes) due to early retirement costs associated with a
subordinated note and the write off of debt issuance costs (Notes 2 and 7).
In June 1996, the Company completed an offering (the "Secondary Offering")
of 3.15 million shares of its common stock at a price of $17.33 per share. Of
the 3.15 million shares, the Company sold 1.35 million shares, which resulted in
net proceeds of approximately $22.0 million, including proceeds from options
which were exercised and the resulting shares sold pursuant to the Secondary
Offering. The net proceeds were used to retire approximately $7.9 million of
debt, with the remainder, or approximately $14.1 million, available to the
Company for general corporate purposes. The Company recognized an extraordinary
loss of approximately $14,000 (net of income taxes) related to the early
retirement of debt.
In September 1997, the Company sold 950,000 shares of its common stock, at a
price of $19.50 per share, to institutional investors in a private placement
transaction made in reliance upon the exemption from the registration
requirements of the Securities Act of 1933, as amended, afforded by Section 4(2)
thereof. The net proceeds to the Company from the sale of the shares were
approximately $17.5 million, and are available for general corporate purposes,
including strategic acquisitions and investments. Pursuant to the same
transaction, one of the Company's shareholders sold 250,000 shares of common
stock; the Company did not receive any of the proceeds from this sale.
F-12
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
4. ACQUISITIONS
In February 1996, the Company acquired the assets of Am Rho Laboratories,
Inc. ("Am-Rho"), which operated two specialty donor centers, for approximately
$1.7 million. The purchase price consisted of $1.1 million in cash at closing,
the assumption of certain liabilities and forgiveness of a $500,000 note
receivable from the parent of Am-Rho.
In March 1996, the Company acquired the stock of Southeastern Biologics,
Inc. and Plasma Management, Inc. and substantially all of the assets of Concho
Biologics, Inc. (collectively, "Southeastern") in a single transaction for
approximately $4.75 million. The acquisition of Southeastern, which operated six
non-specialty donor centers, included a provision for contingent consideration
based on the performance of the acquired businesses over the 12 months
subsequent to closing. The purchase price consisted of approximately $3.6
million in cash and the assumption of approximately $1.15 million of
indebtedness at closing. During 1997, the Company paid approximately $960,000 of
additional consideration related to the post-acquisition performance of the
donor centers acquired, which was recorded as additional goodwill.
In December 1996, the Company acquired substantially all of the assets of
Simi Biological Resources, Inc. ("Simi"), which operated three non-specialty
donor centers. The purchase price consisted of $1.6 million in cash at closing,
before recording certain acquisition expenses. The acquisition agreement
included a provision for up to $300,000 of contingent consideration upon the
passing of certain regulatory testing. The contingencies were resolved in 1997,
resulting in $300,000 additional consideration paid or accrued as of December
28, 1997, which was recorded as additional goodwill.
In March 1997, the Company acquired Nations Biologics, Inc. and its
affiliates (the "Nations Group") for approximately $14.2 million (the "Nations
Acquisition"), before recording certain transaction costs and subject to
adjustment based primarily on the post-acquisition performance of the businesses
acquired over the 14-month period subsequent to closing. The Company expects to
determine the amount of additional consideration, if any, during 1998. The
purchase price consisted of approximately $10.2 million of cash and the issuance
to one of the sellers of a $4.0 million convertible subordinated promissory note
maturing on March 7, 2002 (the "Nations Note"). The Company financed the $10.2
million of cash paid at closing with cash on hand. The Nations Group operated 16
donor centers which primarily specialize in the collection of non-specialty IVIG
antibodies.
The following unaudited data summarize the pro forma results of operations
for the years ended December 29, 1996 and December 28, 1997 as if the Nations
Acquisition had occurred on January 1 of each year. The unaudited pro forma
information has been prepared for comparative purposes only and does not purport
to represent what the results of operations would actually have been had the
transaction actually occurred on the dates indicated, or what the results of
operations may be in the future. Further,
F-13
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
4. ACQUISITIONS (CONTINUED)
the results for the year ended December 29, 1996 include a non-recurring gain of
approximately $555,000 recognized by the Nations Group related to the sale of a
donor center.
<TABLE>
<CAPTION>
YEAR ENDED
----------------------------
<S> <C> <C>
DECEMBER 29, DECEMBER 28,
1996 1997
------------- -------------
<CAPTION>
(IN THOUSANDS, EXCEPT PER
(UNAUDITED) SHARE DATA)
<S> <C> <C>
Net sales........................................................................... $ 74,645 $ 100,656
Income before extraordinary loss.................................................... $ 7,948 $ 11,955
Net income.......................................................................... $ 7,934 $ 11,955
Income before extraordinary loss per share:
Basic............................................................................. $ 0.59 $ 0.81
Diluted........................................................................... $ 0.55 $ 0.76
Net income per share:
Basic............................................................................. $ 0.59 $ 0.81
Diluted........................................................................... $ 0.55 $ 0.76
</TABLE>
In September 1997, the Company acquired all of the outstanding capital stock
of Bio-Lab, Inc. and Med-Lab, Inc. (collectively, "Bio-Lab") for $8.5 million,
before recording certain transaction costs and subject to adjustment based on
the net assets of the companies acquired, as defined, as of the closing date.
The purchase price consisted of $5.95 million in cash and the issuance to one of
the sellers of a $2.55 million convertible subordinated promissory note due
September 23, 2000 (the "Bio-Lab Note"). The Company financed the $5.95 million
of cash paid at closing with cash on hand.
Each of the 1997 acquisitions was accounted for as a purchase in accordance
with APB No. 16, and accordingly, the purchase price has been preliminarily
allocated to the net assets acquired based on the estimated fair values as of
the acquisition date. The excess of the cost over the estimated fair value of
the net assets acquired has been preliminarily allocated to goodwill and certain
other identifiable intangible assets.
5. STOCKHOLDERS' EQUITY
STOCK SPLIT
In February 1997, the Company's Board of Directors approved a 3-for-2 stock
split effected in the form of a stock dividend, whereby each shareholder of
record as of February 10, 1997 received on February 28, 1997 one-half additional
share of common stock for each share owned as of the record date. As a result of
the split, 4,707,048 additional shares of common stock were issued. All share
and per share amounts herein have been restated to reflect this stock split.
Additionally, common stock and additional paid-in capital amounts have been
restated to reflect the issuance of the additional shares.
F-14
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
5. STOCKHOLDERS' EQUITY (CONTINUED)
CAPITAL STOCK
Under the terms of the amended and restated articles of incorporation, the
Company has authorized 50,000,000 shares of common stock and 1,000,000 shares of
preferred stock that may contain such preferences and rights as determined by
the Company's Board of Directors.
COMMON STOCK WARRANT
In connection with a bank credit agreement entered into in 1993, the Company
issued a warrant to a bank to purchase 221,624 shares of the Company's common
stock at an exercise price of $2.29 per share of common stock. The warrant is
currently exercisable and expires on March 9, 2003. As of December 28, 1997,
warrants to purchase 108,436 shares of common stock remained outstanding.
The warrant holder had a put option to require the Company to repurchase the
warrant or any shares previously purchased by the warrant holder exercisable on
the earlier of an IPO by the Company, or on no more than three separate
occasions during the period from March 9, 1996 to March 9, 2003. The common
stock put warrant was being accreted to its highest redemption price, as defined
in the agreement, from the date of issuance to June 14, 1995. The accretion was
$45,556 in 1995. Upon the successful completion of the Company's IPO in 1995,
the put option was waived by the warrant holder and the accretion related to the
common stock put warrants was credited to additional paid-in capital.
In connection with the issuance of a subordinated note in 1994, the Company
issued a warrant (the "NationsBanc Warrant") to an affiliate of a bank
("NationsBanc") to purchase 546,054 shares of the Company's common stock at a DE
MINIMIS exercise price per share. The Company assigned the NationsBanc Warrant a
value of approximately $2.0 million based on an estimated fair value of $3.67
per common share on the date of issuance. During 1995, the Company paid the
subordinated note with proceeds from the IPO and wrote off the remaining OID
(Note 2). Additionally, in September 1995, NationsBanc exercised the NationsBanc
Warrant to purchase 545,703 shares of the Company's common stock.
COMMON SHARES RESERVED FOR ISSUANCE
Shares of common stock reserved for issuance at December 29, 1996 and
December 28, 1997 consisted of the following:
<TABLE>
<CAPTION>
1996 1997
---------- ----------
<S> <C> <C>
Various stock option agreements......................................................... 3,385,786 3,506,842
Convertible notes....................................................................... 375,000 334,822
Employee stock purchase plan............................................................ 375,000 369,838
Warrants................................................................................ 150,000 108,436
---------- ----------
4,285,786 4,319,938
---------- ----------
---------- ----------
</TABLE>
F-15
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
6. STOCK COMPENSATION PLANS
OFFICER STOCK OPTIONS
During March 1993, the Company entered into an employment agreement with an
officer. As part of the agreement, the officer was granted two options (the
"base option" and the "market option") to purchase shares of the Company's
common stock. Under each option, the officer can purchase up to 252,000 shares
of common stock at an exercise price of $2.29 per share (the estimated fair
value on the date of grant). During December 1994, the market option was amended
in order to fix the vesting period while the option price per share remained at
$2.29. The amendment of the market option created a new measurement date
resulting in the Company recording unearned compensation and an increase in
additional paid-in capital in the amount of $346,500. In conjunction with the
amendment of the market option, the officer was granted additional options to
purchase 230,238 shares of common stock at an exercise price of $3.67, the
estimated fair market value at the date of grant. All of these options have a
term of ten years and became fully vested as of the IPO date of June 14, 1995.
As a result, in June 1995, the Company recognized the compensation expense
related to the accelerated vesting of the officer's stock options. During 1996
and 1997, options to purchase 75,000 and 40,000 shares, respectively, of common
stock at an exercise price of $2.29 per share were exercised.
1994 OMNIBUS INCENTIVE PLAN
In November 1994, the Company approved the Omnibus Incentive Plan (the
"Omnibus Plan"). The Omnibus Plan provides for the issuance of stock options to
key employees and directors. During 1996, the Company amended the Omnibus Plan
increasing the number of shares reserved under the plan from 648,000 to
2,250,000. Options granted under the Omnibus Plan can have varying terms as
determined by the Board of Directors. Options granted through 1997 under the
Omnibus Plan generally vest ratably over three to four years or in full after
three years and have terms of six to ten years. Certain option grants are
eligible for accelerated vesting upon the Company's achievement of certain
predetermined performance objectives which are approved by the Compensation
Committee of the Company's Board of Directors. As of December 28, 1997, the
Company had 464,023 shares available for grant under the Omnibus Plan.
1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
During August 1995, the Company approved the Non-Employee Director Stock
Option Plan (the "Director Plan"). The Director Plan provides for the issuance
of stock options to non-employee directors. During 1996, the Company amended the
Director Plan, increasing the number of shares reserved under the plan from
240,000 to 540,000. Pursuant to the Director Plan, each person who becomes a
non-employee director of the Company is automatically granted an option to
purchase 48,000 shares of the Company's common stock on the date of adoption or
on the day after such person's first election to the Board of Directors. The
exercise price of the options is the fair market value of the common stock on
the date of grant. In addition, the Director Plan provides for the automatic
grant of options to purchase 3,000 shares of common stock on an annual basis to
each non-employee director of the Company after the initial 48,000 option grant
has vested in full. Options granted in 1996 and 1997 under the Director Plan
typically vest over a four-year period, while options granted during 1995 were
fully vested upon issuance. As of
F-16
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
6. STOCK COMPENSATION PLANS (CONTINUED)
December 28, 1997, 111,000 shares had vested under the Director Plan. As of
December 28, 1997, the Company had 330,000 shares available for grant under the
Director Plan.
EMPLOYMENT STOCK OPTIONS
During 1997, the Company entered into employment agreements with four
individuals not previously employed by the Company. As an inducement to enter
into these agreements, the individuals were granted options to purchase an
aggregate of 408,750 shares of the Company's common stock (the "Employment
Options"). The options were each issued with an exercise price equal to the fair
market value of the Company's common stock on the date of grant. Each of the
options has a term of ten years, vests ratably at the rate of 25% per annum and
contains other terms and conditions similar to options issued under the Omnibus
Plan. During 1997, options to purchase 78,750 shares of common stock were
forfeited concurrent with the resignation of one of the individuals. As of
December 28, 1997, options to purchase 330,000 shares were outstanding, none of
which had vested.
STOCK OPTION ACTIVITY
The following table summarizes the activity for all stock options
outstanding:
<TABLE>
<CAPTION>
1995 1996 1997
----------------------- ----------------------- -----------------------
<S> <C> <C> <C> <C> <C> <C>
WEIGHTED- WEIGHTED- WEIGHTED-
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
---------- ----------- ---------- ----------- ---------- -----------
Outstanding at beginning of year.................. 964,638 $ 2.70 1,221,800 $ 3.30 1,830,153 $ 7.00
Granted........................................... 257,162 5.53 754,875 12.22 1,179,961 20.32
Exercised......................................... -- -- (138,452) 2.89 (208,945) 6.75
Forfeited......................................... -- -- (8,070) 4.43 (88,350) 17.75
---------- ----- ---------- ----- ---------- -----------
Outstanding at end of year........................ 1,221,800 $ 3.30 1,830,153 $ 7.00 2,712,819 $ 12.46
---------- ---------- ----------
---------- ---------- ----------
Options exercisable at end of year................ 973,638 1,073,406 1,370,334
---------- ---------- ----------
---------- ---------- ----------
</TABLE>
F-17
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
6. STOCK COMPENSATION PLANS (CONTINUED)
The following table summarizes information about all stock options
outstanding at December 28, 1997:
<TABLE>
<CAPTION>
OPTIONS OPTIONS
OUTSTANDING EXERCISABLE
---------------------------- -----------------------
<S> <C> <C> <C> <C> <C>
WEIGHTED-
AVERAGE
REMAINING WEIGHTED- WEIGHTED-
RANGE OF OUTSTANDING CONTRACTUAL AVERAGE EXERCISABLE AVERAGE
EXERCISE AT LIFE EXERCISE AT EXERCISE
PRICES 12/28/97 (YEARS) PRICE 12/28/97 PRICE
- - --------------- ----------- --------------- ----------- ---------- -----------
$2.29 .... 499,300 5.4 $ 2.29 499,300 $ 2.29
$3.67-$ 4.58... 368,485 7.0 3.74 314,524 3.71
$8.50-$11.00.... 325,873 7.9 9.86 213,373 9.79
$12.33-$15.91... 351,200 8.1 12.46 326,450 12.35
$17.50-$19.00... 456,375 9.1 18.52 13,875 17.71
$20.21-$23.13... 711,586 5.7 21.42 2,812 21.08
----------- ----------
2,712,819 1,370,334
----------- ----------
----------- ----------
</TABLE>
EMPLOYEE STOCK PURCHASE PLAN
In May 1996, the stockholders of the Company approved the 1996 Employee
Stock Purchase Plan (the "Purchase Plan"). Pursuant to the terms of the Purchase
Plan, eligible employees are able to purchase shares of the Company's common
stock through a payroll deduction program. Employees may have up to 25% of their
compensation withheld to purchase shares at a price equal to 85% of the lower of
the closing price on the first or last day of each successive three month
purchase period. There are currently 369,838 shares reserved for issuance under
the Purchase Plan.
ACCOUNTING FOR STOCK PLANS
The Company uses the intrinsic value-based method to account for its stock
plans, as provided by APB No. 25. Accordingly, no compensation expense has been
recognized for grants of stock options as all options were issued at fair market
value on the date of the respective grants. Had compensation expense for the
Company's stock-based compensation plans been determined in accordance with the
provisions of
F-18
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
6. STOCK COMPENSATION PLANS (CONTINUED)
SFAS No. 123, the Company's net income and earnings per share would have been
reduced to the pro forma amounts indicated below (in thousands, except per share
amounts):
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Net income
As reported..................................................................... $ 2,643 $ 8,236 $ 12,002
Pro forma....................................................................... 2,189 6,362 9,357
Net income per share-basic
As reported..................................................................... $ 0.24 $ 0.61 $ 0.81
Pro forma....................................................................... 0.20 0.47 0.63
Net income per share-diluted
As reported..................................................................... $ 0.23 $ 0.58 $ 0.76
Pro forma....................................................................... 0.19 0.45 0.60
</TABLE>
The pro forma amounts reflected above are not representative of the effects
on reported net income in future years as SFAS No. 123 does not apply to grants
made prior to January 1, 1995 and additional awards are generally made each
year.
Under SFAS No. 123, the fair value of stock based awards are calculated
through the use of option-pricing models, even though such models were developed
to estimate the fair value of freely tradable, fully transferable options
without vesting restrictions, which differ significantly from the Company's
stock option grants. These models also require subjective assumptions, including
future stock price volatility and expected lives of each option grant. The fair
value for each option grant was estimated on the grant date using the
Black-Scholes option-pricing model with the following weighted-average
assumptions:
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Expected life (years).......................................... 4.0 4.0 4.4
Dividend yield................................................. 0% 0% 0%
Expected volatility............................................ 55% 55% 50%
Risk-free interest rate........................................ 6.76% 5.51% 6.22%
</TABLE>
Under these assumptions for the Omnibus Plan, the Director Plan and the
Employment Options, the weighted average fair value of options granted in 1995,
1996 and 1997 was $2.73, $5.90 and $9.77, respectively. No other options were
granted in 1995, 1996 or 1997.
F-19
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
7. LONG-TERM DEBT AND CAPITAL LEASE OBLIGATIONS
Long-term debt and capital lease obligations at December 29, 1996 and
December 28, 1997 consisted of the following (in thousands):
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
$4.0 million convertible subordinated note payable, interest payable quarterly at 4.5%;
maturing on March 7, 2002.................................................................... $ -- $ 4,000
$3,500,000 convertible subordinated note payable, interest at 12% at December 29, 1996;
interest payable monthly..................................................................... 3,500 --
$2.55 million convertible subordinated note payable; interest payable quarterly at 4.0%;
principal payable on September 23, 2000...................................................... -- 2,550
Capital lease obligations at varying interest rates and terms, maturing through June 2001...... 200 141
Other notes at varying interest rates and terms maturing through December 1998................. 14 107
--------- ---------
3,714 6,798
Less current maturities........................................................................ 3,567 2,352
--------- ---------
$ 147 $ 4,446
--------- ---------
--------- ---------
</TABLE>
In connection with an acquisition in 1994, the Company issued the sellers a
$3.5 million convertible subordinated note. During 1997, the holders of this
note exercised their conversion rights thereunder, resulting in the issuance of
375,000 shares of the Company's common stock.
During 1997, the Company amended its revolving credit facility with
NationsBank, N.A. (the "Revolver"). The amendment increased the borrowing
capacity to $35 million, of which $30 million may be used for acquisitions. The
Revolver bears interest at a variable rate and is payable in full on October 16,
2000. The Company may elect either a floating rate or Eurodollar interest rate
option applicable to borrowings under the Revolver. The floating rate and
Eurodollar interest rate options are based on the base rate, as defined, plus a
floating rate margin that fluctuates on the basis of the Company's leverage
ratio. The initial floating rate margin under the Revolver is 0% for the
floating rate option and 1.5% for the Eurodollar rate option. The Company is
required to pay a fee of .375% on the unused portion of the Revolver. The
Revolver is secured by substantially all of the assets of the Company and the
stock of its subsidiaries. The Revolver also contains certain financial
covenants that require the maintenance of minimum levels of cash flow coverage,
debt service coverage and debt to net worth and also provides for maximum levels
of debt to cash flow.
In connection with the acquisition of the Nations Group, the Company issued
one of the sellers the Nations Note, which matures on March 7, 2002. The Nations
Note bears interest at a rate of 4.5% per annum through the earlier of the date
of repayment, conversion or March 7, 2000. On or after March 7, 1998, 1999 and
2000, the payee may call for repayment (or conversion into shares of the
Company's common stock) one-third, two-thirds and all, respectively, of the then
outstanding principal amount of the Nations Note, subject to certain
restrictions as to minimum amounts and frequency. The Nations Note is
convertible at the option of the holder at a conversion price of $18.76 per
share, the fair market value of the Company's common stock at the date of
issuance. The Company has the right to call the Nations Note at any time
commencing March 7, 2000, or earlier if certain events occur.
F-20
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
7. LONG-TERM DEBT AND CAPITAL LEASE OBLIGATIONS (CONTINUED)
In connection with the acquisition of Bio-Lab, the Company issued one of the
sellers the Bio-Lab Note, which bears interest at a rate of 4.0% per annum
through the earlier of the date of repayment, conversion or September 23, 2000.
Commencing September 23, 1999, the Bio-Lab Note may be prepaid, in whole or in
part, upon not less than thirty days prior written notice by the Company. The
Company may also prepay the note prior to September 23, 1999, in whole or in
part, at a premium of the then outstanding principal balance if certain events
occur. On or after September 23, 1998, 1999 and 2000, the payee may call for
repayment (or conversion into shares of the Company's common stock) one-third,
two-thirds and all, respectively, of the then outstanding principal amount of
the Bio-Lab Note, subject to certain restrictions as to minimum amounts and
frequency. The Bio-Lab Note is convertible at the option of the holder at a
conversion price of $20.97 per share, the fair market value of the Company's
stock at the date of issuance.
Future maturities of long-term debt and capital lease obligations at
December 28, 1997 are as follows (in thousands):
<TABLE>
<S> <C>
1998............................................ $ 2,352
1999............................................ 2,231
2000............................................ 2,203
2001............................................ 12
2002............................................ --
---------
$ 6,798
---------
---------
</TABLE>
The Company made interest payments of approximately $2,206,000, $520,000 and
$348,000 during 1995, 1996 and 1997, respectively.
8. COMMITMENTS AND CONTINGENCIES
OPERATING LEASES
The Company leases certain office space, donor centers, laboratory and
manufacturing facilities and laboratory equipment under noncancelable operating
lease agreements. Future minimum annual rental obligations under noncancelable
operating leases as of December 28, 1997 were as follows (in thousands):
<TABLE>
<S> <C>
1998............................................ $ 2,849
1999............................................ 2,443
2000............................................ 1,228
2001............................................ 612
2002............................................ 331
Thereafter...................................... 562
---------
$ 8,025
---------
---------
</TABLE>
Rent expense was approximately $1,838,000, $2,321,000 and $3,297,000 during
1995, 1996 and 1997, respectively.
F-21
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
8. COMMITMENTS AND CONTINGENCIES (CONTINUED)
SUPPLY CONTRACTS
The Company is party to several agreements for the sale of non-specialty
antibodies to two customers at specified prices which are typically renegotiated
annually. The contracts include escalating minimum annual purchase amounts by
the customers subject to the rights of such customers to reduce the amounts
purchased under certain terms. The Company expects to meet its obligations under
the supply contracts.
LITIGATION
The Company is involved in certain litigation arising in the ordinary course
of business. In the opinion of management, the ultimate resolution of these
matters will not have a material adverse effect on the Company's financial
position or results of operations.
9. DISCLOSURE ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
CASH EQUIVALENTS
The Company estimates that the fair value of cash equivalents approximates
carrying value due to the relatively short maturity of these instruments.
NOTES PAYABLE
The Company estimates that the fair value of notes payable approximates
carrying value based upon its effective current borrowing rate for issuance of
debt with similar terms and remaining maturities.
Disclosure about the estimated fair value of financial instruments is based
on pertinent information available to management as of December 29, 1996 and
December 28, 1997. Although management is not aware of any factors that would
significantly affect the reasonable fair value amounts, such amounts have not
been comprehensively revalued for purposes of these financial statements since
December 28, 1997 and current estimates of fair value may differ significantly
from the amounts presented herein.
F-22
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
10. INCOME TAXES
The income tax provision for the years ended December 31, 1995, December 29,
1996 and December 28, 1997 consisted of the following (in thousands):
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Current:
U.S. federal and state............................................................. $ 1,714 $ 4,009 $ 5,854
Foreign............................................................................ 777 667 996
--------- --------- ---------
2,491 4,676 6,850
--------- --------- ---------
Deferred:
U.S. federal and state............................................................. 8 108 176
Foreign............................................................................ -- 82 38
--------- --------- ---------
8 190 214
--------- --------- ---------
Income tax provision................................................................. $ 2,499 $ 4,866 $ 7,064
--------- --------- ---------
--------- --------- ---------
</TABLE>
The income tax provision as reported in the statements of income differs
from the amounts computed by applying federal statutory rates due to the
following (in thousands):
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ---------
<S> <C> <C> <C>
Federal income taxes at statutory rate............................................... $ 2,368 $ 4,459 $ 6,482
State income taxes, net of federal income tax benefit................................ 279 525 755
Goodwill amortization................................................................ 19 69 213
Other................................................................................ (167) (187) (386)
--------- --------- ---------
$ 2,499 $ 4,866 $ 7,064
--------- --------- ---------
--------- --------- ---------
</TABLE>
Deferred income tax assets and liabilities for 1996 and 1997 reflect the
impact of temporary differences between the amounts of assets and liabilities
for financial reporting and income tax reporting
F-23
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
10. INCOME TAXES (CONTINUED)
purposes. Temporary differences which give rise to deferred tax assets and
liabilities at December 29, 1996 and December 28, 1997 are as follows (in
thousands):
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Deferred tax assets:
Accruals and reserves........................................................................ $ 815 $ 1,056
Unearned compensation........................................................................ 128 106
Other........................................................................................ 126 218
--------- ---------
1,069 1,380
--------- ---------
Deferred tax liabilities:
Goodwill amortization........................................................................ (551) (1,006)
Excess tax depreciation...................................................................... (569) (613)
Other........................................................................................ (43) (69)
--------- ---------
(1,163) (1,688)
--------- ---------
Net deferred tax liability..................................................................... ($ 94) ($ 308)
--------- ---------
--------- ---------
</TABLE>
The Company did not record any valuation allowance against the deferred tax
asset at December 29, 1996 and December 28, 1997 because it is more likely than
not that the deferred tax asset will be realizable through future taxable
income.
The Company made income tax payments of approximately $1,176,000, $4,144,000
and $6,680,000 during 1995, 1996 and 1997, respectively.
11. SIGNIFICANT CUSTOMERS
The Company's ten largest customers accounted for approximately 82%, 87% and
84% of total net sales for the years ended December 31, 1995, December 29, 1996
and December 28, 1997, respectively. Certain customers made up greater than 10%
of net sales of the Company for the years ended December 31, 1995, December 29,
1996 and December 28, 1997 as follows:
<TABLE>
<CAPTION>
1995 1996 1997
----- ----- -----
<S> <C> <C> <C>
Bayer Corporation............................................................................ 50% 56% 47%
Centeon...................................................................................... 13% 15% 11%
Alpha Therapeutic Corporation................................................................ -- -- 12%
</TABLE>
At December 28, 1997, the Company's accounts receivable from Bayer, Centeon
and Alpha were approximately $3,611,000, $608,000 and $437,000, respectively.
12. EMPLOYEE SAVINGS PLAN
The Company maintains a separate defined contribution 401(k) savings plan
for all eligible employees. Under the plan, the Company contributes a specified
percentage of each eligible employee's compensation. The employees become fully
vested in the Company's contribution after three years of
F-24
<PAGE>
SEROLOGICALS CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1995, DECEMBER 29, 1996 AND DECEMBER 28, 1997
12. EMPLOYEE SAVINGS PLAN (CONTINUED)
service. The Company's contributions approximated $69,000, $102,000 and $114,000
in 1995, 1996 and 1997, respectively.
13. SEGMENT REPORTING
The Company's operations consist of two primary geographic segments, the
United States and Europe, as set forth below (in thousands):
<TABLE>
<CAPTION>
1995 1996 1997
--------- --------- ----------
<S> <C> <C> <C>
Net sales to unaffiliated customers:
United States................................................................. $ 42,851 $ 55,506 $ 83,804
Europe........................................................................ 9,273 10,065 13,730
--------- --------- ----------
$ 52,124 $ 65,571 $ 97,534
--------- --------- ----------
--------- --------- ----------
Income from operations:
United States................................................................. $ 6,767 $ 11,207 $ 15,702
Europe........................................................................ 2,279 2,295 2,862
--------- --------- ----------
$ 9,046 $ 13,502 $ 18,564
--------- --------- ----------
--------- --------- ----------
Identifiable assets:
United States................................................................. $ 44,686 $ 71,443 $ 110,977
Europe........................................................................ 5,638 9,394 12,515
--------- --------- ----------
$ 50,324 $ 80,837 $ 123,492
--------- --------- ----------
--------- --------- ----------
Capital expenditures:
United States................................................................. $ 1,050 $ 1,500 $ 3,644
Europe........................................................................ 445 2,687 726
--------- --------- ----------
$ 1,495 $ 4,187 $ 4,370
--------- --------- ----------
--------- --------- ----------
Depreciation and amortization:
United States................................................................. $ 2,159 $ 2,962 $ 4,251
Europe........................................................................ 469 455 657
--------- --------- ----------
$ 2,628 $ 3,417 $ 4,908
--------- --------- ----------
--------- --------- ----------
</TABLE>
Income from operations is calculated as net sales less cost of sales,
selling, general and administrative expenses, product development expenses and
depreciation and amortization.
Total export sales from the United States to Europe were approximately
$11,598,000, $13,997,000 and $16,792,000 during 1995, 1996 and 1997,
respectively. The remaining sales to customers outside the United States were
sourced from Bioscot.
F-25
<PAGE>
EXHIBIT 10.1.1
EXECUTION COPY
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 16, 1997
Between
Serologicals Corporation
and
NationsBank, N.A.
<PAGE>
TABLE OF CONTENTS
1. Definitions and Accounting Matters 1
1.1. Certain Defined Terms 1
1.2. Accounting Terms and Determinations 17
2. Loans 18
2.1. Revolving Loans and Swingline Loans 18
2.2. Borrowings 18
2.3. Interest 18
2.4. Voluntary Reductions of Commitments 20
2.5. Reductions of Commitments Irrevocable 20
2.6. Continuation and Conversion of Revolving Loans 20
2.7. Minimum Amounts 21
2.8. Fees 21
2.9. Notes 21
2.10. Optional Prepayments 22
2.11. Mandatory Prepayments of Loans and Reduction of Commitments 22
2.12. Use of Proceeds 23
3. Payments; Computations; Taxes; Etc. 23
3.1. Payments 23
3.2. Computations 23
3.3. Certain Notices 24
3.4. Taxes 24
3.5. Additional Costs 25
3.6. Limitation on Types of Loans 27
3.7. Illegality 27
3.8. Treatment of Affected Loans 27
3.9. Compensation 28
4. Conditions Precedent 28
4.1. Initial Loans 28
4.2. Initial and Subsequent Extensions of Credit 30
4.3. Conditions to Significant Acquisitions 31
4.4. Conditions to Non-Significant Acquisitions 34
5. Representations and Warranties 35
5.1. Corporate Existence 35
5.2. Authorization; No Conflict 35
5.3. Enforceability 36
5.4. Approvals 36
5.5. Financial Condition 36
5.6. Litigation 37
5.7. Federal Reserve Regulations 37
5.8. ERISA 37
5.9. Taxes 38
5.10. Investment Company Act 38
5.11. Public Utility Holding Company Act 39
5.12. Material Agreements 39
5.13. Environmental and Safety Matters 39
5.14. Subsidiaries 41
5.15. Compliance with Law 41
5.16. Capitalization 41
5.17. Title to Properties 41
5.18. Conduct of Business. 42
5.19. Representations and Warranties in Acquisition Documents 42
5.20. Performance of Contracts, Etc. 42
5.21. Disclosure 42
5.22. Representations Regarding Acquisitions 42
<PAGE>
6. Affirmative Covenants 42
6.1. Financial Statements and Other Information 43
6.2. Litigation 46
6.3. Corporate Existence, Etc. 46
6.4. Insurance 47
6.5. Obligations and Taxes 47
6.6. Maintaining Records; Access to Properties and Inspections 47
6.7. Environmental and Safety Matters 48
6.8. Additional Security 48
6.9. Deposit Accounts/Cash Management Services 48
7. Negative Covenants 49
7.1. Prohibition of Fundamental Changes 49
7.2. Limitation on Liens 49
7.3. Indebtedness and Guarantees 49
7.4. Investments 49
7.5. Restricted Payments 50
7.6. Accounting 50
7.7. Amendment of Certain Documents 50
7.8. Sales of Assets 50
8. Financial Covenants 51
8.1. Ratio of Funded Debt to EBITDA 51
8.2. Ratio of Senior Funded Debt to EBITDA 51
8.3. Ratio of Cash Flow to Debt Service 51
8.4. Debt to Net Worth 51
9. Events of Default 51
9.1. Payments under Credit Documents 51
9.2. Other Indebtedness 52
9.3. Representations and Warranties 52
9.4. Other Obligations 52
9.5. Ability to Pay Debts 52
9.6. Voluntary Proceedings 52
9.7. Involuntary Proceedings 53
9.8. Judgments 53
9.9. ERISA Event 53
9.10. Change in Control 54
9.11. Failure of Security Interest 54
10. Miscellaneous 55
10.1. Waiver 55
10.2. Notices 55
10.3. Expenses, Etc. 56
10.4. Amendments, Etc. 57
10.5. Successors and Assigns 57
10.6. Assignments and Participations 57
10.7. Survival 58
10.8. Table of Contents; Descriptive Headings 58
10.9. Counterparts 58
10.10. Governing Law 58
10.11. Arbitration 58
10.12. Acknowledgments 60
10.13. Confidentiality 60
10.14. Obligations with Respect to Loan Parties. 60
10.15. Amount of Existing Indebtedness. 60
10.16. NO NOVATION. 60
<PAGE>
EXHIBITS:
Exhibit A Form of Assignment of Rights Under Acquisition Documents
Exhibit B Form of Guaranty
Exhibit C Form of Accession Agreement to Credit Documents
Exhibit D Form of Pledge Agreement
Exhibit E Form of Security Agreement
Exhibit F Form of Notice of Continuation
Exhibit G Form of Notice of Conversion
Exhibit H Form of Revolving Note
Exhibit I Form of Swingline Note
Exhibit J Form of Notice of Borrowing
Exhibit K Form of Compliance Certificate
SCHEDULES:
Schedule 5.1. Corporate Existence
Schedule 5.6. Litigation
Schedule 5.8. ERISA
Schedule 5.12. Material Agreements
Schedule 5.13. Environmental and Safety Matters
Schedule 5.16. Capitalization
Schedule 5.17. Title to Properties
Schedule 7.3. Indebtedness
Schedule 7.4. Investments
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated as
of October 16, 1997 between SEROLOGICALS CORPORATION, formerly known as
Serologicals Holdings, Inc. (the "Company") and NATIONSBANK, N.A.,
successor to NationsBank, N.A. (South) and prior to that known as
NationsBank of Georgia, National Association (the "Lender").
Pursuant to the terms of that certain Amended and Restated Credit
Agreement dated as of July 20, 1995 (the "Existing Credit Agreement") by
and between the Company and the Lender, the Lender made available to the
Company a revolving credit facility in the amount of $20,000,000 and a
swingline facility in the amount of $2,000,000.
The Company and the Lender desire to amend and restate the terms of the
Credit Agreement to increase the amount of such revolving credit
facility, to change the financial covenants, and for other purposes.
Accordingly, the parties hereto agree to amend and restate the terms of
the Existing Credit Agreement as follows:
Definitions and Accounting Matters
1.1. Certain Defined Terms
As used herein, the following terms shall have the following
meanings (all terms defined in this Section or in other provisions of
this Agreement in the singular to have the same meanings when used in
the plural and vice versa):
"ABRA" shall mean the American Blood Resources Association.
"Account Receivable" shall mean, as of any date of determination
thereof, the unpaid portion of the obligation of a customer of an
Subsidiary (other than Bioscot or the FSC) in respect of services
actually rendered as stated on the invoice therefor, in each case net of
any unpaid credits, rebates, offsets or commissions.
"Accession Agreement" shall mean an Accession Agreement to Credit
Documents substantially in the form of Exhibit C executed by any Loan
Party in favor of the Lender.
"Acquisition" shall mean, with respect to a Seller, the acquisition
by the Company directly, or indirectly through its Subsidiaries, in one
or a series of transactions, of (a) all or substantially all of the
assets of such Seller or all or substantially all of a line or lines of
business conducted by such Seller or a division of such Seller or (b) a
controlling equity interest in such Seller, whether by purchase of such
equity interest or upon the exercise of an option or warrant for, or
conversion of securities into, such equity interest.
"Acquisition Documents" shall mean, with respect to an Acquisition,
collectively, the related Purchase Agreement for such Acquisition and
all related agreements and conveyance instruments executed in connection
therewith or pursuant thereto.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such
<PAGE>
Interest Period by (b) a percentage equal to 1 minus the stated maximum
rate (stated as a decimal) of all reserves, if any, required to be
maintained against "Eurocurrency liabilities" as specified in
Regulation D of the Board of Governors of the Federal Reserve System (or
against any other category of liabilities which includes deposits by
reference to which the interest rate on LIBOR Loans is determined or any
category of extensions of credit or other assets which includes loans by
an office of the Lender outside of the United States of America to
residents of the United States of America).
"Affiliate" shall mean, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any
member of the immediate family (including parents, spouse and children)
of such individual, any trust whose principal beneficiary is such
individual or one or more members of such individual's immediate family
and any Person who is controlled by any such member or trust. As used
in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies of the subject Person (whether
through ownership of securities or partnership or other ownership
interests, by contract or otherwise); provided that, in any event, any
Person which owns directly or indirectly 10% or more of the securities
having ordinary voting power for the election of directors or other
governing body of a corporation or 10% or more of the partnership or
other ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed an Affiliate of such
corporation or other Person.
"Applicable Law" shall mean all applicable provisions of
constitutions, statutes, rules, regulations and orders of all
governmental bodies and all orders, rulings and decrees of all courts
and arbitrators.
"Applicable Lending Office" shall mean, for the Lender, 600
Peachtree Street, 19th Floor, Atlanta, Georgia 30308 or such other
office of the Lender (or of an affiliate of the Lender) in the United
States of America as the Lender may from time to time specify in writing
to the Company as the office by which the Loans are to be made and
maintained.
"Applicable Margin" shall mean the percentage rate set forth below
for a given Type of Loan corresponding to the ratio of Funded Debt to
EBITDA of the Company and its Consolidated Subsidiaries in effect at
such time:
<TABLE>
<CAPTION>
Ratio of Funded Debt Applicable Margin Applicable Margin
To EBITA for Base Rate Loans LIBOR Loans
<S> <C> <C>
Less than or equal to 0.0% 2.00%
3.0 to 1.0 but greater
than 2.5 to 1.0
Less than or equal to 0.0% 1.75%
2.5 to 1.0 but greater
than 2.0 to 1.0
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Less than or equal to 0.0% 1.50%
2.0 to 1.0
</TABLE>
The Applicable Margin shall be determined by the Lender on a
quarterly basis at the end of each fiscal quarter of the Company,
commencing with the fiscal quarter first ending after the Closing Date.
The ratio of Funded Debt to EBITDA for the four fiscal quarter period
ending at the end of each such fiscal quarter shall be determined by the
Lender promptly after receipt of the financial statements required to be
delivered by the Company pursuant to Section 6.1.(b) and any necessary
adjustment to the Applicable Margin shall be effective as of the first
day of the fiscal quarter immediately following the fiscal quarter in
which the applicable financial statements are required to be delivered
to the Lender. If the Company fails to deliver any such financial
statements at the time required under Section 6.1.(b) and has not
delivered such statements with 10 days prior to the beginning of the
immediately following fiscal quarter, (a) the Applicable Margin for the
immediately following fiscal quarter shall equal 0.0% for Base Rate
Loans and 2.00% for LIBOR Loans and (b) at the end of any Interest
Period of each LIBOR Loan outstanding during the continuance of such
failure, each such Loan shall automatically be converted into a Base
Rate Loan. Notwithstanding the foregoing, for the period from the
Closing Date through and including September 30, 1997, the Applicable
Margin for Base Rate Loans shall equal 0.00% and the Applicable Margin
for LIBOR Loans shall equal 1.50%. Thereafter, the Applicable Margin
shall be adjusted from time to time as set forth above.
"Assignment of Acquisition Documents" shall mean the Amended and
Restated Assignment of Acquisition Documents substantially in the form
of Exhibit A executed by certain of the Loan Parties in favor of the
Lender.
"Bankruptcy Code" means the United States Bankruptcy Code of 1978,
as amended from time to time, or any successor federal statute.
"Base Rate" shall mean, for any day, the higher of (a) the Federal
Funds Rate for such day plus 1/2 of 1% per annum and (b) the Prime Rate
for such day. Each change in any interest rate provided for herein
resulting from a change in the Base Rate shall take effect at the time
of such change in the Base Rate. If for any reason the Lender shall
have determined that it is unable to ascertain the Federal Funds Rate
for such day, including, without limitation, the inability or failure of
the Lender to obtain sufficient bids or publications as contemplated by
the definition of the Federal Funds Rate, the Base Rate for such day
shall be the Prime Rate.
"Base Rate Loan" shall mean a Loan which bears interest at a rate
based on the Base Rate.
"Bioscot" shall mean Bioscot Limited, a corporation organized
under the laws of Scotland.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks are authorized or required to close
in Atlanta, Georgia and, if such day relates to a borrowing of, a
<PAGE>
payment or prepayment of principal of or interest on, or a Conversion of
or into, or a Continuation of, or an Interest Period for, a LIBOR Loan
or a notice by the Company with respect to any such borrowing, payment,
prepayment, Conversion, Continuation or Interest Period, which is also a
day on which dealings in Dollar deposits are carried out in the London
interbank market.
"Capital Expenditures" shall mean, without duplication, for any
period of computation thereof, the aggregate of all expenditures on a
consolidated basis including deposits (whether paid in cash or property
or accrued as liabilities and including the aggregate amount of all
principal payments due for the entire term of all Capitalized Lease
Obligations) made by the Company and its Consolidated Subsidiaries that,
in conformity with GAAP, are required to be included in the property,
plant, or equipment, or similar fixed asset account.
"Capitalized Lease Obligations" shall mean, as to any Person, the
obligations of such Person with respect to any lease of (or other
agreement conveying the right to use) any property (whether real,
personal or mixed) which is or should be classified and accounted for as
a capital lease on a balance sheet of such Person under GAAP (including
Statement of Financial Accounting Standards No. 13 of the Financial
Accounting Standards Board) and, for purposes of this Agreement, the
amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP (including such Statement No. 13).
"Cash Flow" shall mean, for any period of computation thereof, an
amount equal to the following: (i) EBITDA for such period minus
(ii) cash payments actually made during such period in respect of taxes
on income of the Company and its Consolidated Subsidiaries.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, or
any successor federal statute.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Inventory System.
"CLIA" shall mean the Clinical Laboratory Improvement Amendments of
1988, as amended.
"Closing Date" shall mean the date upon which the conditions
precedent to the initial extension of credit hereunder set forth in
Article 4. have been satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute.
"Collateral" shall mean any property in which any Loan Party or any
other Person has granted the Lender a Lien as security for any of the
Obligations and includes all "Collateral" as defined in the Security
Agreement, the "Trademark Collateral" as defined in the Trademark
Collateral Assignment and Security Agreement, and the "Pledged
Collateral" as defined in the Pledge Agreement.
"Consolidated Total Assets" shall mean, at the time of
determination, the net book value of all assets of the Company and its
<PAGE>
Consolidated Subsidiaries as determined in accordance with GAAP.
"Consolidated Subsidiary" shall mean, as to any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should be)
consolidated with the financial statements of such Person in accordance
with GAAP.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to the next
Interest Period pursuant to Section 2.6.(a).
"Convert", "Conversion" and "Converted" each refers to the
conversion of a Revolving Loan of one Type into a Loan of another Type
pursuant to Section 2.6.(b).
"Credit Documents" shall mean, collectively, this Agreement, the
Note, the Guaranty, the Security Documents, and any other documents and
instruments executed and delivered by any Loan Party in connection with
this Agreement or any of the foregoing documents.
"Credit Facility" shall mean the credit facility extended by the
Lender to the Company under this Agreement for Revolving Loans and
Swingline Loans.
"Debt Service" shall mean, on the date of determination thereof,
(a) current maturities of long term debt of the Company and its
Consolidated Subsidiaries for the four fiscal quarter period then
beginning, plus (b) current maturities of Capitalized Lease Obligations
of the Company and its Consolidated Subsidiaries for such period.
"Default" shall mean an Event of Default or an event which with
notice or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, lease, assignment, transfer or other
disposition of any property (including any capital stock or other equity
interest in a Subsidiary but excluding sales of Inventory in the
ordinary course) of the Company or any other Loan Party.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Donor Center" shall mean any location of the Company or any Subsidiary
where such Loan Party collects, analyzes, processes and sells human
blood, plasma and other human biological products or components or
provides related healthcare services.
"EBIT" shall mean, for any period of computation thereof, the sum
of, without duplication, (i) Net Income for such period plus
(ii) Interest Expense for such period plus (iii) taxes on income of the
Company and its Consolidated Subsidiaries accrued during such period
plus (iv) any extraordinary expense or loss, and any non-recurring non-
cash expense or loss, of the Company or any Consolidated Subsidiary for
such period to the extent included in determining Net Income for such
period.
"EBITDA" shall mean, for any period of computation thereof, the sum of
<PAGE>
(i) EBIT for such period plus (ii) amortization expense of the Company
and its Consolidated Subsidiaries for such period plus (iii) without
duplication, depreciation expense of the Company and its Consolidated
Subsidiaries for such period.
"Employee Benefit Plan" shall mean any employee benefit plan within the
meaning of Section 3(3) of ERISA maintained or contributed to by any
Loan Party or any of its ERISA Affiliates, other than a Multiemployer
Plan.
"Environmental Claim" shall mean, with respect to any Person, any
notice, claim, demand or other communication (whether written or oral)
alleging or asserting such Person's liability for investigatory costs,
cleanup costs, governmental response costs, damages to natural resources
or other property, personal injuries, fines or penalties arising out of,
based on or resulting from (a) the presence, handling, generation,
treatment, storage, disposal, Release or threatened Release into the
environment of any Hazardous Material at any location, whether or not
owned by such Person, or (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental and Safety Law.
"Environmental and Safety Laws" shall mean any and all federal,
state, local and foreign statutes, laws, regulations, ordinances and
similar provisions having the force or effect of law, all judicial and
administrative orders and determinations, all contractual obligations
and common law concerning public health or safety, worker health or
safety or pollution or protection of the environment, including without
limitation those relating to any emissions, discharges or Releases of
Hazardous Materials to ambient air, surface water, ground water or land,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, control, clean-up or handling
of Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor statute.
"ERISA Affiliate" of any Person shall mean any corporation or trade
or business which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code) as such
Person or which is under common control (within the meaning of
Section 414(c) of the Code) with such Person.
"ERISA Event" with respect to any Person shall mean (a) the
occurrence of a reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan of such Person or any of its ERISA
Affiliates, unless the 30-day notice requirement with respect to such
event has been waived by the PBGC; (b) the provision by the
administrator of any Plan of such Person or any of its ERISA Affiliates
of a notice of intent to terminate such Plan pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(a)(2) of ERISA); (c) the
cessation of operations at a facility of such Person or any of its ERISA
Affiliates in the circumstances described in Section 4062(e) of ERISA
with respect to a Plan; (d) the withdrawal by such Person or any of its
ERISA Affiliates from a Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (e) the
failure by such Person or any of its ERISA Affiliates to make a payment
<PAGE>
to a Plan required under Section 302(f)(1) of ERISA; (f) the adoption of
an amendment to a Plan of such Person or any of its ERISA Affiliates
requiring the provision of security to such Plan pursuant to Section 307
of ERISA; or (g) the institution by the PBGC of proceedings to terminate
a Plan of such Person or any of its ERISA Affiliates pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that could constitute grounds for the
termination of, or the appointment of a trustee to administer, such
Plan.
"Event of Default" means any of the events specified in
Sections 9.1. through Section 9.11., provided that any requirement for
notice or lapse of time or both has been satisfied.
"FDA" shall mean the United States Food and Drug Administration or
any entity succeeding to any or all of its functions under Applicable
Law.
"Federal Assignment of Claims Act" shall mean the Assignment of
Claims Act of 1940, as amended from time to time, or any successor
federal statute.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%) equal to the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, provided that (i) if
the day for which such rate is to be determined is not a Business Day,
the Federal Funds Rate for such day shall be the Federal Funds Rate for
the immediately preceding Business Day, and (ii) if such rate is not so
published for any Business Day, the Federal Funds Rate for such day
shall be the average rate charged by three federal funds brokers of
recognized standing selected by the Lender on such day for such
transactions as determined by the Lender.
"FSC" means Serologicals (Barbados), Inc., a Barbados corporation
and a "foreign sales corporation" under the Code.
"Funded Debt" shall mean, on the date of any computation thereof,
without duplication (a) all Indebtedness for money borrowed of the
Company and its Consolidated Subsidiaries, whether issued, assumed or
Guaranteed, and whether secured or unsecured, which on the date such
Indebtedness was initially incurred had a final maturity more than 12
months after such date, notwithstanding the fact that payments in
respect thereof (whether installment, serial maturity or sinking fund
payments of otherwise) are required to be made by such Person less than
12 months after the date of the computation thereof and (b) all
regularly scheduled coupon or other payments under any preferred stock
issued by the Company or its Consolidated Subsidiaries.
"GAAP" shall mean generally accepted accounting principles applied
on a basis consistent with those which, in accordance with
Section 1.2.(a), are to be used in making the calculations for purposes
of determining compliance with the terms of this Agreement.
"Governmental Authority" shall mean any federal, state, local or foreign
<PAGE>
court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance
of, or otherwise to be or become contingently liable under or with
respect to, any Indebtedness or other obligations, net worth, working
capital or earnings of any Person, or a guarantee of the payment of
dividends or other distributions upon the stock or equity interests of
any Person, or an agreement to purchase, sell or lease (as lessee or
lessor) property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of its obligations
or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank to issue a letter of credit for the
benefit of another Person, but excluding endorsements for collection or
deposit in the ordinary course of business.
"Guaranty" shall mean the Amended and Restated Guaranty
substantially in the form of Exhibit B executed by certain of the Loan
Parties in favor of the Lender.
"Hazardous Materials" shall mean, collectively, any polychlorinated
biphenyls, petroleum or petroleum derived substance, friable asbestos,
human blood, plasma and other blood products, medical wastes, biological
wastes, laboratory wastes and any toxic or otherwise hazardous waste,
material or substance, including, without limitation, all substances
with respect to which liability or standards of conduct may be imposed
pursuant to RCRA, CERCLA or any other Environmental and Safety Law.
"Indebtedness" shall mean, without duplication, as to any Person
(a) indebtedness created, issued or incurred by such Person for borrowed
money (whether by loan or the issuance or sale of debt securities)
whether or not recourse is limited to specific assets of such Person;
(b) obligations of such Person to pay the deferred purchase or
acquisition price of property or services, other than trade accounts
payable and accrued expenses arising in the ordinary course of business
so long as such trade accounts payable and accrued expenses are not for
borrowed money; (c) Indebtedness of others secured by a Lien on the
property of such Person, whether or not the Indebtedness so secured has
been assumed by such Person; (d) reimbursement obligations of such
Person in respect of letters of credit or similar instruments issued or
accepted by banks and other financial institutions for the account of
such Person; (e) Capitalized Lease Obligations of such Person; and
(f) Indebtedness of others Guaranteed by such Person.
"Insufficiency" shall mean, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Expense" shall mean for any period of computation
thereof, cash interest expense attributable to Indebtedness for money
borrowed (including without limitation, Capitalized Lease Obligations)
of the Company and its Consolidated Subsidiaries actually paid during
such period.
"Interest Period" shall mean with respect to any LIBOR Loan, the
period commencing on the date of the borrowing, Conversion or
<PAGE>
Continuation of such Loan and ending on the last day of the period
selected by the Company pursuant to the provisions below. The duration
of each Interest Period shall be one, two, three or six months, in each
case as the Company may, in an appropriate Notice of Borrowing, Notice
of Continuation or Notice of Conversion, select. In no event shall an
Interest Period of a Loan extend beyond the Termination Date. Whenever
the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day; provided,
however, that if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding Business
Day.
"Inventory" shall mean (a) all inventory of each of the
Subsidiaries (other than Bioscot or the FSC) and all goods intended for
sale or lease by such Subsidiaries, (b) all work-in-process, (c) all raw
materials and other materials and supplies of every nature and
description used or which might be used in connection with the
manufacture, packing, shipping, selling or furnishing of such goods or
otherwise used or consumed in the business of such Subsidiaries, and (d)
all documents (as such term is defined in the UCC) relating to any of the
foregoing.
"Investment" in any Person shall mean (a) the acquisition (whether
for cash, property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership
interests or other securities of, or any contribution to the capital of,
such Person; (b) any deposit with, or advance, loan or other extension
of credit to, such Person and (without duplication) any amount committed
to be advanced, lent or extended to such Person (other than any such
advance, loan, extension of credit or commitment representing the
purchase price of inventory or supplies sold in the ordinary course of
business); or (c) any Guarantee of, or other contingent obligation with
respect to, Indebtedness or other liability of such Person.
"LIBOR" shall mean, with respect to any Interest Period and a LIBOR
Loan, the offered rate per annum in the London interbank market for
deposits in Dollars of amounts equal or comparable to the principal
amount of such LIBOR Loan offered for a term comparable to such Interest
Period, as currently shown on the Reuters Screen LIBOR page as of
11:00 a.m., Greenwich Mean Time, two Business Days prior to the first
day of such Interest Period; provided, however, that (a) if more than
one offered rate as described above appears on the Reuters Screen LIBOR
page, the rate used to determine LIBOR will be the arithmetic average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of such
offered rates, or (b) if no such offered rates appear, the rate used for
such Interest Period will be the arithmetic average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of rates quoted by the Lender
at approximately 10:00 a.m., New York time, two Business Days prior to
the first day of such Interest Period for deposits in Dollars offered to
leading European banks for a period comparable to such Interest Period
in an amount comparable to the principal amount of such LIBOR Loan. If
the Lender ceases to use the Reuters Screen LIBOR page for determining
interest rates based on eurodollar deposit rates, a comparable
internationally recognized interest rate reporting service shall be used
to determine such offered rates.
<PAGE>
"LIBOR Loan" shall mean a Loan bearing interest at a rate based on
LIBOR.
"Lien" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind whatsoever
in respect of such asset. For purposes of this Agreement, a Loan Party
or any of its Subsidiaries shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Loan Party" means each of the Company, its Subsidiaries and each
Person who guarantees all or a portion of the Obligations and/or who
pledges any collateral security to secure all or a portion of the
Obligations; as of the date hereof, the Loan Parties are the Company and
each of its Subsidiaries set forth on Schedule 5.16.
"Loans" shall mean the Revolving Loans and Swingline Loans.
"Material Adverse Effect" shall mean any event, circumstance or
condition that, individually or when aggregated with all other similar
events, circumstances or conditions, could reasonably be expected to
have a material adverse effect on (a) the business, property, assets,
liabilities, condition (financial or otherwise), operations, results of
operations or prospects of the Company and its Subsidiaries taken as a
whole; (b) the ability of the Company or any Material Loan Party to
perform its obligations under any of the Credit Documents to which it is
a party; (c) the validity or enforceability of any of the Credit
Documents; or (d) the rights and remedies of the Lender under any of the
Credit Documents. As used in this definition, the term "Material Loan
Party" means, as of the date of any determination thereof, any Loan
Party (other than the Company) which either (a) owns assets having a
book value greater than or equal to 10% of Consolidated Total Assets or
(b) had net income (as determined in a manner consistent with
determining Net Income of the Company and its Consolidated Subsidiaries)
for any prior period of four consecutive fiscal-quarters greater than or
equal to 10% of Net Income for the four fiscal-quarter period most
recently ending prior to the date of determination.
"Material Contract" shall mean, with respect to the Company and the
other Loan Parties, any contract, agreement or binding understanding or
arrangement (whether or not in written form) (i) the performance or
termination of which could reasonably be expected to have a net effect
on the Cash Flow of the Company or any other Loan Party of $2,500,000
during any fiscal year, or (ii) the loss of which could reasonably be
expected to have a Material Adverse Effect.
"Multiemployer Plan" of any Person shall mean a multiemployer plan
defined as such in Section 3(37) of ERISA to which contributions have
been made by such Person or any ERISA Affiliate of such Person and which
is covered by Title IV of ERISA.
"Net Income" means, for any applicable period, the aggregate of all
amounts which, in accordance with GAAP, would be included as net income
(or net loss) on a consolidated statement of income of the Company and
its Consolidated Subsidiaries for such period; provided, however, that
<PAGE>
"Net Income" shall exclude (i) the effect of any extraordinary or
other non-recurring gain or loss outside the ordinary course of business
and (ii) any write-up in the value of any asset (but only to the extent
such write-up exceeds any write-down taken in connection with such
asset).
"Net Proceeds" shall mean, with respect to a Disposition, the
aggregate amount of all cash received (including without limitation, all
cash payments received by way of deferred payment of principal or
interest pursuant to a note or installment receivable or otherwise, but
only as and when received), directly or indirectly, by the Company or
any other Loan Party in connection with such Disposition net of (i) the
amount of any out-of-pocket legal fees, title and recording tax
expenses, commissions and other customary fees and expenses actually
incurred by the Company or such other Loan Party in connection with such
Disposition, (ii) any income taxes reasonably estimated in good faith to
be payable by the Company or such other Loan Party in connection with
such Disposition and other taxes thereon to the extent such other taxes
are actually paid by the Company or such other Loan Party, and (iii) any
repayments by the Company or such other Loan Party of Indebtedness
(other than Indebtedness under any of the Credit Documents) to the
extent that such Indebtedness is secured by a Lien on the property that
is the subject of such Disposition.
"Net Worth" shall mean, as at any date, the total shareholder's
equity (including capital stock, additional paid-in capital and retained
earnings, after deducting treasury stock) of the Company and its
Consolidated Subsidiaries which would appear as such on a consolidated
balance sheet of the Company and its Consolidated Subsidiaries prepared
in accordance with GAAP.
"New Subsidiary" means, with respect to an Acquisition, any
Subsidiary of the Company formed in connection with, and for the purpose
of effecting, such Acquisition. If all of the outstanding capital stock
of a Seller is being acquired by the Company or any of its Subsidiaries
in connection with an Acquisition, then such Seller shall also
constitute a New Subsidiary.
"Notes" shall mean the Revolving Note and the Swingline Note.
"Obligations" shall mean, individually and collectively:
(a) the Revolving Loans and Swingline Loans;
(b) all other obligations and indebtedness of the Company owing to the
Lender of every kind, nature and description, under or with respect to this
Agreement, the Note or any of the other Credit Documents, whether direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any note;
(c) all other obligations and indebtedness owing by the Company to the
Lender and all future advances made to the Company by the Lender, however and
whenever created, arising or evidenced, whether direct or indirect, through
assignment from third parties, whether absolute or contingent, or otherwise,
now or hereafter existing, or due or to become due, including, without
limitation, obligations under all guaranties, letters of credit and
overdrafts;
(d) any and all renewals, modifications, extensions and
<PAGE>
supplements to any of the foregoing.
Without limitation of the foregoing, the term "Obligations" shall
include any Indebtedness of the Company to any other Loan Party which
now or hereafter becomes owing to the Lender as assignee of such other
Loan Party pursuant to any of the Security Documents or otherwise.
"Operating Account" shall mean account number 026-39-292 maintained
by the Company with the Lender, or such other account as the Company and
the Lender may designate as the "Operating Account."
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Investments" of any Person shall mean: (a) direct
obligations of the United States of America or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States
of America or of any agency thereof, in either case maturing not more
than 90 days from the date of acquisition thereof by such Person; (b)
time deposits or certificates of deposit issued by any bank or trust
company organized under the laws of the United States of America or any
state thereof and having capital, surplus and undivided profits of at
least $200,000,000, maturing not more than 90 days from the date of
acquisition thereof by such Person; (c) commercial paper having the
highest rating from Standard & Poor's Corporation or Moody's Investors
Services, Inc. maturing not more than 90 days from the date of
acquisition thereof by such Person; and (d) the deferment of the payment
of accrued but unpaid royalties due from Bioscot to the Company in
connection with the licensing of intellectual property of the Company to
Bioscot.
"Permitted Liens" shall mean:
(a) Liens created pursuant to the Security Documents;
(b) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or which are being contested in accordance
with Section 6.5.;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business not yet delinquent or which are being contested in accordance
with Section 6.5.;
(d) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than a trade contract which constitutes Indebtedness), leases
(other than Capitalized Lease Obligations), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(f) easements, rights-of-way, zoning restrictions and other
similar encumbrances of record on real property incurred in the ordinary
course of business which, in the aggregate, are not material in dollar
amount, and which do not in any case materially detract from the value
<PAGE>
of the property subject thereto or interfere with the ordinary conduct
of the business of the Company or any of the other Loan Parties;
(g) Liens existing on the date hereof and disclosed on Schedule
5.17. hereto; and
(h) Purchase Money Liens securing Indebtedness of the Company and
its Subsidiaries permitted under Section 7.3.(c).
For purposes of this definition, the term "Purchase Money Lien" shall
mean any Lien (including any Lien arising under a lease which is or
should be classified and accounted for as a capital lease under GAAP) on
fixed assets, plant or equipment (and any intangible assets associated
therewith) acquired by the Company or any of the other Loan Parties
(including any New Subsidiary after giving effect to the Acquisition
thereof) securing the payment of all or a portion of the purchase price
therefor or Liens to which such purchased assets are subject at the time
of such acquisition and not created in anticipation thereof; provided,
however, that (i) the transaction in which any Purchase Money Lien is
proposed to be created or assumed is permitted by this Agreement;
(ii) any Purchase Money Lien attaches or shall attach only to the assets
acquired (and any applicable insurance thereon) in such transaction and
shall not extend to or cover any other assets of the Company or any of
the other Loan Parties; (iii) the Indebtedness secured or covered by any
Purchase Money Lien did not or shall not exceed the cost (including
reasonable costs directly incurred in connection with such acquisition)
to the Company or any of the other Loan Parties of the assets acquired;
and (iv) such Indebtedness was or is either (x) incurred within 30 days
following the date of the acquisition of the assets so acquired or
(y) incurred for the purpose of refinancing or refunding any
Indebtedness secured by a Purchase Money Lien provided the unpaid
balance is not thereby increased.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated
organization or government (or any agency, instrumentality or political
subdivision thereof).
"Plan" of the Company or any of the other Loan Parties shall mean
an employee benefit or other plan established or maintained by such
Person or any ERISA Affiliate of such Person and which is covered by
Title IV of ERISA, other than a Multiemployer Plan of such Person.
"Pledge Agreement" shall mean the Amended and Restated Pledge
Agreement substantially in the form of Exhibit D entered into among
certain of the Loan Parties and the Lender.
"Prime Rate" shall mean the rate of interest from time to time
announced by the Lender in Atlanta, Georgia as its prime commercial
lending rate. The Prime Rate is not necessarily intended to be the
lowest rate of interest determined by the Lender in connection with
extensions of credit.
"Purchase Agreement" shall mean, with respect to an Acquisition,
the asset purchase agreement, stock purchase agreement or other primary
agreement to which the Company and/or one or more of its Subsidiaries is
a party and which evidences the terms of such Acquisition.
<PAGE>
"QPP" shall mean the Quality Plasma Program of ABRA.
"RCRA" shall mean the Resource Conservation and Recovery Act of
1976, as amended.
"R&D Expenses" shall mean, without duplication, for any period of
computation thereof, the aggregate of all expenses on a consolidated
basis made by the Company and its Consolidated Subsidiaries in respect
of research and development.
"Regulations D, G, T, U and X" shall mean, respectively,
Regulations D, G, T, U and X of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be amended or
supplemented from time to time.
"Regulatory Change" shall mean, with respect to the Lender, any
change enacted or adopted after the date of this Agreement in United
States Federal, state or foreign law or regulations (including, without
limitation, Regulation D) or the adoption or publication after the date
of this Agreement of any interpretations, directives or requests
(whether or not having the force of law) applying to a class of banks
including the Lender of or under any United States Federal, state or
foreign law or regulations by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"Regulatory Permits" shall mean (i) FDA establishment licenses,
(ii) FDA product licenses, (iii) CLIA registrations, (iv) QPP
certifications, and (v) state licenses or permits relating to the
operation of Donor Centers, including those applicable to medical waste,
clinical laboratory testing, and drug testing.
"Release" shall mean any "release" as such term is defined in 42
U.S.C. Section 9601(22), or any successor federal statute or analogous state
law.
"Restricted Payment" shall mean dividends by or on behalf of a Loan
Party on, or other payments or distributions on account of or with
respect to, or the setting apart of money for a sinking or other
analogous fund for, or the purchase, redemption, retirement or other
acquisition of, any shares of any class of capital stock of such Loan
Party.
"Revolving Commitment" shall mean the obligation of the Lender to
make Revolving Loans in an aggregate principal amount at any one time
outstanding up to but not exceeding $35,000,000, as the same may be
reduced from time to time pursuant to the terms hereof.
"Security Agreement" shall mean the Amended and Restated Security
Agreement substantially in the form of Exhibit E entered into among
certain of the Loan Parties and the Lender.
"Security Documents" shall mean, collectively, the Security
Agreement, the Pledge Agreement, the Assignment of Acquisition
Documents, the Trademark Collateral Assignment and Security Agreement,
each of the UCC financing statements naming a Loan Party as debtor and
the Lender as secured party and covering the Collateral, and any other
<PAGE>
security documents executed and delivered to the Lender by a Loan Party.
"Seller" shall mean the Person being acquired (or whose assets are
being acquired) in an Acquisition.
"Senior Funded Debt" shall mean, on the date of any computation
thereof, all Funded Debt that is not Subordinated Debt.
"Seramed" shall mean Seramed, Inc., formerly known as Seramune,
Inc., a corporation organized under the laws of the State of Delaware.
"Serologicals" shall mean Serologicals, Inc., a corporation
organized under the laws of the State of Georgia.
"Significant Acquisition" shall mean any Acquisition in which the
aggregate amount of consideration payable by the Company and its
Subsidiaries in connection therewith equals or exceeds (a) at any time
during 1997 or 1998, the greater of (i) EBITDA for the four fiscal
quarter period most recently ending and (ii) $20,000,000 and (b) at any
time thereafter, 75% of EBITDA for the four fiscal quarter period most
recently ending. For purposes of this definition, such consideration
shall include, but shall not be limited to, the following: (a) the
amount of cash paid, together with the fair market value of all other
assets (excluding assets of the type described in the following clause
(b)) conveyed, by the Company and its Subsidiaries in consideration for
such Acquisition; (b) the market value of all capital stock, warrants
and options to acquire capital stock, of the Company conveyed by the
Company in consideration for such Acquisition; (c) the aggregate amount
of Indebtedness acquired, incurred or assumed by the Company and its
Subsidiaries in connection with such Acquisition; (d) all amounts paid
or to be paid by the Company and its Subsidiaries in respect of any
covenant not to compete granted in connection with such Acquisition and
accruing to the benefit of any New Subsidiary or other Loan Party; (e)
the aggregate capitalized amount of consulting or other similar fees or
payments to be paid by such New Subsidiary or other Loan Party to a
Seller or any Affiliate of such Seller in connection with, or as a
result of, such Acquisition; (f) the aggregate amount of earn-out
payments, similar payments or other contingent obligations required to
be made by the Company and its Subsidiaries in connection with such
Acquisition and which payments or other obligations are to be
capitalized by the Company and its Subsidiaries and (g) the amount of
all transaction fees and expenses (including, without limitation, legal,
accounting and brokers' fees and expenses) incurred by the Company and
its Subsidiaries in connection with such Acquisition.
"Subordinated Debt" shall mean, all Funded Debt, the payment of
principal and interest of which is subordinate in right of payment to
the Obligations on terms approved of in writing by the Lender in its
sole discretion.
"Subsidiary" shall mean, as to any Person, any corporation,
partnership or joint venture, whether now existing or hereafter
organized or acquired: (i) in the case of a corporation, of which at
least a majority of the outstanding shares of stock having by the terms
thereof ordinary voting power to elect a majority of the board of
directors of such corporation (other than stock having such voting power
by reason of the happening of any contingency) is at the time directly
<PAGE>
or indirectly owned or controlled by such Person and/or one or more of
its Subsidiaries or (ii) in the case of a partnership or joint venture,
in which such Person or a Subsidiary of such Person is a general partner
or joint venturer or of which a majority of the partnership or other
ownership interests are at the time owned by such Person and/or one or
more of its Subsidiaries.
"Swingline Commitment" shall mean the obligation of the Lender to
make Swingline Loans in an aggregate principal amount at any one time
outstanding up to but not exceeding $2,000,000, as the same may be
reduced from time to time pursuant to the terms hereof.
"Termination Date" shall mean October 16, 2000.
"Trademark Collateral Assignment and Security Agreement" shall mean
that certain Trademark Collateral Assignment and Security Agreement
dated as of June 29, 1994, between Serologicals and the Lender.
"Transactions" shall mean (a) any Acquisition, (b) the execution
and delivery of each of the Credit Documents, and the Acquisition
Documents, (c) the making of the Loans hereunder and (d) the
consummation of all of the other transactions contemplated by the
Acquisition Documents and the Credit Documents.
"Type" with respect to a Loan, refers to whether such Loan is a
LIBOR Loan or a Base Rate Loan.
"UCC" shall mean the Uniform Commercial Code as in effect from time
to time in the State of Georgia.
"Wholly-Owned Subsidiary" of a Person shall mean any corporation,
association or other business entity of which 100% of the outstanding
shares of all classes of capital stock or other ownership interests is
at the time owned directly or indirectly by, such Person or one or more
of the other Wholly-Owned Subsidiaries of such Person or a combination
thereof.
In addition to the above definitions, the following terms are
defined in this Agreement on the indicated pages:
<TABLE>
<CAPTION>
<S> <C>
Acquisition Date . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Acquisition Historical Financial Statements. . . . . . . . . . . . . .31
Acquisition Pro Forma Financial Statements . . . . . . . . . . . . . .31
Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Change in Control. . . . . . . . . . . . . . . . . . . . . . . . . . .54
Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Historical Financial Statements. . . . . . . . . . . . . . . . . . . .29
Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Notice of Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . .24
Notice of Continuation . . . . . . . . . . . . . . . . . . . . . . . .20
Notice of Conversion . . . . . . . . . . . . . . . . . . . . . . . . .20
Other Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Participant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
Revolving Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Revolving Note . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Swingline Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Swingline Note . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
</TABLE>
1.2. Accounting Terms and Determinations
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, all calculations for purposes of
determining compliance with the terms of this Agreement shall be made,
and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lender hereunder shall
be prepared in accordance with generally accepted accounting principles
applied in the United States and practices which are recognized as such
by the American Institute of Certified Public Accountants ("GAAP")
applied for all periods to the extent practicable on a basis consistent
with that used in the preparation of the Historical Financial
Statements, so as to present fairly the financial condition and the
results of operations of the applicable Person. In the event of a
change in GAAP that is applicable to the Company, compliance with the
financial covenants contained herein shall continue to be determined in
accordance with GAAP as in effect prior to such change; provided,
however, that the Company and the Lender will thereafter negotiate in
good faith to revise such covenants to the extent necessary to conform
such covenants to GAAP as then in effect.
(b) To enable the ready and consistent determination of compliance
with the covenants set forth in Article 7. and Article 8., the Company
will not, without the prior written consent of the Lender, which consent
shall not be unreasonably withheld, change its fiscal year.
(c) All terms defined in the UCC and not otherwise defined herein
are used herein as defined in the UCC. References in this Agreement to
"Sections", "Articles", "Exhibits" and "Schedules" are to sections,
articles, exhibits and schedules herein and hereto unless otherwise
indicated. References in this Agreement to any document, instrument or
agreement (i) shall include all exhibits, schedules and other
attachments thereto, (ii) shall include all documents, instruments or
agreements issued or executed in replacement thereof, and (iii) shall
mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified or supplemented from time to
time and in effect at any given time. Wherever from the context it
appears appropriate, each term stated in either the singular or plural
shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, the
feminine and the neuter.
(d) If, during any four fiscal quarter period for which the
Borrower's compliance with the financial covenants in Sections 8.1.
through 8.3. is to be determined, any Loan Party shall have acquired all
or substantially all of the assets of another Person, all or
substantially all of a line or lines of business conducted by another
Person, a division of another Person or a controlling equity interest in
another Person (such assets, lines of business, division or, in the case
of an equity interest, such Person, being a "Target"), then the
financial performance of the Target after its acquisition by such Loan
Party shall be annualized during such four fiscal quarter period when
determining compliance with such Sections.
<PAGE>
Loans
2.1 Revolving Loans and Swingline Loans
(a) The Lender agrees, on the terms and subject to the conditions
contained herein, to make loans to the Company during the period from
and including the Closing Date to but not including the Termination Date
in an aggregate principal amount at any one time outstanding of up to
but not exceeding the amount of the Revolving Commitment of the Lender
as in effect from time to time (such Loans being herein called
"Revolving Loans"). During the period from and including the Closing
Date to but not including the Termination Date and subject to the terms
contained herein, the Company may borrow, repay and reborrow the
Revolving Loans.
(b) The Lender agrees, on the terms and subject to the conditions
contained herein, to make loans to the Company during the period from
and including the Closing Date to but not including the Termination Date
in an aggregate principal amount at any one time outstanding of up to
but not exceeding the amount of the Swingline Commitment as in effect
from time to time (such Loans being herein called "Swingline Loans").
During the period from and including the Closing Date to but not
including the Termination Date and subject to the terms contained
herein, the Company may borrow, repay and reborrow the Swingline Loans.
(c) On the Termination Date, the aggregate principal amount of all
Loans then outstanding shall be due and payable in full.
2.2. Borrowings
(a) The Company shall give the Lender notice of each borrowing of
a Revolving Loan hereunder as provided in Section 3.3., which notice
when given shall be irrevocable. Not later than 2:00 p.m. (Atlanta,
Georgia time) on the date specified for each borrowing hereunder, the
Lender shall make the amount of the Loan available to the Company by
depositing the same, in immediately available funds, in an account of
the Company maintained at the Applicable Lending Office.
(b) At 5:00 p.m. on each Business Day the Company shall be deemed
to have requested that the Lender make to the Company a Swingline Loan
in an amount equal to the amount by which drafts against the Operating
Account exceed the available balance contained therein at such time.
The Lender shall make the proceeds of each such Swingline Loan available
to the Company by depositing such proceeds into the Operating Account.
2.3. Interest
(a) The Company agrees to pay to the Lender in accordance with Section
3.2. interest on the unpaid principal amount of each Loan for the period from
and including the date of such Loan to but excluding the date such Loan shall
be paid in full, at the following rates per annum:
(i) during the periods that such Loan is a Base Rate Loan,
the Base Rate (as in effect from time to time) plus the Applicable
Margin; and
(ii) during the periods that such Loan is a LIBOR Loan, for
<PAGE>
each Interest Period relating thereto, the Adjusted LIBO Rate for
such Loan for such Interest Period plus the Applicable Margin.
Accrued interest on each Loan shall be payable (i) in the case of a
Base Rate Loan, monthly in arrears on the last Business Day of each
calendar month and on the Termination Date, (ii) in the case of a LIBOR
Loan, on the last day of each Interest Period thereof (except that
interest shall be payable at the end of each three-month period in the
case of an Interest Period of greater than three months); and (iii) in
the case of each Loan, upon the payment or prepayment thereof or the
Conversion of such Loan to a Loan of another Type (but only on the
principal amount so paid, prepaid or Converted). Swingline Loans may
only be Base Rate Loans.
(b) If an Event of Default shall have occurred and be continuing,
the Company agrees to pay to the Lender interest, for the period such
Event of Default is continuing, on the unpaid principal amount of each
Loan (and, to the extent permitted by law, on the unpaid amount of all
interest, fees and other amounts payable hereunder or under the Credit
Documents that is not paid when due) at a rate per annum (the "Default
Rate") equal at all times to 2% per annum above the rate per annum
required to be paid on such Loans pursuant to Section 2.3.(a).
(c) In no event shall the amount of interest due or payable on the
Loans exceed the maximum rate of interest allowed by Applicable Law and,
in the event any such payment is paid by the Company or received by the
Lender, then such excess sum shall be credited as a payment of
principal, unless the Company shall notify the Lender in writing that
the Company elects to have such excess sum returned to it forthwith. It
is the express intent of the parties hereto that the Company not pay and
the Lender not receive, directly or indirectly, in any manner
whatsoever, interest in excess of that which may be lawfully paid by the
Company under Applicable Law.
(d) THE PARTIES HERETO HEREBY AGREE AND STIPULATE THAT THE ONLY
CHARGE IMPOSED UPON THE COMPANY FOR THE USE OF MONEY IN CONNECTION WITH
THIS AGREEMENT IS AND SHALL BE THE INTEREST DESCRIBED IN SECTION 2.3.
THE PARTIES HERETO FURTHER AGREE AND STIPULATE THAT ALL OTHER CHARGES
IMPOSED BY THE LENDER ON THE COMPANY IN CONNECTION WITH THIS AGREEMENT,
INCLUDING ALL COMMITMENT FEES, FACILITY FEES, UNDERWRITING FEES, DEFAULT
CHARGES, LATE CHARGES, ATTORNEYS' FEES AND REIMBURSEMENT FOR COSTS AND
EXPENSES PAID BY THE LENDER TO THIRD PARTIES OR FOR DAMAGES INCURRED BY
THE LENDER, ARE CHARGES MADE TO COMPENSATE THE LENDER FOR UNDERWRITING
OR ADMINISTRATIVE SERVICES AND COSTS OR LOSSES PERFORMED OR INCURRED,
AND TO BE PERFORMED OR INCURRED, BY THE LENDER IN CONNECTION WITH THIS
AGREEMENT AND SHALL UNDER NO CIRCUMSTANCES BE DEEMED TO BE CHARGES FOR
THE USE OF MONEY PURSUANT TO OFFICIAL CODE OF GEORGIA ANNOTATED SECTION
7-4-2 AND 7-4-18. ALL CHARGES OTHER THAN CHARGES FOR THE USE OF MONEY
SHALL BE FULLY EARNED AND NONREFUNDABLE WHEN DUE.
2.4. Voluntary Reductions of Commitments
The Company shall have the right to terminate or reduce the amount
of the Revolving Commitment or the Swingline Commitment at any time or
from time to time; provided that: (i) the Company shall give notice of
each such termination or reduction as provided in Section 3.3., which
notice when given shall be irrevocable; (ii) each partial reduction
<PAGE>
shall be in an aggregate amount at least equal to $1,000,000 or an
integral multiple of $1,000,000 in excess thereof; and (iii) in no event
shall any reduction reduce the amount of (x) the Revolving Commitment
below an amount equal to the aggregate principal amount of all Loans
then outstanding or (y) the Swingline Commitment below an amount equal
to the aggregate principal amount of Swingline Loans then outstanding.
2.5. Reductions of Commitments Irrevocable
Each of the Revolving Commitment and Swingline Commitment once
terminated or reduced may not be reinstated or increased.
2.6. Continuation and Conversion of Revolving Loans
(a) So long as no Default or Event of Default shall have
occurred and be continuing, the Company may on any Business Day, with
respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any
portion thereof as a LIBOR Loan by selecting a new Interest Period for
such LIBOR Loan or portion. Each new Interest Period selected under
this Section shall commence on the last day of the immediately preceding
Interest Period. Each selection of a new Interest Period shall be made
by the Company's giving of a notice in the form of Exhibit F (a "Notice
of Continuation") within the time prescribed by Section 3.3. Such
notice by the Company of a Continuation shall specify (a) the effective
date of such Continuation, (b) the LIBOR Loan and portion thereof
subject to such Continuation and (c) the duration of the selected
Interest Period, all of which shall be specified in such manner as is
necessary to comply with all limitations on Loans outstanding hereunder.
If the Company shall fail to select in a timely manner a new
Interest Period for any LIBOR Loan in accordance with this Section, such
Loan will automatically, on the last day of the current Interest Period
therefor, Convert into a Base Rate Loan notwithstanding failure of the
Company to comply with the immediately following subsection (b).
(b) So long as no Default or Event of Default shall have occurred
and be continuing, the Company may on any Business Day, upon the
Company's giving of a notice in the form of Exhibit G (a "Notice of
Conversion"), Convert all or a portion of a Revolving Loan of one Type
into a Loan of another Type. In connection with any Conversion of a
LIBOR Loan into a Base Rate Loan on a day other than the last day of an
Interest Period for such LIBOR Loan the Company as a condition to such
Conversion shall pay all amounts contemplated by Section 3.9. Each such
Notice of Conversion shall be given within the time prescribed by
Section 3.3. Subject to the restrictions specified above, each Notice
of Conversion shall specify (a) the requested date of such Conversion,
(b) the Type of Loan to be Converted, (c) the portion of such Type of
Loan to be Converted, (d) the Type of Loan such Loan is to be Converted
into and (e) if such Conversion is into a LIBOR Loan, the requested
duration of the initial Interest Period of such Loan.
(c) No more than four separate Interest Periods in respect of LIBOR Loans
may be outstanding at any one time.
2.7. Minimum Amounts
Except for Conversions or prepayments made pursuant to Section 3.8., (a)
each borrowing of LIBOR Loans (including a Continuation of, or
<PAGE>
Conversion into, LIBOR Loans) shall be in an amount at least equal to
$1,000,000 and integral multiples of $500,000 in excess thereof,
(b) each borrowing of Base Rate Loans (including a Continuation of, or
Conversion into, Base Rate Loans) that are not Swingline Loans shall be
in an amount at least equal to $100,000 and integral multiples of
$50,000 in excess thereof, and (c) each voluntary prepayment of
Revolving Loans shall be in an amount at least equal to $100,000 and
integral multiples of $50,000 in excess thereof (borrowings, prepayments
or Conversions of Loans into Loans of different Types or, in the case of
LIBOR Loans, having different Interest Periods, to be deemed separate
borrowings, prepayments or Conversions for purposes of the foregoing,
one for each Type or Interest Period). Borrowings, prepayments and
repayments of Swingline Loans shall be in the amounts required under
Section 2.2.(b) and Section 2.11.(c).
2.8. Fees
(a) The Company shall pay to the Lender on or before the Closing
Date a facility fee in the amount of $71,250.
(b) The Company shall pay to the Lender a commitment fee on the
daily average unused amount of the Revolving Commitment, for the period
from and including the Closing Date to but not including the Termination
Date at a per annum rate, computed in accordance with Section 3.2.,
equal to three-eighths of one percent (0.375%). Accrued commitment fees
shall be payable on March 31, June 30, September 30 and December 31 of
each year and on the earlier of the date the Revolving Commitment is
terminated in full and the Termination Date. For purposes of this
Section, borrowings of Swingline Loans shall be deemed to be a use of
the Revolving Commitment.
(c) All fees shall be fully earned and non-refundable upon
receipt.
2.9. Notes
(a) The Revolving Loans made by the Lender shall be evidenced by a
single promissory note to be executed by the Company in substantially
the form of Exhibit H, dated the date hereof, payable to the Lender in a
principal amount equal to the amount of the Revolving Commitment as
originally in effect and otherwise duly completed. As used herein, the
term "Revolving Note" shall mean the promissory note provided for by
this subsection.
(b) The Swingline Loans made by the Lender shall be evidenced by a
single promissory note to be executed by the Company in substantially
the form of Exhibit I, dated the date hereof, payable to the Lender in a
principal amount equal to the amount of the Swingline Commitment as
originally in effect and otherwise duly completed. As used herein, the
term "Swingline Note" shall mean the promissory note provided for by
this subsection.
(c) The date and amount of each Loan made by the Lender to the
Company, and each payment made on account of the principal thereof,
shall be recorded by the Lender on its books and, prior to any transfer
of the Note evidencing such Loans held by it, endorsed by the Lender on
the schedule attached to such Note or any continuation thereof; provided
<PAGE>
that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Company to make a
payment when due of any amount owing under such Note. Any such
recordations or endorsements made by the Lender on its books or the
Notes shall be conclusive and binding on the Company absent manifest
error.
2.10. Optional Prepayments
The Company shall have the right to prepay Loans in whole or in
part at any time or from time to time, without premium or penalty,
except that in connection with any prepayment of LIBOR Loans on a day
other than the last day of the Interest Period applicable thereto (other
than in the case of a prepayment of all outstanding Loans and the
termination of the Revolving Commitment and the Swingline Commitment),
the Company as a condition to such prepayment shall pay all amounts
contemplated by Section 3.9. in connection with such prepayment.
2.11. Mandatory Prepayments of Loans and Reduction of Commitments
(a) Loans in Excess of Commitments. If at any time the aggregate
amount of Revolving Loans outstanding shall exceed the Revolving
Commitment in effect at such time, the Company shall, within one
Business Day, prepay the Revolving Loans in such amounts as shall be
necessary so that the aggregate principal amount of the Revolving Loans
outstanding shall not exceed the Revolving Commitment. If at any time
the aggregate amount of Swingline Loans outstanding shall exceed the
Swingline Commitment in effect at such time, the Company shall, within
one Business Day, prepay the Swingline Loans in such amounts as shall be
necessary so that the aggregate principal amount of the Swingline Loans
outstanding shall not exceed the Swingline Commitment. If at any time
the aggregate amount of all Loans outstanding shall exceed the Revolving
Commitment in effect at such time, the Company shall, within one
Business Day, prepay the Loans in such amounts as shall be necessary so
that the aggregate principal amount of all Loans outstanding shall not
exceed the Revolving Commitment.
(b) Dispositions. At the written request of the Lender, upon the
receipt by the Company and the other Loan Parties of Net Proceeds in
respect of all Dispositions after the date of this Agreement in an
aggregate amount in excess of $10,000,000, the Revolving Commitment
shall be automatically and permanently reduced by the amount by which
such Net Proceeds exceeds $10,000,000 and the Company shall prepay the
Loans in the amount, if any, required under the immediately preceding
Subsection (a).
(c) Sweep of Operating Account. At 5:00 p.m. of each Business
Day, the Company shall repay a principal amount of Swingline Loans by an
amount equal to the positive balance, if any, of available funds on
deposit in the Operating Account as determined by the Lender at such
time. The Company hereby authorizes the Lender to deduct such amount
from the Operating Account without notice to the Company, and to apply
such amount in repayment of the then outstanding principal balance of
Swingline Loans. Neither the provisions of Section 2.7. nor 3.3. shall
apply to repayments made pursuant to this subsection.
2.12. Use of Proceeds
<PAGE>
The Company may use the proceeds of Revolving Loans solely (a) for its
own general corporate purposes; (b) to fund loans by the Company to its
Subsidiaries; (c) to provide financing for Acquisitions and (d) for
general corporate purposes of such Subsidiaries; provided, however, no
more than $30,000,000 in the aggregate of Revolving Loans at any one
time outstanding may be used to finance Acquisitions, refinancing of
Indebtedness for money borrowed and repurchasing capital stock of the
Company. The Company may only use the proceeds of Swingline Loans to
cover payment of drafts drawn against the Operating Account as
contemplated by Section 2.2.(b).
3. PAYMENTS; COMPUTATIONS; TAXES; ETC.
3.1. Payments
(a) Except to the extent otherwise provided herein, all payments
of principal, interest and other amounts to be made by the Company under
this Agreement and the Notes and, except to the extent otherwise
provided therein, all payments to be made by the Company under any other
Credit Document, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Lender at its
Applicable Lending Office, not later than 12:00 noon Atlanta, Georgia
time on the date on which such payment shall become due (each such
payment made after such time on such due date to be deemed to have been
made on the next succeeding Business Day).
(b) The Company shall, at the time of making each payment under
this Agreement or any Note, specify to the Lender the Loans or other
Obligations to which such payment is to be applied (and in the event
that it fails to so specify, or if an Event of Default has occurred and
is continuing, the Lender may apply such payment to the Loans in such
manner as it may determine to be appropriate).
(c) If the due date of any payment under this Agreement or a Note
would otherwise fall on a day which is not a Business Day, such date
shall be extended to the next succeeding Business Day and interest shall
be payable for any principal so extended for the period of such
extension.
3.2. Computations
Interest on Loans and commitment fees shall be computed on the
basis of a year of 360 days comprised of twelve thirty-day months for
the actual days elapsed (including the first day but excluding the last
day) occurring in the period for which such amounts are payable.
3.3. Certain Notices
Notwithstanding anything contained in Section 10.2. to the
contrary, notices by the Company to the Lender of borrowings of
Revolving Loans (which shall be in the form of Exhibit J, each a "Notice
of Borrowing"), of optional terminations or reductions of the Revolving
Commitment or the Swingline Commitment, optional prepayments of Loans,
Notices of Conversion and Notices of Continuations shall be irrevocable
and shall be effective only if received by the Lender in writing not
later than 12:00 noon Atlanta, Georgia time on the number of Business
Days prior to the date of the relevant optional termination, reduction,
<PAGE>
borrowing, Continuation, Conversion or prepayment specified below:
<TABLE>
<CAPTION>
Number of
Business Days
Notice Prior
------ -------------
<S> <C>
Borrowing of Base Rate Loans Same Day
Borrowing of LIBOR Loans 3
Notice of Conversion to a LIBOR Loan 3
Notice of Conversion to a Base Rate Loan 1
Notice of Continuation 3
Termination or reduction of Revolving 2
Commitment or Swingline Commitment
</TABLE>
Subject to Section 2.4., each such notice of optional termination or
reduction of the Revolving Commitment or the Swingline Commitment shall
specify the amount of the Revolving Commitment or the Swingline
Commitment, as applicable, to be terminated or reduced. Each Notice of
Borrowing or Conversion shall specify the Type of Loans to be borrowed
or Converted and the amount of each Loan to be borrowed or Converted and
the date thereof (which shall be a Business Day).
3.4. Taxes
(a) Any and all payments by the Company hereunder shall be paid
(except to the extent required by law) free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding franchise taxes and taxes based on net income imposed
on the Lender by the United States (or any political subdivision
thereof) in which the Lender has its Applicable Lending Office (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the
Company shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to the Lender (i) the sum payable
by the Company shall be increased by the amount necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 3.4.) the Lender shall
receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions, and
(iii) the Company shall pay the full amount deducted to the relevant
taxing authority or other Governmental Authority in accordance with
Applicable Law.
(b) In addition, the Company agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Credit Document (hereinafter
referred to as "Other Taxes").
(c) The Company will indemnify the Lender for the full amount of
Taxes and Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 3.4.) paid by the
Lender and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. Such indemnification
<PAGE>
shall be made within five Business Days after the date of receipt of a
written demand therefor from the Lender.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Company in respect of any payment to the Lender,
the Company will furnish to the Lender, at its address referred to in
Section 10.2., the original or a certified copy of a receipt evidencing
payment thereof.
(e) If the Lender claims any additional amounts payable pursuant
to this Section, the Lender shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or
document reasonably requested by the Company if the making of such a
filing would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue and would not, in the
sole determination of the Lender, be otherwise disadvantageous to the
Lender.
3.5. Additional Costs
(a) Events Entitling the Lender to Receive Compensation. The
Company shall pay directly to the Lender from time to time such amounts
as the Lender may determine in good faith to be necessary to compensate
it for any costs which it determines are attributable to its making or
maintaining any Loans or its obligation to make any Loans hereunder, or
any reduction in any amount receivable by the Lender hereunder in
respect of any of such Loans or such obligation (such increases in costs
and reductions in amounts receivable being herein called "Additional
Costs") resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to the
Lender under this Agreement or any Note or any of such Loans (other than
taxes imposed on or measured by the overall net income of the Lender or
of its Applicable Lending Office for any of such Loans by the
jurisdiction in which the Lender has its Applicable Lending Office);
(ii) imposes or modifies any reserve, special deposit or similar
requirements relating to any extensions of credit or other assets of, or
any deposits with or other liabilities of, the Lender, or any commitment
of the Lender (including the Revolving Commitment or the Swingline
Commitment), but only to the extent the Lender determines in good faith
that such Additional Cost is not reflected in the Base Rate; or
(iii) imposes any other condition affecting the interests of the
Lender under this Agreement or any Note (or any of such extensions of
credit or liabilities), the Revolving Commitment or the Swingline
Commitment.
(b) Determination of Amount of Compensation. Without limiting the
effect of the foregoing provisions of this Section 3.5. (but without
duplication), the Company shall pay directly to the Lender from time to
time on request such amounts as the Lender may determine to be necessary
to compensate the Lender (or, without duplication, the bank holding
company of which the Lender is a subsidiary) for any increased costs
which it determines in good faith are attributable to the maintenance by
the Lender (or any Applicable Lending Office or such bank holding
company) of capital in respect of the Revolving Commitment or the
<PAGE>
Swingline Commitment or Loans pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the force of law)
of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital guideline or
requirement (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) hereafter issued by any
government or governmental or supervisory authority implementing at the
national level the Basle Accord (including, without limitation, the Final
Risk-Based Capital Guidelines of the Board of Governors of the Federal
Reserve System (12 CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) and
the Final Risk-Based Capital Guidelines of the Office of the Comptroller of
the Currency (12 CFR Part 3, Appendix A)), such compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of the Lender (or any Applicable Lending Office or such
bank holding company) to a level below that which the Lender (or any
Applicable Lending Office or such bank holding company) could have achieved
but for such law, regulation, interpretation, directive or request. For
purposes of this Section 3.5.(b), "Basle Accord" shall mean the proposals for
risk-based capital framework described by the Basle Committee on Banking
Regulations and Supervisory Practices in its paper entitled "International
Convergence of Capital Measurement and Capital Standards" dated July 1988, as
amended, modified and supplemented and in effect from time to time or any
replacement thereof.
(c) Notice of the Occurrence of an Event Entitling Lender to
Compensation. The Lender shall notify the Company of any event occurring
after the date of this Agreement that will entitle the Lender to compensation
under Section 3.5.(a) or (b) as promptly as practicable and shall furnish to
the Company a certificate setting forth the basis and amount of each request
by the Lender for compensation, together with calculations in reasonable
detail of such amount. Determinations and allocations by the Lender for
purposes of this Section 3.5. of the effect of any Regulatory Change pursuant
to Section 3.5.(a), of the effect of capital maintained pursuant to Section
3.5.(b) on its costs or rate of return of maintaining Loans or to make Loans
or on amounts receivable by it in respect of Loans and of the amounts
required to compensate the Lender under this Section, shall be made in a
manner consistent with that applied by the Lender in similar contexts and
shall be conclusive in the absence of manifest error.
3.6. Limitation on Types of Loans
Anything herein to the contrary notwithstanding, if on or prior to the
determination of LIBOR for any Interest Period the Lender determines (which
determination shall be conclusive) that:
(a) quotations of interest rates for the relevant deposits
referred to in the definition of "LIBOR" are not being provided in
the relevant amounts or for the relevant maturities for purposes of
determining rates of interest for LIBOR Loans as provided herein;
or
(b) the relevant rates of interest referred to in the
definition of LIBOR in this Agreement upon the basis of which the
rate of interest for LIBOR Loans for such Interest Period is to be
determined are not likely to adequately cover the cost to the
Lender of making or maintaining LIBOR Loans for such Interest
Period;
<PAGE>
then the Lender shall give the Company notice thereof, and so long as
such condition remains in effect, the Lender shall be under no
obligation to make additional LIBOR Loans, to Continue LIBOR Loans or to
Convert Base Rate Loans into LIBOR Loans, and the Company shall, on the
last day(s) of the then-current Interest Period(s) for the outstanding
LIBOR Loans, either prepay such Loans or Convert such Loans into Base
Rate Loans in accordance with Section 2.6.
3.7. Illegality
Notwithstanding any other provision of this Agreement, if it
becomes unlawful for the Lender to honor its obligation to make or
maintain LIBOR Loans hereunder, then the Lender shall promptly notify
the Company thereof and the Lender's obligation to make or Continue, or
to Convert Base Rate Loans into, LIBOR Loans shall be suspended until
such time as the Lender may again make and maintain LIBOR Loans.
3.8. Treatment of Affected Loans
If the obligation of the Lender to make, Continue or Convert Base
Rate Loans into LIBOR Loans shall be suspended pursuant to either of the
immediately preceding Sections, all outstanding LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the
current Interest Period(s) for such LIBOR Loans (or, in the case of a
Conversion required by Sections 3.6. or 3.7., on such earlier date as
the Lender may specify to the Company) and, unless and until the Lender
gives notice as provided below that the circumstances specified in
Sections 3.6. or 3.7. which gave rise to such Conversion no longer
exist:
(a) to the extent that any LIBOR Loans have been so Converted, all
payments and prepayments of principal which would otherwise be applied
to such LIBOR Loans shall be applied instead to the Base Rate Loans; and
(b) all Loans which would otherwise be made or Continued as LIBOR Loans
shall be made or Continued instead as Base Rate Loans and all Base Rate
Loans which would otherwise be Converted into LIBOR Loans shall remain
as Base Rate Loans.
If the Lender gives notice to the Company that the circumstances
specified in Sections 3.6. or 3.7. which gave rise to the Conversion of
LIBOR Loans pursuant to this Section no longer exist at a time when
LIBOR Loans are outstanding, the Lender's Base Rate Loans shall be
automatically Converted, at the option of the Company.
3.9. Compensation
The Company shall pay the Lender such amount or amounts as shall be
sufficient to compensate the Lender for any loss, cost, or expense which
the Lender determines in good faith is attributable to: (a) any payment,
prepayment or Conversion of a LIBOR Loan for any reason (including,
without limitation, the acceleration of the Loans pursuant to
Article 9.) on a date other than the last day of the Interest Period for
such Loan; or (b) any failure by the Company for any reason, including
without limitation, the failure of any of the conditions precedent
specified in Article 4. to be satisfied, to borrow a LIBOR Loan from the
<PAGE>
Lender on the date for such borrowing specified in the relevant Notice
of Borrowing given pursuant to Section 2.2. Without limiting the effect
of the preceding sentence, such compensation shall include an amount
equal to the excess, if any, of (i) the amount of interest which
otherwise would have accrued on the principal amount so paid, prepaid or
Converted or not borrowed for the period (the "Remaining Period") from
the date of such payment, prepayment, Conversion or failure to borrow to
the last day of the then-current Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Loan which
would have commenced on the date specified for such borrowing) at the
applicable rate of interest for such Loan provided for herein over
(ii) the amount of interest which would otherwise have accrued on such
principal amount during the Remaining Period at a rate per annum equal
to the sum of (x) the Adjusted LIBO Rate determined as of the first day
of the Remaining Period which would apply to a LIBOR Loan having a
principal amount equal to or comparable to such principal amount and a
term comparable to the Remaining Period (as determined in good faith by
the Lender) plus (y) the Applicable Margin.
4. CONDITIONS PRECEDENT
4.1 Initial Loans
The effectiveness of this Agreement and obligation of the Lender to make the
initial Loans hereunder are subject to the following conditions:
(a) Corporate Documents. The Lender shall have received the
following documents, each certified as indicated below:
(i) a copy of the charter, as amended, of the Company,
certified as of a recent date by the Secretary of State of the
jurisdiction of its formation, and a certificate as of a recent
date from such Secretary of State as to the good standing of and
charter documents filed by such Loan Party, listing each amendment
thereto and showing that all franchise taxes have been paid; and
(ii) a certificate of the secretary of each Loan Party, dated
the Closing Date and certifying (A) that such Loan Party's by-laws
have not been amended since the date of certification thereof under
the Existing Credit Agreement, or if they have been amended, that
attached thereto is a true and complete copy of such amendment,
(B) that attached thereto is a true and complete copy of
resolutions duly adopted by such Loan Party's board of directors
authorizing the execution, delivery and performance of each of the
Credit Documents to which such Loan Party is a party, and that such
resolutions have not been modified, rescinded or amended and are in
full force and effect, and (C) that such Loan Party's charter has
not been amended since, in the case of the Company, the date of the
certification thereto furnished pursuant to subsection (i) above
and in the case of each other Loan Party, as of the date of
certification thereof under the Existing Credit Agreement or if
such charter has been amended, that attached thereto is a true and
complete copy of such amendment.
(b) Notes. The Lender shall have received the Revolving Note and
the Swingline Note, duly completed and executed by the Company.
<PAGE>
(c) Insurance. The Lender shall have received certificates of
insurance evidencing the existence of all insurance required to be
maintained by each Loan Party pursuant to the Credit Documents to which
it is a party and Section 6.4. hereof, together with loss payable
clauses as required by such Credit Documents. In addition, the Company
shall have delivered a certificate of the chief financial officer of the
Company stating that such insurance is in full force and effect and that
all premiums then due and payable thereon have been paid.
(d) Historical Financial Statements. The Lender shall have
received the following in form and substance satisfactory to the Lender:
(i) audited consolidated balance sheets and statements of operations and
cash flows of the Company and its Consolidated Subsidiaries for the
fiscal year ended December 29, 1996, and (ii) unaudited consolidated
balance sheets and statements of operations and cash flows of the
Company and its Consolidated Subsidiaries for the fiscal quarter ending
March 30, 1997 (collectively, the "Historical Financial Statements").
(e) Fees, Expenses and Other Consideration. The Lender shall have
received all amounts payable by the Company in respect of fees and
expenses, including the fees required by Section 2.8.(a), and accrued
and unpaid fees due under Section 2.8.(b) of the Existing Credit
Agreement, and attorneys' fees, to the extent due and payable on or
prior to the making of the initial Loans hereunder, and the Lender shall
have received all other consideration due from the Company in connection
therewith.
(f) Guaranty. The Lender shall have received the Guaranty, duly
executed and delivered by the Loan Parties (other than the Company,
Bioscot and the FSC).
(g) Security Agreement. The Lender shall have received the
Security Agreement, duly executed and delivered by the Loan Parties
(other than Bioscot and the FSC). In addition, each of such Loan
Parties shall have delivered to the Lender duly executed copies of UCC
financing statements and UCC amendment statements, and taken such other
action, as the Lender shall have reasonably requested in order to
perfect the security interests created pursuant to the Security
Agreement.
(h) Pledge Agreement. The Lender shall have received the Pledge
Agreement duly executed by each Loan Party owning capital stock in any
other Loan Party. In addition, the Lender shall have received each of
the following: (i) all stock certificates representing all (or in the
case of Bioscot and the FSC, 65%) of the issued and outstanding capital
stock of each of such other Loan Parties and (ii) stock powers duly
endorsed in blank relating to all such stock certificates.
(i) Assignment of Acquisition Documents. The Lender shall have
received the Assignment of Acquisition Documents duly executed by the
Loan Parties.
(j) Trademark Collateral Assignment and Security Agreement. The
Lender shall have received an Amended and Restated Trademark Collateral
Assignment and Security Agreement, duly executed and delivered by
Serologicals Royalty Company in form acceptable to the Lender and the
Company.
<PAGE>
(k) Opinions of Counsel. The Lender shall have received the
opinion of (i) Shereff, Friedman, Hoffman & Goodman, LLP, counsel to
Loan Parties, in form acceptable to the Lender and (ii) Glass,
McCullough, Sherrill & Harrold, local counsel to Loan Parties, in form
acceptable to the Lender.
(l) Other Documents. The Lender shall have received such other
documents as the Lender or counsel to the Lender may reasonably request
in connection with this Agreement.
4.2 Initial and Subsequent Extensions of Credit
The obligation of the Lender to make any Loan hereunder (including
the initial Loans) is subject to the further condition precedent that,
both immediately prior to the making of such Loan and also after giving
effect thereto:
(a) no Default or Event of Default shall have occurred and be
continuing;
(b) the representations and warranties made or deemed made by the
Company in Article 5. and by the Company and the other Loan Parties in
each of the other Credit Documents shall be true, complete and correct
in all material respects on and as of the date of the making of such
extension of credit with the same force and effect as if made on and as
of such date (or, in the case of any such representation and warranty
made only as of a particular date, as of such particular date);
(c) no change that is material and adverse shall have occurred in
the business, property, assets, liabilities, condition (financial or
otherwise), operations, results of operations or prospects of the
Company and its Subsidiaries taken as a whole since the date of the
audited financial statements of the Company most recently delivered to
the Lender under Section 4.1.(d) or 6.1.(a), as applicable; and
(d) in the case of a Revolving Loan, the Lender shall have timely
received a duly executed Notice of Borrowing.
Each Notice of Borrowing hereunder (and the making of any Swingline
Loan) shall constitute a certification by the Company to the effect set
forth in subsections (a) and (c) above (both as of the date of such
notice and as of the date of such extension of credit).
4.3. Conditions to Significant Acquisitions
The right of the Company to consummate a Significant Acquisition of
a Seller without violating Section 7.1., and the obligation of the
Lender to make any Revolving Loan hereunder, the proceeds of which will
be used to finance such Acquisition, are subject to the satisfaction of the
following conditions:
(a) Historical Financial Statements. The Lender shall have
received not less than 10 Business Days prior to the date (the
"Acquisition Date"01/21/98) such Revolving Loan is to be made or such
Acquisition is to be consummated, the following in form and substance
satisfactory to the Lender: (i) an audited (or unaudited if audited
<PAGE>
statements are not available) balance sheet, statement of operations and
statement of cash flows for such Seller for the two fiscal years most
recently ended and (ii) if then available, an unaudited balance sheet,
statement of operations and statement of cash flows for such Seller for
the fiscal quarter most recently ending prior to the Acquisition Date
(collectively, the "Acquisition Historical Financial Statements").
(b) Pro Forma Financial Statements. The Lender shall have
received not less than 10 Business Days prior to the Acquisition Date,
the following in form and substance satisfactory to the Lender: (i) a
pro forma balance sheet, statement of operations and statement of cash
flows for such Seller, the Company and its Consolidated Subsidiaries
prepared on a combined basis for the two fiscal years most recently
ended and (ii) if then available, a pro forma balance sheet, statement
of operations and statement of cash flows for such Seller, the Company
and its Consolidated Subsidiaries prepared on a combined basis for the
fiscal quarter most recently ending prior to the Acquisition Date
(collectively, the "Acquisition Pro Forma Financial Statements").
(c) Confirmation of Covenant Compliance. The Lender shall have
received not less than 10 Business Days prior to the Acquisition Date, a
certificate from the Company in form and substance satisfactory to the
Lender, setting forth the calculations of the Company establishing
compliance with the covenants contained in this Agreement, including
without limitation, those contained in Article 8., (i) immediately after
giving effect to such Acquisition and (ii) on a combined basis with the
Seller as of the end of the fiscal year most recently ended.
(d) Description of Transaction. The Lender shall have received
not less than 10 Business Days prior to the Acquisition Date, (x) a
written description of the Acquisition in detail reasonably satisfactory
to the Lender, such description to include a description of (i) the
purchase price of such Acquisition, (ii) the method and structure of
payment thereof and (iii) the Seller and (y) the current draft of the
Purchase Agreement.
(e) Corporate Documents. If such Acquisition involves any New
Subsidiaries, the Lender shall have received the following documents,
each certified as indicated below:
(i) a copy of the charter of each such New Subsidiary,
certified as of a recent date by the Secretary of State of the
jurisdiction of its formation, and a certificate as of a recent
date from such Secretary of State as to the good standing of and
charter documents filed by such New Subsidiary, listing each
amendment thereto and showing that all franchise taxes have been
paid, or other evidence satisfactory to the Lender that such New
Subsidiary is in good standing in such jurisdiction;
(ii) a certificate as of a recent date from the Secretary of State
of each state in which each such New Subsidiary is required to qualify
to do business as a foreign corporation to the effect that such New
Subsidiary is so qualified, or, if unavailable, evidence satisfactory to
the Lender that each such New Subsidiary has taken appropriate steps to
so qualify; and
(iii) a certificate of the secretary or assistant of each
<PAGE>
such New Subsidiary, dated the Acquisition Date and certifying (A)
that attached thereto is a true and complete copy of such New
Subsidiary's by-laws as in effect on the date of such certificate,
(B) that attached thereto is a true and complete copy of
resolutions duly adopted by such New Subsidiary's board of
directors authorizing the execution, delivery and performance of
each of the Credit Documents to which such New Subsidiary is or is
to be a party, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that
such New Subsidiary's charter has not been amended since the date
of the certification thereto furnished pursuant to subsection (i)
above, and (D) as to the incumbency and specimen signature of each
of such New Subsidiary's officers executing each of such Credit
Documents (and the Lender may conclusively rely on such certificate
until the Lender receives notice in writing from such New
Subsidiary, to the contrary).
(f) Acquisition. On the Acquisition Date: (i) the applicable
Purchase Agreement shall be in full force and effect; (ii) none of the
parties to such Purchase Agreement shall have failed to perform any
material obligation or covenant required by such Purchase Agreement to
be performed or complied with by it on or before the Acquisition Date;
and (iii) if proceeds of a Loan are being used to finance in whole or in
part such Acquisition, the Lender shall have received a certificate from
the Company's chief executive or chief financial officer to the effect
set forth in the immediately preceding clauses (i) and (ii).
(g) Acquisition Documents. The Lender shall have received fully
executed copies of all of the Acquisition Documents and all amendments,
waivers and consents relating thereto.
(h) Lien Searches. The Lender shall have received favorable UCC,
tax, judgment and lien search reports in form and substance satisfactory
to the Lender with respect to the Seller and each New Subsidiary in all
necessary or appropriate jurisdictions and under all legal and
appropriate trade names indicating that there are no prior liens on any
of the Collateral other than Permitted Liens or Liens to be released
prior to or at the time of the consummation of such Significant
Acquisition.
(i) Accession Agreement. If such Acquisition involves any New
Subsidiary, the Lender shall have received an Accession Agreement duly
executed by such New Subsidiary, which Accession Agreement shall, in
addition to making such New Subsidiary a party to the Guaranty and the
Security Agreement, make such New Subsidiary a party to (A) the Pledge
Agreement, if such New Subsidiary owns any issued and outstanding
capital stock of any other Loan Party and (B) the Assignment of
Acquisition Documents, if such New Subsidiary has any rights under the
Purchase Agreement or other Acquisition Documents being executed in
connection with such Acquisition.
(j) Acknowledgment to Assignment of Acquisition Documents. The
Borrower shall use its best efforts to deliver to the Lender an
acknowledgment with respect to the Assignment of Acquisition Documents
from the Sellers under the applicable Acquisition Documents, in the form
attached thereto.
<PAGE>
(k) Financing Statements. Each such New Subsidiary shall have
delivered to the Lender duly executed UCC financing statements, and
taken such other action, as the Lender shall have reasonably requested
in order to perfect the security interest granted by each such New
Subsidiary pursuant to the Security Agreement.
(l) Pledge of Stock. The Lender shall have received from each
Loan Party owning any issued and outstanding capital stock of each such
New Subsidiary, either an amendment (in form and substance satisfactory
to the Lender) to the Pledge Agreement subjecting to the Lien thereof
such capital stock or if any such Loan Party is not yet a party to the
Pledge Agreement, an Accession Agreement executed by such Loan Party
making such Loan Party a party to the Pledge Agreement. In addition,
the Lender shall have received each of the following: (i) all stock
certificates representing all of such capital stock, and (ii) stock
powers duly endorsed in blank by the applicable Loan Parties relating to
all such stock certificates.
(m) Opinions of Counsel. The Lender shall have received an
opinion counsel to the Loan Parties regarding (i) the due organization
of each such New Subsidiary; (ii) the corporate authority of any New
Subsidiary or other Loan Party delivering a Credit Document pursuant to
this Section; (iii) the execution, delivery and enforceability of such
Credit Documents; (iv) noncontravention of Applicable Law (other than
applicable health care laws, regulations and rules) by such Acquisition
or by the execution, delivery and performance by such New Subsidiary and
such Loan Parties of such Credit Documents; (v) validity and perfection
of any security interests granted under any Security Document delivered
under this Section and (vi) such other matters as the Lender or its
counsel may reasonably request.
(n) Other Documents. The Lender shall have received such other
documents as the Lender or its counsel may reasonably request. The conditions
contained in the immediately preceding subsections (e) and (g) through (n)
must be satisfied no later than 60 days following the Acquisition Date.
4.4. Conditions to Non-Significant Acquisitions
Within 60 days (or such earlier date as may be provided below) after the
date of consummation of an Acquisition that is not a Significant Acquisition,
the Company shall deliver to the Lender, each of the following in form and
substance satisfactory to the Lender:
(a) Historical Financial Statements. The Lender shall have
received not less than 3 Business Days prior to the Acquisition Date,
the following Acquisition Historical Financial Statements in form and
substance satisfactory to the Lender: (i) an audited (or unaudited if
audited statements are not available) balance sheet, statement of
operations and statement of cash flows for such Seller for the fiscal
year most recently ended and (ii) if then available, an unaudited
balance sheet, statement of operations and statement of cash flows for
such Seller for the fiscal quarter most recently ending prior to the
Acquisition Date.
(b) Pro Forma Financial Statements. The Lender shall have
received not less than 3 Business Days prior to the Acquisition Date,
<PAGE>
the following Acquisition Pro Forma Financial Statements in form and
substance satisfactory to the Lender: (i) a pro forma balance sheet,
statement of operations and statement of cash flows for such Seller, the
Company and its Consolidated Subsidiaries prepared on a combined basis
for the fiscal year most recently ended and (ii) if then available, a
pro forma balance sheet, statement of operations and statement of cash
flows for such Seller, the Company and its Consolidated Subsidiaries
prepared on a combined basis for the fiscal quarter most recently ending
prior to the Acquisition Date.
(c) Confirmation of Covenant Compliance. The Lender shall have
received not less than 3 Business Days prior to the Acquisition Date, a
certificate from the Company in form and substance satisfactory to the
Lender, setting forth the calculations of the Company establishing
compliance with the covenants contained in this Agreement, including
without limitation, those contained in Article 8., (i) immediately after
giving effect to such Acquisition and (ii) on a combined basis with the
Seller as of the end of the fiscal year most recently ended.
(d) Corporate Documents. If such Acquisition involved any New
Subsidiaries, a copy of the charter of each such New Subsidiary,
certified as of a recent date by the Secretary of State of the
jurisdiction of its formation, and a certificate as of a recent date
from such Secretary of State as to the good standing of and charter
documents filed by such New Subsidiary, listing each amendment thereto
and showing that all franchise taxes have been paid;
(e) Lien Searches. The Lender shall have received from the
Borrower copies of all UCC, tax, judgment and lien search reports, if
any, undertaken by the Borrower with respect to the Seller and each New
Subsidiary.
(f) Accession Agreement. If such Acquisition involves any New
Subsidiary, the Lender shall have received an Accession Agreement duly
executed by such New Subsidiary, which Accession Agreement shall, in
addition to making such New Subsidiary a party to the Guaranty and the
Security Agreement, make such New Subsidiary a party to the Pledge
Agreement, if such New Subsidiary owns any issued and outstanding
capital stock of any other Loan Party.
(g) Financing Statements. Each such New Subsidiary shall have
delivered to the Lender duly executed copies of UCC financing
statements, and taken such other action, as the Lender shall have
reasonably requested in order to perfect the security interest granted
by each such New Subsidiary pursuant to the Security Agreement.
(h) Pledge of Stock. The Lender shall have received from each
Loan Party owning any issued and outstanding capital stock of each such
New Subsidiary, either an amendment (in form and substance satisfactory
to the Lender) to the Pledge Agreement subjecting to the Lien thereof
such capital stock or if any such Loan Party is not yet a party to the
Pledge Agreement, an Accession Agreement executed by such Loan Party
making such Loan Party a party to the Pledge Agreement. In addition,
the Lender shall have received each of the following: (i) all stock
certificates representing all of such capital stock, and (ii) stock
powers duly endorsed in blank by the applicable Loan Parties relating to
all such stock certificates.
<PAGE>
5. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lender that the following
statements are, and after giving effect to the Transactions, will be,
true and correct:
5.1. Corporate Existence
Each of the Company and the other Loan Parties (a) is a corporation
duly organized and validly existing and in good standing under the laws
of the jurisdiction of its organization; (b) has all requisite corporate
power, and has all governmental licenses, authorizations, consents and
approvals, necessary to own its assets and carry on its business as now
being or as proposed to be conducted and to consummate the Transactions;
and (c) is qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such qualification
necessary, except where failure so to qualify would not have a Material
Adverse Effect, all of which such jurisdictions are set forth on
Schedule 5.1.
5.2. Authorization; No Conflict
The execution, delivery and performance by the Company and the
other Loan Parties of each of the Credit Documents and the Acquisition
Documents to which any is a party and the consummation of the
Transactions (a) have been duly authorized by all requisite corporate
and, if required, stockholder action on the part of the Company and each
such Loan Party and (b) will not (i) to the Company's actual knowledge,
violate any provision of Applicable Law, or any order of any
Governmental Authority, (ii) violate any provision of the certificate of
incorporation or by-laws of the Company or any other Loan Party, (iii)
violate, conflict with, result in a breach of or constitute (alone or
with notice or lapse of time or both) a default or an event of default
under any Material Contract to which the Company or any other Loan Party
is a party or by which the Company or any other Loan Party or any of its
property is or may be bound, or (iv) result in the creation or
imposition of any Lien upon any property or assets of the Company or any
other Loan Party (except pursuant to the Security Documents).
5.3. Enforceability
This Agreement, each other Credit Document, and each Acquisition
Document have been duly executed and delivered by the Company and each
of the other Loan Parties (to the extent it is a party thereto) and
constitute the legal, valid and binding obligations of the Company and
the other Loan Parties enforceable against the Company and the other
Loan Parties in accordance with their respective terms, except (a) as
the same may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other laws affecting generally the
enforcement of creditors' rights and by general principles of equity
(regardless of whether considered in a proceeding in equity or at law)
and (b) that obligations of a Loan Party resulting solely from being
jointly and severally liable under a Credit Document for the obligations
(the "Primary Obligations") of another Loan Party primarily responsible
for the performance of such Primary Obligations may not be enforceable;
provided, however, the lack of such enforceability does not (i) limit in
<PAGE>
any way the enforcability of any of the Primary Obligations and (ii)
does not make the principal remedies afforded by such Credit Document
inadequate for the practical realization of the principal rights,
benefits or security provided thereby.
5.4. Approvals
To the Company's actual knowledge, no authorizations, approvals or
consents of, no filings or registrations with, and notices to any
Governmental Authority are necessary for the execution, delivery or
performance by the Company and the other Loan Parties of the Credit
Documents, and the Acquisition Documents to which any of them is a party
or for the validity or enforceability thereof, except for (a) filings
and recordings in respect of the Liens created pursuant to the Security
Documents, (b) such authorizations, approvals, consents, filings,
registrations or notices as shall have been obtained.
5.5. Financial Condition
(a) The Historical Financial Statements are materially complete
and correct and fairly present the financial condition and results of
operations of the Company and its Consolidated Subsidiaries as of and
for the periods covered thereby. There has been no material adverse
change in the business, property, assets, liabilities, condition
(financial or otherwise), operations, results of operations or prospects
of the Company and its Subsidiaries taken as a whole since the date of
the audited financial statements of the Company most recently delivered
to the Lender under Section 4.1.(d) or 6.1.(a), as applicable.
(b) Except as set forth on Schedule 5.6. or in the financial
statements most recently delivered to the Lender under Section 6.1.(a)
or (b), to the Company's actual knowledge the Company and its
Subsidiaries have no liabilities, contingent or otherwise, which could
reasonably be expected to have a Material Adverse Effect.
(c) To the Company's actual knowledge (i) the Acquisition
Historical Financial Statements of the Seller fairly present the
financial condition and results of operations of the Seller as of and
for the periods covered thereby; (ii) the Acquisition Pro Forma
Financial Statements of the Seller, the Company and its Consolidated
Subsidiaries fairly present the combined financial condition and results
of operations of the Seller, the Company and its Consolidated
Subsidiaries as of and for the periods covered thereby and (iii) there
has been no material adverse change in the business, property, assets,
liabilities, condition (financial or otherwise), operations, results of
operations or prospects of the Seller since the end of such Seller's
immediately preceding fiscal year.
5.6. Litigation
Except as set forth on Schedule 5.6. or in any written notice
delivered by the Company pursuant to Section 6.1.(g)(D) or Section 6.2.,
there are no actions, suits or proceedings at law or in equity by or
before any Governmental Authority now pending or, to the Company's
actual knowledge, threatened against the Company or any other Loan Party
or their respective business, property or rights (i) which involve any
<PAGE>
Credit Document, any Acquisition Document or any Transaction or (ii)
which, if adversely determined could reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect.
There exists no judgment, order, injunction or other restraint issued or
filed which is material to the Company or any other Loan Party, or any
of their respective businesses, properties or rights, or which prohibits
or adversely affects any of the Transactions.
5.7. Federal Reserve Regulations
Neither the Company nor any of the other Loan Parties is engaged in
the business of extending credit for the purpose, whether immediate,
incidental or ultimate, of buying or carrying Margin Stock. No part of
the proceeds of any extension of credit hereunder, whether directly or
indirectly, and whether immediately, incidentally or ultimately, will be
used (i) to purchase or carry Margin Stock or to extend credit to others
for the purpose of purchasing or carrying Margin Stock or to refund
indebtedness originally incurred for such purpose, or (ii) for any
purpose which entails a violation of, or which is inconsistent with, the
provisions of the Regulations of the Board of Governors of the Federal
Reserve System, including Regulations G, T, U or X. As used herein, the
term "Margin Stock" shall mean margin stock within the meaning of
Regulations G, T, U and X.
5.8. ERISA
(a) Neither the Company nor any other Loan Party maintains or
contributes to any Employee Benefit Plan or Multiemployer Plan other
than those identified on Schedule 5.8. and those of which the Company
has given written notice to the Lender after the date of this Agreement.
(b) The Company and each other Loan Party are in compliance in all
material respects with all applicable provisions of ERISA and the Code
with respect to all Employee Benefit Plans. Each Employee Benefit Plan
that is intended to be qualified under Section 401(a) of the Code has
been determined by the Internal Revenue Service to be so qualified, and
each trust related to such Plan has been determined to be exempt from
federal income tax under Section 501(a) of the Code. The actuarial
present value of all accumulated benefit obligations under each Plan, as
disclosed in the most recent actuarial report with respect to such Plan,
does not exceed the fair market value of the assets of such Plan. No
material liability has been incurred by the Company or any other Loan
Party or any of their ERISA Affiliates which remains unsatisfied for any
taxes, penalties or other amount (other than contributions in the
ordinary course) with respect to any Employee Benefit Plan or any
Multiemployer Plan, and to the Company's actual knowledge no such
material liability is expected to be incurred.
(c) Neither the Company nor any other Loan Party has: (i) engaged
in a nonexempt prohibited transaction described in Section 406 of ERISA
or Section 4975 of the Code; (ii) incurred any liability to the PBGC
which remains outstanding other than the payment of premiums and there
are no premium payments which are due and unpaid; (iii) failed to make a
required contribution or payment to a Multiemployer Plan; or (iv) failed
to make a required installment or other required payment under Section
412 of the Code, which, in the case of any of the immediately preceding
clauses (i) through (iv), could reasonably be expected to have a
<PAGE>
Material Adverse Effect.
(d) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan or Multiemployer Plan maintained or contributed
to by the Company or any other Loan Party which could reasonably be
expected to have a Material Adverse Effect.
(e) Except as set forth on Schedule 5.6. or in any written notice
delivered by the Company pursuant to Section 6.2., no proceeding, claim,
lawsuit and/or investigation is existing or, to the Company's actual
knowledge, threatened concerning or involving any Employee Benefit Plan
or Multiemployer Plan maintained or contributed to by the Company or any
other Loan Party which, if adversely determined could reasonably be
expected to, individually or in the aggregate, have a Material Adverse
Effect.
5.9. Taxes
Each of the Company and the other Loan Parties has filed all
federal income tax returns and all other tax returns and reports,
domestic and foreign, required to be filed by it and has paid all taxes,
assessments, fees and other governmental charges shown to be due and
payable by it on such returns or reports, in each case, the failure of
which to file or pay could reasonably be expected to have a Material
Adverse Effect. All such returns are true and correct in all material
respects. Each of the Company and the other Loan Parties has paid or,
in the case of taxes which are not yet due and payable or are being
contested in good faith, has provided adequate reserves for the payment
of, all federal, state and foreign taxes applicable for all prior fiscal
years and for the current fiscal year to the date hereof, the failure of
which taxes to pay could reasonably be expected to have a Material
Adverse Effect. There is no proposed tax assessment against the Company
or any other Loan Party which could reasonably be expected to have a
Material Adverse Effect.
5.10. Investment Company Act
Neither the Company nor any other Loan Party is an "investment
company" nor a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
5.11. Public Utility Holding Company Act
Neither the Company nor any other Loan Party is a "holding company"
nor an "affiliate" of a "holding company" or a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
5.12. Material Agreements
Other than this Agreement, the other Credit Documents, the
Acquisition Documents and except as set forth on Schedule 5.12. or in
any written notice delivered by the Company to the Lender after the date
of this Agreement, neither the Company nor any other Loan Party is a
party to any agreement or instrument or subject to any corporate
restriction that has resulted or could reasonably be expected to result
<PAGE>
in a Material Adverse Effect.
5.13. Environmental and Safety Matters
Except as set forth on Schedule 5.13. or in any written notice
delivered by the Company pursuant to Section 6.1.(g), and except for
such of the following as, individually or in the aggregate, would not
result in liability to the Company or any other Loan Party in an amount
in excess of $1,000,000:
(a) The Company and each of the other Loan Parties have obtained
all permits, licenses and other authorizations which are required under
Environmental and Safety Laws (collectively "Permits"), all of which are
listed on Schedule 5.13. hereto.
(b) The Company and each of the other Loan Parties have complied
and are in compliance with the terms and conditions of all Permits and
with all Environmental and Safety Laws.
(c) With respect to the Company and each of the other Loan
Parties, no notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been filed,
no penalty has been assessed and no investigation is pending or, to the
Company's actual knowledge, threatened by any Person with respect to any
alleged failure to obtain any Permits or any violation of any
Environmental and Safety Laws, or with respect to the generation,
treatment, storage, recycling, transportation, discharge or disposal, or any
Release or threatened Release, of any Hazardous Materials.
(d) No property or facility now or previously owned or operated by
the Company or any of the other Loan Parties has been, to the actual
knowledge of the Company, or is presently operated by the Company or any
of the other Loan Parties in a manner which requires permitting as a
hazardous waste treatment, storage or disposal facility for purposes of
RCRA or any analogous state law.
(e) None of the following is (i) present at any property or facility
now owned or operated by the Company or any of the other Loan Parties or (ii)
to the Company's actual knowledge, present at any property or facility
previously owned or operated by the Company or any of its Subsidiaries: (A)
polychlorinated biphenyls contained in electrical or other equipment; (B)
asbestos-containing insulation or building material; or (C) active or
inactive underground storage tanks.
(f) No Hazardous Materials have been released by the Company or any of
the other Loan Parties into the environment at or from any property or
facility now or previously owned or operated by the Company or any of the
other Loan Parties so as to give rise to any present or future liability or
obligation under any Environmental and Safety Laws.
(g) Neither the Company nor any of the other Loan Parties have
transported or, to the Company's actual knowledge, arranged for the
transportation of any Hazardous Material to any location which is on the
CERCLA National Priorities List (or proposed for such listing), the CERCLIS
list or any similar state list or which is the subject of federal, state or
local enforcement actions or other investigations which may lead to claims
against the Company or any of its Subsidiaries under any Environmental and
Safety Laws.
<PAGE>
(h) No oral or written notification of a Release of a Hazardous
Material has been made by or on behalf of the Company or any of the other
Loan Parties and no property or facility now owned or operated by the Company
or any of the other Loan Parties is on the CERCLA National Priorities List
(or proposed for such listing), the CERCLIS list or any similar state list.
To the Company's actual knowledge, no property or facility previously owned
or operated by the Company or any of its Subsidiaries is on the CERCLA
National Priorities List (or proposed for such listing), the CERCLIS list or
any similar state list.
(i) No Liens have arisen under or pursuant to any Environmental and
Safety Laws on any property or facility now owned or operated by the Company
or any of the other Loan Parties, and no governmental actions have been taken
or, to the Company's actual knowledge, are in process which could subject any
such property or facility to such Liens. To the Company's actual knowledge,
no Liens have arisen under or pursuant to any Environmental and Safety Laws
on any property or facility previously owned or operated by the Company or
any of the other Loan Parties, and no governmental actions have been taken or
are in process which could subject any such property or facility to such
Liens. Neither the Company nor any of its Subsidiaries would be required to
place any notice or restriction relating to the presence of Hazardous
Materials in any deed to any such property or facility.
(j) To the Company's actual knowledge, there have been no environmental
investigations, studies, audits, tests, reviews or other analyses of any
property or facility now or previously owned or operated by the Company or
any of the other Loan Parties which have not been provided to the Lender.
(k) To the Company's actual knowledge, neither the Company nor any of
the other Loan Parties have assumed, succeeded to or otherwise become liable
(contingently or otherwise) for the obligations of any other Person pursuant
to Environmental and Safety Laws, whether by contract, by operation of law or
otherwise.
(l) To the Company's actual knowledge, without limiting the generality
of the foregoing, there are no other facts, events or conditions relating to
the past or present operations, properties or facilities of the Company or
any of the other Loan Parties which may give rise to any liability under any
Environmental and Safety Laws.
To the extent any of the foregoing representations in this Section 5.13.
relate to a property or facility acquired pursuant to a Purchase Agreement,
such representations are based only on the actual knowledge of the Company.
5.14. Subsidiaries
Except as set forth on Schedule 5.16. or in any written notice delivered
by the Company pursuant to Section 6.1.(q), the Company has no Subsidiaries,
and except as set forth on such Schedule, all other Loan Parties are
Wholly-Owned Subsidiaries of the Company. The aggregate book value of the
assets of the FSC does not exceed 5.0% of the book value of the total
consolidated assets of the Company and its Subsidiaries.
5.15. Compliance with Law
The Company and each of the other Loan Parties are in compliance with
all Applicable Laws of, and all applicable restrictions imposed by, all
Governmental
<PAGE>
Authorities in respect of the conduct of their respective business and the
ownership of their respective property (including Applicable Laws relating to
environmental standards and controls), except such noncompliance as could not
reasonably be expected to individually or in the aggregate, have a Material
Adverse Effect. Each of the Company and its Subsidiaries has all Regulatory
Permits that are required by its customers for the operation of each of the
Donor Centers as such Donor Centers are currently or anticipated to be
operated except for Regulatory Permits the failure of which to have could not
reasonably be expected to have a Material Adverse Effect.
5.16. Capitalization
As of the date of this Agreement, Schedule 5.16. correctly sets forth
the corporate structure and ownership interests of each of the Loan Parties
(other than the Company), including the correct legal name of each such Loan
Parties, and the shareholders or other Persons holding equity interests in
the such Loan Parties and their percentage equity or voting interest. Except
as set forth on Schedule 5.16. or in any written notice delivered by the
Company to the Lender, there are no outstanding securities convertible into
or exchangeable for any capital stock (collectively, "capital stock
equivalents") of any Loan Party (excluding the Company) or any outstanding
subscriptions, options, warrants, calls, rights (including without
limitation, preemptive rights) or other agreements or commitments of any
nature relating to or exercisable for capital stock or capital stock
equivalents of any Loan Party (excluding the Company).
5.17. Title to Properties
Except as set forth on Schedule 5.17. or in any written notice delivered
by the Company to the Lender after the date of this Agreement, each of the
Company and the other Loan Parties have good, indefeasible and insurable
title to, or valid leasehold interests in, all its real properties and good
title to its other assets, free and clear of all Liens other than Permitted
Liens.
5.18. Conduct of Business.
The Company and its Subsidiaries are engaged in the business of
providing therapeutic and diagnostic biologic-based products and related
healthcare services.
5.19. Representations and Warranties in Acquisition Documents
Each representation and warranty made or deemed made by the Company or
any other Loan Party in any of the other Credit Documents and any Acquisition
Documents are hereby deemed made to and for the benefit of the Lender as if
the same were set forth herein in full.
5.20. Performance of Contracts, Etc.
Neither the Company nor any of the other Loan Parties is in default in
the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any contract, agreement, indenture,
mortgage, lease or other binding understanding or arrangement of any such
Person, and no condition exists that, with the giving of notice or the lapse
of time or both, would constitute such a default, in each case, that could
reasonably be expected to have a Material Adverse Effect.
5.21. Disclosure
<PAGE>
No representation or warranty of the Company or any other Loan Party made or
deemed made in this Agreement, any other Credit Document, any Acquisition
Document, the financial statements referred to in Section 4.1.(d), 4.3.(a)
and (b) or 4.4.(a) and (b), or any other document, certificate or written
statement furnished to the Lender by or on behalf of any such Person for use
in connection with any of the Transactions, contained, as of the date made or
deemed made or as of the date thereof, any untrue statement of a material
fact or omitted, omits or will omit to state a material fact necessary in
order to make the statements contained herein or therein not misleading in
light of the circumstances in which the same were made. There is no material
fact known to the Company that has had or will have a Material Adverse Effect
and that has not been disclosed herein or in such other documents,
certificates and statements furnished to the Lender for use in connection
with the transactions contemplated hereby.
5.22. Representations Regarding Acquisitions
To the extent any representation or warranty contained in this Article 5.
relates to an Acquisition and the Transactions relating thereto, such
representation or warranty shall be deemed made only on and as of the (a) the
date such Acquisition has been consummated and (b) the date of the making of
the Revolving Loan any of the proceeds of which are used in whole or in part
to finance such Acquisition.
6. AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as the Credit Facility is
in effect or the principal or interest on any Loan or any Obligation shall
remain unpaid, the Company will, and (as applicable) will cause each of the
other Loan Parties to:
6.1. Financial Statements and Other Information
Deliver to the Lender:
(a) as soon as available and in any event within 90 days after the end
of each fiscal year of the Company, audited consolidated statements of
income, retained earnings and cash flow of the Company and its Consolidated
Subsidiaries for such fiscal year and the related audited consolidated
balance sheet as of the end of such fiscal year, and accompanied by (i) an
unqualified report of the Company's independent auditors (who shall be of
nationally recognized standing), stating that such financial statements
fairly present the consolidated financial condition and results of operations
of the Company and its Consolidated Subsidiaries in accordance with GAAP and
(ii) if requested by the Lender, a schedule prepared by such auditors setting
forth the unaudited consolidating statements of income, retained earnings and
cash flow of the Company, Serologicals, Bioscot and Seramed for such fiscal
year and the related unaudited consolidating balance sheet as of the end of
such fiscal year of such Loan Parties;
(b) as soon as available and in any event within 45 days after the end
of each fiscal quarter of each fiscal year of the Company (other than the
fourth fiscal quarter of any fiscal year), consolidated and separate
statements of income, retained earnings (if requested by the Lender) and cash
flow of the Company and its Consolidated Subsidiaries for such period and for
the period from the beginning of the current fiscal year to the end of such
fiscal quarter,
<PAGE>
and the related consolidated and consolidating balance sheets as of the end
of such fiscal quarter, and accompanied by a certificate of the chief
financial officer of the Company, which certificate shall state that such
consolidated and separate financial statements fairly present the
consolidated and separate financial condition and results of operations of
the Company and its Consolidated Subsidiaries in accordance with GAAP
(subject to normal year-end adjustments and absence of full footnote
disclosures);
(c) simultaneously with the delivery of the financial statements
pursuant to Section 6.1.(a) or (b), a certificate of the chief financial
officer of the Company substantially in the form of Exhibit K (i) to the
effect that no Default or Event of Default has occurred and is continuing
(or, if any Default or Event of Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Company (or such other Person, as appropriate) has taken and proposes to take
with respect thereto) and (ii) setting forth in reasonable detail the
computations necessary to determine whether the Company is in compliance with
Sections 7.3. and 7.4. and each of the Sections of Article 8., in each case
as of the end of the fiscal period for which such financial statements are
delivered;
(d) as soon as possible, and in any event within thirty days after the
Company or any other Loan Party knows or has reason to know that any of the
events or conditions specified below have occurred or exist, a statement
signed by the chief financial officer of the Company setting forth details
respecting such event or condition and the action, if any, which the Company,
any other Loan Party or its ERISA Affiliates proposes to take with respect
thereto (and a copy of any report or notice required to be filed with or
given to the PBGC by the Company or any other Loan Party or any of its ERISA
Affiliates as of such date with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA
and the regulations issued thereunder, with respect to a Plan of the Company
or any other Loan Party or any of its ERISA Affiliates, as to which the PBGC
has not by regulation waived the requirement of Section 4043 (a) of ERISA
that it be notified within 30 days of the occurrence of such event (provided
that a failure to meet the minimum funding standard of Section 412 of the
Code or Section 302 of ERISA shall be a reportable event regardless of the
issuance of any waivers in accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice of intent
to terminate any Plan of the Company or any other Loan Party or any of its
ERISA Affiliates or the termination of any such Plan;
(iii) the institution by the PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan of the Company or any other Loan Party or any of its
ERISA Affiliates, or the receipt by the Company or any other Loan Party or
any of its ERISA Affiliates of a notice from a Multiemployer Plan of the
Company or any other Loan Party or any of its ERISA Affiliates that such
action has been taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company or any
other Loan Party or any of its ERISA Affiliates under Section 4201 or 4204 of
ERISA from a Multiemployer Plan, or the receipt by the Company or any other
Loan Party or any such ERISA Affiliate of notice from such a Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has terminated under Section
4041A of ERISA,
<PAGE>
which in any such case could reasonably be expected to result in the
imposition of withdrawal liability upon the Company or any other Loan Party
or any of its ERISA Affiliates;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any other Loan Party or any of its
ERISA Affiliates to enforce Section515 of ERISA, which proceeding is not
dismissed within 30 days; and
(vi) the fair market value of the assets of any Plan does not
equal or exceed the accumulated benefit obligations with respect to such
Plan, as disclosed on the most recent actuarial report with respect to such
Plan.
(e) promptly after any Default or Event of Default has occurred, a
notice of such Default or Event of Default describing the same in reasonable
detail together with a description of the action that the Company (or such
other appropriate party, as the case may be) has taken and proposes to take
with respect thereto;
(f) promptly after receipt of written request from the Lender, such
other information regarding the business, affairs or financial condition of
the Company or any other Loan Party as the Lender may reasonably request;
(g) as soon as possible, and in any event within three Business Days
after the Company or any other Loan Party receives notice or otherwise has
actual knowledge that any of the following events have occurred or exist, a
statement signed by the chief financial officer of the Company setting forth
details regarding such event or condition and no later than ten Business Days
after the Company or any other Loan Party receives such notice or otherwise
obtains such actual knowledge, a statement signed by such chief financial
officer setting forth the details regarding the action, if any, which the
Company or such other Loan Party proposes to take with respect thereto (along
with all relevant documentation): (A) any violation by the Company or any
other Loan Party of any Environmental and Safety Laws which could reasonably
be expected to have a Material Adverse Effect; (B) any request for
information or notice of potential responsibility under Environmental and
Safety Laws with respect to cleanup of any property or facility of the
Company or any other Loan Party or any offsite location which could
reasonably be expected to have a Material Adverse Effect; (C) the imposition
of any Lien on any assets of the Company or any other Loan Party under
Environmental and Safety Laws; (D) the commencement of any litigation,
enforcement action or investigation with respect to the Company or any other
Loan Party under Environmental and Safety Laws which if determined adversely
to the Company or such other Loan Party, could reasonably be expected to have
a Material Adverse Effect; or (E) any Release or threatened Release of any
Hazardous Material at or from any property or facility of the Company or any
other Loan Party which could reasonably be expected to have a Material
Advserse Effect;
(h) promptly upon the Lender's request, copies of all registration
statements, reports on Forms 10-K, 10-Q and 8-K (or their equivalents), proxy
statements and all other periodic reports, which the Company or any other
Loan Party shall have provided to its stockholders or filed with the
Securities and Exchange Commission (or any governmental agency substituted
therefor), any national securities exchange or the National Association of
Securities Dealers, Inc.;
(i) promptly upon the Lender's request, a copy of each report of any
<PAGE>
Person (including ABRA) or Governmental Authority with respect to the
condition of any Donor Center citing any material adverse condition or
deficiency at such Donor Center;
(j) promptly upon the Lender's request each annual inspection report of
the FDA with respect to any Loan Party's Donor Centers;
(k) promptly upon receipt thereof, copies of all notices given or
received by the Company or any other Loan Party with respect to noncompliance
with any term or condition related to any Subordinated Debt;
(l) promptly upon receipt thereof, copies of any notification or other
communication with respect to the Company's or any other Loan Party's rights
or obligations under any of the Acquisition Documents relating to any
Significant Acquisition and, promptly upon discovery thereof, notice and a
written description of all claims or potential claims for indemnification
under any such Acquisition Documents;
(m) prompt notice of the terms of any proposed amendment to, or
modification or waiver of any of the material terms of any of the Acquisition
Documents relating to any Significant Acquisition;
(n) promptly upon the approval thereof by the Board of Directors of the
Company, capital and operating expense budgets, projections of sources and
applications of funds and profit and loss projections for the Company (and
each of its Consolidated Subsidiaries) on a consolidated basis for each month
of the next succeeding fiscal year, all itemized in reasonable detail and
prepared by the Company. Any material revisions made in such budgets or
projects shall be furnished promptly to the Lender;
(o) promptly upon the Lender's request, a production report for the
Company and its Subsidiaries in form and detail reasonably acceptable to the
Lender, setting forth for the month ending immediately prior to such request,
among other things (i) the number of donors at each Donor Center during such
month, (ii) the number of new donors at such center during such month and
(iii) the number of liters of plasma produced at such center during such
month;
(p) at least two Business Days prior to the occurrence thereof, written
notice of any Disposition resulting in Net Proceeds in excess of $5,000,000;
and
(q) Subject to the notification provisions of Section 4.3. or 4.4.,
prompt notice of the acquisition, incorporation or other creation of any
Subsidiary, the purpose for such Subsidiary and the nature of the assets and
liabilities thereof.
6.2. Litigation
Promptly (and in any event within three Business Days of receipt) give to the
Lender notice of the filing or commencement of, or any written notice of
intention of any Person to file or commence, any action, suit or proceeding
affecting the Company or any of the other Loan Parties, whether at law or in
equity by or before any Governmental Authority which if adversely determined
could reasonably be expected to result in liability to the Company or any of
the other Loan Parties in an amount equal to or exceeding $2,000,000.00
(including the amount of any deductible paid or required to be paid by the
Company or any other Loan Party under the terms of its insurance policies,
but net of any amounts acknowledged in writing by the applicable insurer(s)
to be fully covered
<PAGE>
by insurance) or would otherwise have a Material Adverse Effect, and of any
adverse development in respect of such legal or other proceedings.
6.3. Corporate Existence, Etc.
Except as not prohibited by this Agreement: preserve and maintain its
corporate existence, and all of its material rights, privileges and
franchises, including without limitation, obtaining and maintaining all
necessary FDA approvals and QPP certification for all of its Donor Centers;
comply in all material respects with the requirements of all Applicable Laws,
rules, regulations and orders of all Governmental Authorities; maintain all
of its material properties used in its business in sufficient working order
and condition so as to permit such Loan Party to conduct its business; and
preserve and enforce its rights (including rights to indemnification) under
any Material Contracts, except where the failure to do so would not have a
Material Adverse Effect in the reasonable judgment of the Lender.
6.4. Insurance
Keep insured by financially sound and reputable insurers all property of
a character usually insured by entities engaged in the same or similar
business similarly situated against loss or damage of the kinds and in the
amounts customarily insured against by such businesses and carry such other
insurance as is usually carried by such businesses. Without limiting the
obligations of the Company and the other Loan Parties under the foregoing
provisions of this Section, in the event the Company or any of the other Loan
Parties shall fail to maintain in full force and effect insurance as required
by the foregoing provisions of this Section or any of the other Credit
Documents, then the Lender may upon notice to the Company or such other Loan
Party, but shall have no obligation to, procure insurance covering the
interests of the Lender in such amounts and against such risks as the Lender
shall deem appropriate, and the Company shall reimburse the Lender in respect
of any premiums paid by the Lender as provided in Section 10.3.(c).
6.5. Obligations and Taxes
Pay its Indebtedness and other obligations in accordance with their
terms and pay and discharge promptly all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect
of its property, and in any event before the same shall become delinquent or
in default, as well as all lawful claims for labor, materials and supplies or
otherwise which, if unpaid, might give rise to a Lien upon such properties or
any part thereof which could reasonably be expected to have a Material
Adverse Effect; provided, however, that such payment and discharge shall not
be required so long as the validity or amount thereof shall be contested in
good faith by appropriate proceedings which effectively stay the execution of
any such Lien and the Company shall (or shall cause the applicable Loan Party
to) set aside on its books adequate reserves in accordance with GAAP with
respect thereto.
6.6. Maintaining Records; Access to Properties and Inspections
Maintain all financial records in accordance with GAAP and permit any
representatives designated by the Lender upon reasonable notice to visit and
inspect the properties of the Company or any of the other Loan Parties and to
inspect their financial and business records and make extracts therefrom and
copies thereof, all at reasonable times and in a manner so as not to
unreasonably disrupt the operations of the Company or the other Loan Parties
and
<PAGE>
as often as reasonably requested, and permit the Lender or any
representatives designated by the Lender upon reasonable notice to discuss
the affairs, finances and condition of the Company or any of the other Loan
Parties with the officers thereof and independent accountants therefor;
provided, however, that (i) any representatives designated by the Lender
shall be in the business of acting as crisis managers or business consultants
and shall be bound by the same or similar internal policies with regard to
confidential information as is the Lender, and (ii) the Lender or any
representatives designated by the Lender shall not discuss the affairs,
finances and condition of the Company or any of the other Loan Parties with
the Company's independent accountants unless and until the Lender determines
in its discretion that discussions directly with the Company or the officers
of the Company have failed to satisfy the inquiries of the Lender or its
representatives. Not in limitation of the foregoing, the Company shall, and
shall cause each of the other Loan Parties to, keep complete, accurate and
detailed financial records with respect to all amounts of all Loans made
available to any of the Subsidiaries by way of loans.
6.7. Environmental and Safety Matters
For the purposes of protecting the Lender's security interest in the
Collateral and preserving the Company's ability to satisfy its Obligations:
(a) Comply with all Environmental and Safety Laws applicable to it or
any of its property or facilities in all material respects.
(b) Keep its properties and facilities free from any Liens which could
reasonably be expected to have a Material Adverse Effect arising under any
Environmental and Safety Laws.
(c) Respond promptly to any Release or threatened Release of any Hazardous
Materials in a manner which complies in all material respects with all
Environmental and Safety Laws and mitigates any associated risk to human health
or the environment to the maximum extent commercially practicable.
(d) If the Lender at any time has reason to believe that any property
or facility owned or operated by the Company or any other Loan Party has been
or may be either (i) operated in violation of any Environmental and Safety
Laws; (ii) contaminated with any Hazardous Materials; or (iii) subject to any
government-imposed obligation to conduct any environmental investigation or
clean-up, any of which, in the good faith judgment of the Lender may impair
in any material respect the value of the Collateral or the ability of the
Company or any of the other Loan Parties to satisfy any of their respective
Obligations, the Company shall, upon the written request of the Lender, at
the Company's sole cost and expense, conduct such investigation or study,
through retention of a consulting firm reasonably satisfactory to the Lender,
as is necessary in the good faith judgment of the Lender to demonstrate that
no such impairment could reasonably be expected to have a Material Adverse
Effect.
6.8. Additional Security
If and to the extent requested by the Lender from time to time, after the
occurrence and during the continuation of a Default or Event of Default, execute
and deliver such additional documents and take such other action as may be
necessary or desirable in the reasonable opinion of the Lender in order to
assure and confirm that all Obligations are secured in a manner acceptable to
the Lender by a first priority Lien on substantially all present and future
assets of the Company and the other Loan Parties (other than Bioscot and the
<PAGE>
FSC) subject only to Permitted Liens.
6.9. Deposit Accounts/Cash Management Services
For the purpose of protecting the Lender's security interest in the
Collateral and enabling the Lender to monitor the proceeds of Collateral and
the uses of cash by the Company and the other Loan Parties, maintain all of
its primary operating accounts and treasury management service relationships
with the Lender.
7.NEGATIVE COVENANTS
The Company covenants and agrees that, so long as the Credit Facility is
in effect or the principal or interest on any Loan or any Obligation shall
remain unpaid, the Company will not, nor will it permit any of the Loan
Parties to:
7.1. Prohibition of Fundamental Changes
Effect any of the following: (i) any transaction of merger,
consolidation, recapitalization, reorganization, liquidation or dissolution
(other than the merger of a Subsidiary of the Company with and into the
Company pursuant to which the Company is the surviving corporation or with
and into any Wholly-Owned Subsidiary of the Company pursuant to which such
Wholly-Owned Subsidiary is the surviving corporation); or (ii) a Disposition
of all or substantially all of the assets of the Company and its Subsidiaries
taken as a whole to any Person; or (iii) engage in any line of business other
than those, or similar to those, described in Section 5.18.; or (iv) any
Acquisition or any other transaction of acquisition of another Person, or of
substantially all of the assets of another Person, or of a distinct operating
division of another Person, unless (A) at the time of such transaction, such
other Person is engaged in, or such assets are to be used in, the same or
similar line(s) of business as those described in Section 5.18., (B) no
Default or Event of Default has occurred and is continuing or would occur
after giving effect to such transaction, (C) the applicable conditions
contained in Section 4.3. or Section 4.4., as applicable, have been satisfied
and (D) in the case of a Significant Acquisition, the Lender shall have given
its written consent thereto.
7.2. Limitation on Liens
Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, except Permitted
Liens.
7.3. Indebtedness and Guarantees
Create, incur or suffer to exist any Indebtedness or Guarantees except
(a) Indebtedness to the Lender created hereunder and under any of the Credit
Documents; (b) Indebtedness existing on the Closing Date and described on
attached Schedule 7.3.; (c) additional Indebtedness and Guarantees (which do
not constitute Subordinated Debt) in an aggregate amount not to exceed
$7,500,000 at any time outstanding; (d) Indebtedness otherwise permitted by
Section 7.4.; and
(e) Subordinated Debt.
7.4. Investments
Make or permit to remain outstanding any Investments except (i) Permitted
<PAGE>
Investments, (ii) the ownership of the capital stock of Subsidiaries by the
Company or its Subsidiaries, the acquisition of which is permitted by Section
7.1.(iv), and the ownership of capital stock of the Company, the acquisition
of which is otherwise permitted hereunder, (iii) loans or advances to
Subsidiaries from the Company, (iv) loans or advances to the Company by one
or more of its Subsidiaries, provided that the repayment of any such loans or
advances is subordinated in writing in a manner satisfactory to the Lender to
the prior satisfaction in full of the Obligations and (v) other Investments
not of the types described in the preceding subsections (i) through (iv),
including without limitation, ownership interests in joint ventures and
ownership of capital stock of or other equity interests in a Person that is
not a Subsidiary, having an aggregate cost to the Company and its
Subsidiaries not to exceed 10% of Consolidated Total Assets of the Company at
any time outstanding. As of the date hereof, all Investments of the type
described in the immediately preceding clause (v) and having a cost to the
Company or any of its Subsidiaries in excess of $1,000,000 are described on
Schedule 7.4.
7.5. Restricted Payments
Make any Restricted Payment; provided, however, that (i) Subsidiaries of the
Company may make dividends, payments or other distributions to the Company or
to any Wholly-Owned Subsidiary of the Company; and (ii) subject to the other
terms and conditions hereof, including without limitation, Section 8.4., and
so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, the Company may make Restricted
Payments.
7.6. Accounting
Change its accounting methods or practices (except as required to conform to
changes in GAAP or permitted by GAAP) or, without the prior written consent
of the Lender, which consent shall not be unreasonably withheld, change its
fiscal year. If any financial statements delivered by the Company pursuant
to Section 6.1. are presented in such a manner that such financial statements
could not set forth in comparative form the corresponding figures for the
preceding fiscal year, the Company shall advise the Lender of such fact upon
the delivery of such financial statements and upon the Lender's request shall
prepare a report in form and substance reasonably satisfactory to the Lender
detailing the differences in the presentation of such financial statement and
the financial statements for the immediately preceding fiscal year.
7.7. Amendment of Certain Documents
Enter into any amendment, modification or waiver of any of the terms of
any of the Acquisition Documents which amendment, modification or waiver
would have a Material Adverse Effect.
7.8. Sales of Assets
Sell, lease, assign, transfer or otherwise dispose of any of the
Collateral; provided, however, so long as no Default or Event of Default
shall have occurred and be continuing or would result therefrom: (a) a Loan
Party may dispose of its Inventory in the ordinary course of its business,
(b) a Loan Party may dispose of excess, obsolete or used Equipment so long
as, if so required for the conduct of such Loan Party's business, any such
Equipment is replaced with other Equipment of equivalent or greater value and
which serves the same or a similar purpose as the replaced Equipment, and (c)
a Loan Party may otherwise dispose of Collateral which does not, together
with all other
<PAGE>
Collateral disposed of by the Loan Parties after the date of this Agreement
(excluding Collateral permitted to be disposed of under the immediately
preceding clauses (a) and (b)), have an aggregate book value in excess of
$10,000,000.
8 FINANCIAL COVENANTS
The Company covenants and agrees that, so long as the Credit Facility is
in effect or the principal or interest on any Loan or any Obligation shall
remain unpaid, the Company will not permit:
8.1. Ratio of Funded Debt to EBITDA
The ratio of (a) Funded Debt to (b) EBITDA at the end of any fiscal
quarter for the four fiscal quarter period then ending, to be greater than
3.0 to 1.0.
8.2. Ratio of Senior Funded Debt to EBITDA
The ratio of (a) Senior Funded Debt to (b) EBITDA at the end of any
fiscal quarter for the four fiscal quarter period then ending, to be greater
than 2.5 to 1.0.
8.3. Ratio of Cash Flow to Debt Service
The ratio, at the end of any fiscal quarter, of (a) Cash Flow for the
four fiscal quarter period then ending to (b) (i) Debt Service for the four
fiscal quarter period beginning immediately following such fiscal quarter
plus (ii) Interest Expense for the four fiscal quarter period then ending, to
be less than 1.5 to 1.0.
8.4. Debt to Net Worth
The ratio of (a) Indebtedness of the Company and its Consolidated
Subsidiaries to (b) Net Worth to be greater than 1.0 to 1.0 at any time.
9 EVENTS OF DEFAULT
If one or more of the following events shall occur and be continuing:
9.1. Payments under Credit Documents
The Company shall default in the payment when due of any principal of
any Loan, any interest on any Loan or any fee or any other Obligations
payable by it hereunder or under any other Credit Document, or any other Loan
Party shall default in the payment when due of any principal, interest, fee
or any other amount payable by it under any Credit Document to which such
Loan Party is a party, which default in the case of a payment other than a
payment of principal or interest shall continue for a period of five Business
Days.
9.2. Other Indebtedness
The Company or any other Loan Party shall default in the payment when
due of any principal of or interest on any Indebtedness having a principal
amount outstanding, individually or in the aggregate, equal to or exceeding
$2,000,000.00 (other than the Obligations); or any event specified in any
note, agreement, indenture or other document evidencing or relating to any
such Indebtedness of the Company or any other Loan Party shall occur and as a
result
<PAGE>
of the occurrence of such event such Indebtedness (a) has become due or is
required to be prepaid (whether by redemption, purchase or otherwise) prior
to its stated maturity or (b) the holder is then entitled to cause such
Indebtedness to become due or required to be so prepaid.
9.3. Representations and Warranties
Any representation, warranty or certification made or deemed to be made
in any Credit Document by the Company or any other Loan Party or any
certificate, financial statement or other information furnished in writing to
the Lender pursuant to the provisions hereof or thereof, shall prove to have
been false or misleading in any material respect as of the time made or
deemed to be made.
9.4. Other Obligations
(i) The Company shall default in the performance of any of its
obligations under Article 7. (other than Sections 7.2. or 7.3.) or Article
8.; or (ii) the Company shall default in the performance of any of its
obligations under Section 6.1., Section 7.2. or Section 7.3. which default
shall continue unremedied for a period of 10 Business Days or (iii) the
Company or any other Loan Party shall default in the performance of any of
its other obligations in this Agreement or any other Credit Documents to
which it is a party and such default shall continue unremedied for a period
of 20 days after the Company or such Loan Party receives notice or otherwise
has actual knowledge thereof.
9.5. Ability to Pay Debts
The Company or any other Loan Party shall admit in writing its inability
to, or be generally unable to, pay its debts as such debts become due.
9.6. Voluntary Proceedings
The Company or any other Loan Party shall (i) apply for or consent to
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code, (iv) file a
petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or readjustment of
debts, (v) acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporate action
for the purpose of effecting any of the foregoing.
9.7. Involuntary Proceedings
A proceeding or case shall be commenced against the Company or any other
Loan Party, without its application or consent, in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of all
or any substantial part of its assets, or (iii) similar relief under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree approving or ordering
any of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against the Company
or any other Loan Party shall be entered in an involuntary case under the
Bankruptcy Code.
<PAGE>
9.8. Judgments
A judgment or judgments for the payment of money in excess of $2,000,000
in the aggregate (exclusive of judgment amounts to the extent covered by
insurance where the Company has submitted a claim and the insurer has not
contested liability in respect of such judgment) shall be rendered by a court
or courts against the Company or any other Loan Party and the same shall not
be vacated, bonded or discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured, within 60
days from the date of entry thereof.
9.9. ERISA Event
(a) Any ERISA Event shall have occurred with respect to the Company or
any other Loan Party and the sum of the Insufficiency of such Plan
(determined as of the date of occurrence of such ERISA Event) and the
Insufficiency of any and all other Plans (determined as of the date of
occurrence of such ERISA Event) of the Company or any other Loan Party with
respect to which an ERISA Event shall have occurred (or the liability of the
Company or any other Loan Party or its ERISA Affiliates related to such ERISA
Event) exceeds $2,000,000; or (b) the Company or any other Loan Party or any
of its ERISA Affiliates shall have been notified by a Multiemployer Plan that
it has incurred withdrawal liability to such Multiemployer Plan and the
imposition of such liability is reasonably likely to be incurred in an amount
that, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Company or any other Loan Party and its ERISA
Affiliates as withdrawal liability (determined as of the date of such
notification indemnification), requires payments exceeding $2,000,000 per
annum; or (c) the Company or any other Loan Party or any of its ERISA
Affiliates shall have been notified by a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated within the
meaning of Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of such Person and its ERISA
Affiliates to all Multiemployer Plans that are then in reorganization or
being terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $2,000,000.
9.10. Change in Control
A Change in Control shall have occurred without the prior written
consent of the Lender. As used in this Section the term "Change in Control"
shall mean the following: if any Person or two or more Persons acting in
concert, shall acquire "beneficial ownership" within the meaning of Rule
13d-3 of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), directly or indirectly, of capital stock or securities of the Company
representing 25% (or 40% with respect to any Person permitted to file a
report on Schedule 13G under the Exchange Act) or more of the aggregate
voting power of all classes of capital stock and securities of the Company.
9.11. Failure of Security Interest
The Lender shall cease to have a valid and perfected first priority
security interest in the Collateral (subject to Permitted Liens) for any
reason other than the failure of the Lender to take any action within its
control or any of the Collateral.
<PAGE>
THEREUPON: (1) In the case of an Event of Default, other than an Event
of Default referred to in Section 9.6. or Section 9.7., the Lender may, by
notice to the Company, cancel the Credit Facility and/or declare the
then-outstanding principal amount of, and the accrued interest on, the Loans
and all other Obligations payable by the Company hereunder and under the
Notes (including, without limitation, any amounts payable under Section
10.3.) to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company; (2) in the case of the occurrence of an Event of Default referred to
in Section 9.6. or Section 9.7. above, the Credit Facility shall
automatically be canceled and the then-outstanding principal amount of, and
the accrued interest on, the Loans and all other Obligations payable by the
Company hereunder and under the Notes (including, without limitation, any
amounts payable under Section 10.3.) shall automatically become immediately
due and payable without presentment, demand, protest or other formalities of
any kind, all of which are hereby expressly waived by the Company; and (3) in
the case of any Event of Default, the Lender may exercise any and all
remedies available under the Security Documents or under Applicable Law. The
proceeds of any sale of the whole or any part of any of the Collateral as a
result of an Event of Default, together with any other moneys paid to or held
by the Lender under the provisions of any Credit Document, shall be applied
by the Lender in the following order:
(a) First: to the payment of all costs and expenses incurred in
connection with such sale or other realization, including reasonable
attorneys' fees incurred if the Lender endeavored to collect the Obligations
(under and as defined in this Agreement or in any other Credit Document), by
or through an attorney at law;
(b) Second: to the payment of the interest due upon any of such
Obligations, in any order which the Lender may elect;
(c) Third: to the payment of the principal due upon any of such
Obligations in any order which the Lender may elect; and
(d) Fourth: the balance (if any) of such proceeds shall be paid to
whomsoever may be legally entitled thereto.
10 MISCELLANEOUS
10.1. Waiver
No failure on the part of the Lender to exercise and no delay in
exercising, and no course of dealing with respect to, any right, power or
privilege under this Agreement or any Note or other Credit Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law.
10.2. Notices
All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing
and delivered personally, mailed by certified or registered mail, return
receipt requested and postage prepaid, sent via a nationally recognized
overnight
<PAGE>
courier, or sent via facsimile. Such notices, demands and other
communications will be sent to the address indicated below:
To the Company:
Serologicals Corporation
780 Park North Boulevard, Suite 120
Clarkston, Georgia 30021
Attention: Russell H. Plumb, Vice President,
Finance and Administration
Telecopy No: 404/297-8044
With copies to:
David S. Rosenthal
Shereff, Friedman, Hoffman & Goodman, LLP
919 Third Avenue, 20th Floor
New York, New York 10022
Telecopy No: 212/758-9526
To the Lender:
NationsBank, N.A.
600 Peachtree Street, 19th Floor
Atlanta, Georgia 30308
Attention: R. Yvette Cromer, Assistant Vice President
Telecopy No: 404/607-6338
With a copy to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309-3424
Attention: Paul M. Cushing
Telecopy No: 404/881-7777
or such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party; provided, however, that the failure to deliver copies of notices as
indicated above shall not affect the validity of any notice. Any such
communication shall be deemed to have been received (i) when delivered, if
personally delivered, or sent by nationally-recognized overnight courier or
sent via facsimile or (ii) on the third Business Day following the date on
which the piece of mail containing such communication is posted if sent by
certified or registered mail.
10.3. Expenses, Etc.
(a) Agreement to Pay and Reimburse. The Company agrees to pay or
reimburse the Lender for: (i) all out-of pocket costs and expenses
(including, without limitation, the reasonable fees and expenses of Alston &
Bird LLP, special counsel to the Lender) in connection with (A) the
negotiation, preparation, execution and delivery of this Agreement and the
other Credit Documents and the extension of credit hereunder and (B) any
amendment, modification or waiver of any of the terms of this Agreement or
any of the other Credit Documents; (ii) all costs and expenses of the Lender
(including counsel's fees) in connection with (A) any Default and any
enforcement or collection proceedings resulting
<PAGE>
therefrom and (B) the enforcement of this Section; and (iii) all transfer,
stamp, documentary or other similar taxes, assessments or charges levied by
any governmental or revenue authority in respect of this Agreement or any of
the other Credit Documents or any other document referred to herein or
therein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection
of any security interest contemplated by this Agreement or any other Credit
Document or any other document referred to herein or therein.
(b) Indemnity. The Company agrees to indemnify the Lender and its
directors, officers, employees and agents for, and hold each of them harmless
against, any and all losses, liabilities, claims (including Environmental
Claims), damages or expenses incurred by any of them arising out of or by
reason of any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to the
extensions of credit hereunder or any actual or proposed use by the Company
or any Loan Party of the proceeds of any of the extensions of credit
hereunder or the past, present or future business activities of the Company
or any Loan Party including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation
or litigation or other proceedings (but excluding any such losses,
liabilities, claims, damages or expenses that are determined pursuant to a
final, non-appealable order of a court of competent jurisdiction to have
resulted solely from the gross negligence or willful misconduct of the Person
to be indemnified).
(c) Expenses Paid On Behalf of the Company. If the Company fails to
pay when due any costs, expenses or other amounts payable by it under any
Credit Document, including, without limitation, fees and expenses of counsel,
indemnities and insurance premiums, such amount may be paid on behalf of the
Company by the Lender, in its sole discretion. Any such payment by the
Lender shall constitute for all purposes of this Agreement the making by the
Lender of a Loan, which shall bear interest at the Base Rate, in the amount
of such payment (but without any requirement for compliance with the
conditions set forth in Article 4.). In the event that such payment is not
reimbursed by the Company by 12:00 noon Atlanta, Georgia time on the first
Business Day after such payment, the Lender shall be deemed to have made a
Loan to the Company in such amount, which Loan shall be deemed to bear
interest at the Default Rate with respect to Base Rate Loans from the date
such Loan is made until the same is repaid.
10.4. Amendments, Etc.
Except as otherwise expressly provided in this Agreement, any provision
of this Agreement (including, without limitation, any of the Schedules
hereto) may be amended or modified only by an instrument in writing signed by
the Company and the Lender, and any provision of this Agreement may be waived
by the Lender; provided, however, that no amendment, modification or waiver
shall, unless by an instrument signed by the Lender: (i) increase or extend
the term, or extend the time or waive any requirement for the reduction or
termination, of any Loan, (ii) extend the date fixed for the payment of
principal of or interest on any Loan or any Obligation hereunder, (iii)
reduce the amount of any such payment of principal, (iv) reduce the rate at
which interest is payable thereon or any fee or other Obligation is payable
hereunder, (v) alter the rights or obligations of the Company to prepay
Loans, (vi) alter the terms of this Section or Section 10.6.(a), or (vii)
waive any of the conditions precedent set forth in Article 4.
10.5. Successors and Assigns
<PAGE>
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
10.6. Assignments and Participations
(a) The Company may not assign its rights or obligations hereunder or
under the other Credit Documents without the prior consent of the Lender.
(b) The Lender may sell or agree to sell to one or more other Persons
(a "Participant") a participation in all or any part of any Loans held by it,
in which event the Participant's rights in respect of such participation
shall be those set forth in the agreements executed by the Lender in favor of
the Participant, and such Participant shall have no direct right under the
Credit Documents. In no event shall the Lender that sells a participation
agree with the Participant to take or refrain from taking any action
hereunder or under any other Credit Document, except that the Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term, or extend the time or
waive any requirement for the reduction or termination, of the Revolving
Commitment, the Swingline Commitment or the Credit Facility, (ii) extend the
date fixed for the payment of principal of or interest on the related Loan(s)
or the portion of any fee hereunder payable to the Participant, (iii) reduce
the amount of any such payment of principal, or (iv) reduce the rate at which
interest is payable thereon, or any fee hereunder payable to the Participant,
to a level below the rate at which the Participant is entitled to receive
such interest or fee.
(c) The Lender may furnish any information concerning the Company or
any Subsidiary in the possession of the Lender from time to time to assignees
and Participants (including prospective assignees and Participants) in
accordance with its internal policies with regard to confidential
information, provided that such assignees or Participants are bound by the
same or similar internal policies with regard to confidential information as
is the Lender.
10.7. Survival
The obligations of the Company and its Subsidiaries under Sections 3.4.
and 10.3. shall survive the repayment of the Loans and the termination of the
Credit Facility.
10.8. Table of Contents; Descriptive Headings
The table of contents and captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
10.9. Counterparts
This Agreement may be executed in any number of counterparts, each of
which need not contain the signature of more than one party and all of which
taken together shall constitute one and the same original instrument.
10.10. Governing Law
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Georgia, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Georgia or
any
<PAGE>
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Georgia. In furtherance of the
foregoing, the internal laws of the State of Georgia shall control the
interpretation and construction of this Agreement, even though under that
jurisdiction's choice of law or conflict of law analysis, the substantive law
of some other jurisdiction would ordinarily apply.
10.11. Arbitration
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
CREDIT DOCUMENT, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED
TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE
FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE
RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (J.A.M.S.), AND THE
"SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE
SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY
BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL
ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
THE COMPANY'S DOMICILE AT THE TIME OF THIS AGREEMENT'S EXECUTION AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS
UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE
AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL
BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO
(I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE
A WAIVER BY THE LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91
OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE
LENDER HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL,
OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT
NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
AGREEMENT. NEITHER THE EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES
SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT
IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM
OCCASIONING RESORT TO SUCH REMEDIES.
10.12. Acknowledgments
The Company hereby acknowledges that: (a) it has been advised by
counsel in the negotiation, execution and delivery of this Agreement and the
other Credit Documents to which it is a party; (b) except as expressly
provided in this Agreement or any of the Credit Documents, the Lender has no
fiduciary relationship with or duty to the Company, and the relationship
between the Lender on one hand, and the Company on the other hand, is solely
that of debtor
<PAGE>
and creditor; and (c) no joint venture exists between the Lender on one hand,
and the Company on the other hand.
Confidentiality
Except as otherwise provided by law, the Lender shall utilize all
non-public information obtained pursuant to the requirements of this
Agreement which has been identified as confidential or proprietary by the
Company in accordance with the Lender's customary procedure for handling
confidential information of this nature and in accordance with safe and sound
banking practices but in any event may make disclosure: (a) to any of its
Affiliates (provided they shall agree to keep such information confidential
in accordance with the terms of this Section); (b) as reasonably required by
any bona fide transferee or participant in connection with the contemplated
transfer of any of the Loans or the Lender's commitments hereunder, or
participations therein, as permitted hereunder; (c) as required by any
Governmental Authority or representative thereof or pursuant to legal
process; (d) to the Lender's independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); and (e) after the happening and during the continuance of an
Event of Default, to any other Person, in connection with the exercise of the
Lender's rights hereunder or under any of the other Credit Documents.
Obligations with Respect to Loan Parties.
The obligations of the Company to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein and in the
other Credit Documents shall be absolute and not subject to any defense the
Company may have that the Company does not control such Loan Parties.
Amount of Existing Indebtedness.
The Company and the Lender hereby acknowledge and agree that as of the
date hereof and prior to giving effect to the making of the initial Revolving
Loan hereunder, the outstanding principal balance of the Revolving Loans is
$0.
10.16. NO NOVATION.
THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS SOLELY TO AMEND AND RESTATE THE TERMS OF, AND THE OBLIGATIONS OWING
UNDER AND IN CONNECTION WITH, THE EXISTING CREDIT AGREEMENT. THE PARTIES DO
NOT INTEND THIS AGREEMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND
THIS AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL NOT BE DEEMED OR
CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE COMPANY OR
ANY OTHER LOAN PARTY UNDER OR IN CONNECTION WITH THE EXISTING CREDIT
AGREEMENT OR ANY OTHER CREDIT DOCUMENT. FURTHER, THE PARTIES DO NOT INTEND
THIS AGREEMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO AFFECT THE
PERFECTION OR PRIORITY OF ANY LIEN HELD BY THE LENDER IN ANY OF THE
COLLATERAL IN ANY WAY WHATSOEVER.
[Signatures on Next Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and
Restated Credit Agreement to be duly executed as of the day and year first above
written.
SEROLOGICALS CORPORATION
By: /s/ Russell H. Plumb
-------------------------------
Name: Russell H. Plumb
------------------------
Title: Vice President
------------------------
NATIONSBANK, N.A.
By: /s/ Yvette Cromer
----------------------------------
Name: Yvette Cromer
---------------------------
Title: Assistant Vice President
---------------------------
<PAGE>
EXHIBIT 10.1.2
REVOLVING NOTE
$35,000,000.00 Atlanta, Georgia
October 16, 1997
FOR VALUE RECEIVED, the undersigned, SEROLOGICALS CORPORATION, a Delaware
corporation (the "Borrower") hereby unconditionally promises to pay to the order
of NATIONSBANK, N.A., formerly known as NationsBank, N.A. (South) and prior to
that, NationsBank of Georgia, National Association (the "Lender"), at its office
at 600 Peachtree Street, Atlanta, Georgia 30308 or at such other address as may
be specified by the Lender to the Borrower, the principal sum of THIRTY-FIVE
MILLION AND 00/100 DOLLARS ($35,000,000.00), or such lesser amount as may be the
aggregate principal amount outstanding of all Revolving Loans made by the Lender
to the Borrower pursuant to, and in accordance with the terms of, the Credit
Agreement.
The Borrower agrees to pay principal at said office, in like money, from
time to time on the dates and at the times specified in the Credit Agreement.
The Borrower further agrees to pay interest at said office, in like money, on
the unpaid principal amount owing hereunder from time to time on the dates and
at the rates and at the times specified in the Credit Agreement.
The date and amount of each Revolving Loan made by the Lender to the
Borrower under the Credit Agreement, and each payment of principal thereof,
shall be recorded by the Lender on its books and, prior to any transfer of this
Note, endorsed by the Lender on Schedule I attached hereto; provided, however,
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligation of the Borrower to make a payment when due of any
amount owing under this Note. Any such recordations or endorsements made by the
Lender on its books or this Note shall be conclusive and binding on the Borrower
absent manifest error.
This Note is the "Revolving Note" referred to in that certain Second
Amended and Restated Credit Agreement dated as of October 16, 1997 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by and among the Borrower and the Lender, and is subject to, and
entitled to, all provisions and benefits thereof. Capitalized terms used herein
and not defined herein shall have the respective meanings given to such terms in
the Credit Agreement. The Credit Agreement, among other things, (a) provides
for the making of Revolving Loans by the Lender to the Borrower from time to
time in an aggregate amount not to exceed at any time outstanding the Dollar
amount first above mentioned, (b) permits the prepayment of the Revolving Loans
by the Borrower subject to certain terms and conditions and (c) provides for the
acceleration of the Revolving Loans upon the occurrence of certain specified
events.
<PAGE>
This Note is secured by the Collateral and the holder hereof shall be
entitled to the benefits thereof and to the other Credit Documents (to the
extent and with the effect as therein provided).
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF GEORGIA.
This Note amends and restates the terms of that certain Revolving Note
dated July 20, 1995, in the original principal amount of $20,000,000 executed
and delivered by the Borrower and payable to the order of the Lender. THIS NOTE
IS NOT INTENDED TO BE, AND SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF
THE OBLIGATIONS OWING UNDER OR IN CONNECTION WITH SUCH OTHER NOTE.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note
under seal as of the date written above.
SEROLOGICALS CORPORATION
By: /s/ Russell H. Plumb
----------------------------------
Name: Russell H. Plumb
-----------------------------
Title: Vice President, Finance
----------------------------
ATTEST:
By: /s/ Harold J. Tenoso, Ph.D.
----------------------------------
Name: Harold J. Tenoso, Ph.D.
-----------------------------
Title: President & CEO
----------------------------
(CORPORATE SEAL)
2
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Amount of Amount of Outstanding
Date Borrowing Payment Principal Balance Notation
- - ---- --------- --------- ----------------- --------
<S> <C> <C> <C> <C>
</TABLE>
3
<PAGE>
EXHIBIT 21
Subsidiaries
Name
- - - Serologicals (Barbados), Inc. (FSC)
- - - Serologicals Finance Company
- - - Serologicals License Company
- - - Serologicals, Inc.
--) Allegheny Biologicals, Inc.
--) Am Rho Laboratories, Inc.
--) Bioscot Limited
--) Serologicals Investment Company
* Serologicals Management Partnership, LP (1)
--) Serologicals Royalty Company
--) Bio-Lab, Inc.
--) Med-Lab, Inc.
- - - Seramed, Inc.
--) Simi Biological Resources, Inc.
--) Nations Biologics, Inc.
* Alameda Plasma Center, Inc.
* MBW Enterprises, Inc.
+ American Biologics, Inc.
+ National Biologicals, Inc.
--) Bloomington Plasma, Inc.
--) Seronat Plasma, Inc.
--) Southeastern Biologics, Inc.
--) Plasma Management, Inc.
--) Reno Plasma, Inc.
* Unless otherwise indicated, all subsidiaries are wholly owned
(1) Serologicals Investment Company is the 99% limited partner in
Serologicals Management Partnership. Serologicals, Inc. is the 1% general
partner.
- - -------------------------------------------------------------------------------
- First tier subsidiary of Serologicals Corporation
--) Second tier subsidiary
* Third tier subsidiary
+ Fourth tier subsidiary
- - -------------------------------------------------------------------------------
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our report dated March 2, 1998 and to all reference to our firm,
included in this Form 10-K into the Company's previously filed Registration
Statements on Form S-8 (File Nos. 333-97640, 333-03771, 333-03769, 333-09549
and 333-47433), and the Company's previously filed Registration Statement on
Form S-3 (File No. 333-34345).
/s/ Arthur Andersen LLP
- - -----------------------------
Atlanta, Georgia
March 20, 1998
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF SEROLOGICALS CORPORATION FOR THE QUARTERS
ENDED MARCH 30, 1997, JUNE 29, 1997 AND SEPTEMBER 29, 1997, AS SET FORTH IN ITS
FORM 10-Q FOR THE RESPECTIVE PERIODS AND IS QUALIFIED IN ITS ENTIRETY BY SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS 9-MOS
<FISCAL-YEAR-END> DEC-28-1997 DEC-28-1997 DEC-28-1997
<PERIOD-START> DEC-30-1996 MAR-31-1997 JUN-30-1997
<PERIOD-END> MAR-30-1997 JUN-29-1997 SEP-28-1997
<CASH> 11,632 14,371 27,913
<SECURITIES> 0 0 0
<RECEIVABLES> 7,404 8,368 10,586
<ALLOWANCES> 242 0 0
<INVENTORY> 8,362 7,706 8,642
<CURRENT-ASSETS> 28,011 31,712 47,978
<PP&E> 16,927 11,901 19,562
<DEPRECIATION> 5,739 0 6,818
<TOTAL-ASSETS> 89,514 93,458 118,002
<CURRENT-LIABILITIES> 16,178 12,415 14,208
<BONDS> 0 0 0
0 0 0
0 0 0
<COMMON> 141 149 156
<OTHER-SE> 70,163 77,806 98,760
<TOTAL-LIABILITY-AND-EQUITY> 89,514 93,458 118,002
<SALES> 19,903 45,962 72,571
<TOTAL-REVENUES> 19,903 45,962 72,571
<CGS> 12,078 29,211 46,085
<TOTAL-COSTS> 12,078 29,211 46,085
<OTHER-EXPENSES> 3,976 8,281 13,111
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> (159) (224) (358)
<INCOME-PRETAX> 4,008 8,694 13,733
<INCOME-TAX> 1,482 3,196 5,008
<INCOME-CONTINUING> 2,526 5,498 8,725
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> 2,526 5,498 8,725
<EPS-PRIMARY> $0.18 $0.38 $0.60
<EPS-DILUTED> $0.17 $0.36 $0.57
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM SEROLOGICALS
CORPORATION AND SUBSIDIARIES' CONSOLIDATED FINANCIAL STATEMENTS FOR THE FISCAL
YEAR ENDED DECEMBER 28,1997, AS SET FORTH IN ITS FORM 10-K FOR THE YEAR AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-28-1997
<PERIOD-START> DEC-30-1996
<PERIOD-END> DEC-29-1997
<CASH> 31,812
<SECURITIES> 0
<RECEIVABLES> 10,522
<ALLOWANCES> 531
<INVENTORY> 10,154
<CURRENT-ASSETS> 52,822
<PP&E> 13,682
<DEPRECIATION> 0
<TOTAL-ASSETS> 123,492
<CURRENT-LIABILITIES> 15,267
<BONDS> 0
0
0
<COMMON> 157
<OTHER-SE> 103,258
<TOTAL-LIABILITY-AND-EQUITY> 123,492
<SALES> 97,534
<TOTAL-REVENUES> 97,534
<CGS> 62,065
<TOTAL-COSTS> 62,065
<OTHER-EXPENSES> 16,935
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (532)
<INCOME-PRETAX> 19,066
<INCOME-TAX> 7,064
<INCOME-CONTINUING> 12,002
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 12,002
<EPS-PRIMARY> .81
<EPS-DILUTED> .76
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM SERLOGICALS
CORPORATION AND SUBSIDIARIES' CONSOLIDATED FINANCIAL STATEMENTS FOR THE FISCAL
YEAR ENDED DECEMBER 31, 1995, AND DECEMBER 29, 1996 AS WELL AS FOR THE QUARTERS
ENDED MARCH 31, 1996, JUNE 30, 1996 AND SEPTEMBER 29, 1996 AS SET FORTH IN ITS
FORM 10-Q'S AND FORM 10-W FOR THE RESPECTIVE PERIODS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C> <C> <C>
<C>
<PERIOD-TYPE> YEAR YEAR 3-MOS 6-MOS
9-MOS
<FISCAL-YEAR-END> DEC-30-1995 DEC-29-1996 DEC-29-1996 DEC-29-1996
DEC-29-1996
<PERIOD-START> JAN-01-1996 JAN-01-1995 JAN-01-1996 APR-01-1996
JUL-01-1996
<PERIOD-END> DEC-31-1995 DEC-29-1996 MAR-31-1996 JUN-30-1996
SEP-29-1996
<CASH> 2,887 21,232 1,571 17,194
125,259
<SECURITIES> 0 0 0 0
0
<RECEIVABLES> 5,608 5,235 7,255 6,646
6,020
<ALLOWANCES> 0 0 0 0
0
<INVENTORY> 3,866 5,746 4,286 4,990
6,013
<CURRENT-ASSETS> 13,095 33,344 14,354 30,086
$31,463
<PP&E> 6,595 9,800 7,240 7,521
8,454
<DEPRECIATION> 0 0 0 0
0
<TOTAL-ASSETS> 50,324 89,837 57,606 73,384
$75,305
<CURRENT-LIABILITIES> 6,922 12,638 8,725 6,823
6,431
<BONDS> 0 0 0 0
0
0 0 0 0
0
0 0 0 0
0
<COMMON> 126 141 84 94
94
<OTHER-SE> 36,467 67,742 38,158 62,804
65,085
<TOTAL-LIABILITY-AND-EQUITY> 50,324 80,837 57,606 73,884
$75,305
<SALES> 52,124 65,571 14,779 31,440
$47,254
<TOTAL-REVENUES> 52,124 65,571 14,779 31,440
$49,259
<CGS> 31,525 38,752 8,665 18,509
27,680
<TOTAL-COSTS> 31,525 38,752 8,665 18,509
27,686
<OTHER-EXPENSES> 11,518 13,438 3,308 6,644
10,156
<LOSS-PROVISION> 0 0 0 0
0
<INTEREST-EXPENSE> 2,116 220 163 373
297
<INCOME-PRETAX> 6,695 13,116 2,644 5,915
9,416
<INCOME-TAX> 2,499 4,866 1,015 2,141
3,434
<INCOME-CONTINUING> 4,466 8,250 1,628 3,774
5,982
<DISCONTINUED> 0 0 0 0
0
<EXTRAORDINARY> (1,823) (14) 0 (14)
(14)
<CHANGES> 0 0 0 0
0
<NET-INCOME> 2,598 8,236 1,628 3,760
$5,968
<EPS-PRIMARY> $0.24 $0.61 $0.13 $0.29
$0.45
<EPS-DILUTED> $0.23 $0.58 $0.12 $0.27
$0.42
</TABLE>
