EXHIBIT 10.1
EXECUTION COPY
ASSET PURCHASE AGREEMENT
BY AND AMONG
CHEMICON SPECIALTY MEDIA, INC.
A DELAWARE CORPORATION
CHEMICON INTERNATIONAL, INC.
A CALIFORNIA CORPORATION
SEROLOGICALS CORPORATION
A DELAWARE CORPORATION
SENTIGEN HOLDING CORP.
A DELAWARE CORPORATION
AND
CELL & MOLECULAR TECHNOLOGIES, INC.
A DELAWARE CORPORATION
DATED FEBRUARY 22, 2005
TABLE OF CONTENTS
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ARTICLE I CONSTRUCTION; DEFINITIONS.................................................. 2
Section 1.1 Definitions................................................................ 2
Section 1.2 Accounting Terms........................................................... 9
ARTICLE II PURCHASE AND SALE.......................................................... 10
Section 2.1 Agreement to Purchase and Sell............................................. 10
Section 2.2 Excluded Assets............................................................ 11
Section 2.3 Assumption of Assumed Liabilities.......................................... 12
Section 2.4 Excluded Liabilities....................................................... 12
Section 2.5 Seller Deliveries.......................................................... 14
Section 2.6 Purchaser Deliveries....................................................... 14
ARTICLE III PURCHASE PRICE; ADJUSTMENTS; ALLOCATIONS................................... 15
Section 3.1 Purchase Price; Discharge of Mortgage...................................... 15
Section 3.2 Payment of Purchase Price.................................................. 15
Section 3.3 Adjustment of Purchase Price............................................... 16
Section 3.4 Allocation of Certain Items................................................ 17
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT....................... 18
Section 4.1 Organization............................................................... 18
Section 4.2 Authorization.............................................................. 18
Section 4.3 Absence of Restrictions and Conflicts...................................... 19
Section 4.4 Real Property.............................................................. 19
Section 4.5 Title to Assets; Related Matters........................................... 20
Section 4.6 Inventory.................................................................. 20
Section 4.7 Financial Statements....................................................... 20
Section 4.8 Legal Proceedings.......................................................... 21
Section 4.9 Contracts.................................................................. 21
Section 4.10 Officers, Employees and Independent Contractors............................ 22
Section 4.11 Labor Relations............................................................ 23
Section 4.12 Environmental, Health and Safety Matters................................... 24
Section 4.13 Intellectual Property...................................................... 25
Section 4.14 Software................................................................... 27
Section 4.15 Customer Relations......................................................... 27
Section 4.16 Receivables................................................................ 27
Section 4.17 Licenses................................................................... 27
Section 4.18 Product and Service Warranties............................................. 28
Section 4.19 Brokers, Finders and Investment Bankers.................................... 28
Section 4.20 Conduct of Business by Seller.............................................. 28
Section 4.21 Termination of Malavarca Agreement......................................... 28
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER, SEROLOGICALS AND CHEMICON..... 28
Section 5.1 Organization............................................................... 28
Section 5.2 Authorization.............................................................. 28
Section 5.3 Defaults, Consents, Etc.................................................... 29
Section 5.4 Brokers, Finders and Investment Bankers.................................... 29
Section 5.5 Disclosure of Information.................................................. 29
ARTICLE VI CERTAIN COVENANTS AND AGREEMENTS.......................................... 29
Section 6.1 Public Announcements....................................................... 29
Section 6.2 Employees.................................................................. 30
Section 6.3 Reserved................................................................... 31
Section 6.4 Insurance.................................................................. 31
Section 6.5 Name Change................................................................ 31
Section 6.6 Non-Competition............................................................ 31
Section 6.7 Record Retention and Access................................................ 32
Section 6.8 Confidential Information................................................... 32
ARTICLE VII INDEMNIFICATION........................................................... 32
Section 7.1 Indemnification Obligations of Seller...................................... 32
Section 7.2 Indemnification Obligations of Purchaser................................... 33
Section 7.3 Indemnification Procedure.................................................. 34
Section 7.4 Claims Period.............................................................. 35
Section 7.5 Liability Limits........................................................... 36
Section 7.6 Investigations............................................................. 36
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................................. 37
Section 8.1 Notices.................................................................... 37
Section 8.2 Schedules and Exhibits..................................................... 37
Section 8.3 Assignment; Successors in Interest......................................... 38
Section 8.4 Captions................................................................... 38
Section 8.5 Controlling Law; Amendment................................................. 38
Section 8.6 Severability............................................................... 38
Section 8.7 Counterparts............................................................... 38
Section 8.8 Enforcement of Certain Rights.............................................. 38
Section 8.9 Waiver..................................................................... 38
Section 8.10 Integration................................................................ 38
Section 8.11 Compliance with Bulk Sales Laws............................................ 39
Section 8.12 Further Assurances......................................................... 39
Section 8.13 Transaction Costs.......................................................... 39
Section 8.14 Arbitration................................................................ 39
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LIST OF EXHIBITS
Exhibit 2.5(a) Xxxx of Sale
Exhibit 2.5(b) Trademark Assignment Agreement
Exhibit 2.5(c) Assignment and Assumption Agreement
Exhibit 2.5(d) Termination Statements
Exhibit 2.5(e) Escrow Agreement
Exhibit 4.4(b) Phillipsburg Facility Mortgage
LIST OF SCHEDULES
Schedule 1.1(t) Financial Statements
Schedule 2.1(a) Personal Property
Schedule 2.1(b) Inventory
Schedule 2.1(c) Seller Intellectual Property
Schedule 2.1(j) Receivables
Schedule 2.1(k) Licenses
Schedule 2.1(l) Employment Agreements
Schedule 4.5(a) Title Exceptions
Schedule 4.5(b) List of Assets
Schedule 4.8 Legal Proceedings
Schedule 4.9 Assumed Contracts
Schedule 4.10 Officers and Employees
Schedule 4.11 Labor Relations
Schedule 4.12 Environmental, Health and Safety Matters
Schedule 4.13(e) Works of Original Authorship
Schedule 4.13(g) Employees Without Assignment Agreements
Schedule 4.13(j) Exceptions to Confidential Information Protection
Schedule 4.14(a) Seller Software
Schedule 4.15 Customers
Schedule 4.18 Warranties and Guaranties
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of February 22,
2005 (the "Closing Date"), is made and entered into by and among Chemicon
Specialty Media, Inc., a Delaware corporation ("Purchaser"), and a wholly owned
subsidiary of Chemicon International, Inc., a California corporation
("Chemicon"), Serologicals Corporation, a Delaware corporation ("Serologicals"),
Sentigen Holding Corp., a Delaware corporation ("Parent"), and Cell & Molecular
Technologies, Inc., a Delaware corporation ("Seller"). Purchaser, Chemicon,
Serologicals, Parent and Seller are sometimes individually referred to herein as
a "Party" and collectively as the "Parties".
W I T N E S S E T H:
WHEREAS, Parent is a holding company that conducts business through two
wholly-owned operating subsidiaries, Seller and Sentigen Biosciences, Inc.
("Sentigen Biosciences");
WHEREAS, Seller operates its business through its Specialty Media Division
(the "Division") and its Molecular Cell Science Division (the "MCS Division");
WHEREAS, the Division's business consists of (i) development, manufacture
and marketing of high quality cell culture media, sera reagents and other
research products including (a) media, sera reagents for the culture of mouse
embryos, (b) Murine Embryonic Stem cells, Primary Mouse Embryo Fibroblast feeder
cells and reagents, (c) reagents for gene transfer and expression and (d)
standard and custom formulated cell culture media, cell cryopreservation media,
enzymatic and non-enzymatic cell dissociation solutions, (ii) the identification
and development of custom formulated research products and reagents and (iii)
the manufacture and distribution of the aforementioned products in the research
areas of (a) mouse embryo culture media, (b) general cell culture and (c) custom
media manufacturing (the "Business"); provided, that, the Business does not
include and shall not be deemed to include the MCS Business and the Sentigen
Biosciences Business;
WHEREAS, the Parties desire to enter into this Agreement pursuant to which
Seller will sell to Purchaser, and Purchaser will purchase from Seller, all
assets comprising or used in the operation of the Business other than the
Phillipsburg Facility, and Purchaser will assume certain of Seller's liabilities
and obligations with respect to operation of the Business (the "Acquisition");
WHEREAS, the Parties desire to make certain representations, warranties
and agreements in connection with the Acquisition; and
WHEREAS, simultaneously with the execution of this Agreement, in
connection with the Acquisition, (i) Seller, Purchaser and Chemicon are entering
into a Transition Services Agreement (the "Transition Services Agreement"),
wherein Seller and Parent will agree to provide certain transition services
following the Closing Date to Purchaser on the terms set forth therein, and (ii)
Seller and Purchaser are entering into an Agreement of Sale, dated as of the
date of this Agreement, by and among Purchaser, Parent and Seller (the "Real
Estate Purchase
Agreement"), wherein Seller will agree to sell to Purchaser, and Purchaser will
agree to buy from Seller, the Phillipsburg Facility subject to the terms and
conditions described therein.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, each Party hereby agrees as
follows:
ARTICLE I
CONSTRUCTION; DEFINITIONS
Section 1.1 Definitions. The following terms, as used herein, have the
following meanings:
(a) "ADA" means the United States Americans with Disabilities Act
and the rules and regulations promulgated thereunder.
(b) "ADEA" means the United States Age Discrimination in
Employment Act and the rules and regulations promulgated thereunder.
(c) "Affiliate" of any specified Person means any other Person
directly or indirectly Controlling or Controlled by or under direct or
indirect common Control with such specified Person.
(d) "Assumed Contracts" means those contracts, agreements,
arrangements, and understandings listed on Schedule 4.9 and those
contracts, agreements, arrangements, and understandings that relate to the
operation of the Business and are not required to be listed on Schedule
4.9 (but excluding any Employment Agreement, Employee Benefit Plan or
insurance policy).
(e) "Business Day" means any day except Saturday, Sunday or any
day on which banks are generally not open for business in the City of New
York, New York or the City of Atlanta, Georgia.
(f) "CERCLA" means the United States Comprehensive Environmental
Response, Compensation and Liability Act and the rules and regulations
promulgated thereunder.
(g) "Claims Period" means the period during which a claim for
indemnification may be asserted hereunder by an Indemnified Party.
(h) "Closing Date Working Capital" means the Net Working Capital
as finally determined pursuant to Section 3.3.
(i) "Code" means the United States Internal Revenue Code of 1986,
as amended.
(j) "Confidential Information" means any data or information of
Seller or Parent (including trade secrets) related to the Division or the
Business or both, that is not
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generally known to the public or competitors regarding (for example and
including, but not limited to) (a) business process models; (b)
proprietary software; (c) research, development, products, services,
marketing, selling, business plans, budgets, unpublished financial
statements, licenses, prices, costs, contracts and other agreements,
suppliers, customers, and customer lists; (d) the identity, skills and
compensation of employees, contractors, and consultants; (e) specialized
training; (f) discoveries, developments, trade secrets, processes,
formulas, data, lists, and all other works of authorship, mask works,
ideas, concepts, know-how, designs, and techniques, whether or not any of
the foregoing is or are patentable, copyrightable, or registrable under
any intellectual property Laws or industrial property Laws in the United
States or elsewhere; and (g) such other information that may give the
Division some competitive business advantage or the disclosure of which
could be detrimental to the interests of the Division or the Business and
that from all of the relevant circumstances could reasonably be assumed by
any Person to be confidential and proprietary to Seller. Notwithstanding
the foregoing, no data or information constitutes "Confidential
Information" if such data or information is publicly known and in the
public domain through means that do not involve a breach by Seller of any
covenant or obligation set forth in this Agreement.
(k) "Control" means, when used with respect to any specified Person,
the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by
contract or otherwise.
(l) "Division Employee" means an employee of Seller who is engaged
primarily in the Business. The Division Employees are listed on Schedule
4.10.
(m) "Employment Agreement" means any employment contract, consulting
agreement, termination or severance agreement, salary continuation
agreement, change of control agreement or any other agreement, including
offers for any of the above, respecting the terms and conditions of
employment or payment of compensation, or of a consulting or independent
contractor relationship in respect to any current or former officer,
employee, consultant or independent contractor.
(n) "Employee Benefit Plan" means, with respect to any Person, each
plan, fund, program, agreement, arrangement or scheme that is at any time
sponsored or maintained or required to be sponsored or maintained by such
Person or to which such Person makes or has made, or has or has had an
obligation to make, contributions providing benefits to the employees,
former employees, directors, managers, officers, consultants, independent
contractors, contingent workers or leased employees of such Person or the
dependents of any of them (whether written or oral), including (a) each
deferred compensation, bonus, incentive compensation, pension, retirement,
stock purchase, stock option and other equity compensation plan, (b) each
"welfare" plan (within the meaning of Section 3(1) of ERISA, determined
without regard to whether such plan is subject to ERISA), (c) each
"pension" plan (within the meaning of Section 3(2) of ERISA, determined
without regard to whether such plan is subject to ERISA), (d) each
severance plan or agreement, and (e) each vacation, supplemental
unemployment benefit, hospitalization insurance, fringe benefit, legal
benefit and other employee benefit plan, fund, program, agreement or
arrangement.
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(o) "Environmental Conditions" means any pollution, contamination,
degradation, damage or injury caused by, related to, arising from or in
connection with the generation, handling, use, treatment, storage,
transportation, disposal, discharge, Release or emission of any hazardous
materials.
(p) "Environmental Laws" means all applicable foreign, federal,
state and local statutes or laws, common law, judgments, orders,
regulations, licenses, permits, rules and ordinances relating to pollution
or protection of health, safety or the environment, including, but not
limited to the Federal Water Pollution Control Act (33 U.S.C. ss.1251 et
seq.), Resource Conservation and Recovery Act (42 U.S.C. ss.6901 et seq.),
Safe Drinking Water Act (42 U.S.C. ss.3000(f) et seq.), Toxic Substances
Control Act (15 U.S.C. ss.2601 et seq.), Clean Air Act (42 U.S.C. ss.7401
et seq.), Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. ss.9601 et seq.) and other similar state and local
statutes.
(q) "ERISA" means the United States Employee Retirement Income
Security Act of 1974 and the rules and regulations promulgated thereunder.
(r) "ERISA Affiliate" means any Person (whether incorporated or
unincorporated) that together with Seller would be deemed a "single
employer" within the meaning of Section 414 of the Code.
(s) "ERISA Affiliate Plan" means each Employee Benefit Plan
sponsored or maintained or required to be sponsored or maintained at any
time by any ERISA Affiliate, or to which such ERISA Affiliate makes or has
made, or has or has had an obligation to make, contributions at any time.
(t) "Financial Statements" means (i) the schedule of balance sheet
information for the Division and (ii) the pro forma statements of
operation of the Division, as of and for the nine months ended September
30, 2004, copies of which are attached hereto as Schedule 1.1(t).
(u) "FLSA" means the United States Fair Labor Standards Act and the
rules and regulations promulgated thereunder.
(v) "FMLA" means the United States Family and Medical Leave Act and
the rules and regulations promulgated thereunder.
(w) "GAAP" means generally accepted accounting principles as applied
in the United States.
(x) "Governmental Entity" means any federal, state or local or
foreign government, any political subdivision thereof or any court,
administrative or regulatory agency, department, instrumentality, body or
commission or other governmental authority or agency, domestic or foreign.
(y) "Hazardous Materials" means any pollutant, chemical or substance
and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or
flammable chemical,
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or chemical compound, or hazardous substance, material or waste, whether
solid, liquid or gas, that is subject to regulation, control or
remediation under any Environmental Laws, including without limitation,
any quantity of friable asbestos, urea formaldehyde, polychlorinated
biphenyls, radon gas, crude oil or any fraction thereof, all forms of
natural gas, petroleum products or by-products or derivatives.
(z) "Indemnified Party" means a Purchaser Indemnified Party or a
Seller Indemnified Party.
(aa) "Intellectual Property" means any or all of the following and
all rights, arising out of or associated therewith: (i) all inventions
(whether patentable or not), invention disclosures, improvements, trade
secrets, proprietary and confidential information, process,
specifications, compositions, manufacturing methods, operational data,
application methods, testing methods, computer programs, blueprints,
drawings, designs, information and documents relating to research and
development, know-how, technology, technical data and customer lists, and
all documentation relating to any of the foregoing throughout the world;
(ii) all copyrights, copyright registrations and applications therefor,
and all other rights corresponding thereto throughout the world; (iii) all
industrial designs and any registrations and applications therefor
throughout the world; (iv) all websites, internet uniform resource
locators, domain names, trade names, logos, slogans, designs common law
trademarks and service marks, service xxxx registrations and applications
therefor throughout the world; (v) all databases and data collections and
all rights therein throughout the world; (vi) all moral and economic
rights of authors and inventors, however denominated, throughout the
world; and (vii) any similar or equivalent rights to any of the foregoing
anywhere in the world.
(bb) "Knowledge" with respect to Seller means (i) all facts known by
Xxxx Xxxxx, Xxxxxxx Xxxxxxxxx and Xxxxxx X. Xxxxxxx on the Closing Date
following reasonable inquiry and diligence with respect to the matters at
hand, and (ii) the actual knowledge of Xxxxxx X. Xxxxxx on the Closing
Date.
(cc) "Labor Laws" means all Laws governing or concerning labor
relations, unions and collective bargaining, conditions of employment,
employment discrimination and harassment, wages, hours or occupational
safety and health, including, without limitation, ERISA, the United States
Immigration Reform and Control Act of 1986, the United States National
Labor Relations Act, the United States Civil Rights Acts of 1866 and 1964,
the United States Equal Pay Act, ADEA, ADA, FMLA, WARN, OSHA, the United
States Xxxxx Xxxxx Act, the United States Xxxxx-Xxxxx Act, the United
States Service Contract Act, United States Executive Order 11246, FLSA and
the United States Rehabilitation Act of 1973 and all rules and regulations
promulgated under such acts.
(dd) "Laws" means all statutes, rules, codes, regulations,
restrictions, ordinances, orders, decrees, approvals, directives,
judgments, injunctions, writs, awards and decrees of, or issued by, all
Governmental Entities.
(ee) "Licenses" means all notifications, licenses, permits
(including environmental, construction and operation permits), franchises,
certificates, approvals,
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exemptions, classifications, registrations and other similar documents and
authorizations issued by any Governmental Entity, and applications
therefor.
(ff) "Liens" mean all mortgages, liens, pledges, security interests,
charges, claims, restrictions and encumbrances of any nature whatsoever,
and any lease having the same effect.
(gg) "Malavarca Agreement" means that certain Employment Agreement,
dated as of May 23, 2001, by and between Seller and Xxxxxxx Xxxxxxxxx.
(hh) "Material Adverse Effect" means any state of facts, change,
event, effect or occurrence (when taken together with all other states of
fact, changes, events, effects or occurrences) that has had or is
reasonably likely to have a materially adverse effect on the financial
condition, results of operations, prospects, properties, assets or
liabilities (including contingent liabilities) of the Business or the
Assets taken as a whole. A Material Adverse Effect shall also include any
state of facts, change, event or occurrence that shall have occurred or
been threatened that (when taken together with all other states of facts,
changes, events, effects or occurrences that have occurred or been
threatened) has prevented or materially delayed, or would be reasonably
likely to prevent or materially delay, the performance by Seller of its
obligations hereunder or the consummation of the transactions contemplated
hereby.
(ii) "MCS Business" means the business of providing contract
research and development services to the life sciences community in the
areas of (1) molecular biology, (2) cell biology, (3) gene expression, (4)
protein expression, purification and biochemistry, (5) bio-processing, (6)
drug discovery support services, (7) high-throughput screening support
services, (8) cell culture scale-up and the provision of whole cells, cell
derived proteins and sub-cellular fractions, (9) gene transfer, (10)
generation of recombinant cell lines with or without division arrest
technology, and (11) mouse genetics, including gene cloning, gene
targeting in mouse embryonic stem cells, generation of knock-out and/or
knock-in and conditional expression mouse models and the creation of
related cell lines.
(jj) "Net Working Capital" means the excess of the current assets
included in the Assets over the current liabilities included in the
Assumed Liabilities, or the excess of the current liabilities included in
the Assumed Liabilities over the current assets included in the Assets, as
the case may be, each as of the close of business on the Closing Date and
determined in accordance with GAAP.
(kk) "NLRB" means the United States National Labor Relations Board.
(ll) "Noncompete Period" means the period beginning on the Closing
Date and continuing for a period of five (5) years from the Closing Date.
(mm) "OSHA" means the United States Occupational Safety and Health
Act.
(nn) "Owned Real Property" means the parcel of real property on
which the Phillipsburg Facility is located together with all fixtures and
improvements thereon.
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(oo) "Permitted Exceptions" shall have the meaning set forth in the
Real Estate Purchase Agreement.
(pp) "Person" means any individual, corporation, partnership, joint
venture, limited liability company, trust, unincorporated organization or
Governmental Entity.
(qq) "Phillipsburg Facility" means the offices and manufacturing
operations housed in the 6,600 square foot facility located at 000
Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, housing the office and
manufacturing facilities of the Division.
(rr) "Purchaser Ancillary Documents" means any certificate,
agreement, document or other instrument, other than this Agreement, to be
executed and delivered by Purchaser in connection with the transactions
contemplated hereby, including without limitation, the Real Estate
Purchase Agreement.
(ss) "Purchaser Indemnified Parties" means Purchaser and its
Affiliates, their respective officers, directors, employees, agents and
representatives and the heirs, executors, successors and assigns of any of
the foregoing.
(tt) "Receivables" means all of the accounts receivable or other
receivables arising from or related to the operation of the Business.
(uu) "Registered Intellectual Property" means all United States,
international and foreign: (i) registered trademarks and service marks,
applications to register trademarks and service marks, intent-to-use
applications, or other registrations or applications related to trademarks
and service marks; (ii) registered copyrights and applications for
copyright registration; (iii) domain name registrations; and (iv) any
other Intellectual Property that is the subject of an application,
certificate, filing, registration or other document issued, filed with, or
recorded with any federal, state, local or foreign Governmental Entity or
other public body.
(vv) "Release" means, with respect to any Hazardous Material, any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing into any surface or
ground water, drinking water supply, soil, surface or subsurface strata or
medium, or the ambient air.
(ww) "Seller Ancillary Documents" means any certificate, agreement,
document or other instrument, other than this Agreement, to be executed
and delivered by Seller or an Affiliate thereof in connection with the
transactions contemplated hereby, including without limitation, the Real
Estate Purchase Agreement.
(xx) "Seller Benefit Plan" means each Employee Benefit Plan
sponsored or maintained or required to be sponsored or maintained at any
time by Seller or Parent or to which Seller or Parent makes or has made,
or has or has had an obligation to make, contributions at any time.
(yy) "Seller Indemnified Parties" means Seller and its respective
officers, directors, employees, agents and representatives and the heirs,
executors, successors and
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assigns of any of the foregoing.
(zz) "Seller Intellectual Property" means the Intellectual Property
that is primarily used in the operation of the Business. For purposes of
clarification, Seller Intellectual Property does not include Intellectual
Property that is primarily used in the MCS Business or the Sentigen
Biosciences Business, notwithstanding the incidental use of such
Intellectual Property in the Business.
(aaa) "Seller Registered Intellectual Property" means the Registered
Intellectual Property primarily used in the operation of the Business,
including, without limitation, Seller Software, Seller Registered
Intellectual Property, the U.S. Trademark on "Embryomax" and the
"Specialty Media" trade name and related trademark.
(bbb) "Seller Software" means the Software primarily used in the
operation of the Business.
(ccc) "Sentigen Biosciences Business" means the development and
commercialization of novel bioassay systems, including the Tango Assay
System and related intellectual property, that elucidate the underlying
biology of protein-protein interactions with the initial target of its
Tango Assay System being the functionalization of G protein-coupled
receptors for pharmaceutical drug discovery and development, and the
accompanying services of providing related cell lines and reagents.
(ddd) "Software" means any computer software program, together with
any error corrections, updates, modifications, or enhancements thereto, in
both machine-readable form and human-readable form, including all comments
and any procedural code.
(eee) "Target Working Capital" means the amount of $422,557.
(fff) "Taxes" means all taxes, assessments, charges, duties, fees,
levies and other governmental charges, including income, franchise,
capital stock, real property, personal property, tangible, withholding,
employment, payroll, social security, social contribution, unemployment
compensation, disability, transfer, sales, use, excise, gross receipts,
value-added and all other taxes of any kind imposed by any Governmental
Entity, whether disputed or not, and any charges, interest or penalties
imposed by any Governmental Entity.
(ggg) "Tax Return" means any report, return, declaration or other
information required to be supplied to a Governmental Entity in connection
with Taxes, including estimated returns and reports of every kind with
respect to Taxes.
(hhh) "WARN" means the United States Worker Adjustment and
Retraining Notification Act and the rules and regulations promulgated
thereunder.
(iii) "Working Capital Deficit" means the excess, if any, of the
Target Working Capital over the Closing Date Working Capital.
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(jjj) "Working Capital Surplus" means the excess, if any, of the
Closing Date Working Capital over the Target Working Capital.
Section 1.2 Accounting Terms.All accounting terms not specifically defined
herein shall be construed in accordance with GAAP.
Section 1.3 Cross References. Each of the following terms is defined in
the Section set forth opposite such term:
Term Section
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Accounting Referee..................................................... 3.3(c)
Acquisition ........................................................... Recitals
Agreement.............................................................. Preamble
Assets................................................................. 2.1
Assignment and Assumption Agreement.................................... 2.5(c)
Assumed Liabilities.................................................... 2.3(b)
Basket................................................................. 7.5
Xxxx of Sale........................................................... 2.5(a)
Business Recitals
Business Licenses...................................................... 4.17
Chemicon Preamble
Closing Date........................................................... Preamble
Closing Date Indebtedness.............................................. 2.4(e)
Division Recitals
Escrow Amount.......................................................... 3.2(a)(i)
Excluded Assets........................................................ 2.2
Excluded Liabilities................................................... 2.4
Indemnifying Party..................................................... 7.3(a)
Inventory.............................................................. 2.1(c)
Joint Confidentiality Agreement........................................ 6.6(a)
MCS .............................................................. Recitals
Parent .............................................................. Preamble
Parties .............................................................. Preamble
Party .............................................................. Preamble
Preliminary Working Capital............................................ 3.3(a)
Purchase Price......................................................... 3.1
Purchaser.............................................................. Preamble
Purchaser Losses....................................................... 7.1
Purchaser Surviving Obligations........................................ 7.4(b)
Purchaser Surviving Representations.................................... 7.4(b)
Purchaser Working Capital.............................................. 3.3(b)
Real Estate Purchase Agreement......................................... Recitals
Seller................................................................. Preamble
Seller Losses.......................................................... 7.2
Seller Surviving Obligations........................................... 7.4(a)
Seller Surviving Representations....................................... 7.4(a)
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Sentigen Biosciences................................................... Recitals
Serologicals........................................................... Preamble
Third Party Claim...................................................... 7.3(a)
Trademark Assignment Agreement......................................... 2.5(b)
Transferred Employees.................................................. 6.2(a)
Transition Services Agreement.......................................... Recitals
ARTICLE II
PURCHASE AND SALE
Section 2.1 Agreement to Purchase and Sell. Subject to the terms and
conditions hereof, and except as otherwise specifically provided in this Article
II, Seller and Parent, in consideration for the payment of the Purchase Price in
accordance with Section 3.2, do hereby, simultaneously with the execution and
delivery of this Agreement, grant, sell, assign, transfer and deliver to
Purchaser, and Purchaser hereby, simultaneously with the execution and delivery
of this Agreement, purchases and acquires from Seller and Parent, all right,
title and interest of Seller and Parent in and to all of the assets, properties
and rights of Seller and Parent with respect to the Business of every kind and
description, real, personal and mixed, tangible and intangible, wherever
situated, used by the Division or in the operation of the Business, including
without limitation:
(a) all machinery, equipment, furniture and other tangible and
intangible personal property used in the operation of the Business,
including, without limitation, the machinery, equipment, furniture and
other tangible personal property described on Schedule 2.1(a) hereto;
(b) all inventories of raw materials, work in process, or finished
goods for use in the operation of the Business (the "Inventory"),
including without limitation the Inventory listed on Schedule 2.1(b), less
any of the Inventory sold in the ordinary course of business after the
date of such Schedule;
(c) all Seller Intellectual Property and Seller Registered
Intellectual Property, including without limitation the Seller
Intellectual Property listed on Schedule 2.1(c);
(d) all Assumed Contracts, including without limitation the
Assumed Contracts listed on Schedule 4.9;
(e) all books, records and files relating to the operation of the
Business, including but not limited to all production, sales and warranty
records related to the Division or the Business;
(f) all prepaid expenses of the Business other than prepaid
insurance premiums;
(g) all unfilled customer orders of the Business;
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(h) all rights under any franchises, licenses and permits relating
to the operation of the Business;
(i) all rights to causes of action, lawsuits, judgments, claims and
demands of any nature available to, or being pursued by, Seller relating
to the operation of the Business, whether arising by way of counterclaim
or otherwise;
(j) the Receivables, including without limitation, the Receivables
listed on Schedule 2.1(j), less any of such Receivables collected in the
ordinary course of business after the date of such Schedule;
(k) all Licenses, including without limitation, the Licenses listed
on Schedule 2.1(k);
(l) any and all rights and interests granted to the Parent, Seller
or the Division pursuant to any Employment Agreement in any Seller
Intellectual Property, any Seller Registered Intellectual Property or any
non-compete, non-solicitation or similar provision in favor of the Seller,
Parent or Division, including, without limitation, pursuant to the
Employment Agreements set forth on Schedule 2.1(l); and
(m) all of Seller's rights, title and interest in the warranties and
guaranties affecting the Owned Real Property or parts thereof assigned by
Seller pursuant to Section 4(a)(iv) of the Real Estate Purchase Agreement;
all free and clear of Liens (collectively referred to herein as the
"Assets").
Section 2.2 Excluded Assets. Notwithstanding anything to the contrary set
forth herein, the Assets shall not include the following assets, properties and
rights of Seller or Parent (collectively, the "Excluded Assets"):
(a) any cash or cash equivalents;
(b) all ownership and other rights with respect to the Malavarca
Agreement, and any Employment Agreement, and any liabilities relating to
the termination by Seller of the Malavarca Agreement, pursuant to Section
4.21;
(c) any License or similar right that by its terms is not
transferable to Purchaser, including those indicated on Schedule 2.1(k) as
not being transferable;
(d) the charter documents of Seller, minute books, stock ledgers,
Tax Returns, books of account and other constituent records relating to
the corporate organization of Seller;
(e) all accounting records relating to the Division that were
created on or before the Closing Date;
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(f) all personnel and other records created by Seller's or
Parent's Human Resources Department that relate to the Division and that
were created on or before the Closing Date;
(g) all master files and data files related to the Division
created on the Seller's or Parent's information technology system on or
before the Closing Date;
(h) any Intellectual Property other than the Seller Intellectual
Property, the Seller Registered Intellectual Property, and the rights
described in Section 2.1(l); and
(i) the Owned Real Property.
Section 2.3 Assumption of Assumed Liabilities.
(a) Except for the Assumed Liabilities, Purchaser shall not
assume, in connection with the transactions contemplated hereby, any
liability or obligation with respect to the Assets, the Division or the
Business whatsoever, and Seller or Parent, as the case may be, shall be
responsible for and shall discharge and timely pay all liabilities and
obligations, whether or not accrued and whether or not disclosed.
(b) Purchaser shall assume the following liabilities and
obligations with respect to the Assets, the Division and the Business
(collectively, the "Assumed Liabilities"):
(i) the accounts payable of the Division incurred in the
operation of the Business to the extent but only to the extent such
accounts payable arose in the ordinary course of business,
consistent with past practice and, in accordance with their terms,
are not past due on the Closing Date; and
(ii) the obligations under the Assumed Contracts to the extent
and only to the extent such obligations are not required to be
performed prior to the Closing Date, are disclosed on the face of
such Assumed Contracts and accrue and relate to the operations of
the Business subsequent to the Closing Date.
(c) Without limiting Parent's and Seller's indemnification
obligations set forth in Section 7, Purchaser shall assume all liabilities
and obligations with respect to any event, circumstance, or action with
respect to the Owned Real Property that first occurred subsequent to the
Closing Date.
Section 2.4 Excluded Liabilities. Specifically, and without in any way
limiting the generality of Section 2.3(a), the Assumed Liabilities shall not
include, and in no event shall Purchaser assume, agree to pay, or be obligated
to discharge or satisfy any liability or obligation hereunder or otherwise have
any responsibility for any of the following liabilities or obligations (together
with all other liabilities that are not Assumed Liabilities, the "Excluded
Liabilities"):
(a) any liabilities under warranties or otherwise relating to
products of the Division or the Business;
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(b) any liabilities incurred in connection with or arising out of or
resulting from (A) any provision of any Environmental Law and arising out
of, or relating to, (x) any condition of, or the existence of any
Hazardous Material on or with respect to, any acquired Asset or the Owned
Real Property on or prior to the Closing Date, (y) any act or omission of
Seller or its employees, agents or representatives or any prior owner or
operator of the Phillipsburg Facility or (z) the ownership, use, control
or operation by any Person on or prior to the Closing Date of the Owned
Real Property or any of the Assets, including arising from any Release of
any Hazardous Material or off-site shipment of any Hazardous Material at
or from any real property, plant, facility, site, area or property by any
Person or (B) mold or any other environmental matter or condition with
respect to the Owned Real Property or any of the Assets;
(c) any liability or obligations of Seller or Parent in respect of
any Taxes including, without limitation, any Taxes arising from or
relating to the ownership and operation of the Assets, the Owned Real
Property or the Assumed Liabilities on or prior to the Closing Date;
(d) any liability related to any Lien on the Assets;
(e) any liability of Seller or the Business for, or relating to,
liability for principal, interest, premium and fees or expenses with
respect to money borrowed or capital lease obligations to the extent the
same is secured by a mortgage, lien or other similar encumbrance on the
Assets (the "Closing Date Indebtedness");
(f) any liability relating to the conduct of the Division prior to
the Closing Date arising out of (i) claims made in pending or future
suits, actions, investigations, or other legal, governmental or
administrative proceedings or (ii) claims based on violations of Law,
breach of contract, employment practices, violations of Labor Laws or
environmental, health and safety matters or any other actual or alleged
failure to perform any obligation;
(g) any liability pertaining to Excluded Assets, and any asset other
than the Assets;
(h) any liability relating to, resulting from or arising out of any
discontinued operations or operations that have been disposed of prior to
the Closing Date;
(i) any liability of Seller or Parent or the Business arising or
incurred in connection with the negotiation, preparation and execution of
this Agreement and the transactions contemplated hereby and thereby and
any fees and expenses of counsel, accountants, brokers, financial advisors
or other experts of Seller, Parent or the Division; or
(j) any liabilities or obligations under or relating to any Seller
Benefit Plan, ERISA Affiliate Plan or Employment Agreement, including but
not limited to any obligation or liability to make any payment or payments
to any Person, including any Governmental Entity, as a result of the
Acquisition or otherwise under the Malavarca Agreement.
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Section 2.5 Seller Deliveries. Simultaneously with the execution of this
Agreement, Seller is delivering to Purchaser the following:
(a) executed bills of sale, instruments of assignment,
certificates of title and other conveyance documents, dated as of the
Closing Date, transferring to Purchaser all of Seller's right, title and
interest in and to the Assets, together with possession of the Assets,
including the Xxxx of Sale (the "Xxxx of Sale") attached hereto as Exhibit
2.5(a);
(b) executed trademark assignment agreement, transferring to
Purchaser all of Seller's right, title and interest in and to the
Embryomax trademark and the Specialty Media trade name and related
trademark (the "Trademark Assignment Agreement") attached hereto as
Exhibit 2.5(b);
(c) documents evidencing the assignment of the Assumed Contracts
and the assignment of any assignable Licenses, including the Assignment
and Assumption Agreement (the "Assignment and Assumption Agreement")
attached hereto as Exhibit 2.5(c);
(d) Uniform Commercial Code termination statements attached hereto
as Exhibit 2.5(d), terminating the security interests with respect to the
Assets evidenced by the Uniform Commercial Code financing statements
described therein;
(e) the Escrow Agreement, attached hereto as Exhibit 2.5(e); and
(f) all other documents required to be entered into by Seller
pursuant hereto or reasonably requested by Purchaser to convey the Assets
to Purchaser or to otherwise consummate the transactions contemplated
hereby.
Section 2.6 Purchaser Deliveries. Simultaneously with the execution of
this Agreement, Purchaser is delivering to Seller the following:
(a) the portion of the Purchase Price to be paid on the Closing
Date pursuant to Section 3.2(a)(ii), paid and delivered in accordance with
such Section;
(b) documents evidencing the assumption of the Assumed Contracts
and the acceptance of the assignable Licenses and the Assumed Liabilities,
including the Assignment and Assumption Agreement;
(c) the Escrow Agreement; and
(d) all other documents required to be entered into or delivered
by Purchaser at or prior to the Closing Date pursuant hereto or reasonably
requested by Seller to convey the Assets to Purchaser or to otherwise
consummate the transactions contemplated hereby.
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ARTICLE III
PURCHASE PRICE; ADJUSTMENTS; ALLOCATIONS
Section 3.1 Purchase Price; Discharge of Mortgage.
(a) Subject to adjustment pursuant to Section 3.3 and to the
indemnification obligations under Section 7.1, the aggregate amount to be
paid for the Assets (the "Purchase Price") shall be Six Million
Ninety-Five Thousand Dollars ($6,095,000). In addition to the foregoing
payment, as consideration for the grant, sale, assignment, transfer and
delivery of the Assets, Purchaser shall assume and discharge the Assumed
Liabilities.
(b) Concurrent with the execution and delivery of this Agreement,
Purchaser is paying to PNC Bank Two Hundred Forty-Five Thousand Forty-Two
Dollars and Eighty-Nine Cents ($245,042.89) in full satisfaction of, the
discharge of Loan No. 880237994, which is secured by a mortgage lien on
the Owned Real Property.
Section 3.2 Payment of Purchase Price.
(a) Simultaneously with the execution and delivery of this Agreement
in full satisfaction of the payment of the Purchase Price, Purchaser is:
(i) depositing in escrow with the escrow agent identified in
the Escrow Agreement, Five Hundred Thousand Dollars ($500,000) (the
"Escrow Amount"), which amount shall be held and disbursed in
accordance with the terms of the Escrow Agreement;
(ii) paying to the Escrow Agent (identified in the Escrow
Agreement) the amount of Three Thousand Dollars ($3,000),
representing the Escrow Agent's fee; and
(iii) paying to Seller Five Million Five Hundred Ninety-One
Thousand Seven Hundred Sixty-Six Dollars and Seventy-Three Cents
($5,591,766.73), the receipt and sufficiency of which the Seller
does hereby acknowledge.
(b) Within five Business Days following the determination of the
Closing Date Working Capital in accordance with Section 3.3:
(i) If there is a Working Capital Deficit, then Seller shall
pay to Purchaser an amount equal to the Working Capital Deficit.
(ii) If there is a Working Capital Surplus, then Purchaser
shall pay to Seller an amount equal to the Working Capital Surplus.
(iii) If a dispute exists between Seller and Purchaser
regarding the amount of Working Capital Deficit or the Working
Capital Surplus, as the case may be, the Party owing payment shall
pay to the other Party the uncontested amount prior to the
determination of the disputed amount in accordance with Section
3.3(c).
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(c) All payments being made under this Section 3.2 or any other
provision hereof are being or shall be made in cash by wire transfer of
immediately available funds to such bank account as shall be designated in
writing by the party to which the applicable payment is due at least three
Business Days prior to the applicable payment date.
Section 3.3 Adjustment of Purchase Price.
(a) Preliminary Working Capital. As promptly as practicable
following the Closing Date (but in any event within 90 days), Seller shall
prepare and deliver to Purchaser a schedule setting forth Seller's
determination of the Net Working Capital (the "Preliminary Working
Capital"). The Preliminary Working Capital shall set forth by line item
the components of Net Working Capital and shall be accompanied by such
detail and supporting schedules as may be necessary, or may be reasonably
requested by Purchaser to verify Seller's calculations.
(b) Objections. Purchaser shall have 30 days following receipt of
the Preliminary Working Capital during which to notify Seller of any
dispute of any item contained in the Preliminary Working Capital, which
notice shall set forth in reasonable detail the basis for such dispute and
Purchaser's calculations of Net Working Capital (the "Purchaser Working
Capital"). In the event Purchaser does not notify Seller of any such
dispute within such 30-day period, the Preliminary Working Capital shall
be deemed to be the Closing Date Working Capital. Purchaser and Seller
shall cooperate in good faith to resolve any such dispute as promptly as
possible, and upon such resolution, the Closing Date Working Capital shall
be prepared in accordance with the agreement of Purchaser and Seller.
(c) Accounting Referee. If Seller and Purchaser are unable to reach
a final resolution of all disputes regarding the Closing Date Working
Capital within 45 days after the delivery by Purchaser of a notice of
disagreement to Seller, Seller and Purchaser will jointly retain an
accounting firm of recognized national standing (the "Accounting Referee")
to resolve any remaining disagreements. If Seller and Purchaser are unable
to agree on the choice of the Accounting Referee, then the Accounting
Referee will be chosen by lot by Seller and Purchaser from between
PricewaterhouseCoopers LLP and Ernst & Young LLP, in each case using a
partner of the New York, New York or Atlanta, Georgia office of such
firms. Seller and Purchaser will direct the Accounting Referee to render a
determination and to send notice of such determination to Seller and
Purchaser pursuant to the provisions of Section 3.3(b) within 60 days of
its retention and Seller and Purchaser, and their respective agents, will
cooperate with the Accounting Referee during its engagement. The
Accounting Referee will consider only those line items and amounts in the
Preliminary Working Capital that are objected to by the Purchaser in
Purchaser's objection notice (referred to in Section 3.3(b)) that Seller
and Purchaser are unable to resolve. Seller and Purchaser shall each
submit a binder to the Accounting Referee promptly (and in any event
within 20 days after the Accounting Referee's engagement), which binder
shall contain such Party's computation of those line items or amounts
contained in the Preliminary Working Capital about which the parties could
not resolve any differences and such Party's calculation of Closing Date
Working Capital. The
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Accounting Referee shall review such binders and base its determination
solely on them; provided, that if a Party fails to submit such a binder,
the Accounting Referee shall proceed to determine the Closing Date Working
Capital without such binder. In resolving all disputed line items and
amounts, the Accounting Referee's determination of Closing Date Working
Capital may not exceed the amount of Purchaser's Working Capital set forth
on the objection notice and may not be less than the amount of Preliminary
Working Capital. The Accounting Referee's determination will be based on
the definition of Closing Date Working Capital set forth in this
Agreement. The determination of the Accounting Referee of the Closing Date
Working Capital will be conclusive and binding upon the parties for all
purposes pursuant to this Agreement.
(d) Expenses. The Purchaser shall bear a percentage of the costs
and expenses of the Accounting Referee equal to the difference between the
aggregate amount contested by the Purchaser set forth on the objection
notice and amounts actually paid to the Purchaser with respect to
contested items, as a percentage of the aggregate amount so contested.
(e) Access and Cooperation. Seller and Purchaser agree that they
will, and agree to cause their respective independent accountants to,
cooperate and assist in the preparation and the calculation of Closing
Date Working Capital and in the conduct of the reviews and procedures
referred to in this Section 3.3, including the making available, to the
extent necessary, of books, records, work papers and personnel.
Section 3.4 Allocation of Certain Items. With respect to certain expenses
incurred with respect to the Assets in the operation of the Business, the
following allocations are being made between Seller on the one hand and
Purchaser on the other:
(a) Taxes. Real and ad valorem property taxes are being
apportioned based upon the amounts set forth in the current tax bills
therefor and the number of days in the taxable period prior to (and
including) the Closing Date and in the taxable period following the
Closing Date.
(b) Utilities. Utilities, water and sewer charges are being
apportioned based upon the number of Business Days occurring prior to (and
including) the Closing Date and following the Closing Date during the
billing period for each such charge.
(c) Workers' Compensation. Seller shall be responsible for and
shall pay any and all workers' compensation and other claims asserted by,
or with respect to, any employee or former employee of Seller, in respect
of any injury or other compensable event or occupational illness or
disease that occurred or is attributable to any event, state of facts or
condition that existed or occurred in whole prior to the Closing Date.
Purchaser is responsible for and shall pay any and all workers'
compensation and other similar claims asserted by, or with respect to, any
employee hired by Purchaser in respect of any injury or other compensable
event or occupational illness or disease that occurred or is attributable
to any event, state of facts or condition that existed or occurred in
whole on or after the Closing Date. In the event any injury or other
compensable event or occupational illness or disease of an individual who
was employed both by Seller prior to
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the Closing Date and by Purchaser on or following the Closing Date is
attributable in part to causes occurring prior to the Closing Date and in
part to causes occurring on or after the Closing Date and is the basis of
a workers' compensation or other similar claim asserted following the
Closing Date, then liability for any such claim shall be equitably
apportioned between Seller and Purchaser based on the number of days
falling before the Closing Date, on the one hand, and on or after the
Closing Date, on the other hand, during which such compensable event or
occupational illness or disease existed or was suffered.
Appropriate cash payments by Purchaser or Seller to the other, as the case
may require, shall be made hereunder from time to time as soon as practicable
after the facts giving rise to the obligation for such payments are known in the
amounts necessary to give effect to the allocations provided for in this Section
3.4; provided, however, that such payments shall not be required to the extent
an accrued expense or prepaid expense is adequately reflected with respect to
such item on the Closing Date Working Capital.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF Seller AND PARENT
Seller and Parent hereby jointly and severally represent and warrant to
Purchaser as follows as of the date hereof:
Section 4.1 Organization. Each of Parent and Seller is a corporation duly
formed and validly existing under the Laws of the State of Delaware and has all
requisite power and authority to own, lease and operate its properties and to
carry on the operation of the Business as now being conducted.
Section 4.2 Authorization. Each of Parent and Seller has full power and
authority to execute and deliver this Agreement and the Seller Ancillary
Documents and to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Seller Ancillary Documents by Parent and
Seller and the performance by each of Parent and Seller of its obligations
hereunder and thereunder and the consummation of the transactions provided for
herein and therein have been duly and validly authorized by all necessary
corporate action on the part of Parent and Seller. Each of Parent's and Seller's
board of directors has approved the execution, delivery and performance of this
Agreement and the Seller Ancillary Documents and the consummation of the
transactions contemplated hereby and thereby. This Agreement and the Seller
Ancillary Documents have been duly executed and delivered by each of Parent and
Seller and, assuming due authorization, execution and delivery by the other
parties to this Agreement, this Agreement and the Seller Ancillary Documents
constitute the valid and binding agreements of Parent and Seller, enforceable
against both Parent and Seller in accordance with their respective terms,
subject to applicable bankruptcy, insolvency and other similar Laws affecting
the enforceability of creditors' rights generally, general equitable principles
and the discretion of courts in granting equitable remedies, including, without
limitation, the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or law.
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Section 4.3 Absence of Restrictions and Conflicts. The execution,
delivery and performance of this Agreement and Seller Ancillary Documents, the
consummation of the transactions contemplated hereby and thereby and the
fulfillment of and compliance with the terms and conditions hereof and thereof
do not or shall not (as the case may be), with the passing of time or the giving
of notice or both, violate or conflict with, constitute a breach of or default
under, result in the loss of any benefit under, permit the acceleration of any
obligation under or create in any party the right to terminate, modify or
cancel, (a) any term or provision of Seller's or Parent's certificate of
incorporation or bylaws, (b) except as set forth on Schedule 4.9, any Assumed
Contract or any other contract to which Seller or Parent is a party, (c) any
judgment, decree or order of any Governmental Entity to which either Parent or
Seller is a party or by which either Seller or any of their respective
properties are bound (including without limitation the Assets and the Owned Real
Property) or (d) any Law, arbitration award applicable to the Business which
Seller, the Assets or the Owned Real Property is subject. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
Governmental Entity is required with respect to either Parent or Seller in
connection with the execution, delivery or performance of this Agreement or
Seller Ancillary Documents or the consummation of the transactions contemplated
hereby or thereby.
Section 4.4 Real Property.
(a) There are no proceedings at law or in equity before
Governmental Entity pending or, to Seller's Knowledge, threatened, against
or affecting the Owned Real Property or the Seller's title thereto.
(b) No portion of the Owned Real Property, or any building or
improvement located thereon, violates any Law (excluding any Environmental
Laws) including, without limitation, Laws relating to zoning, building,
land use, health and safety, fire, air, sanitation and noise control.
Except for the Permitted Exceptions and the existing mortgage on the
Phillipsburg Facility attached as Exhibit 4.4(b), no Owned Real Property
is subject to (i) Liens, (ii) any governmental decree or order (or, to the
Knowledge of Seller, threatened or proposed order) or (iii) any rights of
way, building use restrictions, exceptions, variances, reservations or
limitations of any nature whatsoever.
(c) The improvements and fixtures on the Owned Real Property are
in good operating condition and in a state of good maintenance and repair,
ordinary wear and tear excepted, and are adequate and suitable for the
purposes for which they are presently being used. The Owned Real Property
constitutes all of the real property utilized by Seller in the operation
of the Business.
(d) There is no condemnation, expropriation or similar proceeding
pending or, to the Knowledge of Seller, threatened against any of the
Owned Real Property or any portion or improvement thereon.
(e) There are no contracts in effect with respect to the
maintenance and operation of the Owned Real Property which would be
binding on Purchaser or otherwise cancelable without penalty on not more
than one month's notice.
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(f) There are no leases affecting the Owned Real Property.
(g) As of the Closing Date, Seller is not a party to any agreement
(written or oral) granting any rights of possession to any third party,
and Seller has not executed any agreement of sale, option agreement, right
of first refusal or lease with respect to the Owned Real Property.
(h) All sums payable by reason of any labor or materials heretofore
furnished with respect to the Owned Real Property have been, or in the
ordinary course of business will be, paid, and Seller does not have
Knowledge of any material dispute in connection therewith.
(i) Seller is not a "foreign person" under the Foreign Investment in
Real Property Tax Act of 1980, and upon consummation of the transactions
contemplated hereby, Purchaser will not be required to withhold any
withholding tax from any payment made under the Real Estate Purchase
Agreement.
(j) Seller has not received any written notice from any insurance
company or inspection or rating bureau setting forth any requirements as a
condition to the continuation of any insurance coverage or with respect to
the Premises or the continuation thereof at premium rates existing at
present.
(k) Seller has not made an assignment for the benefit of creditors,
nor has Seller filed, or had filed against it, any petition for
bankruptcy.
Section 4.5 Title to Assets; Related Matters. The Assets constitute all of
the assets necessary and sufficient to conduct the operations of the Business in
accordance with Seller's past practices. Except as set forth on Schedule 4.5(a),
Seller is conveying to Purchaser good and marketable title to the Assets, free
and clear of all Liens. All equipment and other items of tangible personal
property and assets included in the Assets (a) are in good operating condition,
in a state of good maintenance and repair, ordinary wear and tear excepted, (b)
are usable in the regular and ordinary course of business and (c) conform to all
applicable Laws. Except as set forth on Schedule 4.5(a), no Person other than
Seller owns any equipment or other tangible personal property or assets situated
on the Owned Real Property. Schedule 4.5(b) sets forth a true, correct and
complete list and general description of each item of tangible personal property
included in the Assets having a book value of more than $5,000.
Section 4.6 Inventory. The Inventory (a) was acquired and is sufficient
for the operation of the Business in the ordinary course consistent with past
practice, (b) consists of items that are good and merchantable within normal
trade tolerances, (c) is of a quality and quantity presently usable or saleable
in the ordinary course of business of the Business, (d) is valued on the books
and records of Seller at the lower of cost or market with the cost determined
under the first-in-first-out inventory valuation method consistent with past
practice and (e) is subject to reserves determined in accordance with GAAP
consistently applied.
Section 4.7 Financial Statements. Seller has delivered to Purchaser the
Financial Statements. The Financial Statements have been prepared from, and are
in accordance with, the books and records of Seller, related to the operation of
the Business, which books and records are
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maintained in accordance with GAAP consistently applied throughout the periods
indicated, and such books and records have been maintained on a basis consistent
with the past practice of Seller. Each schedule of balance sheet accounts
included in the Financial Statements fairly presents the assets and liabilities
of the Division included therein as of the date of such schedule, and each pro
forma statement of operations included in the Financial Statements fairly
presents the results of operations of the Division for the periods set forth
therein, in each case in accordance with GAAP consistently applied during the
periods involved (except for the absence of footnotes). Since September 30,
2004, there has been no material change in any accounting (or tax accounting)
policy, practice or procedure of Seller with respect to the Business or the
Division.
Section 4.8 Legal Proceedings. Except as set forth on Schedule 4.8, there
is no suit, action, claim, arbitration, proceeding or investigation pending or,
to the Knowledge of Seller or Parent, threatened against Seller or Parent,
related to or affecting the transactions contemplated by this Agreement, the
Business, the Assets or the Assumed Liabilities before any Governmental Entity.
Section 4.9 Contracts. Schedule 4.9 sets forth a true, correct and
complete list of the following contracts currently in force, or under which
Seller has continuing liabilities and/or obligations, used by the Division or in
the operation of the Business:
(a) all bonds, debentures, notes, loans, credit or loan agreements
or loan commitments, mortgages, indentures, guarantees or other contracts
relating to the borrowing of money or binding upon any properties or
assets (real, personal or mixed, tangible or intangible);
(b) all contracts and agreements that limit or restrict Seller or
any officers or key employees of Seller from engaging in any business in
any jurisdiction;
(c) all contracts and agreements for capital expenditures or the
acquisition or construction of fixed assets requiring the payment by
Seller of an amount in excess of $10,000;
(d) all contracts and agreements granting any Person a Lien on all
or any part of any Assets;
(e) all contracts and agreements for the cleanup, abatement or
other actions in connection with any Hazardous Materials, the remediation
of any existing environmental condition or relating to the performance of
any environmental audit or study;
(f) all contracts and agreements granting to any Person an option
or a first refusal, first-offer or similar preferential right to purchase
or acquire any Assets;
(g) all contracts and agreements with any agent, distributor or
representative that is not terminable without penalty on 30 days' or less
notice;
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(h) all contracts and agreements for the granting or receiving of a
license, sublicense or franchise or under which any Person is obligated to
pay or has the right to receive a royalty, license fee, franchise fee or
similar payment;
(i) all contracts, Licenses and agreements to which Seller is a
party (i) pursuant to which any Seller Intellectual Property is licensed
or transferred to any third party (other than end user Licenses in the
ordinary course of business) or (ii) pursuant to which a third party has
licensed or transferred any Seller Intellectual Property to Seller;
(j) all contracts providing for the indemnification or holding
harmless of any officer, director, employee or other Person;
(k) all joint venture or partnership contracts and all other
contracts providing for the sharing of any profits;
(l) all contracts with customers for the provision of goods or
services by the Division or the Business;
(m) all outstanding powers of attorney empowering any Person to act
on behalf of Seller with respect to the affairs of the Division or the
Business;
(n) all contracts relating to any co-operative organization or
franchise organization; and
(o) all existing contracts and commitments (other than those
described in subsections (a) through (n) of this Section 4.9) to which
Seller is a party or by which its properties or assets are bound (i)
involving an annual commitment or annual payment to or from Seller of more
than $10,000 individually or (ii) that is material to the Business,
individually or in the aggregate.
True, correct and complete copies of all Assumed Contracts have been made
available to Purchaser. The Assumed Contracts are legal, valid, binding and
enforceable in accordance with their respective terms with respect to Seller and
to the Knowledge of Seller, each other party to such Assumed Contracts. There is
no existing default or breach of Seller or, to the Knowledge of Seller, any
other party under any Assumed Contract (or event or condition that, with notice
or lapse of time or both could constitute a default or breach). Except in the
ordinary course of business, Seller is not participating in any discussions or
negotiations regarding modification of or amendment to any Assumed Contract or
entry in any new material contract applicable to the Business, the Assets or the
Assumed Liabilities. Schedule 4.9 identifies with an asterisk each Assumed
Contract set forth therein that requires the consent of or notice to the other
party thereto to avoid any breach, default or violation of such contract,
agreement or other instrument in connection with the transactions contemplated
hereby, including the assignment of such Assumed Contract to Purchaser. Seller
has obtained all such consents or notices, which are as of the Closing Date in
full force and effect, and has provided to Purchaser true, correct and complete
copies of all such consents and notices.
Section 4.10 Officers, Employees and Independent Contractors. Schedule
4.10 contains a true and complete list of (a) all of the Division Employees,
specifying their name,
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title, date of hire, length of employment, current annual salary rate and all
other compensation and fringe benefits, and accrued salary, benefits and
vacation time, exempt/non-exempt status under the FLSA, and (b) all independent
contractors used by the Division or the Business, specifying the name of the
independent contractor, type of labor, fees paid to such independent contractor
for calendar year 2004, and (c) the name of any officer, other employee or
independent contractor who is subject to any Employment Agreement. Except as set
forth on Schedule 4.10, Seller is not a party to or bound by any Employment
Agreement related to the Business. Seller has provided to Purchaser true,
correct and complete copies of each such Employment Agreement.
Section 4.11 Labor Relations. Except as set forth on Schedule 4.11 with
respect to the operation of the Business:
(a) none of Seller's employees, since becoming employees of
Seller, have been, and none are, represented by a labor organization or
group that was either certified or voluntarily recognized by any labor
relations board (including the NLRB) or certified or voluntarily
recognized by any other Governmental Entity;
(b) no representation election petition or application for
certification has been filed by employees of Seller or is pending with the
NLRB or any other Governmental Entity and no union organizing campaign or
other attempt to organize or establish a labor union, employee
organization or labor organization or group involving employees of Seller
has occurred, is in progress or, to the Knowledge of Seller, is
threatened;
(c) no labor dispute, walk out, strike, slowdown, hand billing,
picketing, work stoppage (sympathetic or otherwise), or other "concerted
action" involving the employees of Seller has occurred, is in progress or,
to the Knowledge of Seller, has been threatened;
(d) no citation has been issued under OSHA against Seller and no
notice of contest, claim, complaint, charge, investigation, or other
administrative enforcement proceeding involving Seller has been filed or
is pending or, to the Knowledge of Seller, threatened against Seller under
OSHA or any other applicable Labor Law relating to occupational safety and
health at the Phillipsburg Facility or related to the employees of the
Business;
(e) Seller has not taken any action that could constitute a "mass
layoff", "mass termination" or "plant closing" within the meaning of WARN
or otherwise trigger notice requirements or liability under any federal,
local, state or foreign plant closing notice or collective dismissal Law;
(f) no wrongful discharge, discrimination, harassment,
retaliation, libel, slander or other claim, complaint, charge or
investigation that arises out of the employment relationship between
Seller and any of its employees has been filed or is pending or, to the
Knowledge of Seller, threatened against Seller under any applicable Labor
Law; and
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(g) Seller is in compliance with all applicable Labor Laws as they
relate to the Business, except to the extent that such non-compliance
would not have a Material Adverse Effect.
Section 4.12 Environmental, Health and Safety Matters. Except as set forth
on Schedule 4.12 with respect to the Assets and the operation of the Business:
(a) Except as would not have a Material Adverse Effect, Seller
possesses all permits and approvals required under, and is in compliance
with, all Environmental Laws, and Seller is in compliance with all
applicable limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in all
Environmental Laws or contained in any other Law, or any notice or demand
letter issued thereunder;
(b) Seller has not received written notice of actual or threatened
liability under CERCLA or any similar foreign, state or local Law from any
Governmental Entity or any third party and, to Seller's Knowledge, there
is no fact or circumstance that could form the basis for the assertion of
any claim against Seller under any Environmental Law, including CERCLA or
any similar local, state or foreign Law with respect to any on-site or
off-site location;
(c) Seller has not entered into or agreed to enter into, and Seller
has no present intent to enter into, any consent decree or order, and
Seller is not subject to any judgment, decree or judicial or
administrative order relating to compliance with, or the cleanup of
Hazardous Materials under, any applicable Environmental Law;
(d) To Seller's Knowledge, Seller is not subject to any claim,
obligation, liability, loss, damage or expense incurred or imposed or
based upon any provision of any Environmental Law or arising out of any
act or omission of any employee, agent or representative of the Business
or arising out of the ownership, use, control or operation by Seller of
any of the Assets or the Owned Real Property from which any Hazardous
Material was Released;
(e) Seller has provided Purchaser access to review true, correct
and complete copies of all reports, correspondence, memoranda, computer
data and similar information in Seller's possession relating to
environmental matters relating to the Assets or the Owned Real Property;
(f) No improvement or equipment included in the Assets or the Owned
Real Property contains any asbestos, polychlorinated biphenyls,
underground storage tanks, open or closed pits, landfills, sumps or other
containers on or under any Asset or the Owned Real Property other than in
compliance with all Environmental Laws;
(g) Seller has not been alleged by any Governmental Entity to be in
violation of, and has not been subject to any administrative or judicial
proceeding pursuant to, or paid any fines or penalties pursuant to,
applicable Environmental Laws at any time during the past five (5) years;
and
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(h) Seller has not imported, manufactured, stored, used, operated,
transported, treated or disposed of any Hazardous Material other than in
compliance with all Environmental Laws.
Section 4.13 Intellectual Property.
(a) Seller owns exclusively and has good title to all Seller
Intellectual Property and Seller Registered Intellectual Property free and
clear of all Liens.
(b) Schedule 2.1(c) contains a list of all Seller Registered
Intellectual Property. Seller has made available to Purchaser correct and
complete copies of all documents evidencing Seller Intellectual Property.
(c) No Seller Intellectual Property or product or service of the
Business related to Seller Intellectual Property is subject to any
proceeding or outstanding decree, order, judgment, agreement or
stipulation. Each item of Seller Registered Intellectual Property is valid
and subsisting. All necessary registration, maintenance and renewal fees
currently due in connection with Seller Registered Intellectual Property
have been made and all necessary documents, recordations and
certifications in connection with such Seller Registered Intellectual
Property have been filed with the relevant patent, copyright, trademark or
other authorities in the United States or foreign jurisdictions, as the
case may be, for the purpose of maintaining such Seller Registered
Intellectual Property.
(d) Seller owns and has good and exclusive title to, or has
licenses (sufficient for the conduct of the Business as currently
conducted and as proposed to be conducted) to, each item of Seller
Intellectual Property, free and clear of any Lien; Seller is the exclusive
owner of all trademarks and service marks, trade names and domain names
used in connection with the operation or conduct of the Business,
including the sale of any products by the Business, free and clear of all
Liens; and Seller's licensing of any of its trademarks and service marks
has been subject to commercially reasonable quality control of Seller and
Seller has exercised that quality control in a consistent and commercially
reasonable manner.
(e) Seller owns exclusively and has good title to all copyrighted
works used in the Business free and clear of all Liens. Schedule 4.13(e)
lists all works of original authorship used in the operation of the
Business and prepared by or on behalf of Seller (including software
programs) by title, version number, author(s) and publication date (if
any), regardless of whether Seller has obtained or is seeking a copyright
registration for such works.
(f) Without limiting the generality of Section 4.13(a), to the
extent that any Seller Intellectual Property has been developed or created
by a third party for Seller, Seller has a written agreement with such
third party with respect thereto and Seller thereby has obtained ownership
of and is the exclusive owner of all of such third party's Intellectual
Property in such work, material or invention.
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(g) Without limiting the generality of Section 4.13(a), to the
extent that any Seller Intellectual Property was: (i) developed by
Seller's employees, each such employee was working within the scope of his
or her employment at the time of such development and, except as set forth
on Schedule 4.13(g), has executed appropriate instruments of assignment in
favor of Seller as assignee that have conveyed and that will convey to
Seller all intellectual or other property rights in such Seller
Intellectual Property; (ii) developed by agents, consultants, contractors
or others, such agents, consultants, contractors or others have executed
appropriate instruments of assignment in favor of Seller as assignee that
have conveyed to Seller ownership of all intellectual property rights in
such Seller Intellectual Property; or (iii) acquired by Seller in
connection with acquisitions, Seller obtained appropriate representations,
warranties and indemnities from the transferring party relating to the
title to such Seller Intellectual Property. Seller has not received notice
from any third party claiming any right, title or interest in Seller
Intellectual Property.
(h) The operation of the Business as it is currently conducted,
including Seller's design, development, marketing and sale of the products
of the Business (including with respect to products currently under
development), to the Knowledge of Seller has not and does not infringe or
misappropriate in any manner the Intellectual Property of any third party
or, to the Knowledge of Seller, constitute unfair competition or trade
practices under the Laws of any jurisdiction.
(i) To the Knowledge of Seller, no Person has or is infringing or
misappropriating any Seller Intellectual Property.
(j) Without limiting the generality of Section 4.13(a), except as
set forth on Schedule 4.13(j), Seller has taken reasonable steps to
protect the rights of Seller in the Confidential Information and any trade
secret or confidential information of third parties used in the Business,
and, except under confidentiality obligations, there has not been any
disclosure by Seller of any Confidential Information or any such trade
secret or confidential information of third parties.
(k) Seller has not granted any license, sublicense or similar right
with respect to Seller Intellectual Property;
(l) Without limiting the generality of Section 4.13(a), to the
Knowledge of Seller, Seller is not obligated to pay a royalty, grant a
license (including pass through licenses), or provide other consideration
(including pass through rights) to any third party in connection with the
Seller Intellectual Property;
(m) Seller owns without Lien or restriction, or has the full legal
right (which right is assignable to Purchaser) to use, all (i) cell lines,
(ii) biological and chemical assays, (iii) chemical and biological
reagents, and (iv) media and sera used in any respect in the conduct the
Business;
(n) Seller owns without Lien or restriction, or has the full legal
right (which right is assignable to Purchaser) to use, all products and
services offered in the conduct of
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the Business.
Section 4.14 Software.
(a) Schedule 4.14(a) sets forth a true and complete list of: (i)
Seller Software, and (ii) all technical and restricted materials relating
to the acquisition, design, development, use or maintenance of computer
code program documentation and materials used in connection with the
operation of the Business.
(b) The use of Seller Software does not breach any term of any
license or other contract between Seller and any third party. Seller is in
compliance in all material respects with the terms and conditions of all
license agreements in favor of Seller relating to Seller Software.
(c) Seller has not granted rights in Seller Software to any third
party.
Section 4.15 Customer Relations. Schedule 4.15 contains a complete and
accurate list of the names and addresses of the ten largest customers of the
Business. Seller maintains good commercial relations with each of the ten
largest customers of the Business and, to the Knowledge of Seller, no event has
occurred that could materially and adversely affect Seller's relations with any
such customer. None of the ten largest customers of the Business has informed
Seller that it will decrease such customer's purchase of the Business' products.
None of the Business's ten largest customers have provided any notice and Seller
does not possess any Knowledge to the effect that any such customer or any of
Seller's top ten suppliers may terminate or materially alter its business
relations with Seller, either as a result of the transactions contemplated
hereby or otherwise. Purchaser acknowledges and agrees that Seller has not
informed any of the ten largest customers of the Division of the transaction
contemplated hereby.
Section 4.16 Receivables. A schedule of the Receivables of Seller as of
December 31, 2004, showing the amount of such Receivable and an aging of amounts
due thereunder, is attached hereto as Schedule 2.1(j). Except as set forth on
Schedule 2.1(j), to the Knowledge of Seller, the debtors to which the
Receivables relate are not in or subject to a bankruptcy or insolvency
proceeding and none of the Receivables have been made subject to an assignment
for the benefit of creditors. Except as set forth on Schedule 2.1(j), all
Receivables (i) are valid, existing and collectible in a manner consistent with
Seller's past practice without resort to legal proceedings or collection
agencies, (ii) represent monies due for goods sold and delivered or services
rendered in the ordinary course of business and (iii) are not subject to any
refund or adjustment or any defense, right of set-off, assignment, restriction,
security interest or other Lien (including without limitation any Inventory
return or similar credit). Except as set forth on Schedule 2.1(j), there are no
disputes regarding the collectibility of any such Receivables. Seller has not
factored any Receivables and the Receivables are not subject to any Liens.
Section 4.17 Licenses. Schedule 2.1(k) is a true and complete list of all
Licenses held by Seller and used in the operation of the Business. Seller owns
or possesses all Licenses that are necessary to enable it to carry on the
Business as presently conducted (the "Business Licenses"). All Business Licenses
are valid, binding and in full force and effect. The execution, delivery and
performance hereof and the consummation of the transactions contemplated hereby
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shall not adversely affect any Business License. Seller has taken all necessary
action to maintain each Business License, except where the failure to so act
shall not have a Material Adverse Effect on Seller or the Business. No loss or
expiration of any Business License is pending or, to the Knowledge of Seller,
threatened (other than expiration upon the end of any term). Schedule 2.1(k)
identifies with an asterisk each Business License set forth therein which by its
terms cannot be transferred to Purchaser on the Closing Date.
Section 4.18 Product and Service Warranties. Except as set forth on
Schedule 4.18, Seller does not make any express warranty or guaranty as to goods
sold, or services provided by, the Business.
Section 4.19 Brokers, Finders and Investment Bankers. Neither Seller, nor
any officer, member, director or employee of Seller nor any Affiliate of Seller,
has employed any broker, finder or investment banker or incurred any liability
for any investment banking fees, financial advisory fees, brokerage fees or
finders' fees in connection with the transactions contemplated hereby.
Section 4.20 Conduct of Business by Seller. Since September 30, 2004,
Seller has operated the Business and the Division in the ordinary course of
business.
Section 4.21 Termination of Malavarca Agreement. Seller has terminated the
Malavarca Agreement and received a release from Xx. Xxxxxxxxx covering any and
all claims arising under or related to the Malavarca Agreement that Xx.
Xxxxxxxxx could otherwise assert against Parent, Seller or Purchaser.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER, SEROLOGICALS AND CHEMICON
Purchaser, Serologicals and Chemicon hereby jointly and severally
represent and warrant to Seller as follows:
Section 5.1 Organization. Each of Purchaser, Serologicals and Chemicon is
a corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. Purchaser is a wholly-owned subsidiary of Chemicon.
Section 5.2 Authorization. Each of Purchaser, Serologicals and Chemicon
has full corporate power and authority to execute and deliver this Agreement and
the Purchaser Ancillary Documents, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the Purchaser Ancillary
Documents by Purchaser, Serologicals and Chemicon, the performance by Purchaser,
Serologicals and Chemicon of their obligations hereunder and thereunder, and the
consummation of the transactions provided for herein and therein have been duly
and validly authorized by all necessary corporate action on the part of
Purchaser,
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Serologicals and Chemicon. This Agreement and the Purchaser Ancillary Documents
have been duly executed and delivered by each of Purchaser, Serologicals and
Chemicon and constitute the valid and binding agreements of each of Purchaser,
Serologicals and Chemicon enforceable against each of Purchaser, Serologicals
and Chemicon in accordance with their respective terms, subject to applicable
bankruptcy, insolvency and other similar Laws affecting the enforceability of
creditors' rights generally, general equitable principles and the discretion of
courts in granting equitable remedies.
Section 5.3 Defaults, Consents, Etc. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby will not
result in a material violation by Purchaser, Serologicals or Chemicon of, or
constitute a default by, Purchaser, Serologicals or Chemicon under, any material
contractual obligation of Purchaser, Serologicals or Chemicon or any legal
requirement applicable to the Purchaser, Serologicals or Chemicon. No approval,
consent, authorization or other order of, and no declaration, filing,
registration, qualification or recording with, any governmental authority or any
other person, including without limitation, any party to any contractual
obligation of the Purchaser, Serologicals or Chemicon, is required to be made by
or on behalf of the Purchaser, Serologicals or Chemicon for the execution,
delivery or performance of this Agreement by the Purchaser, Serologicals or
Chemicon, except for those contemplated hereby or which have been or will be
obtained or for which waivers will be obtained prior to the Closing Date.
Section 5.4 Brokers, Finders and Investment Bankers. Neither Purchaser,
Serologicals, Chemicon nor any officer, member, director or employee of
Purchaser, Serologicals nor any Affiliate of Purchaser, Serologicals or
Chemicon, have employed any broker, finder or investment banker or incurred any
liability for any investment banking fees, financial advisory fees, brokerage
fees or finders' fees in connection with the transactions contemplated hereby.
Section 5.5 Disclosure of Information. Each of Purchaser, Serologicals and
Chemicon has had an opportunity to visit and inspect the Business and the assets
of the Division, to receive all additional information related to the Seller
requested by it and to ask questions of and receive answers from the Seller
regarding the Business and the Division. Prior to the execution of this
Agreement, Seller has delivered to the Purchaser true and complete copies of all
documents or instruments identified or referred to in the Schedules. Such
visits, inspections, questions, investigations and deliveries do not and will
not constitute adequate disclosure of those facts required to be disclosed on
any Schedule to this Agreement, and notice of their contents (other than by
express reference on a Schedule) will in no way limit the Seller's and Parent's
other obligations or the Purchaser's rights under the Agreement.
ARTICLE VI
CERTAIN COVENANTS AND AGREEMENTS
Section 6.1 Public Announcements. Seller shall not, without the prior
written consent of Purchaser, make any public announcement regarding this
Agreement or the transactions contemplated hereby, except as may be required by
Law; provided, that to the extent practicable,
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Seller shall give the Purchaser advance notice of any public announcement
regarding this Agreement or the transactions contemplated hereby that is
required by Law.
Section 6.2 Employees.
(a) Schedule 4.10 lists all of the Division Employees as of the
Closing Date. Subject to the consummation of the transactions contemplated
by this Agreement. Seller will terminate employment of the Division
Employees as of the Closing Date and Purchaser shall offer employment to
each Division Employee at substantially the same rate of salary or wages
and, to the extent practicable, for the same position as the Division
Employee had with Seller immediately prior to the Closing. Division
Employees who accept Purchaser's offer of employment are herein referred
to as "Transferred Employees." Notwithstanding the foregoing, Purchaser
retains the right to terminate the employment of any Transferred Employee
or to change the terms and conditions of the employment of any Transferred
Employee following the Closing.
(b) Purchaser and its Affiliates will recognize all service of the
Transferred Employees with Seller for purposes of determining the period
of employment of any Transferred Employee under any vacation, severance,
sick leave or other paid time off plan, as well as for determining other
entitlements and terms of employment affected by seniority under the
employment policies of Purchaser and its Affiliates.
(c) Purchaser and its Affiliates shall (1) waive any limitations
regarding pre-existing conditions and eligibility waiting periods under
any health benefit plan maintained for the benefit of Transferred
Employees (and their covered dependents), but only to the extent Seller's
health benefit plans waived any such limitations or waiting periods, and
(2) subject to the Seller's performance of its obligations set forth in
the following sentence, provide the Transferred Employees (and their
covered dependents) with credit for any co-payments and deductibles paid
from the first date of the applicable coverage period in which the Closing
occurs until the Closing Date for the purposes of satisfying any
applicable co-payments, deductibles or out-of-pocket requirements under
the health plans of Purchaser and its Affiliates during the balance of the
coverage period for such plans in effect on the Closing Date. Seller shall
cause its plan administrator to provide to Purchase as soon as practicable
following the Closing a schedule setting forth the amounts of co-payments
and deductibles incurred by the Transferred Employees for that portion of
Seller's current fiscal year ending on the Closing Date.
(d) Effective as of the Closing, all Transferred Employees will
cease to be participants in the Seller Benefit Plans and will become
participants in any corresponding plans of Purchaser and its Subsidiaries,
including, without limitation, group health and other welfare benefit
plans.
(e) On the Closing Date, Seller shall determine the amount owed by
Seller to the Transferred Employees with respect to accumulated sick pay
and accrued vacation, holiday or other paid time off as of the Closing
Date pursuant to Seller's policies regarding such matters and shall make
full payment therefor to such employees.
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Section 6.3 Reserved.
Section 6.4 Insurance. If requested by Purchaser, Seller shall in good
faith cooperate with Purchaser and take all actions reasonably requested by
Purchaser that are necessary or desirable to permit Purchaser to have available
to it the benefits (whether direct or indirect) of the insurance policies
maintained by or on behalf of Seller that are currently in force. All costs
relating to the actions described in this Section 6.4 shall be borne solely by
Purchaser.
Section 6.5 Name Change. As promptly as practicable following the date
hereof, Seller and Parent shall remove any reference to the name "Specialty
Media", or any other trade name used by Seller or Parent in the conduct or
operation of the Business from their signage, stationary, business cards,
website and the like.
Section 6.6 Non-Competition.
(a) Confidential Information. The Parties acknowledge the
execution and delivery of that certain Joint Confidentiality Agreement
dated as of June 15, 2004, between Parent and Serologicals (the "Joint
Confidentiality Agreement"). The Parties hereby agree to abide by the
terms of such Joint Confidentiality Agreement with respect to any
Confidential Information of the other obtained by them in connection with
the transactions contemplated by this Agreement.
(b) Noncompetition. Neither Seller nor Parent nor any of their
respective affiliates shall, during the Noncompete Period, in any manner,
directly or indirectly or by assisting any other Person, engage in, have
an equity or profit interest in, or render services (of an executive,
marketing, manufacturing, research and development, administrative,
financial, consulting or other nature) to any Person that provides or
sells products or services similar to those of the Business; provided,
however, that notwithstanding the foregoing, Seller and Parent shall be
permitted to engage in the MCS Business and the Sentigen Biosciences
Business.
(c) Severability. In the event a judicial or arbitral
determination is made that any provision of this Section 6.6 constitutes
an unreasonable or otherwise unenforceable restriction against the
Purchaser or Seller the provisions of this Section 6.6 shall be rendered
void only to the extent that such judicial or arbitral determination finds
such provisions to be unreasonable or otherwise unenforceable with respect
to the Purchaser or Seller. In this regard, any judicial authority
construing this Agreement shall be empowered to sever any prohibited
business activity or any time period from the coverage of this Section 6.6
and to apply the provisions of this Section 6.6 to the remaining business
activities and the remaining time period not so severed by such judicial
or arbitral authority. Moreover, notwithstanding the fact that any
provision of this Section 6.6 is determined not to be specifically
enforceable, the Purchaser shall nevertheless be entitled to recover
monetary damages as a result of the breach of such provision by Seller.
The time period during which the prohibitions set forth in this Section
6.6 shall apply shall be tolled and suspended for a period equal to the
aggregate time during which Seller violates such prohibitions in any
respect.
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(d) Injunctive Relief. Any remedy at law for any breach of the
provisions contained in this Section 6.6 shall be inadequate and the
Purchaser, Seller or Parent, as the case may be, shall be entitled to
injunctive relief in addition to any other remedy the Purchaser, Seller or
Parent, as the case may be, might have hereunder.
Section 6.7 Record Retention and Access. The Parties agree as follows with
respect to the documents and records of the Division.
(a) During the Transition Period (as defined in the Transition
Services Agreement) and for a period of five years thereafter, Seller
shall provide Purchaser with access to and copies of such records at such
location(s) as Seller and Purchaser shall mutually agree, at such time(s)
as Seller and Purchaser shall mutually agree; provided, that, any such
copies shall be made at the expense of Purchaser.
(b) Purchaser shall provide Seller with access to and copies of
such records at such location(s) as Seller and Purchaser shall mutually
agree, at such time(s) as Seller and Purchaser shall mutually agree.
(c) Seller shall use commercially reasonable efforts to provide to
Purchaser, as promptly as practicable following the Closing Date and in
any event no later than 60 days following the Closing Date, a copy of the
master and data files in a format compatible with the Purchaser's
information technology system.
Section 6.8 Confidential Information. Purchaser acknowledges that it may
have received or may receive Confidential Information (as defined in the Joint
Confidentiality Agreement) of Seller or Parent that is not an Asset and
Purchaser agrees that, subject to the terms, conditions, limitations, time
periods and provisions of the Joint Confidentiality Agreement, Purchaser is not
obtaining any ownership interest in any such Confidential Information that is
not otherwise an Asset and will not use or disclose any Confidential Information
except as may be permitted by the Joint Confidentiality Agreement.
ARTICLE VII
INDEMNIFICATION
Section 7.1 Indemnification Obligations of Seller. Subject to Section 7.2,
Seller and Parent shall, jointly and severally, indemnify, defend and hold
harmless Purchaser Indemnified Parties from, against, and in respect of, any and
all claims, liabilities, obligations, damages, losses, costs, expenses,
penalties, fines and judgments (at equity or at law, including statutory and
common) and damages whenever arising or incurred (including amounts paid in
settlement, costs of investigation and reasonable attorneys' fees and expenses)
arising out of or relating to:
(a) the Excluded Liabilities other than those Excluded Liabilities
enumerated in Section 2.4(b);
(b) any breach or inaccuracy of any representation or warranty
made by Seller in this Agreement or the Seller Ancillary Documents;
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(c) any breach of any covenant, agreement or undertaking made by
Seller in this Agreement or the Seller Ancillary Documents;
(d) any fraud, willful misconduct or bad faith of Seller in
connection with this Agreement or the Seller Ancillary Documents;
(e) non-compliance by the Parties with any applicable bulk sales
Law; or
(f) any Environmental Conditions present on, at or underlying the
Owned Real Property on or prior to the Closing Date, excluding losses
arising out of the presence of Hazardous Materials that have migrated or
are migrating on to the Owned Real Property form property owned by a third
party.
The claims, liabilities, obligations, losses, costs, expenses, penalties, fines
and judgments (at equity or at law, including statutory and common) and damages
whenever arising or incurred of the Purchaser Indemnified Parties including,
without limitation, (i) amounts paid in settlement, costs of investigation,
reasonable attorneys' fees and expenses; (ii) the expenses and costs of any
litigation necessary to establish the merits and amount of any direct claim made
by any Purchaser Indemnified Party in such proportion (including all of such
expenses and costs) as determined by the judge or arbitrator in such proceeding
based on the amount of the indemnification sought by such Purchaser Indemnified
Party in such proceeding and the amount of indemnification awarded by the judge
or arbitrator in such proceeding; and (iii) the expenses and costs of any
litigation necessary to establish the merits and amount of any direct claim made
by any Purchaser Indemnified Party in such proportion (including all of such
expenses and costs) as determined by the judge or arbitrator in such proceeding
based on the amount of the indemnification sought by such Purchaser Indemnified
Party in such proceeding and the amount of indemnification awarded by the judge
or arbitrator in such proceeding, described in this Section 7.1 as to which
Purchaser Indemnified Parties are entitled to indemnification are collectively
referred to as "Purchaser Losses".
Section 7.2 Indemnification Obligations of Purchaser. Purchaser,
Serologicals and Chemicon shall, jointly and severally, indemnify and hold
harmless Seller Indemnified Parties from, against and in respect of any and all
claims, liabilities, obligations, losses, damages, costs, expenses, penalties,
fines and judgments (at equity or at law, including statutory and common) and
damages whenever arising or incurred (including amounts paid in settlement,
costs of investigation and reasonable attorneys' fees and expenses) arising out
of or relating to:
(a) the Assumed Liabilities;
(b) any breach or inaccuracy of any representation or warranty
made by Purchaser, Chemicon or Serologicals in this Agreement or in any
Purchaser Ancillary Document;
(c) any breach of any covenant, agreement or undertaking made by
Purchaser, Chemicon or Serologicals in this Agreement or in any Purchaser
Ancillary Document; or
(d) any fraud, willful misconduct or bad faith of Purchaser,
Chemicon or Serologicals in connection with this Agreement or Purchaser
Ancillary Documents.
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The claims, liabilities, obligations, losses, costs, expenses, penalties, fines
and judgments (at equity or at law, including statutory and common) and damages
whenever arising or incurred of the Seller Indemnified Parties including,
without limitation, (i) amounts paid in settlement, costs of investigation,
reasonable attorneys' fees and expenses; (ii) the expenses and costs of any
litigation necessary to establish the merits and amount of any direct claim made
by any Seller Indemnified Party in such proportion (including all of such
expenses and costs) as determined by the judge or arbitrator in such proceeding
based on the amount of the indemnification sought by such Seller Indemnified
Party in such proceeding and the amount of indemnification awarded by the judge
or arbitrator in such proceeding; and (iii) the expenses and costs of any
litigation necessary to establish the merits and amount of any direct claim made
by any Seller Indemnified Party in such proportion (including all of such
expenses and costs) as determined by the judge or arbitrator in such proceeding
based on the amount of the indemnification sought by such Seller Indemnified
Party in such proceeding and the amount of indemnification awarded by the judge
or arbitrator in such proceeding, described in this Section 7.2 as to which
Seller Indemnified Parties are entitled to indemnification are collectively
referred to as "Seller Losses".
Section 7.3 Indemnification Procedure.
(a) Promptly following receipt by an Indemnified Party of notice
by a third party (including any Governmental Entity) of any complaint or
the commencement of any audit, investigation, action or proceeding (a
"Third-Party Claim") with respect to which such Indemnified Party may be
entitled to receive payment from the other Party for any Purchaser Losses
or any Seller Losses (as the case may be), such Indemnified Party shall
notify Purchaser or Parent, as the case may be (the "Indemnifying Party"),
of the Indemnified Party's receipt of such notice; provided, however, that
the failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder with respect to a
Third-Party Claim except to the extent that the Indemnifying Party
demonstrates that the defense of such Third-Party Claim has been actually
prejudiced by the Indemnified Party's failure to give such notice. The
Indemnifying Party shall have the right, upon written notice delivered to
the Indemnified Party within 20 days thereafter to assume the defense of
such audit, investigation, action or proceeding, including the employment
of counsel reasonably satisfactory to the Indemnified Party and the
payment of the fees and disbursements of such counsel. In the event,
however, that the Indemnifying Party declines or fails to assume the
defense of such Third-Party Claim on the terms provided above or to employ
counsel reasonably satisfactory to the Indemnified Party, in either case
within such 20-day period, then any Purchaser Losses or any Seller Losses
(as the case may be), shall include the reasonable fees and disbursements
of counsel for the Indemnified Party as incurred; provided, however, that
any Purchaser Losses or any Seller Losses (as the case may be) shall not
include the fees and disbursements of more than one counsel for all
Indemnified Parties in any jurisdiction with respect to any single
Third-Party Claim. In any Third-Party Claim for which indemnification is
being sought hereunder, the Indemnified Party or the Indemnifying Party,
whichever is not assuming the defense of such action, shall have the right
to participate in such matter and to retain its own counsel at such
Party's own expense. The Indemnifying Party or the Indemnified Party (as
the case may be) shall at all times use reasonable efforts to keep the
Indemnifying Party or Indemnified Party (as the case may be) reasonably
apprised of the status of the defense of any Third-Party
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Claim that it is maintaining and to cooperate in good faith with each
other with respect to the defense of any such matter.
(b) No Indemnified Party may settle or compromise any claim or
consent to the entry of any judgment with respect to which indemnification
is being sought hereunder without the prior written consent of the
Indemnifying Party, unless (i) the Indemnifying Party fails to assume and
maintain the defense of such claim pursuant to Section 7.3(a) or (ii) such
settlement, compromise or consent includes an unconditional release of the
Indemnifying Party and its officers, directors, employees and Affiliates
from all liability arising out of such claim. An Indemnifying Party may
not, without the prior written consent of the Indemnified Party, settle or
compromise any claim or consent to the entry of any judgment with respect
to which indemnification is being sought hereunder unless (x) such
settlement, compromise or consent includes an unconditional release of the
Indemnified Party and its officers, directors, employees and Affiliates
from all liability arising out of such claim, (y) does not contain any
admission or statement suggesting any wrongdoing or liability on behalf of
the Indemnified Party and (z) does not contain any equitable order,
judgment or term that in any manner affects, restrains or interferes with
the business of the Indemnified Party or any of the Indemnified Party's
Affiliates.
(c) In the event an Indemnified Party claims a right to payment
pursuant hereto (other than pursuant to Section 7.3(a)), such Indemnified
Party shall send written notice of such claim to the appropriate
Indemnifying Party. Such notice shall specify the basis for such claim.
The failure by any Indemnified Party so to notify the Indemnifying Party
shall not relieve the Indemnifying Party from any liability that it may
have to such Indemnified Party with respect to any claim made pursuant to
this Section 7.3(c), it being understood that notices for claims in
respect of a breach of a representation or warranty must be delivered
prior to the expiration of the survival period for such representation or
warranty under Section 7.4. In the event the Indemnifying Party does not
notify the Indemnified Party within 30 days following its receipt of such
notice that the Indemnifying Party disputes its liability to the
Indemnified Party under this Article or the amount thereof, the claim
specified by the Indemnified Party in such notice shall be conclusively
deemed a liability of the Indemnifying Party under this Article VII, and
the Indemnifying Party shall pay the amount of such liability to the
Indemnified Party on demand or, in the case of any notice in which the
amount of the claim (or any portion of the claim) is estimated, on such
later date when the amount of such claim (or such portion of such claim)
becomes finally determined. In the event the Indemnifying Party has timely
disputed its liability with respect to such claim as provided above, as
promptly as possible, such Indemnified Party and the appropriate
Indemnifying Party shall establish the merits and amount of such claim (by
mutual agreement, litigation, arbitration or otherwise) and, within five
Business Days following the final determination of the merits and amount
of such claim, the Indemnifying Party shall pay to the Indemnified Party
immediately available funds in an amount equal to such claim as determined
hereunder.
Section 7.4 Claims Period. The Claims Periods hereunder shall begin on the
date hereof and terminate as follows:
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(a) with respect to Purchaser Losses arising under (i) Section
7.1(b) with respect to any breach or inaccuracy of any representation or
warranty in Section 4.2 (Authorization), the second sentence of Section
4.5 (Title to Assets; Related Matters), and Section 4.19 (Brokers, Finders
and Investment Bankers) (collectively, the "Seller Surviving
Representations") or (ii) Sections 7.1(a), 7.1(c), 7.1(d) and 7.1(e)
(collectively, the "Seller Surviving Obligations"), the Claims Period
shall continue indefinitely;
(b) with respect to Seller Losses arising under (i) Section 7.2(b)
with respect to any breach or inaccuracy of any representation or warranty
in Section 5.2 (Authorization), and Section 5.4 (Brokers, Finders and
Investment Bankers) (collectively, the "Purchaser Surviving
Representations"), or (ii) Sections 7.2(a), 7.2(c) and 7.2(d)
(collectively, the "Purchaser Surviving Obligations"), the Claims Period
shall continue indefinitely; and
(c) with respect to all other Purchaser Losses or Seller Losses
arising hereunder, the Claims Period shall terminate on the date that is
two years following the Closing Date.
Notwithstanding the foregoing, if, prior to the close of business on the last
day of the applicable Claims Period, an Indemnifying Party shall have been
properly notified of a claim for indemnity hereunder and such claim shall not
have been finally resolved or disposed of at such date, such claim shall
continue to survive and shall remain a basis for indemnity hereunder until such
claim is finally resolved or disposed of in accordance with the terms hereof.
Section 7.5 Liability Limits. Notwithstanding anything to the contrary set
forth herein, Purchaser Indemnified Parties shall not make a claim against
Seller for indemnification under this Article VII for Purchaser Losses, and
Seller Indemnified Parties shall not make a claim against Purchaser for
indemnification under this Article VII for Seller Losses, unless and until the
aggregate amount of such Purchaser Losses or Seller Losses, as the case may be,
exceeds $100,000 (the "Basket"), in which event Purchaser Indemnified Parties
may claim indemnification for all Purchaser Losses, or Seller Indemnified
Parties may claim indemnification for all Seller Losses, as the case may be,
including the initial $100,000; provided, however, the Seller Surviving
Obligations, the Seller Surviving Representations, the Purchaser Surviving
Obligations, and the Purchaser Surviving Representations shall not be subject to
the Basket. Seller's maximum liability for all Purchaser Losses, and Purchaser's
maximum liability for all Seller Losses, as the case may be, shall be equal to
the Purchase Price.
Section 7.6 Investigations. The respective representations and warranties
of the Parties contained in this Agreement or any certificate or other document
delivered by any Party at or prior to the Closing Date and the rights to
indemnification set forth in Article VII shall not be deemed waived or otherwise
affected by any investigation made, or knowledge acquired, by a Party.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Notices. All notices, communications and deliveries required
or made hereunder must be made in writing signed by or on behalf of the Party
making the same, shall specify the Section hereunder pursuant to which it is
given or being made, and shall be delivered personally or by telecopy
transmission or by a national overnight courier service or by registered or
certified mail (return receipt requested) (with postage and other fees prepaid)
as follows:
To Purchaser,
Serologicals or
Chemicon: Chemicon Specialty Media, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Telecopy No.:(000) 000-0000
with a copy to: King & Spalding LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: X. Xxxx Xxxxx II
Telecopy No.:(000) 000-0000
To Seller
or Parent: Sentigen Holding Corp.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy No.(000) 000-0000
with a copy to: Fulbright & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telecopy No.:(000) 000-0000
or to such other representative or at such other address of a party as such
party may furnish to the other parties in writing. Any such notice,
communication or delivery shall be deemed given or made (a) on the date of
delivery, if delivered in person, (b) upon transmission by facsimile if receipt
is confirmed by telephone, (c) on the first Business Day following delivery to a
national overnight courier service or (d) on the fifth Business Day following it
being mailed by registered or certified mail.
Section 8.2 Schedules and Exhibits. The Schedules and Exhibits are hereby
incorporated into this Agreement and are hereby made a part hereof as if set out
in full herein.
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Section 8.3 Assignment; Successors in Interest. No assignment or transfer
by any Party of such Party's rights and obligations hereunder shall be made
except with the prior written consent of the other Parties; provided, that
Purchaser shall, without the obligation to obtain the prior written consent of
any other Party, be entitled to assign this Agreement or all or any part of its
rights or obligations hereunder to one or more Affiliates of Purchaser. This
Agreement shall be binding upon and shall inure to the benefit of the Parties
and their respective successors and permitted assigns, and any reference to a
Party shall also be a reference to the successors and permitted assigns thereof.
Section 8.4 Captions. The titles, captions and table of contents contained
herein are inserted herein only as a matter of convenience and for reference and
in no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof.
Section 8.5 Controlling Law; Amendment. This Agreement shall be governed
by and construed and enforced in accordance with the internal Laws of the State
of New York without reference to its choice of law rules. This Agreement may not
be amended, modified or supplemented except by written agreement of the Parties.
Section 8.6 Severability. Any provision hereof that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by Law, each Party hereby waives any
provision of law that renders any such provision prohibited or unenforceable in
any respect.
Section 8.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms hereof to produce or
account for more than one of such counterparts.
Section 8.8 Enforcement of Certain Rights. Nothing expressed or implied
herein is intended, or shall be construed, to confer upon or give any Person
other than the Parties, and their successors or permitted assigns, any right,
remedy, obligation or liability under or by reason of this Agreement, or result
in such Person being deemed a third-party beneficiary hereof.
Section 8.9 Waiver. Any agreement on the part of a Party to any extension
or waiver of any provision hereof shall be valid only if set forth in an
instrument in writing signed on behalf of such Party. A waiver by a Party of the
performance of any covenant, agreement, obligation, condition, representation or
warranty shall not be construed as a waiver of any other covenant, agreement,
obligation, condition, representation or warranty. A waiver by any Party of the
performance of any act shall not constitute a waiver of the performance of any
other act or an identical act required to be performed at a later time.
Section 8.10 Integration. This Agreement and the documents executed
pursuant hereto supersede all negotiations, agreements and understandings among
the Parties with respect to the subject matter hereof and constitute the entire
agreement among the Parties with respect thereto, except for the following:
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(a) the Joint Confidentiality Agreement;
(b) that certain Letter Agreement, dated as of December 14, 2004, by
and between Purchaser and Parent;
(c) the Real Estate Purchase Agreement;
(d) the Xxxx of Sale;
(e) the Trademark Assignment Agreement;
(f) the Assignment and Assumption Agreement; and
(g) the Escrow Agreement.
Section 8.11 Compliance with Bulk Sales Laws. Each Party hereby waives
compliance by the Parties with the "bulk sales," "bulk transfers" or similar
Laws and all other similar Laws in all applicable jurisdictions in respect of
the transactions contemplated by this Agreement.
Section 8.12 Further Assurances. Each Party shall deliver to the other
Parties such further information and documents and shall execute and deliver to
the other Parties such further instruments and agreements as any other Party
shall reasonably request to consummate or confirm the transactions provided for
herein, to accomplish the purpose hereof or to assure to any other Party the
benefits hereof.
Section 8.13 Transaction Costs. Except as provided above or as otherwise
expressly provided herein, (a) Purchaser shall pay its own fees, costs and
expenses incurred in connection herewith and the transactions contemplated
hereby, including the fees, costs and expenses of its financial advisors,
accountants and counsel, and (b) Seller shall pay the fees, costs and expenses
of Seller incurred in connection herewith and the transactions contemplated
hereby, including the fees, costs and expenses of financial advisors,
accountants and counsel to Seller.
Section 8.14 Arbitration. Any dispute among the Parties relating to this
Agreement, other than those disputes relating to and resolved pursuant to
Section 3.3, shall be resolved in accordance with the arbitration provisions of
this Section 8.14.
(a) Any controversy, claim or question or interpretation arising
out of or relating to this Agreement or the breach thereof shall be
finally settled by arbitration in the State of New York, under the
then-effective Commercial Arbitration Rules of the American Arbitration
Association as modified by this Agreement, and judgment on the award
rendered by the arbitrators may be entered in any court having
jurisdiction. The award rendered by the arbitrators shall be final and
binding on the Parties and not subject to further appeal. Such arbitration
can be initiated by written notice by Seller to Purchaser or by Purchaser
to Parent, which notice shall identify the claimant's selected arbitrator.
The Party receiving such notice shall identify its arbitrator within five
Business Days following its receipt of such notice. The arbitrator
selected by the claimant and the arbitrator selected by the respondent
shall, within five business days of their appointment, select a third
neutral arbitrator. Upon selection of the third arbitrator,
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all arbitrators shall become neutral. The arbitrators shall have the
authority to award any remedy or relief that a court in the State of New
York could order or grant, including specific performance of any
obligation created under this Agreement, the issuance of injunctive or
other provisional relief, or the imposition of sanctions for abuse or
frustration of the arbitration process. The arbitration award will be in
writing.
(b) It is the intent of the Parties that any arbitration shall be
concluded as quickly as practicable (but, barring extraordinary
circumstances, in any event not more than 20 days after the date the third
arbitrator is selected). Unless the Parties otherwise agree, once
commenced, the hearing on the disputed matters shall be held four days a
week until concluded with each hearing date to begin at 9:00 a.m. and to
conclude at 5:00 p.m. The arbitrators shall use their best efforts to
issue the final award or awards within a period of five Business Days
after closure of the proceedings. Failure of the arbitrators to meet the
time limits of this Section 8.14 shall not be a basis for challenging the
award.
(c) Each Party hereby agrees that any legal proceeding instituted to
enforce an arbitration award hereunder will be brought in the U.S. federal
or state courts situated in the State of New York.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
duly executed, as of the date first above written.
CHEMICON SPECIALTY MEDIA, INC.
/s/ Xxxxxx X. Xxxxxxx
Title: Vice President, Finance, and
Chief Financial Officer
CHEMICON INTERNATIONAL, INC.
/s/ Xxxxxx X. Xxxxxxx
Title: Vice President, Finance, and
Chief Financial Officer
SEROLOGICALS CORPORATION
/s/ Xxxxxx X. Xxxxxxx
Title: Vice President, Finance, and
Chief Financial Officer
SENTIGEN HOLDING CORP.
/s/ Xxxxxxxx X. Xxxxx
Title: Chief Financial Officer
CELL & MOLECULAR TECHNOLOGIES, INC.
/s/ Xxxxxxxx X. Xxxxx
Title: Chief Financial Officer
