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EXHIBIT 2.1
ASSET PURCHASE AND SALE AGREEMENT
This Asset Purchase and Sale Agreement ("Agreement") is dated as of May
31, 2000 by and among Seramed, Inc., a Delaware corporation ("Seramed"), Allied
Plasma Products, Inc., a Delaware corporation ("Allied"), Nations Biologics,
Inc., a Louisiana corporation ("Nations"), Alameda Plasma Center, Inc., a Texas
corporation ("Alameda"), MBW Enterprises, Inc., an Arizona corporation ("MBW"),
American Biologics, Inc., an Oklahoma corporation ("American"), Simi Biological
Resources, Inc., a Delaware corporation ("Simi"), National Biologicals, Inc., an
Oklahoma corporation ("National"), Bloomington Plasma, Inc., a Nevada
corporation ("Bloomington"), Seronat Plasma, Inc., a Delaware corporation
("Seronat"), Southeastern Biologics, Inc., a Louisiana corporation
("Southeastern"), Plasma Management, Inc., a Louisiana corporation ("PMI" and
together with Seramed, Allied, Nations, Alameda, MBW, American, Simi, National,
Bloomington, Seronat, Southeastern and PMI, collectively, the "Sellers"), each
with an office located at 780 Park North Boulevard, Suite 110, Clarkston,
Georgia 30021, Serologicals Royalty Company, a Delaware corporation with an
office located at 900 Market Street, Suite 200, Wilmington, Delaware 19801
("Royalty"), Serologicals Corporation, a Delaware corporation with an office
located at 780 Park North Boulevard, Suite 110, Clarkston, Georgia 30021
("Serologicals") and Aventis Bio-Services, Inc., a Delaware corporation with an
office located at 1020 First Avenue, King of Prussia, PA 19406 ("Buyer").
W I T N E S S E T H:
WHEREAS, Sellers currently own and operate 47 plasma donor centers and
related businesses throughout the United States;
WHEREAS, Sellers are desirous of selling all of the plasma donor
centers' and substantially all of the related businesses' assets;
WHEREAS, Serologicals indirectly owns all outstanding shares of each
Seller and Royalty, is a party to certain of the Supply Agreements (as defined
in Article 1) and will be benefitted by the consummation of the transactions
contemplated hereby;
WHEREAS, Buyer desires to purchase from Sellers, Royalty and
Serologicals and Sellers', Royalty and Serologicals, individually and
collectively, desire to sell to Buyer, the Assets (as defined in Article 1)
pursuant to the terms and conditions contained herein; and
WHEREAS, each Seller, Royalty, Serologicals and Buyer have taken all
corporate action necessary to authorize such sale and purchase; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
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ARTICLE 1
DEFINITIONS
1.1 Defined Terms . As used in this Agreement, the following defined terms
have the meanings indicated below:
"Actions" means any action, claim, suit, proceeding, arbitration,
mediation, investigation or audit.
"Affiliate" means any Person that, directly or indirectly, through one
or more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, "control" means the
power, direct or indirect, to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise and, in any event
and without limitation of the previous sentence, any Person owning fifty percent
(50%) or more of the voting securities of another Person shall be deemed to
control that Person.
"Agreement" means this Asset Purchase and Sale Agreement, its Exhibits,
Schedules and the certificates delivered in accordance herewith and made a part
hereof.
"Arbitrator" has the meaning ascribed to it in Section 3.5(b).
"Assets" means:
(A) all right, title and interest of such Seller and
Serologicals in and to the contracts, agreements, arrangements, instruments and
documents related to the Business, to the extent transferable or assignable,
including those that are specified on Schedule 2.1(a) and those on Schedule
2.4(m);
(B) the machinery, equipment, furniture, fixtures, office
equipment, leasehold improvements and other tangible personal property of such
Seller that are specified on Schedule 2.1(B);
(C) all interests of such Seller in approvals, permits
and applications held by such Seller that are capable of being transferred and
are specified on Schedule 2.1(c);
(D) all source plasma donor lists and source plasma donor
records in any form (including all computer records, to the extent
transferable);
(E) all right, title and interest of such Seller under
the real property leases listed on Schedule 2.l (E);
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(F) the inventories (other than plasma inventories),
supplies and similar tangible assets of such Seller related to the Business that
are specified on Schedule 2.1(F), which shall include all "softgoods" and other
disposables;
(G) all goodwill of such Seller generated by the
Business;
(H) all books, records, manuals, correspondence,
production records, customer relation information of such Seller relating to the
Business, copies (but not originals) of personnel files and records, and any
other confidential or proprietary information pertaining to the Business, except
for such as relate to such Seller's Specialty Plasma operations; and
(I) all other assets and properties set forth on Schedule
2.1(I) (which shall include all trade names, trademarks and servicemarks of the
Business and the corporate names Seramed, Inc., Nations Biologics, Inc. and
Allied Plasma Products, Inc.).
"Assumed Liabilities" means the obligations first occurring or arising
after the Closing Date under the agreements assumed by Buyer and set forth on
Schedule 2.2 irrespective of when such obligations become known to Sellers or
Buyer.
"Assumption Documents" means the assignment and assumption agreements
relating to the Lease Agreements, the Supply Agreements and all other Contracts.
For avoidance of doubt, the assignment and assumption agreements become
effective on the Closing Date and are contingent upon Closing.
"Big Five Accounting Firm" has the meaning ascribed to it in Section
3.5(b).
"Bowles Hollowell Conner" means that firm located at First Union
Capital Markets Corp., 101 South Tryon Street, 40th Floor, Charlotte, North
Carolina and retained by Serologicals and Sellers to act on their behalf in
connection with the sale of the Assets.
"Business" means, Sellers' entire plasma donor business conducted at
the Donor Centers as in effect on the Closing Date and includes Serologicals'
interest in the Alpha Contract . For avoidance of doubt, Business does not
include Sellers' or Serologicals' Specialty Plasma business.
"Closing" means the consummation of the transactions contemplated by
Article 2. For avoidance of doubt, Closing shall not occur unless and until
satisfaction (or waiver) of all conditions precedent set forth in Articles 6 and
7.
"Closing Date" has the meaning ascribed to it in Section 2.1.
"COBRA" means Title X of the Consolidated Omnibus Budget Reconciliation
Act of 1985 (section 4980B of the Code and sections 601 through 608 of ERISA),
as amended, and the rules and regulations promulgated thereunder.
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"Code" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"Confidentiality Agreement" means the September 20, 1999 letter
agreement between Centeon Bio-Services, Inc., predecessor to Aventis
Bio-Services, Inc., Serologicals and Bowles Hollowell Conner. A copy of the
Confidentiality Agreement is set forth as Exhibit 13.6.
"Confidential Information" has the meaning ascribed to it in the
Confidentiality Agreement.
"Contracts" means each contract, agreement, arrangement and other
instrument to which a Seller is a party or by which it or any of its assets are
bound that involves payment over the remaining term of such contract, agreement,
arrangement or other instrument of more than $50,000 or requires the Business to
provide goods or services worth more than $50,000 and which in each case is not
cancellable upon forty-five (45) days' notice or less without penalty, and with
respect to Serologicals, the December 15, 1998 Master Agreement for the Purchase
and Sale of Blood Plasma with Alpha Therapeutics Corp., as amended to date (the
"Alpha Contract"). All such Contracts are listed on Schedule 2.4(m).
"Corporate Documents" means the certificate of incorporation and
by-laws of a Delaware corporation or the equivalent documents of any other
entity organized under other Laws.
"Disputed Matters" has the meaning ascribed to it in Section 3.5(b).
"DOJ" means the antitrust division of the United States Department of
Justice.
"Donor Centers" means each of Sellers' 47 source plasma donor
collection centers listed on Schedule 2.4(z).
"Donor Records" means the information maintained by Sellers in Sellers'
ordinary course of business concerning such donors and deferred source plasma
donors who have attended or otherwise transacted business including, without
limitation, the donation of source plasma, at the Donor Centers and all Donor
Records maintained on computer files.
"Employee Benefit Plans" means an employee benefit plan as defined in
ERISA.
"Environmental Laws" means any applicable federal, state or local laws,
statutes, rules, regulations, orders, consent decrees, judgments, permits or
licenses, presently in effect, relating to prevention, remediation, reduction or
control of pollution, or protection of the environment, natural resources and/or
human health and safety.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
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"ERISA Affiliate" means Serologicals and any other Person regarded as a
single employer with any Seller under Section 414(b), (c), (m) or (o) of the
Code.
"Estimated Payment" means the amount equal to 80% of the Working
Capital determined pursuant to a certificate given to Buyer at Closing by the
Sellers.
"Excluded Assets" means Sellers' (i) claims, indemnity rights, causes
of action, choses in action or other rights, whether matured or unmatured,
contingent or noncontingent, direct or indirect, relating to or arising from the
period (a) on or before the Closing Date and, with respect to the other Excluded
Assets, (b) after the Closing Date; (ii) Tax refunds, credits or claims therefor
except to the extent Buyer or any Affiliate of Buyer has paid the Tax in
question; (iii) Sellers' trademarks, servicemarks and tradenames (other than
included on Schedule 2.1 (I)) and Sellers' standard operating procedures; (iv)
cash other than the cash physically at Donor Centers, short term investments and
other cash equivalents; (v) accounts receivable; (vi) the corporate seal,
certificate of incorporation, minute books, stock books, books of account or
other records having to do with each Seller's corporate organization; (vii)
prepaid expenses, advances or deposits but only to the extent relating to the
Excluded Assets; (viii) books, records, files and data but only to the extent
related to the Excluded Assets or to Sellers' policies or procedures which are
not in any manner applicable to the Business; (ix) all Specialty Plasma
inventories, donor records and files and red cell immunizations which do not
otherwise relate to the Business; (x) security bonds; (xi) all assets of
Serologicals other than the Alpha Contract; (xii) regulatory licenses to the
extent related to Specialty Plasma, (xiii) all plasma inventories , (xiv)
original employee personnel files and records and (xv) those assets set forth on
Schedule 2.1(f).
"FDA" means the United States Food and Drug Administration.
"Financial Statements" means the unaudited consolidated balance sheet
of Seramed as of December 28, 1997, December 27, 1998 and December 26, 1999 and
the related results of operations for the years then ended. The Financial
Statements are consolidated to include the relevant data for each of the other
Sellers. The Financial Statements are set forth on Schedule 4.5.
"FTC" means the United States Federal Trade Commission.
"GAAP" means generally accepted accounting principles consistently
applied in the United States as in effect on the Closing Date.
"GHA" means the German Health Authority.
"Governmental Body" means any federal, state, municipal or local court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any domestic state, county, city or other
political subdivision including, but not limited to, any quasi-governmental or
corporate body exercising any regulatory or taxing authority thereunder.
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"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"HSR Filing" means the filing of the applicable information required by
the HSR Act.
"Intellectual Property" means the intellectual property of Royalty set
forth on Schedule 4.10.
"IRS" means the United States Internal Revenue Service.
"Landlord Letters" means, collectively, letters signed by each landlord
under each Lease Agreement substantially in the form attached hereto as Exhibit
2.4(h), in which such landlords consent to the assignment of the related lease,
if required, and waive any lien on the Assets.
"Laws" means all laws, statutes, rules, rulings, regulations,
ordinances and other pronouncements having the effect of law of the United
States, any domestic state, county, city or other political subdivision or of
any Governmental Body including, but not limited to, pronouncements passed upon
by a quasi-governmental body.
"Lease Agreements" means, collectively, the agreements assumed by Buyer
pursuant to the Assumption Documents.
"License Agreement" means that certain agreement between Buyer and
Seramed executed concurrently herewith. For avoidance of doubt, the License
Agreement becomes effective on the Closing Date and is contingent upon Closing.
A copy of the License Agreement is set forth as Exhibit 2.4(bb).
"Liens" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale contract, title retention contract, option or other
contract to give rise to any of the foregoing.
"Loss" means any and all claims, actions, proceedings, fines,
penalties, losses, damages, deficiencies, expenses and liabilities (including,
without limitation, interest, court costs, reasonable fees of attorneys,
accountants and other experts or other expenses of litigation or other
proceedings or of any claim, default or assessment).
"Material Adverse Effect" means any event, circumstance or condition
that, individually or when aggregated with all other similar events,
circumstances or conditions could reasonably be expected to have, or has had, a
material adverse effect on: (i) the business, property, operations, condition
(financial or otherwise) or results of operations of all of the Sellers, taken
as a whole, or (ii) the Assets; provided, however, that notwithstanding the
foregoing, Material Adverse Effect solely as it is used in Sections 4.11 and
4.13 during the first 100 calendar days following the Closing Date shall mean
any event, circumstance or condition that, individually or
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when aggregated with all other similar events, circumstances or conditions could
reasonably be expected to have, or has had, Special Losses in aggregate of
$500,000 or more.
"Non-competition Agreement" means the agreement dated concurrent
herewith in the form attached hereto as Exhibit 2.4 (ee). For avoidance of
doubt, the Non-competition Agreement becomes effective on the Closing Date and
is contingent on the Closing Date.
"Order" means any writ, judgment, decree, injunction or similar order
of any Governmental Body (in each such case whether preliminary or final).
"Permits" means any permit, license, approval, certification,
endorsement or qualification of any Governmental Body necessary for the
operation of the Business. Sellers' and Serologicals Permits are set forth as
Exhibit 4.12.
"Permitted Liens" means (a) such liens or other encumbrances
specifically set forth on Schedule 4.6(a), (b) liens for current Taxes not yet
delinquent, or for taxes for which adequate reserves have been recorded in
accordance with U.S. generally accepted accounting principles, (c) mechanics',
carriers', workmen's, repairmen's or other like liens arising or incurred in the
ordinary course of business, equipment leases with third parties entered into in
the ordinary course of business and (d) encumbrances which individually or in
the aggregate do not have a Material Adverse Effect.
"Person" means any natural person, corporation, general partnership,
limited partnership, proprietorship, other business organization, trust, union,
association or Governmental Body.
"Plasma Purchaser" means, individually, the purchaser of source plasma
under each Supply Agreement.
"Plasma Purchaser Letters" means, collectively, the letters in the form
attached hereto as Exhibit 2.4 signed by each Plasma Purchaser, in which such
Plasma Purchaser, signed on or prior to the Closing Date, consents to the
transfer of the Assets and waives, with prejudice, all rights of first refusal
and similar rights.
"Post-Closing Adjustment" means the amount of money, if any, to be paid
by either Sellers or Buyer as determined pursuant to Section 3.5.
"Purchase Price" has the meaning ascribed to it in Section 3.1.
"QPP Certified" means that certain designation from the American Blood
Resources Association ("ABRA") that the relevant Donor Center complies with
ABRA's most current requirements as to plasma collection safety and quality.
"Related Agreements" has the meaning ascribed to it in Section 4.2.
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"Related Expenses" means, collectively, expenses as incurred in
connection with investigating, defending or asserting any Action incident to any
matter indemnified against hereunder, including, without limitation, court
filing fees, court costs, arbitration fees and costs, witness fees, reasonable
fees and disbursements of legal counsel, investigators, expert witnesses,
accountants and other professionals reasonably required in connection therewith.
"Retained Liabilities" means all liabilities of Sellers, Serologicals
and Royalty, whether accrued, absolute or contingent, recorded or unrecorded or
otherwise, that are not Assumed Liabilities; provided that liabilities to the
extent attributable to environmental matters shall not be "Retained
Liabilities."
"Retention Agreements" means, collectively, those agreements each dated
September 1, 1999, between Serologicals and certain of Sellers' or Serologicals'
employees concerning the conditional payment of a retention bonus. A
representative copy of the Retention Agreements is set forth as Exhibit 2.3(a)
and an index of the Retention Agreements is set forth as Exhibit 2.3(a)(i).
"Sellers' Employees" means a regular employee actively employed by a
Seller immediately prior to Closing solely in connection with the operation of
one or more Donor Centers or otherwise solely in connection with the Business.
"Serologicals Financial Statements" means the audited financial
statements of Serologicals as of December 28, 1997, December 27, 1998 and
December 26, 1999 and for the periods then ended. The Serologicals Financial
Statements are set forth on Schedule 4.5.
"Severance Agreements" means, collectively, those agreements each dated
September 1, 1999 between Serologicals and certain of Sellers' employees
concerning the conditional payment of various severance benefits. A
representative copy of the Severance Agreements is set forth as Exhibit 2.3(b)
and an index of the Severance Agreements is set forth as Exhibit 2.3(b)(i).
"Special Losses" means direct out-of-pocket costs to the Buyer, but
shall not include any special, punitive, consequential or exemplary damages.
"Specialty Plasma" means plasma other than normal source plasma,
including, without limitation, anti-HBs, anti-D, Rabies, Tetanus, CMV, VSV and
RSV.
"Specialty Plasma Purchase Agreement" means the plasma purchase
agreement between Buyer and Serologicals, Inc. dated concurrent herewith in the
form attached hereto as Exhibit 2.4(z). For avoidance of doubt, the Specialty
Plasma Purchase Agreement becomes effective on the Closing Date and is
contingent upon Closing.
"Supply Agreements" means the Supply Agreements attached to Schedule
2.2.
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"Taxes" means all governmental taxes, levies, imposts, duties, license
and registration fees, charges or with-holdings of any nature whatsoever,
including interest, penalties and fines thereon, assessed or assessable by any
United States federal, state or local entity, or by any other Governmental Body.
"Transfer Documents" means such assignments, bills of sale and other
documents as are necessary to convey, assign and transfer the Assets to Buyer
unencumbered and otherwise in conformance with Law.
"Transferred Employee" means an individual employed by a Seller before
Closing who is employed by Buyer after Closing pursuant to Section 9.2.
"Transition Services Agreement" means the agreement between Buyer and
Serologicals dated concurrent herewith and attached hereto as Exhibit 2.4(aa).
For avoidance of doubt, the Transition Services Agreement becomes effective on
the Closing Date and is contingent upon Closing.
"Working Capital" means, to the extent they are acquired or to be
acquired by Buyer, the current assets (including but not limited to inventories
(other than plasma inventories), cash on hand physically at the Donor Centers,
supplies, loans to Sellers' employees, deposits and prepaid expenses) of the
Business calculated in accordance with GAAP.
1.2 Construction of Certain Terms and Phrases . Unless the context of this
Agreement otherwise requires, (i) words of any gender include each gender; (ii)
words using the singular or plural number also include the plural or singular
number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Agreement; and (iv) the term
"Article" refers to the specified Article of this Agreement. Whenever this
Agreement refers to a number of days, such number shall refer to calendar days.
All accounting terms used herein and not expressly defined herein shall have the
meanings given to them under GAAP.
ARTICLE 2
SALE OF ASSETS AND CLOSING
2.1 Sale and Purchase of Assets . On the terms and subject to the
conditions of this Agreement and the transactions contemplated hereby, at
Closing Sellers will sell, convey, transfer, assign and deliver and Buyer will
purchase, receive and acquire all of each Seller's right, title and interest in
and to the Assets (other than the Excluded Assets), wherever located, and
Serologicals will sell, convey, transfer, assign and deliver and Buyer will
purchase, receive and acquire all of Serologicals' right, title and interest in
and to the Alpha Contract and Royalty will sell, convey, transfer, assign and
deliver and Buyer will purchase, receive and acquire all of Royalty's right,
title and interest in and to the Intellectual Property, in each case, free and
clear of all Liens other than Permitted Liens. The Closing shall become
effective upon, and is subject to, the satisfaction of all of the conditions
precedent listed in Articles 6 and 7 (the "Closing Date"),
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and shall occur at the offices of Swidler Berlin Shereff Friedman, LLP, 405
Lexington Avenue, New York, New York 10174 effective at 11:59 PM at such date as
may be mutually agreed upon by the parties.
2.2 Assumption of Liabilities . At Closing, Buyer will assume the Assumed
Liabilities.
2.3 Retention of Liabilities . Subject to Article XI, Sellers will retain
all of the Retained Liabilities and Serologicals will retain all of the Retained
Liabilities which relate solely to the Alpha Contract.
2.4 Transactions at Closing . On the Closing Date, at the place of Closing,
the following transactions shall be effected:
(a) Closing Certificates. An authorized officer of Buyer shall
execute and deliver to Sellers a certificate stating that the
conditions set forth in Sections 7.2 and 7.3 have been
fulfilled or waived, and that all corporate action necessary
to authorize and effect the Agreement and the transactions
contemplated hereby has been taken. A form of Buyer's
certificate is set forth as Exhibit 2.4(d).
(b) Consent of Directors of Buyer. Buyer shall deliver to Sellers
a certified copy of the resolution adopted by its directors
authorizing the transactions contemplated hereby and its power
to enter into such transactions. A certified copy of Buyer's
resolution is attached hereto as Exhibit 2.4(e).
(c) Buyer's Good Standing Certificate. Buyer shall deliver to
Sellers a certificate of good standing certified by the
Secretary of State of Buyer's jurisdiction of incorporation.
(d) Incumbency Certificate of Buyer. Buyer shall deliver to
Sellers an incumbency certificate, containing a certification
as to the names and specimen signatures of the persons
authorized to sign on its behalf, executed by an executive
officer. A form of Buyer's incumbency certificate is attached
hereto as Exhibit 2.4(i).
(e) Opinion of Buyer's Counsel. Buyer's counsel shall deliver to
Sellers an executed copy of the opinion set forth on Exhibit
2.4(k) and dated the Closing Date.
(f) Assets. Each Seller, Royalty and Serologicals shall deliver
such bills of sale and other documents to evidence, in
compliance with Law, the sale of and title to the Assets.
Delivery of the Assets relating to the Sellers shall be
effected at the place or places in which each Seller is using
or have used the Assets in the ordinary course of the
Business.
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(g) Insurance. Sellers shall deliver to Buyer a certificate
evidencing tail insurance covering three years from the
Closing Date.
(h) Landlord Letters. Each relevant Seller shall deliver to Buyer
the Landlord Letters and the Landlord Letters shall become
effective.
(i) Lien Waivers. Each Seller shall deliver to Buyer waivers of
any and all Liens, other than Permitted Liens, in a form and
manner reasonably satisfactory to Buyer.
(j) Severance of Sellers' Employees. Each Seller shall prepare and
execute a letter consistent with Sections 9.2 and 9.3 and
stating, among other things, that each Seller has, at its sole
cost and expense, severed all Seller Employees. Buyer shall
prepare and execute a letter stating that Buyer is offering
employment to such employees, other than employees specified
on Schedule 9.2, consistent with the terms specified in
Sections 9.2 and 9.3. Each party will allow the other the
opportunity to comment on such letter in advance of its
delivery.
(k) Name Change. Each of Seramed, Allied and Nations shall deliver
to Buyer a certified copy of its respective amended
certificate of incorporation which changes such Seller's name
to a name which does not resemble its present name. Such
amendment shall, prior thereto, be filed with the Secretary of
State of the state in which such Seller is incorporated.
(l) Closing Certificates. An authorized officer of each Seller,
Royalty and Serologicals shall execute and deliver to Buyer a
certificate stating that the conditions set forth in Sections
6.2 and 6.3 have been fulfilled or waived, and that all
corporate action necessary to authorize and effect the
Agreement and the transactions contemplated hereby has been
taken. Forms of each Seller's, Royalty's and Serologicals'
certificates are set forth as Exhibit 2.4(s).
(m) Consent of Directors of Sellers, Royalty and Serologicals.
Each Seller, Royalty and Serologicals shall deliver to Buyer a
certified copy of the resolution adopted by its respective
directors authorizing the transactions contemplated hereby and
its power to enter into such transactions. A certified copy of
each Seller's, Royalty's and Serologicals' resolutions are
attached hereto as Exhibit 2.4(t).
(n) Good Standing Certificate of Sellers, Royalty and
Serologicals. Each Seller, Royalty and Serologicals shall
deliver to Buyer a certificate of good standing certified by
the Secretary of State of each Seller's, Royalty's and
Serologicals' jurisdiction of incorporation.
(o) Incumbency Certificate of Sellers, Royalty and Serologicals.
Each Seller, Royalty and Serologicals shall deliver to Buyer
an incumbency certificate,
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containing a certification as to the name and specimen
signature of the person authorized to sign on its behalf,
executed by an executive officer of each Seller, Royalty and
Serologicals. A form of each Seller's, Royalty's and
Serologicals' incumbency certificate is attached hereto as
Exhibit 2.4(v).
(p) Opinion of Sellers', Royalty's and Serologicals' Counsel. Each
Seller's, Royalty's and Serologicals' counsel shall deliver to
Buyer an executed copy of the opinion set forth on Exhibit
2.4(w) and dated the Closing Date.
(q) Consent of FTC or DOJ. Buyer shall deliver to Sellers and
Sellers shall deliver to Buyer a copy of the consent or
evidence of other approval, issued by FTC or DOJ (as
appropriate), that the consummation of this Agreement and the
transactions contemplated hereby do not contravene the HSR
Act.
(r) Assumption Documents. Buyer shall deliver to Sellers, Royalty
and Serologicals and Sellers, Royalty and Serologicals shall
deliver to Buyer the Assumption Documents and the Assumption
Documents shall become effective.
(s) Specialty Plasma Purchase Agreement. The Specialty Plasma
Purchase Agreement shall become effective.
(t) Transition Services Agreement. Buyer shall deliver to
Serologicals and Serologicals shall deliver to Buyer the
Transition Services Agreement and the Transition Services
Agreement shall become effective.
(u) License Agreement. The License Agreement shall become
effective.
(v) Press Release. Each party may issue a press release or other
announcement upon Closing after review of such press release
by the other party.
(w) Other Documents. The parties shall execute and deliver such
other documents and instruments as may be reasonable to effect
and confirm the transactions contemplated hereby.
(x) Non-competition Agreement. The Non-competition Agreement shall
become effective.
(y) Letter Agreement. A letter agreement in the form of Exhibit
2.4(y) hereto shall become effective.
ARTICLE 3
PURCHASE PRICE
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3.1 Amount. The aggregate purchase price ("Purchase Price") for the Assets
shall be an amount equal to the sum of (i) Twenty Million Dollars ($20,000,000)
and (ii) the Estimated Payment, plus or minus the Post-Closing Adjustment.
3.2 Payment of Purchase Price. The sum of $20,000,000 and the Estimated
Payment is payable in full at Closing by wire transfer to Sellers pursuant to
wire transfer instructions to be delivered to Buyer at Closing.
3.3 Allocation of Purchase Price. The consideration provided for herein
shall be allocated among the Assets in the manner required by Treasury
Regulations ss.1.1060-1T (or any applicable successor provision) and as mutually
agreed among the Buyer and the Sellers. The Buyer will submit to the Sellers a
proposed allocation (the "Proposed Allocation") within thirty (30) days after
the payment of the Post-Closing Adjustment. If any Seller does not notify the
Buyer within thirty (30) days of receipt of the Proposed Allocation of any
disagreement with the Proposed Allocation, then the Proposed Allocation shall
become the final allocation (the "Allocation"). If any Seller notifies the Buyer
within such thirty (30) day period (the "Allocation Notice") of their
disagreement with the Proposed Allocation then the Sellers and the Buyer shall
in good faith attempt to resolve their disagreement. If such disagreement is not
resolved within twenty (20) days from the delivery of the Allocation Notice then
such disagreement shall be resolved by a nationally recognized independent
accounting firm jointly selected by the Sellers on the one hand and the Buyer on
the other. In the event the allocation is determined after delivery of the
Allocation Notice either by discussions among the Sellers and the Buyer or by an
accounting firm selected in the manner herein provided then such allocation
shall become the Allocation. The Buyer and the Sellers agree that, except as
otherwise required by law, (i) the Allocation shall be binding on the Buyer and
the Sellers for all federal, state and local tax purposes and (ii) the Buyer and
the Sellers shall file with their respective federal income tax returns
consistent IRS Forms 8594-Asset Acquisition Statements Under Section 1060 of the
Code, including any required amendment thereto which shall reflect the
allocations set forth in the Allocation. The parties acknowledge that the
allocation of consideration provided for in the Allocation will be reasonable.
3.4 Taxes and Fees. Buyer will pay any sales, use, transfer, documentary
or other Tax and recording and filing fees applicable to the transfer of the
Assets to Buyer at Closing.
3.5 Post Closing Adjustment.
(a) The Sellers shall deliver a certificate to the Buyer at
closing specifying the Working Capital as of March 26, 2000
and the calculation thereof in reasonable detail. Within 90
days after the Closing Date, the Sellers shall prepare in
accordance with GAAP, a certificate setting forth the (i)
actual Working Capital as of the Closing Date and (ii) the
amount by which the actual Working Capital is greater than or
less than the Estimated Payment by subtracting the Estimated
Payment from the actual Working Capital (the "Post Closing
Adjustment").
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(b) The Buyer shall notify the Seller within ten (10) days of
receiving notice of the amount of the Post Closing Adjustment
if it disputes such Post Closing Adjustment. Any such matters
("Disputed Matters") shall be submitted first to the
Controller of Buyer and the Chief Financial Officer of
Serologicals within 30 days after such notice. If they are
unable to resolve the Disputed Matters within 30 days after
the matter is submitted to them, then the Disputed Matters
shall be submitted to arbitration in New York, New York within
20 days after the expiration of the period provided to the
Controller and the Chief Financial Officer to effect a
resolution. The arbitrator (the "Arbitrator") shall be any one
of the nationally recognized independent accounting firms
which is on the date hereof among the five largest such firms
(the "Big Five Accounting Firms"), and as mutually agreed to
by Buyer and Sellers, provided that no such Big Five
Accounting Firm has an existing relationship with Buyer, any
Seller or Serologicals. Any reference herein to the Big Five
Accounting Firms shall be deemed to include a reference to any
member or employee thereof (who is a certified public
accountant) which any such firm may designate as the
Arbitrator on its behalf. If Sellers and Buyer shall have
failed to agree upon the selection of the Arbitrator within
such 20 day period or any such Arbitrator selected by them
shall not have agreed to perform the services called for
hereunder, the Arbitrator shall thereupon be one of the Big
Five Accounting Firms or any member thereof which or who may
be willing to perform such services selected jointly by the
Buyer's and Serologicals' independent auditors, other than any
such firm which is then employed by the Buyer, any Seller,
Royalty, Serologicals or any Affiliate of any of the
foregoing. The Arbitrator shall consider only the Disputed
Matters. The Arbitrator shall act promptly to resolve all
Disputed Matters and its decision with respect to all Disputed
Matters shall be final and binding upon the parties hereto and
shall not be appealable to any court. The costs and expenses
of the Arbitrator shall be borne by the parties in proportion
to each party's initial position relative to the outcome.
(c) If the Post Closing Adjustment is not in dispute or at such
time as the Post Closing Adjustment is agreed upon by the
parties or is otherwise resolved by an Arbitrator, the parties
shall pay the Post Closing Adjustment as follows:
(i) If the Post-Closing Adjustment is negative, then
Sellers shall pay the Buyer the absolute value of the
Post-Closing Adjustment; or
(ii) If the Post-Closing Adjustment is positive, then the
Buyer shall pay Sellers such Post-Closing Adjustment.
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(d) The party obligated to pay the Post-Closing Adjustment shall
make such payment in immediately available funds within 10
days of such determination pursuant to Section 3.5 (c) above.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLERS, ROYALTY AND
SEROLOGICALS
In order to induce Buyer to enter into this Agreement and the
transactions contemplated hereby, each Seller and Serologicals jointly and
severally, and Royalty severally but not jointly as to itself, represents and
warrants to Buyer that the following representations and warranties are true and
complete.
4.1 Power. Each Seller, Royalty and Serologicals has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions and agreements contemplated hereby,
including without limitation, to own, hold, sell and transfer the Assets.
4.2 Authority. The execution and delivery of this Agreement and the
documents contemplated hereby that are attached hereto or listed as exhibits
hereto or otherwise referred to herein as being entered into by the parties in
connection herewith (the "Related Agreements") by each Seller, Royalty and
Serologicals, and the performance by each Seller, Royalty and Serologicals of
its obligations hereunder and thereunder, have been duly and validly authorized
by the Boards of Directors of each Seller, Royalty and Serologicals,
respectively, and the stockholders of each Seller and Royalty, and no other
corporate or other legal action on the part of a Seller, Royalty or Serologicals
or their respective stockholders being necessary. This Agreement and the Related
Agreements have been duly and validly executed and delivered by each Seller,
Royalty and Serologicals, as appropriate, and constitute legal, valid and
binding obligations of each Seller, Royalty and Serologicals enforceable against
each of them in accordance with their terms.
4.3 Organization of each Seller, Royalty and Serologicals. Each Seller,
Royalty and Serologicals is a corporation duly organized, validly existing and
in good standing under the Laws of the jurisdiction of its organization which is
specified opposite its name on Schedule 4.3. Each Seller has full corporate
power to own, lease and operate the Assets, and to conduct the Business as and
to the extent now conducted. Royalty has full power to own the Assets as set
forth on Schedule 4.10. Each Seller has all necessary Permits to own, lease and
operate the Assets, and to conduct the Business as and to the extent now
conducted except where the absence of which will not have a Material Adverse
Effect. Each Seller is duly qualified, licensed or admitted to do business and
is in good standing in each jurisdiction in which the character or location of
the Assets or conduct of the Business requires such qualification or good
standing, except where such failure to qualify or be in good standing would not
have a Material Adverse Effect. Each Seller, Royalty and Serologicals has
delivered to Buyer true and complete copies of
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its Articles of Incorporation and By-laws as in effect on the date hereof. Each
Seller (other than Seramed) is a direct or indirect wholly-owned subsidiary of
Seramed.
4.4 No Conflicts. The execution, delivery or performance by each Seller,
Royalty and Serologicals of their obligations under this Agreement and the
consummation of the transactions contemplated hereby will not: (a) violate or
conflict with or result in a breach of any of the terms, conditions or
provisions of its respective Corporate Documents; (b) except with respect to
compliance with, and filings under, the HSR Act, if applicable; except as set
forth on Schedule 4.4, require any filing with, or permit, authorization,
consent or approval of, any Governmental Body; (c) except as set forth on
Schedule 4.4, result in an unwaived violation or breach of, or constitute (with
or without due notice or lapse of time or both) an unwaived default (or give
rise to any right of termination, amendment, cancellation, acceleration or
modification) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which Serologicals, Royalty or such Seller is a
party or by which any of its respective properties or assets may be bound; (d)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Serologicals, Royalty or such Seller or any of its respective
properties or assets or (e) result in the creation or imposition of any lien
upon a Seller or any of its assets or properties under any Contract, Permit or
other arrangement to which it is a party or by which any of its respective
assets and properties is bound, except in the case of (b), (c), (d) and (e)
where such non-compliance, violation, breach, default or failure to file or
obtain consent or approval would not result in a Material Adverse Effect.
4.5 Financial Statements.
(a) Copies of the Financial Statements and the Serologicals
Financial Statements are annexed as Schedule 4.5 hereto. The
Financial Statements are true and accurate in all material
respects, are in accordance with the books and records of the
Sellers and although the Financial Statements are not audited
and do not contain the footnotes or statements of stockholders
equity and cash flow which would be required in audited
financial statements, present fairly in all material respects
the consolidated financial position and related results of
operations of the Sellers as of the times and for the periods
referred to therein, in accordance with GAAP. The Serologicals
Financial Statements are true and accurate in all material
respects, are in accordance with the books and records of
Serologicals and present fairly in all material respects the
consolidated financial position and related results of
operations of Serologicals as of the times and for the periods
referred to therein, in accordance with GAAP.
(b) Since December 26, 1999, except as reflected in the Financial
Statements, there has been no change in the Business,
operations or condition (financial or otherwise) of any Seller
or in its respective Assets except for a change which does not
have a Material Adverse Effect.
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(c) Except as set forth on Schedule 4.5(c), no Seller has any
debt, liabilities or obligations of any nature, whether
accrued, absolute, contingent or otherwise, whether due or to
become due and whether or not the amount thereof is readily
ascertainable, that are not reflected as a liability in the
most recent Financial Statements except for liabilities
incurred by such Seller in the ordinary course of business
consistent with past practices since the date of the most
recent Financial Statements.
4.6 Assets Generally.
(a) Sellers, Royalty and Serologicals own all of the Assets free
and clear of all Liens of any nature whatsoever except for
Permitted Liens and the Lien set forth on Schedule 4.6(b)
which Lien shall be released at Closing.
(b) All of the equipment and tangible property included in the
Assets and material to the operation of the Business is in
working order and usable in the ordinary course of business
and all necessary routine maintenance thereon has been
performed.
(c) The Donor Records (individually and in the aggregate) are
materially accurate and complete and are otherwise materially
in compliance with Law and were created and maintained in
Seller's ordinary course of business.
(d) With respect to the leased real properties described in the
Lease Agreements:
(i) each Lease Agreement is in full force and effect and
has not been assigned, modified, supplemented or
amended and neither any Seller nor the landlord or
sublandlord under any Lease Agreement is in default
under any of the Lease Agreements, and no Seller has
received notice of a breach thereof;
(ii) except as set forth on Schedule 4.6(d)(ii), the
improvements and space required to be furnished by
the terms of each Lease Agreement have been completed
in all material respects and there are no payments
due and no payments will become due from any Seller
to any landlord under the Lease Agreements in
connection with the work performed or to be performed
in or to any of the leased premises, other than
payments not in excess of $150,000 in the aggregate;
(iii) all rent payable under each Lease Agreement has been
paid to and including the date of this Agreement and,
except as set forth on Schedule 4.6(d)(iii)(a), there
has been no prepayment of rent beyond the payment due
on the aforesaid date. Except as set forth on
Schedule 4.6(d)(iii)(b), no Seller has paid any
security deposits, and none is required to be paid,
under any of the Leases, and no Seller is entitled to
any credit, setoff,
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deduction or counterclaim with respect to the rent
payable under any Lease; and
(iv) except as set forth on Schedule 4.6(d)(iv), no Seller
has made any improvements, alterations, changes or
conversions to the real property that is under a
Lease Agreement which it will be obligated, upon
termination of the respective Lease Agreement, to
bring back to its original condition or for which it
will have to compensate the landlord, other than
those which would not have a Material Adverse Effect.
4.7 No Repossession. No Seller has received notice from any lessor or
lienholder with respect to any Asset or from any other Person, of any claim of
breach or violation of any Lease Agreement, covenant, Permit or other rule or
regulation on or applicable to such Asset that a Seller reasonably expects to
result in the repossession or similar taking of such Asset from such Seller or
Buyer or otherwise to impair such Seller's or Buyer's use thereof in the present
or future conduct of the Business, other than those that would not have a
Material Adverse Effect.
4.8 No Condemnation. There is no pending or, to Sellers' knowledge,
threatened condemnation or eminent domain proceeding or similar taking, or sale
or other disposition in lieu thereof, affecting the Donor Centers or any portion
thereof. No Seller has received any notice from any lessor or from any other
Person, of any claim of breach or violation of any mortgage, easement, lease,
Permit, zoning or other rule or regulation on or applicable to each such
property that such Seller reasonably believes will result in the condemnation,
foreclosure or similar taking of any such property from the lessor, the eviction
of such Seller therefrom or otherwise impair such Seller's or Buyer's use
thereof in the present or future conduct of the Business or in the termination
of any Lease Agreement, other than those that would not have a Material Adverse
Effect.
4.9 Contracts. Except as set forth on Schedule 4.9, each of the Contracts
is in full force and effect and enforceable in accordance with its terms. Such
Seller and Serologicals (in respect of the Alpha Contract) have not received
notice of cancellation of or intent to cancel, or notice to make a material
modification or intent to make a material modification in, any of the Contracts.
Such Seller and Serologicals (in respect of the Alpha Contract) have not
received any notice of an event of default or occurrence, condition or act on
the part of such Seller or Serologicals (in respect of the Alpha Contract) or on
the part of the other party to such Contracts which constitutes or would
constitute (with notice or lapse of time or both) a breach under, or cause or
permit acceleration of, any obligation of such Seller. Except as set forth on
Schedule 4.9, no consent of any other party to any of the Contracts is required
in connection with the execution, delivery and performance of this Agreement by
such Seller or Serologicals (in respect of the Alpha Contract). Neither such
Seller nor any of its Affiliates is a party to a Contract with a third party
concerning the acquisition of such Seller, the Assets or the Business.
4.10 Intellectual Property Rights. Royalty is the sole owner of and has all
right, title and interest in and to each item of Intellectual Property, provided
that the foregoing shall not be
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deemed to include any representation as to the validity of the Intellectual
Property. There are no restrictions on the direct or indirect transfer of any
Contract, or any interest therein, held by any Seller in respect of the
Intellectual Property. Royalty has taken reasonable security measures to protect
the secrecy, confidentiality and value of its Intellectual Property. No Seller
or Royalty has received notice that it is infringing any intellectual property
of any other Person, and no claim is pending or has been made to such effect
that has not been resolved. Sellers have taken reasonable security measures to
protect the secrecy, confidentiality and value of their respective trade
secrets.
4.11 Environmental Matters. Except where a violation would not have a
Material Adverse Effect, neither such Seller nor any properties presently owned
or operated by such Seller are in violation of any Environmental Laws, and such
Seller has not received any communication that alleges that such Seller is in
violation of any Environmental Laws. Such Seller has all permits and licenses
required under Environmental Laws in connection with the operations of such
Seller's business, except where the failure to have any such permits or licenses
does not have a Material Adverse Effect. Such Seller has not been named or
threatened to be named a "potentially responsible party" within the meaning of
CERCLA or any similar federal, state or local Law. The Buyer and each Seller
agrees that notwithstanding anything herein to the contrary, the only
representations and warranties of the Sellers herein as to environmental matters
are those contained in this Section 4.11.
4.12 Legal Proceedings; Judgments. Except as set forth on Schedule 4.12,
there are no Actions (including counterclaims) pending or, to the Sellers'
knowledge, threatened against or affecting Sellers, the Assets or the Business
in any court or before any arbitrator of any kind or before or by any
Governmental Body which if adversely determined would have a Material Adverse
Effect.
4.13 Compliance with Laws. (a) Except as set forth in Schedule 4.13(a), and
except with respect to environmental matters (which are the subject of Section
4.11), the Business of such Seller has complied with all, and has not violated
(in each case during the time such Seller has owned the Donor Centers) any,
applicable Laws currently in effect, except where the failure to comply
therewith does not, individually or in the aggregate, have a Material Adverse
Effect. Without limiting the previous sentence, and solely for avoidance of
doubt, each Seller operates the Business in material compliance with current
Good Manufacturing Practice regulations promulgated by the FDA and in accordance
with the regulations of the GHA.
(b) Except for matters described in Schedule 4.13(b), the Business
of such Seller, for the five (5) years immediately prior to
the Closing (but in any event not prior to the time such
Seller was owned, directly or indirectly, by Serologicals),
has adhered to standard operating procedures accepted by the
FDA and GHA for the products of the Business regulated by the
FDA and GHA and has properly tested and/or secured appropriate
testing of all of the Business' products subject to regulation
by the FDA and GHA, except where the failure to do so would
not have a Material Adverse Effect. Schedule 4.13(b) sets
forth a true, correct and
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complete list of all recall letters, "warning letters", and
"483s" received by such Seller and related to the Business
during the five (5) year period immediately preceding the
Closing.
(c) Except as set forth on Schedule 4.13(c), each Donor Center is
QPP Certified and evidence of such is set forth on Schedule
4.13(c).
4.14 Tax Matters.
(a) Each of the statements in this Section 4.14 is qualified by
the disclosures on Schedule 4.14. Each Seller has, in
compliance with Law, duly and timely filed all Tax and
information reports, returns and related documents required to
be filed by such Seller in every jurisdiction in which the
Business is conducted. Each Seller has paid or remitted to the
proper Governmental Body all material Taxes which are required
to be paid or remitted by Seller, and has established adequate
reserves for the payment of all Taxes and other governmental
charges for the current period which are not yet due. There is
no omission, deficiency, error, misstatement or
misrepresentation, whether innocent, intentional or
fraudulent, in any Tax return filed by any Seller for any
period for which the applicable statute of limitations has not
expired and which would have a materially and adverse affect
on the Business or the Assets. No federal, state or local Tax
audits are pending and all deficiencies and assessments
resulting from any examination of any Tax return of a Seller
have been paid in full or have been adequately reserved for on
the books of the Sellers.
(b) No Seller, (A) to such Sellers' knowledge, has ever been a
member of an affiliated group (within the meaning of Section
1504 of the Code, or any similar group as defined for state,
local or foreign tax purposes) filing a consolidated federal
(or combined or unitary state, local or foreign) income tax
return other than a group the common parent of which is
Serologicals or (B) has liability for the Taxes of any Person
(other than such respective Seller and the members of the
group the common parent of which is Serologicals) under Reg.
ss. 1.1502-6 (or any similar provision of state, local or
foreign Law).
4.15 Employees; Labor Relations.
(a) To Sellers' knowledge, with respect to the Business, and
without limiting Section 4.13, each Seller is in material
compliance with the Federal Fair Labor Standards Act and all
federal, state, local and foreign Laws relating to employment
discrimination, employee welfare, labor standards and other
employment practices which are applicable to it. No
proceedings are pending or, to the Sellers' knowledge,
threatened against any Seller before any court, government
agency or instrumentality or arbitrator relating to labor
matters, and there is no pending investigation of any Seller
by any governmental agency or, to the Sellers'
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knowledge, no threatened claim against any Seller by any such
agency or other person relating to labor or employment
matters, except such that would not have a Material Adverse
Effect.
(b) To Sellers' knowledge, all of each Seller's employees in the
United States are legal citizens of the United States or
otherwise are legally permitted to be employed by such Seller
in the United States. Each Seller has properly withheld and
timely paid all federal, state and local payroll Taxes with
respect to each of its employees.
(c) No Seller is a party to any agreement or contract with any
union, labor organization, employee group or other entity or
individual which affects the employment of its employees,
including without limitation, any collective bargaining
agreements or labor contracts. There are no current or, to
Sellers' knowledge, threatened attempts to organize or
establish any labor union or employee association to represent
any employees of any Seller.
(d) Without limiting the representations and warranties made in
Section 4.12, no employee of any Seller has made a complaint
with respect to working conditions, environment, safety,
failure to pay wages due or of any similar matter, except such
that would not have a Material Adverse Effect.
(e) Each Seller's respective Employee Benefit Plans are set forth
on Schedule 4.15(e). Except as set forth on Schedule 4.15(e),
no Employee Benefit Plan is:
(i) a defined benefit pension plan or any other plan that
is subject to the funding standards set forth in
section 412 of the Code and section 302 of ERISA;
(ii) subject to Title IV of ERISA;
(iii) a multi-employer plan within the meaning of sections
3(37) or 4001(a)(3) of ERISA;
(iv) a multiple employer welfare arrangement within the
meaning of section 3(40) of ERISA; or
(v) a welfare benefit plan within the meaning of section
3(1) of ERISA that (x) is funded through a welfare
benefit fund within the meaning of section 419(e) of
the Code or (y) is otherwise funded, or provides
benefits to former directors, officers, employees, or
independent contractors of any Seller or ERISA
Affiliate, other than pursuant to COBRA.
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(f) Without limiting Section 4.13, Sellers and their ERISA
Affiliates have maintained and administered all Employee
Benefit Plans in material compliance with the requirements of
ERISA, the Code, and any and all other applicable Laws.
Neither any Seller nor any ERISA Affiliate has engaged in any
prohibited transaction under section 4975 of the Code or
section 406 of ERISA with respect to any Employee Benefit
Plan. Seller and their ERISA Affiliates have at all times made
timely contributions to their Employee Benefit Plans. No
Seller or ERISA Affiliate has any material liability with
respect to any Employee Benefit Plan arising from any fine,
penalty, adjudication, or other source that has not been fully
satisfied. No Seller knows of any Loss relating to any
Employee Benefit Plans, for which Seller may be liable. Except
as set forth on Schedule 4.15, no Seller or ERISA Affiliate
contributes toward the cost of continued health coverage for
any Seller Employee provided under COBRA or any Law of similar
effect.
4.16 No Brokers.
(a) Other than with respect to Bowles Hollowell Conner, no Seller,
Royalty or Serologicals nor any other Person acting on its or
their behalf has taken any action which would give to any
Person a right to a consultant's or finder's fee or any type
of brokerage commission in relation to or in connection with
the transactions contemplated by this Agreement.
(b) No broker's, finders, financial advisor's or any similar fee
or commission will be incurred by or on behalf of Sellers,
Royalty or Serologicals or the Business in connection with the
origin, negotiation, execution or performance of this
Agreement or the transactions contemplated hereby for which
Buyer or any of its Affiliates or the Business shall have any
liability.
4.17 Absence of Certain Payments. To the knowledge of Sellers, no Seller,
nor any person acting with knowledge or authorization of a Seller on behalf of a
Seller, has made any payment to or conferred any benefit, directly or
indirectly, on suppliers or customers, or employees or agents of suppliers or
customers, or officials or employees of any government or agency or instrument
of any government (domestic or foreign) or any political party or candidate for
office, which is or was unlawful.
4.18 Transactions with Affiliates. Except as set forth on Schedule 4.18, no
officer or director of any of the Sellers, Royalty or Serologicals or
stockholder of any of the Sellers (a) has borrowed money from, or loaned money
to, a Seller, (b) is a party to any contract with a Seller, (c) owns any
interest in the Assets, (d) has asserted or threatened to assert any Action
against a Seller or (e) is engaged in any transaction with a Seller.
4.19 Conveyance of Assets. Except as set forth on Schedule 4.19, the Assets
include all assets which are reasonably necessary for the conduct of the
Business as currently conducted.
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4.20 Disclosure. No representation or warranty of a Seller, Royalty or
Serologicals contained in this Agreement contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements herein, in light of the circumstances under which they were made, not
misleading.
4.21 Disclaimer. EXCEPT AS SET FORTH IN THIS ARTICLE 4 OR IN THE RELATED
AGREEMENTS, SELLERS, ROYALTY AND SEROLOGICALS MAKE NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
In order to induce each Seller, Royalty and Serologicals to enter into
this Agreement and the transactions contemplated hereby, Buyer represents and
warrants to each Seller, Royalty and Serologicals that the following
representations and warranties are true and complete.
5.1 Power. Buyer has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the
transactions and agreements contemplated hereby.
5.2 Authority. The execution and delivery of this Agreement and the
Related Agreements by Buyer, and the performance by Buyer of its obligations
hereunder and thereunder, have been duly and validly authorized by Buyer, and no
other corporate or other legal action on the part of Buyer or its members is
necessary. This Agreement and the Related Agreements have been duly and validly
executed and delivered by Buyer, and constitute legal, valid and binding
obligations of Buyer enforceable against it in accordance with their terms.
5.3 Organization. Buyer is a corporation duly organized, validly existing
and in good standing under the Laws of the State of Delaware.
5.4 Funding. Buyer has available sufficient funds to enable it to make the
payments required by Section 3.2 and 3.5.
5.5 No Brokers. Buyer has not taken any action which would give to any
Person a right to a consultant's or finder's fee or any type of brokerage
commission in relation to or in connection with the transactions contemplated by
this Agreement.
5.6 Knowledge of Buyer. The Buyer has no knowledge of the breach of any
representation or warranty of the Sellers or Serologicals in Sections 4.11 or
4.13; provided, however, that this Section 5.6 shall in no way affect Buyer's
indemnification rights under Article 11.
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5.7 Disclosure. No representation or warranty of the Buyer contained in
this Agreement contains an untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements herein, in light of
the circumstances under which they were made, not misleading.
8 Disclaimer. EXCEPT AS SET FORTH IN THIS ARTICLE 5 OR IN THE RELATED
AGREEMENTS, BUYER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED.
ARTICLE 6
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligation of Buyer to consummate the Agreement and the
transactions contemplated hereby are subject to the fulfillment, at or before
the Closing, of each of the following conditions:
6.1 Regulatory Consents and Approvals. The applicable waiting period under
the HSR Act and any other relevant antitrust statute shall have expired or been
terminated. All consents from Governmental Bodies (other than in respect of HSR
or state antitrust statutes) and all consents under Contracts shall have been
obtained, except for such consents the absence of which would not have a
Material Adverse Effect.
6.2 Representations and Warranties. The representations and warranties of
Serologicals, Royalty and each Seller shall be true and correct as of the date
when made and as of the Closing Date as though made at that time, except (a)
where the failure to be true would not have a Material Adverse Effect and (b) to
the extent that the representations and warranties in Section 4.5 were made as
of a specified date and as to such representations and warranties the same shall
have been true as of the specified date (except where the failure to be true
would not have a Material Adverse Effect), and the Buyer shall have received a
certificate attesting thereto from each of Serologicals, Royalty and the Sellers
signed by a duly authorized officer of Serologicals, Royalty and the Sellers,
respectively.
6.3 Performance. Each Seller, Royalty and Serologicals shall have
performed and complied in all material respects with each agreement, covenant,
obligation and condition required by this Agreement to be so performed or
complied with by Sellers, Royalty and Serologicals at or before Closing.
6.4 Orders and Laws. There shall not be in effect at or before the Closing
Date any Order or Law restraining, enjoining or otherwise prohibiting or making
illegal or imposing any condition on the consummation of the Agreement and any
of the transactions contemplated hereby and no material Action shall have been
commenced or threatened by any Governmental Body or other Person with respect to
any of the transactions contemplated by the Agreement.
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6.5 No Material Adverse Change. Since the date of this Agreement, no
Material Adverse Effect as a result of any event or occurrence shall have
occurred.
6.6 FDA License. The Buyer shall have received written FDA acknowledgment
of the transfer to the Buyer of U.S. License number 1237.
6.7 Buyer's Frustration of Closing Conditions. The Buyer may not rely on
the failure of any condition set forth in this Article 6 to be satisfied if such
failure was caused by the Buyer's failure to act in good faith or to use its
reasonable efforts to cause the Closing to occur.
ARTICLE 7
CONDITIONS PRECEDENT TO OBLIGATIONS OF
SELLERS, ROYALTY AND SEROLOGICALS
The obligations of Sellers, Royalty and Serologicals hereunder to
consummate the Agreement and the transactions contemplated hereby are subject to
the fulfillment, at or before the Closing, of each of the following conditions:
7.1 Regulatory Consents and Approvals. The applicable waiting period under
the HSR Act and any other relevant antitrust statute shall have expired or been
terminated. All consents from Governmental Bodies (other than in respect of HSR
or state antitrust statutes) and all consents under contracts, if any, necessary
to the sale and purchase of the Assets hereunder shall have been obtained,
except for such consents the absence of which would not have a Material Adverse
Effect.
7.2 Representations and Warranties. The representations and warranties of
the Buyer shall be true and correct as of the date when made and as of the
Closing Date, as though made at that time, except where the failure to be true
would not have a material adverse effect on the Buyer's ability to consummate
the transactions contemplated hereby, and the Sellers shall have received a
certificate attesting thereto signed by a duly authorized officer of the Buyer.
7.3 Performance. Buyer shall have performed and complied in all material
respects with each agreement, covenant, obligation and condition required by
this Agreement to be so performed or complied with by Buyer at or before
Closing.
7.4 Orders and Laws. There shall not be in effect at or before the Closing
Date any Order or Law restraining, enjoining or otherwise prohibiting or making
illegal or imposing any condition on the consummation of the Agreement and any
of the transactions contemplated thereby and no material Action shall have been
commenced or threatened by any Governmental Body or other Person with respect to
any of the transactions contemplated by the Agreement.
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7.5 Sellers' Frustration of Closing Conditions. The Sellers may not rely on
the failure of any condition set forth in this Article 7 to be satisfied if such
failure was caused by the Sellers' failure to act in good faith or to use its
reasonable efforts to cause the Closing to occur.
ARTICLE 8
TRANSACTIONS PENDING CLOSING OR EARLIER TERMINATION
8.1 HSR Filing. Each Seller, Royalty, Serologicals and Buyer shall, as
promptly as practicable, but in no event later than ten (10) calendar days
following the execution and delivery of this Agreement, submit the HSR Filing to
the FTC or the DOJ, as appropriate and thereafter provide any supplemental
information requested in connection therewith pursuant to the HSR Act and make
any similar filing within, to the extent reasonably practicable, a similar time
frame with any other Governmental Body for which such filing is required. Any
such notification and report form and supplemental information will be in
substantial compliance with the requirements of the HSR Act or other applicable
antitrust regulation. Each of the Sellers, Royalty, Serologicals and Buyer shall
furnish to the other such necessary information and reasonable assistance as the
other may request in connection with its preparation of any filing or submission
which is necessary under the HSR Act or other applicable antitrust regulation.
Each of the Sellers, Royalty, Serologicals and Buyer shall request early
termination of the applicable waiting period under the HSR Act and any other
applicable antitrust regulation; shall respond with reasonable diligence and
dispatch to any request for additional information made in response to such
filings or in information request made by any other Governmental Body; and shall
keep each other apprized of any communications with, and inquiries or requests
for additional information from the FTC, DOJ or any other Governmental Body and
shall comply with any inquiry or request made thereby.
Prior to the Closing, the Buyer and the Sellers shall cooperate with
each other upon the request of the other, in any reasonable manner in connection
with obtaining any such anti-trust approval; provided, however, that such
cooperation shall not include any requirement of the Buyer or the Sellers or any
of their respective Affiliates to commence or participate in any litigation or
to take any action that would have a Material Adverse Effect for Sellers, or for
Buyer a material adverse effect on the Buyer.
8.2 Access to Information. From the date hereof until the Closing Date
(unless terminated earlier pursuant hereto), Buyer shall have access, upon
reasonable notice and during normal business hours, to the personnel, offices,
properties, books and records of Sellers; provided, however, that the Sellers
shall not be obligated to provide the Buyer with any information relating to
trade secrets or which would violate any law, rule or regulation or term of any
Contract, or if the provisions thereof would adversely affect the ability of the
Sellers or its Affiliates to assert attorney-client, attorney work product or
other similar privilege. Any disclosure whatsoever during such investigation by
Buyer shall not constitute an enlargement of
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existing representations or warranties or new representations or warranties of
the Sellers beyond those specifically set forth in this Agreement.
8.3 Conduct of Business in Normal Course. Each Seller covenants and agrees,
from the date hereof until the Closing Date (unless terminated earlier pursuant
hereto or unless consented to in writing by Buyer (which consent shall not be
unreasonably withheld)), to:
(a) operate the Business in the ordinary course and in
substantially the same manner as it has been operated in the
past;
(b) not sell any of the Assets except for sales from inventory in
the ordinary course of business;
(c) maintain the tangible Assets in working order, ordinary wear
and tear excepted;
(d) use its reasonable efforts to retain its employees consistent
with past practices and maintain the Business consistent with
past practices so that such employees will remain available to
the Sellers on and after the Closing Date, and to maintain
existing relationships with suppliers, customers and others
having business dealings with the Sellers and otherwise to
preserve the goodwill of the Business so that such
relationships and goodwill will be preserved on and after the
Closing Date;
(e) not enter into any contract that is material, nor permit any
amendment or termination of any Contract, with respect to the
Business of the Sellers;
(f) keep in full force and effect insurance covering the Sellers,
the Donor Centers, the Assets and the Business comparable to
the amount and scope of coverage that is now maintained;
(g) not merge with or into any other corporation or sell, assign,
transfer, pledge or encumber any part of the Assets or agree
to do any of the foregoing;
(h) not, other than in the ordinary course or pursuant to the
Retention Agreements, increase the salaries of, or make any
bonus or similar payments to or establish or modify any
Employee Benefit Plans for, any of the Transferred Employees
or enter into or modify any employment, consulting or similar
contracts with any such persons or agree to do any of the
foregoing;
(i) pay their accounts payable and collect their accounts
receivable in the ordinary course of business consistent with
past practice and not fail to pay or discharge when generally
due any liabilities;
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(j) notify Buyer promptly of any material default, the threat or
commencement of any material Action, or any material adverse
development that occurs before the Closing;
(k) comply in all material respects with all Regulations
applicable to it and to the conduct of the Business; and
(l) follow current practice by maintaining the elections with
respect to Taxes concerning the Assets.
8.4 Further Assurances. Each of the parties hereto covenants and agrees,
from the date hereof until the Closing Date (unless terminated earlier pursuant
hereto), to use its reasonable commercial efforts and to cooperate with such
other party so as to promptly satisfy the conditions precedent set forth in
Articles 6 and 7 including, but not limited to, making the HSR Filing and
receiving approval from the applicable Governmental Body(ies) in connection
therewith.
8.5 No Solicitation. From the date hereof until the Closing Date (unless
terminated earlier pursuant hereto), neither any Seller, Royalty nor
Serologicals or its Affiliates or agents including, but not limited to, its
attorneys or Bowles Hollowell Conner, shall discuss the sale of, offer to sell
or consider entering into a purchase agreement concerning all or any of the
Assets with any third party without the prior written consent of Buyer.
8.6 Notification of Certain Matters. Each party hereto agrees to give
reasonable notice to the other of (i) the occurrence, or failure to occur, of
any event which occurrence or failure to occur would be likely to cause any of
its representations or warranties contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Closing Date, and (ii) any material failure on its part to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it hereunder; provided, however, that the delivery of or the failure to deliver
any notice pursuant to this Section 8.6 shall not limit or otherwise affect the
remedies available hereunder to the party receiving or failing to receive such
notice.
8.7 Serologicals and Royalty Conduct. Serologicals covenants and agrees,
from the date hereof until the Closing Date (unless terminated earlier pursuant
hereto or unless consented to in writing by Buyer (which consent shall not be
unreasonably withheld)), to not permit the amendment or termination of the Alpha
Contract. Royalty covenants and agrees, from the date hereof until the Closing
Date (unless terminated earlier pursuant hereto or unless consented to in
writing by Buyer (which consent shall not be unreasonably withheld)), to not
sell or license any of the Assets set forth on Schedule 4.10.
ARTICLE 9
POST-CLOSING COVENANTS AND OBLIGATIONS
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9.1 Adequate Supply. Each Seller covenants and agrees that each Donor
Center acquired hereunder shall have at least 14 calendar days of softgoods and
other supplies on hand such that the Business at each Donor Center shall
continue in the ordinary course at least for such 14 day period.
9.2 Employment with Buyer.
(a) Unless set forth otherwise herein, Buyer shall offer
employment, in a similar position with a reasonably comparable
compensation package and in the same general geographic area,
as of and effective upon the Closing to Sellers' Employees;
provided, however, Buyer shall offer such employment only to
such employees who present themselves to Buyer for employment
within ten (10) days after the Closing or, if later, within
ten (10) days after the expiration of any period of employment
other than active employment, where they have the right to be
reinstated to active employment under Law. Notwithstanding the
previous sentence, however, Buyer shall have no obligation to
offer employment to those of Sellers' Employees set forth on
Schedule 9.2(a). For any such individual who is not actively
employed by Sellers immediately prior to Closing, such
employment with Buyer shall be effective as of the date the
individual returns to work, and each such individual shall
thereupon be treated as if the individual were one of Sellers'
Employees unless set forth otherwise herein.
(b) Buyer shall be responsible for any severance benefits,
available under a Severance Agreement to certain Transferred
Employees, in the event Buyer terminates such Transferred
Employee after forty-five (45) days from the Closing Date
provided that such Transferred Employee is terminated no later
than six (6) calendar months after the Closing Date.
(c) Nothing in this Section 9.2 or in other provisions of this
Agreement shall create any third party beneficiary rights in
any Person who is not party to this Agreement.
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9.3 Buyer's Benefit Plans.
(a) Subject to the following terms and conditions, as of the
Closing Date and for a period of one year thereafter, Buyer
shall provide each Transferred Employee with the opportunity
to participate in employee benefit plans that are, in the
aggregate, comparable to the employee benefit plans made
available to the Transferred Employee by the Sellers,
Serologicals or an Affiliate that employed such individual
immediately prior to the Closing Date. Such comparability
shall be determined by Buyer in its reasonable discretion;
provided, however, Buyer shall have no obligation to provide a
Transferred Employee with the opportunity (other than rights
to which a Transferred Employee is or would be entitled under
such employee benefit plans or as otherwise required by law)
to participate or continue to participate in such employee
benefit plan in the event (i) the Transferred Employee is
terminated by Buyer or Buyer's Affiliate or (ii) Buyer or
Buyer's Affiliate sells, closes or otherwise disposes of any
Donor Centers within such one year period after the Closing
Date. In determining comparability, Buyer may disregard
consideration of (i) any Employee Benefit Plan that is a stock
purchase or stock option plan or any other Employee Benefit
Plan that involves the acquisition of stock of any Seller or
any ERISA Affiliate or (ii) any increase or improvement in the
benefits available under an Employee Benefit Plan or change in
a Transferred Employee's employment from one Seller to another
that occurs, other than in the ordinary course of business, on
or after the latest date prior to the date hereof on which
Sellers or Serologicals furnished Buyer with information about
any Employee Benefit Plan in connection with the purchase and
sale contemplated by this Agreement.
(b) Buyer may make benefits available to Transferred Employees
through its existing plans, programs or contracts; or through
plans, programs or contracts that it establishes for such
purpose. Buyer may amend or terminate any employee benefit
plan, programs or contracts that it makes available to
Transferred Employees provided that such Transferred Employees
are provided comparable benefits while employed during the
first year following Closing.
(c) With respect to any employee benefit plan that Buyer makes
available to a Transferred Employee, the Transferred Employee
shall be credited with service for his or her employment with
any of the Sellers or with Serologicals or their predecessors,
for purposes of: (i) eligibility to participate in such plan
as a current employee of Buyer; and (ii) where applicable,
vesting in a nonforfeitable interest in benefits under such
plan. In addition, Buyer's plans shall waive any preexisting
condition, limitation or exclusion under such plan. Sellers or
Serologicals shall promptly furnish Buyer with any information
reasonably available to it relating to service with respect to
Buyer's credit for such purposes. Without limitation, Buyer
shall award such past service credit for purposes of
determining the right of each Transferred Employee with
respect to sick leave, holiday or vacation pay
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under Buyer's plans. In consideration of the Purchase Price,
Buyer shall also assume responsibility for any unused/unpaid
vacation time, holiday or sick leave accrued by a Transferred
Employee but shall be credited therefor in the Post-Closing
Adjustment.
(d) Each Transferred Employee who participates in the Serologicals
Corporation 401(k) Plan shall cease to be entitled to direct
or obtain contributions under such plan as of the Closing
Date, but shall be eligible to participate in a cash or
deferred arrangement sponsored by Buyer that is qualified
under section 401(a) of the Code to the extent that such
employee satisfies the age, service, and other general
requirements for participation in such plan, taking into
account such credit for eligibility in such plan for past
service with the Sellers or their predecessors. After the
Closing Date, Sellers and Serologicals shall permit each such
Transferred Employee to receive distribution of his account
balance under the Serologicals Corporation 401(k) Plan and
Buyer's cash or deferred arrangement shall, to the extent
permitted by Law, accept amounts distributed from Sellers'
Plan that qualify as eligible rollover distributions within
the meaning of section 401(f)(2)(A) of the Code.
9.4 Sellers' and Serologicals' Employment Matters.
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(a) Each Seller and Serologicals covenant that, with respect to
Actions for workers' compensations and all Actions under
employee benefit plans by persons working for the Business
arising out of events occurring prior to the Closing, whether
reported or unreported as of the Closing and whether insured
or uninsured (including, but not limited to, workers'
compensation, life insurance, medical and disability
programs), Seller shall, at its own expense, honor or cause
the applicable insurance carriers, trustees, or other payors
to honor such claims in accordance with the terms and
conditions of such employee benefit plan or applicable
workers' compensation statutes.
(b) Sellers shall pay all wages, compensation and salaries due to
Sellers' Employees in compliance with law for services
rendered through the close of business on the Closing Date and
terminate the employment of Sellers' Employees as of the
Closing Date. Seller shall give all notices, make all filings,
make any and all payments and otherwise comply with all
applicable provisions of the Worker Adjustment Retraining and
Notification Act ("WARN") and any similar state statutes with
respect to plant closings or layoffs and the attendant
termination of Sellers' Employees as of the Closing Date. Each
Seller further agrees that it shall be liable for such
compliance and, pursuant to Section 11.1, shall indemnify and
hold Buyer harmless for all obligations, costs or expenses for
liability under WARN and any such similar state laws with
respect to the actions taken on or prior to the Closing Date.
Similarly, Buyer agrees to indemnify and hold Sellers and
their Affiliates harmless for all obligations, costs or
expenses for liability under WARN and any such similar state
laws with respect to any actions taken after the Closing Date.
(c) Sellers and Serologicals shall be fully responsible for the
severance benefits, if any, owed to a terminated employee who
is not a Transferred Employee and Sellers and Serologicals
shall be fully responsible for the severance benefits, if any,
of a Transferred Employee who executed a Severance Agreement
and whom Buyer terminates within such Transferred Employee's
first forty-five (45) day period of employment from the
Closing Date. Buyer shall, promptly upon any such termination,
furnish to Sellers documentation relating to the date and
reason given for such termination to the extent permitted by
applicable law.
9.5 Intentionally omitted.
9.6 Cooperation After Closing.
(a) Promptly following Closing and for a period of no less than
one (1) year after Closing, each Seller, Royalty and
Serologicals shall execute, at Sellers', Royalty's or
Serologicals' sole costs and expense, such additional
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documents as Buyer may reasonably request to properly vest or
confirm the proper vesting in Buyer of the Assets on the terms
hereof.
(b) If either party shall receive any such monies belonging to the
other, it shall hold all such monies in trust for the sole
benefit of the other. Within five business days after receipt
thereof, the receiving party shall cause the transfer and
delivery to the other of any monies or other property which
the receiving party may receive after the Closing Date in
payment of monies payable in respect of the others' assets.
9.7 Announcements. The parties agree that each may issue a press release
concerning the transactions contemplated hereby after providing such press
release to the other party.
9.8 Licenses. Buyer shall use its best efforts to obtain the necessary
licenses to operate the Donor Centers in accordance with Law.
9.9 Donor Centers. Each Seller agrees that, immediately after the Closing
Date, such Seller shall cease forever using the names of its respective Donor
Centers and Seramed, Nations and Allied will cooperate fully with the Buyer in
preparing all filings and forms transferring the rights to use and own the
corporate names Seramed, Inc., Nations Biologics, Inc. and Allied Plasma
Products, Inc. to Buyer.
9.10 Cooperation and Records Retention. Each Seller and Buyer shall (i) each
provide the other with such assistance as may reasonably be requested by any of
them in connection with the preparation of any Tax return, audit or other
examination by any taxing authority or judicial or administrative proceedings
relating to liability for Taxes, (ii) each retain and provide the other with any
records or other information which may be relevant to such Tax return, audit or
examination, proceeding or determination, and (iii) each provide the other with
any final determination of any such audit or examination, proceeding or
determination that affects any amount required to be shown on any Tax return of
the other for any period. Without limiting the generality of the foregoing,
Buyer and Sellers shall retain, until the applicable statutes of limitations
(including any extensions) have expired, copies of all Tax returns, supporting
work schedules and other records or information which may be relevant to such
returns for all tax periods or portions thereof ending before or including the
Closing Date and shall not destroy or otherwise dispose of any such records
without first providing the other party with a reasonable opportunity to review
and copy the same. Each party shall have the right, at its own expense, to
control any audit or determination by any authority, initiate any claim for
refund or amended return, and contest, resolve and defend against any
assessment, notice of deficiency, or other adjustment or proposed adjustment of
Taxes for any taxable period for which that party is charged with responsibility
for filing a Tax Return under this Agreement; provided, however, that the
Sellers, on the one hand, or the Buyer, on the other, shall not have the right
to agree to any assessment, deficiency, settlement, or other adjustment or
proposed adjustment of Taxes that would adversely affect the interests of the
other without such other party's written consent, which consent shall not be
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unreasonably withheld. The Sellers shall notify the Buyer, and the Buyer shall
notify the Sellers, as the case may be, if any taxing authority shall, upon
audit or otherwise, propose in writing an adjustment to tax items which could
give rise to a claim against either party.
9.11 Books and Records; Personnel. For a period of ten and one-half years
from the Closing Date (or such longer period as is necessary to comply with
regulations of the FDA and other Governmental Bodies in effect from time to
time):
(a) The Buyer shall maintain in accordance with applicable law,
and shall not dispose of or destroy, any of the books and
records (including regulatory records, donor records and
permanent deferrals) of the Sellers' relating to periods prior
to the Closing ("Books and Records") without first offering to
turn over possession thereof to the Sellers by written notice
to the Sellers at least 30 days prior to the proposed date of
such disposition or destruction.
(b) The Buyer shall allow the Sellers, Serologicals and their
representatives reasonable access to all Books and Records
during normal working hours at the Buyer's principal place of
business or at any location where any Books and Records are
stored, and each Seller, Serologicals and their
representatives shall have the right, at its own expense, to
make copies of any Books and Records; provided, however, that
any such access or copying shall be had or done in such a
manner so as not to interfere with the normal conduct of the
Buyer's business.
(c) The Buyer shall make available to each Seller upon written
request (i) copies of any Books and Records, (ii) the Buyer's
personnel to assist such Seller in locating and obtaining any
Books and Records, and (iii) any of the Buyer's personnel
whose assistance or participation is reasonably required by
such Seller or any of its affiliates in anticipation of, or
preparation for, existing or future litigation, Tax Returns,
regulatory filings, inquiries, customer requests or other
matters in which such Seller or any of its affiliates is
involved. Each Seller shall reimburse the Buyer for the
reasonable out-of-pocket expenses incurred by any of them in
performing the covenants contained in this Section 9.11.
ARTICLE 10
TERMINATION
10.1 Termination Events. Notwithstanding anything to the contrary set forth
in this Agreement, this Agreement may, by notice given prior to or at the
Closing, be terminated:
(a) by the written consent of Buyer and Serologicals (acting for
itself and on behalf of Sellers and Royalty);
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(b) by Buyer, any Seller, Royalty or Serologicals in writing,
without liability to the terminating party on account of such
termination (provided the terminating party is not otherwise
in default or in breach of this Agreement), if there shall
have been a breach by (x) Buyer in any material respect (in
the event of termination by any Seller, Royalty or
Serologicals) or (y) any Seller, Royalty or Serologicals in
any material respect (in the event of termination by Buyer),
of any of its representations, warranties, covenants or
agreements contained herein and such breach is not cured to
the non-breaching party's reasonable satisfaction within
thirty (30) days of providing notice of such breach.
(c) by Buyer, any Seller, Royalty or Serologicals in writing if
the Closing has not occurred (other than through the failure
of any party seeking to terminate this Agreement to comply
fully with its obligations under this Agreement) on or before
September 30, 2000, or such later date as the parties may
agree upon.
10.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 10.1, all further obligations of the parties under this Agreement will
terminate, except that the obligations in Sections 4.16(b), 5.5, 10.2, 13.1,
13.6, 13.7 and 13.9 will survive; provided, however, that if this Agreement is
terminated by a party pursuant to 10.1(b) by reason of a breach of a
non-terminating party's representations, warranties, covenants or agreements
contained herein, then the terminating party's right to pursue all legal
remedies will survive such termination unimpaired.
ARTICLE 11
INDEMNIFICATION
11.1 Sellers' and Serologicals' Indemnification. Each Seller and
Serologicals shall, jointly and severally, promptly and fully, indemnify, defend
and save harmless Buyer and Buyer's Affiliates and its and their respective
directors, officers and employees and its and their employee benefit plans
(collectively, the "Buyer Group") from, against, for and in respect of any
Losses and Related Expenses to the extent made against, incurred or required to
be paid by any member(s) of Buyer Group to the extent arising out of or relating
to:
(i) any representation or warranty made herein by a
Seller, Royalty or Serologicals being untrue in any
respect;
(ii) the breach or non-fulfillment of any covenant,
obligation or agreement made by a Seller, Royalty or
Serologicals herein or in any document contemplated
hereby;
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(iii) the failure of a Seller, Royalty or Serologicals to
comply with, perform or observe any other term,
provision or condition applicable to a Seller,
Royalty or Serologicals contained in this Agreement
or any document contemplated hereby;
(iv) Donor Actions where the acts giving rise to the
Action occurred on or before the Closing Date; or
(v) Retained Liabilities.
11.2 Buyer's Indemnification. Buyer shall, promptly and fully, indemnify,
defend and save harmless each Seller, Royalty, Serologicals, their Affiliates
and their respective directors, officers, and employees (collectively, the
"Seller Group") from, against, for and in respect of any Losses and Related
Expenses to the extent made against, incurred or required to be paid by any
member(s) of the Seller Group to the extent arising out of or relating to:
(i) any representation or warranty made herein by Buyer
being untrue in any respect;
(ii) the breach or non-fulfillment of any covenant,
obligation or agreement made by Buyer herein or in
any document contemplated hereby;
(iii) the failure of Buyer to comply with, perform or
observe any other term, provision or condition
applicable to Buyer contained in this Agreement or
any document contemplated hereby; or
(iv) Assumed Liabilities.
11.3 Indemnification Threshold and Cap. No claim may be made against
Serologicals, Royalty or any Seller for indemnification pursuant to this Article
11 with respect to any individual Loss, unless the aggregate of all such Losses
under this Article 11 shall exceed $600,000 (the "Basket"), in which case the
Buyer shall be entitled to indemnification of its Losses in excess thereof;
provided, however, that with respect to Special Losses in the first 100 calendar
days following the Closing Date (the "Special Indemnification Period") solely
arising from breaches of the representations or warranties in Sections 4.11 or
4.13, the Basket shall be $500,000 (the "Special Basket") and, provided, further
that once Special Losses during the Special Indemnification Period solely
arising from breaches of the representations or warranties in Sections 4.11 or
4.13 exceed the Special Basket, Serologicals and the Sellers indemnification
obligations hereunder shall extend back to any Special Losses in excess of
$250,000 arising solely from breaches of Sections 4.11 or 4.13. In addition, no
Seller, Royalty or Serologicals shall be liable for an individual claim under
this Article 11 that does not exceed $15,000 during the Special Indemnification
Period or $25,000 thereafter. The indemnification provisions of this Article 11
shall be effective against Serologicals and the Sellers only
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until the dollar amount paid by Serologicals and the Sellers in respect of the
Losses indemnified hereunder (including any payment made during or with respect
to the Special Indemnification Period for Special Losses) aggregates $6,000,000;
provided however, that such indemnification provisions shall be effective
against Serologicals and the Sellers in the amount of an additional $4,000,000
with respect to environmental matters; it being understood and agreed that the
maximum aggregate liability of Serologicals and the Sellers under the
indemnification provisions of Article 11 shall not exceed $10,000,000.
Notwithstanding the foregoing, the indemnification provisions of this Article 11
shall be effective against Serologicals and the Sellers during the Special
Indemnification Period solely with respect to Special Losses solely arising from
breaches of the representations or warranties in Sections 4.11 or 4.13 only
until the dollar amount paid by Serologicals and the Sellers aggregates
$2,000,000. For the purposes of this Article 11, in computing such individual or
aggregate amounts of claims, the amount of each claim shall be deemed to be an
amount (i) net of any tax benefit to the Buyer and (ii) net of any insurance
proceeds and any indemnity, contribution or other similar payment payable by any
third party with respect thereto. Notwithstanding the foregoing provisions of
this Section 11.3, claims against Serologicals or any Seller with respect to
Section 11.1(iv) Section 11.1 (v) are not subject to the provisions of this
Section 11.3.
11.4 Defense of Claim. Each of the parties hereto (and their successors)
agrees to render to the other parties such assistance as they may reasonably
require and to cooperate in good faith with the other parties in order to ensure
the proper and adequate defense of any claim, action, suit or proceeding brought
by any third party relating to this Agreement.
11.5 Procedures. In no case shall an indemnifying party be liable for Losses
or Related Expenses unless it shall be notified by the indemnified party, in
accordance with Section 13.1, of the written assertion of a claim by the
indemnified party or of any third party action commenced against the indemnified
party reasonably promptly after the indemnified party shall have been served
with the summons or other first legal process giving information as to the
nature and basis of the third party Action; provided, that no delay in notifying
an indemnifying party shall excuse such indemnifying party from its obligations
hereunder unless such delay has materially and adversely affected such
indemnifying party's legal rights with respect to which indemnity is sought;
provided, further, that a notification to Serologicals for indemnification shall
be deemed a notice to Serologicals and to any and all of the Sellers. Any such
indemnified party shall have the right to employ separate counsel in any such
action, claim or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expenses of such indemnified
party unless (i) the indemnifying party has agreed to pay such fees and
expenses, or (ii) the indemnifying party shall have failed to promptly assume
the defense of such action, claim or proceeding, or (iii) the named parties to
any such action, claim or proceeding (including any impleaded parties) include
both such indemnified party and the indemnifying party, and such indemnified
party shall have been advised by counsel in writing (a copy of which shall be
delivered to the indemnifying party) that there may be one or more legal
defenses available to it which are different from or in addition to those
available to the indemnifying party and that the
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assertion of such defenses would create a conflict of interest such that counsel
employed by the indemnifying party could not faithfully represent the
indemnified party. (In that case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action, claim or proceeding of behalf of
such indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action, claim or proceeding or
separate but substantially similar or related actions, claims or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (together with appropriate local counsel) at any time
for all such indemnified parties, unless in the reasonable judgment of such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such action,
claim or proceeding, in which event the indemnifying party shall be obligated to
pay the fees and expenses of such additional counsel or counsels). The
indemnifying party shall not be liable for any settlement of any such action or
proceeding effected without its written consent.
11.6 Insurance. Buyer, Sellers and Serologicals shall each maintain
insurance with coverage and limits consistent with past practices until the
third anniversary of the Closing Date.
11.7 Exclusive Remedy. The remedies provided for in this Article 11 shall be
the sole and exclusive remedy available to the parties hereto; provided,
however, that each party retains the right to sue the other for fraud or wilful
misconduct.
11.8 Subrogation. Upon making any payment to an indemnitee for any
indemnification claim pursuant to this Article 11, the indemnitor shall be
subrogated, to the extent of such payment, to any rights which the indemnitee
may have against any other parties with respect to the subject matter underlying
such indemnification claim.
11.9 Future Operation of Business. Notwithstanding anything to the contrary
in this Agreement, neither Serologicals, Royalty nor the Sellers shall be liable
for any act, omission, circumstance or condition relating to the operation or
ownership of the Business or the real estate on which the Business operates,
that first occurs or arises after the Closing or resulting from the Buyer's
failure, or the failure of any of its properties, to comply with applicable law,
including, without limitation, Environmental Laws, after the Closing even if the
Assets are owned or operated after the Closing in the manner owned or operated
prior to Closing.
ARTICLE 12
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNITIES
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12.1 Survival of Representations, Warranties and Indemnities.
Notwithstanding any right of Buyer (whether or not exercised) to investigate the
Business or any right of any party (whether or not exercised) to investigate the
accuracy of the representations and warranties of the other parties contained in
this Agreement, each party has the right to rely fully upon the representations,
warranties, covenants, post-closing obligations and indemnities of the others
contained in this Agreement. The representations, warranties, covenants,
post-closing obligations and indemnities of all parties contained in this
Agreement will survive the Closing for twenty-four months; provided, however,
any representations, warranties, covenants, post-closing obligations and
indemnities relating in any manner to or otherwise concerning (x) Taxes shall
remain in effect for the applicable statute of limitations, (y) valid transfer
of the Assets shall remain in effect forever and (z) environmental matters shall
remain in effect for sixty months.
ARTICLE 13
MISCELLANEOUS
13.1 Notices.
(a) All communications under this Agreement shall be sent or given
in accordance with Section 13.1(b) to the following:
to Buyer:
AVENTIS BIO-SERVICES, INC.
1020 First Avenue
King of Prussia, Pennsylvania 19406
Attn: Senior Vice President and General Manager
with a copy to:
AVENTIS BEHRING L.L.C.
Legal Department
1020 First Avenue
King of Prussia, Pennsylvania 19406
Attn: General Counsel
To Sellers, Royalty or Serologicals:
SEROLOGICALS CORPORATION
780 Park North Boulevard, Suite 110
Clarkston, Georgia 30021
Attn: Peter J. Pizzo, III
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with a copy to:
Swidler Berlin Shereff Friedman, LLP
405 Lexington Avenue
New York, New York 10174
Attn: David S. Rosenthal, Esq.
or at such other address as such party may have furnished in
writing to each other party hereto.
(b) Any notice shall be deemed to have been duly given when
delivered by hand, if personally delivered, on the next
business day after receipt reflecting delivery to the
overnight courier, if delivered by overnight courier, two
calendar days after being deposited in the mail, postage
prepaid, if delivered by mail, and upon completion of
confirmed facsimile transmission, if sent by facsimile.
13.2 Legal Fees. In the event of litigation or arbitration, the prevailing
party shall be entitled to recover all costs incurred in connection with the
litigation including, without limitation, reasonable attorneys' fees and
expenses and court costs. In any proceeding, any party shall be entitled to seek
and obtain specific performance of each of the covenants or agreements of any
other party.
13.3 Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties;
provided, however, no party may assign in whole or in part any right or
obligation under this Agreement without the consent of all other parties hereto
unless such assignment is to an Affiliate.
13.4 Amendment and Waiver. This Agreement may be amended only in writing and
with the express written consent of all of the parties hereto. No waiver of any
term of this Agreement shall be binding unless executed in writing by the party
sought to be charged therewith. No failure or delay on the part of a party
hereto in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. No waiver of any of the provisions of this
Agreement shall be deemed to be a waiver of any other provision hereof (whether
or not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
13.5 Invalidity. The invalidation of any of the provisions of this Agreement
shall not affect the validity of any other provision hereof. If any provision is
declared to be invalid, then this Agreement shall be deemed not to have
contained such provision and the balance of this Agreement shall continue
unaffected thereby. By this clause, the parties shall not be deemed to have
intentionally included any invalid provision.
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13.6 Confidentiality.
(a) All Confidential Information, whether or not complete,
accurate or reliable, shall be and remain the property of the
originating or providing party. In the event the transactions
contemplated hereby are not consummated, Buyer will not, and
will cause its affiliates not to, for a period of two years
after the date hereof, employ or attempt to employ or divert
any employee of any Seller or any of their respective
Affiliates.
(b) Subject to Section 9.7, the parties shall maintain the terms,
conditions and existence of this Agreement in confidence and
shall not disclose the terms and conditions to third parties
unless and to the extent required by applicable Laws or court
order. A disclosing party shall, at the time of making such
disclosure, provide the other party with a complete copy of
its contents.
(c) In the event of a breach or threatened breach by a party of a
covenant set forth in this Section 13.6, the non-breaching
party shall be entitled to seek an injunction restraining the
breaching party from any use or disclosure of Confidential
Information, but such injunction shall not be deemed to be the
exclusive remedy available for such breach or threatened
breach.
(d) The provisions of this Section 13.6 shall be in addition to
the provisions of the Confidentiality Agreement which
Confidentiality Agreement shall survive the execution of this
Agreement. In the event of any conflict between the provisions
of this Section 13.6 and the provisions of the Confidentiality
Agreement, the provisions of this Section 13.6 shall govern.
13.7 Applicable Law; Forum. All matters pertaining to the validity,
construction and effect of this Agreement shall be governed by the law of the
State of New York without regard to conflict of laws principles thereof. Each of
the parties hereto hereby irrevocably and unconditionally submits to the
exclusive jurisdiction of any federal court sitting in the City of New York, New
York, or if such jurisdiction is unavailable, the courts of the State of New
York, for purposes of any suit, action or other proceeding arising out of this
Agreement (and agrees not to commence any action, suit or proceeding relating
hereto except in such courts). Each of the parties hereto agrees that service of
any process, summons, notice or document by U.S. registered mail at its address
set forth herein shall be effective service of process for any action, suit or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement, which is
brought by or against it, in any federal court sitting in the State of New York,
or if such jurisdiction is unavailable, the courts of the State of New York, and
hereby further irrevocably and unconditionally waives and
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agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
13.8 Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be an original and all of which together shall
constitute one and the same instrument.
13.9 Expenses. Each of the parties hereto shall bear the expenses separately
incurred by it in connection herewith relating to services of legal counsel and
accountants and to travel and all other expenses incurred in connection
herewith; provided, however, that nothing contained in this Section 13.9 shall
relieve any party hereto of any liability which it may have or incur for any
misrepresentation or breach of warranty made by it herein or for any failure by
it to perform any obligation created hereby or to comply with any covenant or
agreement made in accordance herewith.
13.10 Headings. The headings in this Agreement and the Schedules hereto are
inserted for convenience of reference only and shall not be a part of or affect
the meaning of this Agreement.
13.11 Good Faith. The parties shall use good faith in performing this
Agreement and the transactions contemplated thereby.
13.12 Entire Agreement. This Agreement and the Related Agreements, constitute
the entire agreement among the parties pertaining to the subject matter hereof
and supersedes all prior or contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties.
13.13 Knowledge of Seller. References herein to the Sellers' knowledge shall
mean the actual knowledge of Desmond H. O'Connell, Jr., Peter J. Pizzo, III, P.
Anne Hoppe, Richard Devoll, Jeff Robinson, Charles P. Harrison (with respect to
knowledge during his period of employment by Serologicals or its Affiliates),
Timm M. Hurst (with respect to knowledge during his period of employment by
Serologicals or its Affiliates) and the other persons listed on Schedule 13.13
(which shall include all regional managers of the Business as of the Closing
Date).
13.14 Knowledge of Buyer. References herein to the Buyer's knowledge in
Section 5.6 shall mean the actual knowledge of John Carlisle, Edwin L. Harless
and Eric F. Segal.
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IN WITNESS WHEREOF, the parties hereto, through their duly authorized
representative, execute this Asset Purchase and Sale Agreement as of the day set
forth above.
SERAMED, INC.
ALLIED PLASMA PRODUCTS, INC.
NATIONS BIOLOGICS, INC.
ALAMEDA PLASMA CENTER, INC.
MBW ENTERPRISES, INC.
AMERICAN BIOLOGICS, INC.
BLOOMINGTON PLASMA, INC.
NATIONAL BIOLOGICALS, INC.
SERONAT PLASMA, INC.
SOUTHEASTERN BIOLOGICS, INC.
PLASMA MANAGEMENT, INC.
SIMI BIOLOGICAL RESOURCES, INC.
SEROLOGICALS CORPORATION
By: /s/ Peter J. Pizzo, III
-------------------------
Name: Peter J. Pizzo, III
-------------------------
Title: Vice-President
-------------------------
AVENTIS BIO-SERVICES, INC.
By: /s/ E. L. Harless
-------------------------
Name: E. L. Harless
-------------------------
Title: President
-------------------------
By: /s/ Eric Segal
-------------------------
Name: Eric Segal
-------------------------
Title: Controller
-------------------------
SEROLOGICALS ROYALTY COMPANY
By: /s/ Peter J. Pizzo, III
-------------------------
Name: Peter J. Pizzo, III
-------------------------
Title: President
-------------------------
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