STOCK PURCHASE AGREEMENT dated as of September 3, 2007 by and among ANTIGEN LABORATORIES, INC., SYLVIA W. WILLOUGHBY TRUST, WILLIAM THOMAS WILLOUGHBY, AND PLANET TECHNOLOGIES, INC.
Exhibit 10.30
dated as of September 3, 2007
by and among
ANTIGEN LABORATORIES, INC.,
XXXXXX X. XXXXXXXXXX TRUST,
XXXXXXX XXXXXX XXXXXXXXXX,
AND
THIS STOCK PURCHASE AGREEMENT, dated as of September 3, 2007, (this “Agreement”), by
and among Planet Technologies, Inc., a California corporation (“Planet”), the Xxxxxx X.
Xxxxxxxxxx Trust (the “Trust”), Xx. Xxxxxxx Xxxxxx Xxxxxxxxxx (“Xx. Xxxxxxxxxx”
and together with the Trust, the “Sellers”), and Antigen Laboratories, Inc., a Missouri
corporation (“Antigen”) is made with respect to the acquisition of all of the outstanding
stock of Antigen from the Sellers.
RECITALS
WHEREAS, the Sellers own all of the issued and outstanding capital stock (the “Stock”)
of Antigen;
WHEREAS, Antigen is engaged in the business of the development, manufacturing, sale, and
distribution of allergy immunotherapy testing and treatment products (“Business” or
“Antigen Business”);
WHEREAS, Planet is engaged in the business of selling and distributing consumer products for
use by allergy sufferers, including, without limitation, air filters, bedding and similar products
(the “Planet Business”); and
WHEREAS, Sellers desire to sell, and Planet desires to purchase the Stock pursuant to this
Agreement.
AGREEMENT
NOW, THEREFORE, in reliance on the representations and warranties and agreements and subject
to the terms and conditions hereinafter set forth, the parties hereby agree as follows:
1. Definitions. Attached as Schedule 1 is a Schedule of Defined Terms used in this
Agreement.
2. Purchase and Sale of Stock. Subject to the terms and conditions contained herein,
Planet agrees to purchase, and Sellers agree to sell, the Stock at the Closing for an aggregate
amount of $10,000,000 in cash, plus the payment and forgiveness of certain debts (collectively the
“Purchase Price”), payable as provided herein. The “Purchase Price” shall be subject to
adjustment as set forth in Section 5 of this Agreement.
3. Intentionally Omitted.
4. Payment of Purchase Price and Closing. In full consideration for the Stock and the
other agreements contained in this Agreement, Planet shall pay the Purchase Price as follows:
(a) Consideration.
(i) $9,000,000.00 to the Sellers in cash at the Closing (the “Closing Cash
Payment”), pro rata in accordance with the relative percentage of the Stock
owned by each Seller;
(ii) Conversion of the $200,000 (plus the amount of accrued interest set forth
on Schedule 4(a)(ii)) debt owed to Xxxxxx Xxxxxxxxxx (the “Xxxxxx Xxxxxxxxxx
Debt”) into common stock of Planet to be issued to the Trust in accordance with
subsection (c) below;
(iii) Forgiveness of the $150,000 debt (plus accrued interest) owed by Xx.
Xxxxxxxxxx to Antigen;
(iv) Planet shall contribute such funds to Antigen and shall cause Antigen to
pay in full all of Sellers’ and Antigen’s approximately $300,000 debt owed to Platte
Valley Bank; and
(v) Promise to pay to Sellers $1,000,000.00 in cash, pro rata in accordance
with the relative percentage of the Stock owned by each Seller, on the date 12
months following the Closing, subject to adjustment and delay as hereinafter
provided (“Cash Holdback”).
(b) Closing. Upon the terms and subject to the conditions set forth in this
Agreement, the closing of the sale and purchase of the Stock (the “Closing”) shall
take place on the date (the “Acquisition Date”) as soon as reasonably practicable
following satisfaction of the conditions to Closing set forth in Section 10 to this
Agreement (other than such conditions as may, by their terms, only be satisfied at the
Closing or on the Closing Date). The Closing shall be effectuated by exchanging copies of
the Closing documents and deliveries, and as applicable, the signature pages thereto, by
facsimile or other appropriate electronic means, the receipt of which will be confirmed by
telephone.
(c) Debt Conversion Price. The formula for determining the per share value of
the stock utilized for the Xxxxxx Xxxxxxxxxx Debt shall be based upon the average closing
price of Planet’s common stock for the ten (10) trading days preceding the Closing, but in
no event shall the price be less than $1.40 or exceed $2.50
5. Post-Acquisition Purchase Consideration Adjustment.
(a) Indemnity Obligations. If any party is required to indemnify any other
party pursuant to Sections 13, 14 or 15 of this Agreement, the Purchase Price will be
adjusted as provided in this Section 5 of this Agreement.
(b) Dispute Resolution. In the event that any party disagrees with any demand
for indemnification by any other party, such party shall give written notice of its
objections thereto within forty-five (45) days of any claim for indemnification
(“Dispute Notice”). If a party does not timely deliver a Dispute Notice, the claim
for indemnity will be final and binding on the parties. If a party timely delivers a
Dispute Notice, then during the
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30-day period following such delivery, the respective Seller and Planet shall attempt
to resolve any differences which they may have with respect to any matters specified in the
Dispute Notice (which resolution, if any, shall be final and binding on all parties). If,
at the end of such 30-day period such Seller and Planet shall have failed to reach written
agreement with respect to all such matters, then all such matters specified in the Dispute
Notice with respect to which an agreement has not been reached (the “Disputed
Matters”) shall be submitted to and arbitrated by an independent certified public
accounting firm to be agreed upon by the parties (the “Arbitrator”). The Arbitrator
shall consider only the Disputed Matters. The Arbitrator shall act promptly, and the
Arbitrator’s decision with respect to all Disputed Matters shall be final and binding upon
the parties hereto. The prevailing party in the arbitration shall be entitled to the
reimbursement from the non-prevailing party of the prevailing party’s reasonable attorney’s
and accountant’s fees and costs incurred in connection with the arbitration. The fees and
expenses of the Arbitrator incurred in connection with its review and determination of any
Disputed Matters shall also be borne by the non-prevailing party as determined by the
Arbitrator. If Planet is asserting the claim for indemnity, the Cash Holdback shall not be
paid or delivered to the respective Seller until resolution of the Disputed Matters.
(c) Adjustment to Purchase Price. The Cash Holdback shall be subdivided
between the Sellers in accordance with the relative percentage of the Stock owned by the
Trust (the “Trust Holdback”) on the one hand and Xx. Xxxxxxxxxx (the “Xxxxxxxxxx
Holdback”) on the other hand. If the Trust is the Indemnifying Party, the Trust shall,
in accordance with the dispute resolution procedures in subsection (b), be deemed to have
surrendered to Planet a portion of the Trust Holdback equal to the dollar amount of the
Trust’s indemnity obligation, but in no event more than the Trust Holdback (it being
understood and agreed that, other than the Trust Tax Indemnification which shall not be
capped, the maximum aggregate amount of indemnifiable Damages that may be recovered from the
Trust pursuant to Section 14 shall be limited to the Trust Holdback). If Xx. Xxxxxxxxxx is
the Indemnifying Party, Xx. Xxxxxxxxxx shall, in accordance with the dispute resolution
procedures in subsection (b), be deemed to have surrendered to Planet a portion of the
Xxxxxxxxxx Holdback equal to the dollar amount of Xx. Xxxxxxxxxx’x indemnity obligation, but
in no event more than the Xxxxxxxxxx Holdback (it being understood and agreed that, other
than the Xxxxxxxxxx Tax Indemnification which shall not be capped, the maximum aggregate
amount of indemnifiable Damages that may be recovered from Xx. Xxxxxxxxxx pursuant to
Section 13 shall be limited to the Xxxxxxxxxx Holdback plus an additional $510,000). If
Planet is the Indemnifying Party, Planet shall cause to be issued to Sellers cash, but in no
event for more than a $1 million indemnity obligation (unless the indemnification is
pursuant to Section 15(D), for which no such limitation shall apply).
6. Representations and Warranties of Xx. Xxxxxxxxxx. In order to induce Planet to
enter into this Agreement, as of the Acquisition Date, except as set forth in the Disclosure
Schedules attached hereto, Xx. Xxxxxxxxxx represents and warrants to Planet as follows:
(a) Legal Authority, Binding Effect. Xx. Xxxxxxxxxx has the full capacity,
power and authority to execute and deliver this Agreement and to transfer his Stock as
contemplated herein (subject to the Liens set forth in Schedule 6(c)). Xx. Xxxxxxxxxx
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has full capacity, right, power and authority to execute, deliver and perform his
obligations under this Agreement and all other agreements, certificates and documents
(collectively, the “Xxxxxxxxxx Documents”) executed or delivered or to be executed
or delivered by Xx. Xxxxxxxxxx in connection herewith. This Agreement and the other
Xxxxxxxxxx Documents constitute legal, valid and binding obligations of Xx. Xxxxxxxxxx,
enforceable in accordance with their respective terms. Except as contemplated in Section
10(a)(i), no third party consent or authorization is required for delivery and execution of
the Xxxxxxxxxx Documents to Planet.
(b) Organization, Good Standing. Antigen is a corporation duly organized,
validly existing and in good standing under the laws of the State of Missouri, and has full
power and authority to own, lease and operate its assets and properties and to conduct its
business as it is now being conducted. Antigen is duly qualified or licensed to do business
and is in good standing as a foreign company under the laws of those jurisdictions in which
the conduct of its business or the ownership or leasing of its assets requires such
qualification, except where the failure to be so qualified or licensed or in good standing
would not have a Material Adverse Effect. The copies of Antigen’s Articles of
Incorporation, as amended (certified by the Secretary of State), and Bylaws which have been
previously delivered to Planet or its representative are correct and complete.
(c) Capitalization. Except as set forth on Schedule 6(c), Xx. Xxxxxxxxxx owns
and holds one hundred percent (100%) of his Stock free and clear of all Liens. To the
Knowledge of Xx. Xxxxxxxxxx, no Person other than the Trust owns any capital stock of
Antigen. There are no existing options, warrants, convertible securities, commitments or
other agreements requiring the issuance or sale of any additional securities of or equity
interests in Antigen. Antigen has no Subsidiaries or equity in any corporation,
partnership, joint venture or other entity.
(d) Financial Statements.
(i) Antigen has delivered to Planet its unaudited balance sheet as of June 30,
2007 (the “Reference Balance Sheet”) and income statement for the period
ended June 30, 2007 (“Interim Financial Statements”), and the unaudited
consolidated balance sheet of Antigen as of the preceding two (2) fiscal years and
income statement for the preceding two (2) fiscal years (collectively with the
Interim Financial Statements, the “Financial Statements”), copies of which
are attached hereto as Schedule 6(d)(i) and certified by the chief financial
officer of Antigen, to his Knowledge, as true and correct in all material respects.
(ii) In each case in all material respects, the Financial Statements are
complete, are in accordance with Antigen’s books and records regularly maintained by
management, have been prepared in accordance with GAAP, consistently applied by
Antigen, and present fairly the financial position and results of operations of
Antigen as of the dates and for the periods indicated.
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(iii) There are no liabilities, debts, obligations or claims against the
Business or the Assets of any nature, absolute or contingent, which in the aggregate
exceeds $10,000, except (a) as and to the extent reflected or reserved against on
the Reference Balance Sheet, (b) specifically described and identified as an
exception to this paragraph in any of the Schedules delivered to Planet pursuant to
this Agreement, (c) incurred since the Reference Balance Sheet date, in the ordinary
course of business consistent with prior practice and Section 6(f) hereof, or (d)
open purchase or sales orders or agreements for delivery of goods and services in
the ordinary course of business consistent with prior practice.
(e) Intentionally Omitted.
(f) No Adverse Change. Except as noted in Schedule 6(f), since January 1,
2005, Antigen has operated the Business only in the ordinary course of business as
theretofore conducted, and there has been no: (i) Material Adverse Effect, or any event or
development which, individually or together with other such events, could reasonably be
expected to result in a Material Adverse Effect; (ii) suffered any damage or destruction
resulting in a loss or cost to Antigen of more than $10,000 in the aggregate, whether or not
covered by insurance; (iii) amendment of its Articles of Incorporation or Bylaws; (iv)
issuance of any additional Antigen securities or issuance, sale or grant of any option or
right to acquire or otherwise dispose of any of its authorized but unissued Antigen
securities; (v) repurchase or redemption of shares or other Antigen securities; (vi)
entering into of any employment agreement with, or becoming liable for any bonus,
profit-sharing or incentive payment to, or increasing of the compensation or benefits of,
any of its officers, directors or employees, other than in the ordinary course of business;
(vii) sale, transfer or acquisition of any properties or assets, tangible or intangible,
other than in the ordinary course of business; (viii) modification, amendment or
cancellation of any of its existing leases or entering into any contracts, agreements,
leases or understandings other than in the ordinary course of business or entering into of
any loan agreements; (ix) investments other than in certificates of deposit or short-term
commercial paper; (x) capital expenditure or addition or commitment to make a capital
expenditure or addition, when considered as a whole is in excess of an aggregate of $10,000;
(xi) Liens or restrictions on any of the Business or the Assets; (xii) commencement of any
litigation, action or proceeding before any court, governmental or regulatory body or
arbitrational tribunal relating to the Business or the Assets; or (xiii) changes in respect
of any election concerning Taxes or Tax Returns, adoption or change of any accounting
method, filed any amended Tax Return, entering into any closing agreement with respect to
Taxes, settling of any Tax claim or assessment or surrendering of any right to claim a
refund of Taxes or obtaining or entering into of any Tax ruling, agreement, contract,
understanding, arrangement or plan.
(g) Taxes. Except as disclosed in Schedule 6(g), (i) Antigen has filed within
the time prescribed by law, all Tax Returns required to be filed by it with respect to the
income, business or operations of Antigen with the appropriate Governmental Authority in all
jurisdictions in which such Tax Returns are required by law to be filed and such Tax Returns
were complete and accurate in all material respects, and (ii) Antigen has paid in full all
Taxes due on or in respect of all such Tax Returns. Except as disclosed in
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Schedule 6(g), Antigen is not the subject of any pending or threatened tax examination
nor is it a party to any proceeding or inquiry by any governmental authority for the
assessment or the proposed assessment or for the collection of Taxes nor has any claim for
the assessment or proposed assessment or for the collection of Taxes been asserted against
Antigen. There are no Liens for Taxes that are due and unpaid on any of the Assets or the
Stock. All amounts required to be withheld by Antigen in connection with its business or
operations from customers with respect to the sale of goods, or from or on behalf of
employees for income, social security and unemployment insurance taxes, have been collected
or withheld and either paid to the appropriate governmental agency or set aside and, to the
extent required by the Code or other Applicable Law, held in accounts for such purpose.
(h) Food and Drug Administration (“FDA”). Antigen has filed within the time
prescribed by law, all FDA filings required to be filed by it with respect to Antigen and
its products with the appropriate Governmental Authority in all jurisdictions where required
by law to be filed and such filings were complete and accurate in all material respects.
Antigen is not the subject of any pending or, to the Knowledge of Xx. Xxxxxxxxxx, threatened
inspection or action nor is it a party to any proceeding or inquiry by any governmental
authority for any actions or proposed action nor has any action or proposed action been
asserted against Antigen. Except as listed in Schedule 6(h), there are no 483 actions or
activities due or overdue. All records in the possession of Antigen relating to all FDA
inspections and actions since January 1, 2005 have been made available to Planet.
(i) Title to Property; Condition; All Assets. Except as set forth on Schedule
6(i), Antigen has good and marketable title to (or a valid leasehold interest in) all of the
assets, properties, real or personal, and rights of every nature, kind and description,
tangible and intangible, whether or not reflected on the Reference Balance Sheet, used or
useable in Business and owned by or leased by Antigen (the “Assets”). Without
limiting the generality of the preceding sentence, the Assets as of the Reference Date
include all of Antigen’s right, title and interest in the following:
(i) Inventory, wherever located, used or useable in the Business (the
“Inventory”) consisting of inventory, merchandise, goods and other personal
property that are held by or on behalf of Antigen for sale or lease or are furnished
or are to be furnished under a contract of service, or that constitute raw
materials, work in process, finished goods, returned goods, or materials or supplies
of any kind, nature or description used or consumed or to be used or consumed in the
Business or in the processing, production, packaging, promotion, delivery or
shipping of the same, including all supplies and including without limitation the
Inventory listed on Schedule 6(i)(i) to the extent not sold in the ordinary course
of business prior to Closing;
(ii) Physical assets, wherever located, used or useable in the Business
consisting of Equipment, fixtures, supplies and packaging materials, including
without limitation the physical assets as of the Reference Date, listed on Schedule
6(i)(ii)(A); provided that the parties agree that the assets listed on
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Schedule 6(i)(ii)(B) shall be excluded from the Business and be the sole property of the
Sellers;
(iii) All Patents, Copyrights and Trademarks used or useable in the Business,
and all agreements of any nature whatsoever with respect to any of the foregoing
(the “Intangible Property”), including, without limitation, the rights to
all brand names, Patents, patent applications, Copyrights and Trademarks listed on
Schedule 6(i)(iii);
(iv) All inventions, discoveries, improvements, computer software, data, skill,
expertise, procedures and processes used or useable in the Business and all
agreements of any nature whatsoever with respect thereto (the “Know-how”);
(v) All other trade secrets and proprietary information relating to the
Business, including customer lists, market surveys and all agreements of any nature
whatsoever with respect thereto (the “Proprietary Information”);
(vi) All right, title and interest of Antigen in and to Licenses, transferable
permits, exemptions, approvals, franchises and privileges relating to the Business
to the extent transferable under Applicable Law, including without limitation, those
listed on Schedule 6(i)(vi);
(vii) All claims and rights under all leases, contracts, agreements, and
purchase and sales orders, whether written or oral, relating in any manner
including, without limitation, those set forth on Schedule 6(i)(vii) hereto
(collectively, the “Contracts”);
(viii) All prepaid items, security deposits, advance payments, letters of
credit and other similar assets relating to the Business;
(ix) All interests in partnerships, joint ventures and other business
associations relating to the Business;
(x) All rights under express or implied warranties from the suppliers with
respect to the Assets to the extent transferable under Applicable Law;
(xi) All proceeds under insurance policies of the Business;
(xii) All claims and causes of action against others relating to the Business;
and
(xiii) All goodwill associated with the Business or Assets.
The Assets are free and clear of all Liens except as described in the Financial
Statements or Schedule 6(i). Such Assets are in reasonable order and working condition,
subject to ordinary wear and tear. The Assets constitute all of the properties and assets
necessary to conduct the Business in all material respects as it is presently conducted.
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(j) Real Property. Schedule 6(j) hereto contains a list and brief description
of all real property owned or leased by Antigen. All buildings and other structures on such
property (whether leased or owned) are in reasonable operating condition and repair, subject
to ordinary wear and tear. All leases are valid, binding and enforceable in accordance with
their terms and are in full force and effect. No event or condition exists, or to the
Knowledge of Xx. Xxxxxxxxxx, is alleged by any of the other parties thereto to exist, which
constitutes, or with giving of notice or lapse of time or both would constitute, a material
default under, or a basis for termination of, any such lease. No brokerage commissions are
owed with respect to any such leased space. Antigen has made available to Planet prior to
the execution of this Agreement, true and complete copies of all such leases (including any
amendments and renewal letters).
(k) Patents, Trademarks and Copyrights. Antigen has interests in or the right
to use the Intangible Property, the Know-how and the Proprietary Information (collectively,
the “Intellectual Property”) as to which they have all right, title and interest in
or valid and binding rights under contract to use, and the use thereof in the operation of
the Business does not and will not infringe the rights of any other Person. No other
Intellectual Property is necessary in the conduct of the Business. Except as disclosed in
Schedule 6(k), with respect to the Intellectual Property: (i) Antigen has the exclusive
right to use its Intellectual Property, (ii) all registrations with and applications to any
Governmental Authority in respect of the Intellectual Property are valid and in full force
and effect and, to the Knowledge of Xx. Xxxxxxxxxx, are not subject to the payment of any
Taxes or maintenance fees or the taking of any other actions by Antigen to maintain their
validity or effectiveness, (iii) there are no restrictions on the direct or indirect
transfer of any contract, or any interest therein, held by Antigen in respect of its
Intellectual Property, (iv) Antigen has delivered to Planet prior to the execution of this
Agreement documentation with respect to any invention, process, design, computer program or
other know-how or trade secret included in its Intellectual Property, which documentation is
accurate in all material respects and reasonably sufficient in detail and content to
identify and explain such invention, process, design, computer program or other know-how or
trade secret and to facilitate its full and proper use without reliance on the special
knowledge or memory of any person, (v) Antigen has taken reasonable security measures to
protect the secrecy, confidentiality and value of its trade secrets, (vi) Antigen has not
received any notice that it is in default (or with the giving of notice or lapse of time or
both, would be in default) under any contract to use the Intellectual Property, (vii) to the
knowledge of Xx. Xxxxxxxxxx, no Intellectual Property is being infringed by any other Person
and (viii) Antigen does not pay any royalty to a third party with respect to its use of any
Intellectual Property.
Except as set forth on Schedule 6(k), Antigen has not received notice, either verbally
or in writing, that it is infringing any Intellectual Property of any other Person in
connection with the conduct of the Business and no claim is pending or has been made in
writing to such effect. Xx. Xxxxxxxxxx has no Knowledge that Antigen is infringing on the
intellectual property rights of any other Person.
(l) Contracts and Commitments. Schedule 6(i)(vii) contains a list of all
material leases, contracts and agreements relating to the Business and to which Antigen is a
party
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or by which any of the Assets is bound. True and complete copies of the foregoing have
been made available to Planet. Except as set forth on Schedule 6(l), all Contracts are in
full force and effect and constitute legal, valid and binding obligations of Antigen. No
default, or event which with notice or lapse of time or both would constitute a default,
exists in respect of the Contracts on the part of Antigen. Except as set forth on Schedule
6(l), no consent of any Person is required in connection with the transfer of the Stock to
Planet under this Agreement. Except as set forth on Schedule 6(l), Antigen has no
contracts, agreements or arrangements (a) providing for the payment of any bonus or
commission based on sales or earnings, or (b) with any officer, member, director, consultant
(other than fee agreements with Antigen’s accountants and attorneys), agent or Affiliate of
Antigen, or (c) relating to employment or severance or termination benefits (other than
employment arrangements terminable at will without liability on the part of Antigen and
other than for severance or termination benefits required by statute or regulation).
(m) Intentionally Omitted.
(n) Compliance with Laws; Restrictions; Permits.
(i) Except as set forth on Schedule 6(n)(i), to the Knowledge of Xx.
Xxxxxxxxxx, Antigen is conducting the Business, and all of its properties and assets
are, in compliance with Applicable Law and regulations, policies and orders or any
Governmental Authority, including, without limitation the FDA.
(ii) Except as set forth on Schedule 6(n)(ii), to the Knowledge of Xx.
Xxxxxxxxxx, Antigen has not received any written notification of any present or past
(since January 1, 2005) failure to comply or of any past (since January 1, 2005) or
present events, activities or practices of Antigen or incidents or actions of
Antigen or plans of Antigen which may be construed to indicate interference with or
prevention of continued compliance with Applicable Law or which may give rise to any
common law or statutory liability, or otherwise form the basis of any claim, action,
suit, proceeding, hearing or investigation.
(iii) Set forth on Schedule 6(n)(iii) is a list of all approvals,
authorizations, certificates, consents, licenses, orders and permits or other
similar authorizations of any Governmental Authority obtained by Antigen for the
operation of the Business as currently operated. To the Knowledge of Xx.
Xxxxxxxxxx, no other governmental or other registration, filing, application,
permit, notice, transfer, consent, approval, order, qualification or waiver
(collectively, a “Permit”) is required under Applicable Law to be obtained
by Antigen.
(o) Compensation of and Indebtedness to and from Employees.
(i) Schedule 6(o)(i) sets forth a true and complete list of the names of and
positions held by each employee of Antigen (“Employees”) and the current
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compensation of each such employee, including salary, bonus, other incentive
compensation and other perquisites and benefits.
(ii) Except as set forth in Schedule 6(o)(ii), Antigen has no financial
obligation and are not otherwise indebted to any person who is an officer, director,
member or employee of Antigen, or to any relative of any such person or to any
entity controlled directly or indirectly by, or otherwise affiliated with, such
person, in any amount whatsoever other than for compensation for services rendered
since the start of the current pay period and for normal and customary business
expenses, nor is any officer, director, member or employee or any relative of such
person or any entity controlled directly or indirectly by, or otherwise affiliated
with, such person, indebted to Antigen except for normal and customary business
reimbursement advances made in the ordinary course of business.
(p) Employee Benefit Plans.
(i) All benefit and compensation plans, contracts, policies or arrangements
covering current or former employees of Antigen and current or former directors of
Antigen, including, but not limited to, “employee benefit plans” within the meaning
of Section 3(3) of ERISA, and all deferred compensation, stock option, stock
purchase, stock appreciation rights, stock based, incentive and bonus plans (the
“Benefit Plans”), are set forth in Schedule 6(p). True and complete copies
of all Benefit Plans including, but not limited to, any trust instruments and
insurance contracts forming a part of any Benefit Plans and all amendments thereto
have been provided or made available to Planet.
(ii) All Benefits Plans, to the extent subject to ERISA, are in substantial
compliance with ERISA. No Benefit Plan which is an “employee pension benefit plan”
within the meaning of Section 3(2) of ERISA (“Pension Plan”) is intended to
be qualified under Section 401(a) of the Code. There is no material pending or, to
the Knowledge of Xx. Xxxxxxxxxx, threatened litigation relating to the Benefits
Plans. Antigen has not engaged in a transaction with respect to any Benefit Plan or
Pension Plan that, assuming the taxable period of such transaction expired as of the
date hereof, could subject Antigen to a tax or penalty imposed by either Section
4975 of the Code or Section 502(i) of ERISA in an amount which would be material.
(iii) No liability under Subtitle C or D of Title IV of ERISA has been or is
expected to be incurred by Antigen with respect to any ongoing, frozen or terminated
“single-employer plan”, within the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by it, or the single-employer plan of any entity
which is considered one employer with Antigen under Section 4001 of ERISA or Section
414 of the Code (an “ERISA Affiliate”). Antigen has not incurred, and does
not expect to incur, any withdrawal liability with respect to a multiemployer plan
under Subtitle E of Title IV of ERISA (regardless of whether
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based on contributions
of an ERISA Affiliate). No notice of a “reportable event,” within the meaning of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed for any Pension Plan
or by any ERISA Affiliate within the 12-month period ending on the date hereof or
will be required to be filed in connection with the transactions contemplated by
this Agreement.
(iv) All contributions required to be made under the terms of any Benefit Plan
have been timely made. Neither any Pension Plan nor any single-employer plan of an
ERISA Affiliate has an “accumulated funding deficiency” (whether or not waived)
within the meaning of Section 412 of the Code or Section 302 of ERISA and no ERISA
Affiliate has an outstanding funding waiver. Antigen has not provided, and is not
required to provide, security to any Pension Plan or to any single-employer plan of
an ERISA Affiliate pursuant to Section 401(a)(29) of the Code.
(v) Antigen does not have any obligations for retiree health and life benefits
under any Benefit Plan and may amend or terminate any such Benefit Plan at any time
without incurring any liability thereunder.
(vi) Neither the execution of this Agreement nor the consummation of the
transactions contemplated by this Agreement will (A) entitle any employees of
Antigen to severance pay or any increase in severance pay upon any termination of
employment after the date hereof, (B) accelerate the time of payment or vesting or
trigger any payment or funding (through a grantor trust or otherwise) of
compensation or benefits under, increase the amount payable or trigger any other
material obligation pursuant to, any of the Benefit Plans, (C) result in any breach
or violation of, or a default under, any of the Benefit Plans or (D) result in any
payment that would be a “parachute payment” to a “disqualified individual” as those
terms are defined in Section 280G of the Code, without regard to whether such
payment is reasonable compensation for personal services performed or to be
performed in the future.
(q) Labor Matters. Antigen is neither a party to nor bound by any collective
bargaining agreement, contract or other agreement or understanding with a labor union or
labor organization, nor is it the subject of a proceeding asserting that it has committed an
unfair labor practice (within the meaning of the National Labor Relations Act) or seeking to
compel Antigen to bargain with any labor organization as to wages or conditions of
employment, nor is there any strike or other labor dispute involving it or, to the Knowledge
of Xx. Xxxxxxxxxx, threatened, nor to the Knowledge of Xx. Xxxxxxxxxx does any activity
exist involving its employees seeking to certify a collective bargaining unit or engaging in
other organizational activity.
(r) Insurance. Schedule 6(r) hereto lists all insurance policies covering
Antigen and any aspect of the Business, indicating the type of coverage, name of insured,
the insurer, the amount of coverage, the premium and the expiration date of each policy.
The insurance coverage provided by any of the policies described above will not terminate or
11
lapse by reason of the transactions contemplated by this Agreement. Each policy listed is
valid and binding and in full force and effect, no premiums due thereunder have not been paid, and Antigen has not received any notice of cancellation or termination in respect
of any such policy or notice that any insured is in default thereunder.
(s) Litigation. Except as set forth in Schedule 6(s), there are presently no,
and since June 30, 2004 there have been no, actions, suits, disputes, claims, proceedings or
investigations pending or, to the Knowledge of Xx. Xxxxxxxxxx, threatened against or
affecting Sellers, Antigen, the Business, the Stock or the Assets, at law or in equity,
before or by any court, agency, or other governmental authority, including, without
limitation, litigation with competitors, customers or with contractors or suppliers who have
performed work on or supplied equipment or materials relating to the Business or the
properties of Antigen. There is no outstanding order, injunction or decree of any court,
governmental authority or arbitration tribunal against Sellers, Antigen, the Business, Stock
or the Assets.
(t) Environmental Matters.
(i) Antigen’s business, assets and properties are and have been operated and
maintained in compliance in all material respects with all environmental protection
laws and regulations of any Applicable Law (the “Environmental Laws”). No
event has occurred since January 1, 2005 which, with or without the passage of time
or the giving of notice, or both, would constitute non-compliance with, or a
violation of, the Environmental Laws.
(ii) Except as set forth on Schedule 6(t)(ii), no real property leased,
occupied or used in the Business contains any underground storage tanks. Antigen
has not caused or permitted to exist, as a result of an intentional or unintentional
act or omission, a disposal, discharge or release of Hazardous Substances
originating on or from any site which currently is or formerly was owned, leased,
occupied or used in connection with the Business, except where such disposal,
discharge or release was pursuant to and in compliance with the conditions of a
permit issued by the appropriate Governmental Authority. There are no properties
owned, leased, occupied or used by Antigen in connection with the Business which are
listed, or proposed for listing, on the National Priorities List pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601 et seq., or on a registry of inactive hazardous waste sites maintained
by any state (i) which currently is or formerly was owned, leased, occupied or used
and (ii) with respect to which Antigen has received notice that it is considered to
be a potentially responsible person.
(u) Customers and Suppliers. Schedule 6(u) sets forth a list of the twenty
largest, by dollar volume, customers and ten largest suppliers of Antigen for the six months
ending June 30, 2007. Since January 1, 2005, no supplier or customer of the Business has
cancelled or otherwise terminated, or, to the Knowledge of Xx. Xxxxxxxxxx, made any written
threat to Antigen to cancel or otherwise terminate, for any reason, including the
consummation of the transactions contemplated hereby, its relationship with the
12
Business, in
each case if and only to the extent that such cancellation, termination or threat, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. To the Knowledge of Xx. Xxxxxxxxxx, no supplier or customer
intends to cancel or otherwise terminate or decrease materially its services or supplies to
the Business or its usage of the services or products of the Business, as the case may be,
in each case if and only to the extent that such cancellation, termination or reduction,
individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
(v) Products.
(i) Schedule 6(v)(i) sets forth a list of each product currently sold by
Antigen. No claims have been asserted or threatened at any time since January 1,
2005 against the Business in respect of personal injury, wrongful death or property
damage alleged to have resulted from products provided by the Business.
(ii) The Business has not experienced any product recall or warranty claims,
other than warranty claims less than $1,000.00 since the year ended January 1, 2005.
(w) Disclosure. No representation or warranty contained in Section 6 of this
Agreement, and no statement contained in the Schedules to Section 6 of this Agreement or in
any certificate furnished by Xx. Xxxxxxxxxx to Planet pursuant to any provision of this
Agreement, contains any untrue statement of a material fact, or when taken as a whole, omits
to state a material fact necessary in order to make the statements herein or therein, in the
light of the circumstances under which they were made, not misleading. Xx. Xxxxxxxxxx has
no Knowledge of any fact that has or could reasonably be deemed to have a Material Adverse
Effect on the Business, which has not been set forth in this Agreement, including without
limitation any Schedules or Exhibits hereto, the Financial Statements or certificate
delivered in accordance with the terms hereof or any document or statement in writing which
has been supplied by or on behalf of Antigen in connection with the transactions
contemplated by this Agreement.
(x) No Other Representations or Warranties. Except as and to the extent set
forth in Section 6 of this Agreement, Xx. Xxxxxxxxxx makes no representations or warranties
whatsoever to Planet (whether express, implied or statutory) and hereby disclaims all
liability and responsibility for any representation, warranty, statement, or information
made, communicated, or furnished (orally or in writing) to Planet or any of its Affiliates
or representatives, other than and to the extent set forth in Section 6 of this Agreement.
Xx. Xxxxxxxxxx makes no representations or warranties to Planet regarding the probable
success or profitability of the Business.
7. Representations and Warranties of the Trust. In order to induce Planet to enter
into this Agreement, as of the Acquisition Date, except as set forth in the Disclosure Schedules
attached hereto, the Trust represents and warrants to Planet as follows:
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(a) Legal Authority, Binding Effect. The Trust has the full capacity, power
and authority to execute and deliver this Agreement and to transfer its Stock as
contemplated herein (subject to the Liens set forth in Schedule 7(b)). The Trust has full capacity,
right, power and authority to execute, deliver and perform its obligations under this
Agreement and all other agreements, certificates and documents (collectively, the “Trust
Documents”) executed or delivered or to be executed or delivered on behalf of the Trust in
connection herewith. This Agreement and the other Trust Documents constitute legal, valid
and binding obligations of The Trust, enforceable in accordance with their respective terms.
(b) Title to Stock. Except as set forth on Schedule 7(b), the Trust owns and
holds one hundred percent (100%) of its Stock free and clear of all Liens.
(c) Disclosure. No representation or warranty contained in Section 7 of this
Agreement, and no statement contained in the Schedules to Section 7 of this Agreement or in
any certificate furnished by the Trust to Planet pursuant to any provision of this
Agreement, contains any untrue statement of a material fact, or when taken as a whole, omits
to state a material fact necessary in order to make the statements herein or therein, in the
light of the circumstances under which they were made, not misleading.
(d) No Other Representations or Warranties. Except as and to the extent set
forth in Section 7 of this Agreement, the Trust makes no representations or warranties
whatsoever to Planet (whether express, implied or statutory) and hereby disclaims all
liability and responsibility for any representation, warranty, statement, or information
made, communicated, or furnished (orally or in writing) to Planet or any of its Affiliates
or representatives, other than and to the extent set forth in Section 7 of this Agreement.
The Trust makes no representations or warranties to Planet regarding the probable success or
profitability of the Business.
8. Representations and Warranties of Planet. As an inducement for Sellers to enter
into this Agreement and to consummate the transactions contemplated hereby, Planet represents and
warrants to Sellers that:
(a) Organization and Good Standing. Planet is a corporation duly organized,
validly existing and in good standing under the laws of the State of California. Sellers
are aware that Planet is in the process of reincorporating in the State of Delaware and at
the Closing may be either a corporation valid and existing in the State of Delaware or the
State of California.
(b) Execution and Effect of Agreement. Planet has the full right, power and
authority to enter into and perform this Agreement and all other agreements, certificates
and documents executed or delivered or to be executed or delivered by Planet in connection
herewith (collectively, with this Agreement, “Planet’s Documents”). The execution,
delivery and performance by Planet of Planet’s Documents have been duly authorized by all
necessary corporate action of Planet. This Agreement has been duly executed and delivered
by Planet, and Planet’s Documents are (or when executed and
14
delivered by Planet will be) legal, valid and binding obligations of Planet (to
the extent it is a party thereto), enforceable in accordance with their respective terms.
(c) Restrictions. The authorization, execution, delivery and performance of
Planet’s Documents and the consummation of the transactions contemplated hereby and thereby
do not and will not (i) violate any of the provisions of the charter or bylaws of Planet,
(ii) violate, conflict with, result in a breach of or constitute a default under, require
any notice or consent under, give rise to a right of termination of, or accelerate the
performance required by, any terms or provisions of any agreement, instrument or writing of
any nature to which Planet is a party or is bound or any of its assets or business is
subject, or (iii) violate, conflict with or result in a breach of, or require any notice,
filing or consent under, any statute, rule, regulation or other provision of law, or any
order, judgment or other direction of a court or other tribunal, or any other governmental
requirement, permit, registration, license or authorization applicable to Planet.
(d) Intentionally Omitted.
(e) Public Filings. To the best knowledge of Planet’s Chief Executive Officer
and Chief Financial Officer, Planet has filed all required forms, reports and documents
(“Planet SEC Reports”) with the SEC since January 1, 2005, each of which has
complied in all material respects with all applicable requirements of the Securities Act and
the Exchange Act, each as in effect on the dates such forms, reports and documents were
filed. None of such Planet SEC Reports, including, without limitation, any financial
statements or schedules included or incorporated by reference therein, contained when filed
any untrue statement of a material fact or omitted to state a material fact required to be
stated or incorporated by reference therein or necessary in order to make the statements
therein in light of the circumstances under which they were made not misleading. The
financial statements included in the Planet SEC Reports (collectively, the “Planet
Financial Statements”) have been prepared in accordance with GAAP applied on a
consistent basis by Planet (except as may be indicated in the notes thereto), and fairly
present in all material respects the consolidated financial position of Planet as of the
dates thereof and their consolidated results of operations and changes in financial position
for the periods then ended, except, in the case of unaudited interim financial statements,
for normal year-end audit adjustments and the fact that certain information and notes have
been condensed or omitted in accordance with the applicable rules of the SEC.
(f) Intentionally omitted.
(g) Compliance with Laws; Permits.
(i) Planet is conducting the Planet Business, and all of its properties and
assets are, in compliance with Applicable Law.
(ii) Planet is not aware and has not received any written or verbal
notification of any present or past failure so to comply or of any past or present
events, activities or practices of Planet or incidents or actions of Planet or plans
of
15
Planet which may be construed to indicate interference with or prevention of
continued compliance with Applicable Law or which may give rise to any common law or
statutory liability, or otherwise form the basis of any claim, action, suit,
proceeding, hearing or investigation.
(iii) No Permit is required under Applicable Law to be obtained by Planet by
virtue of the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby or to avoid the loss of any Permit.
(h) Due Diligence. Planet has (i) completed its own independent investigation,
analysis and evaluation of the Business and Antigen, (ii) made all such reviews and
inspections of the books and records, business, assets, results of operations, condition
(financial or otherwise) and prospects of the Business and Antigen as it has deemed
necessary or appropriate, and (iii) in making its decision to enter into this Agreement and
to consummate the transactions contemplated hereby, has relied solely on its own independent
investigation, analysis, and evaluation of the Business, Antigen and the representations
made by the Sellers in this Agreement. Planet has been afforded the opportunity to ask all
questions, and it has received all answers to its satisfaction, regarding the Business and
Antigen.
(i) Disclosure. No representation or warranty contained in Section 8 of this
Agreement, and no statement contained in the Schedules to Section 8 of this Agreement or in
any certificate furnished by Planet pursuant to any provision of this Agreement, contains
any untrue statement of a material fact, or when taken as a whole, omits to state a material
fact necessary in order to make the statements herein or therein, in the light of the
circumstances under which they were made, not misleading. There is no fact known to Planet
that Planet believes has or could have a Material Adverse Effect on Planet’s Business, which
has not been set forth in this Agreement, including without limitation any Schedules or
Exhibits hereto, the Planet Financial Statements or certificate delivered in accordance with
the terms hereof or any document or statement in writing which has been supplied by or on
behalf of Planet in connection with the transactions contemplated by this Agreement.
(j) No Other Representations or Warranties. Except as and to the extent set
forth in Section 8 of this Agreement, Planet makes no representations or warranties
whatsoever to Sellers (whether express, implied or statutory) and hereby disclaims all
liability and responsibility for any representation, warranty, statement, or information
made, communicated, or furnished (orally or in writing) to Sellers or any of their
representatives, other than and to the extent set forth in Section 8 of this Agreement.
Planet makes no representations or warranties to Sellers regarding the probable success or
profitability of the Planet Business.
9. Covenants of the Parties.
(a) Except with the prior written consent of Planet, Xx. Xxxxxxxxxx will not, during
the term of his employment with Planet and for a period of five (5) years
16
thereafter, engage in competition with the business of Antigen, either directly or
indirectly, in any manner or capacity, as adviser, principal, agent, affiliate, promoter,
partner, officer, director, employee, stockholder, owner, co-owner, consultant, or member of
any association or otherwise, in any phase of the business of developing, manufacturing and
marketing of products or services which compete with the products or services or proposed
products or services of the business of Antigen; provided, however, Xx. Xxxxxxxxxx’x
activities described in Exhibit B to the Employment Agreement shall not be deemed to be a
violation of this Section 9(a). Xx. Xxxxxxxxxx’x ownership, as a passive investment, of
less than two percent (2%) of the outstanding shares of capital stock of any corporation
with one or more classes of its capital stock listed on a national securities exchange or
publicly traded on the Nasdaq Stock Market or in the over-the-counter market shall not
constitute a breach of this Section 9(a).
(b) Forbearances of Antigen. From the date hereof until the Closing, except as
expressly contemplated by this Agreement, without the prior written consent of Planet, Xx.
Xxxxxxxxxx will use commercially reasonable efforts to cause Antigen not to:
(i) Ordinary Course. Conduct the Business other than in the ordinary
and usual course or fail to use its commercially reasonable efforts to preserve
intact its business organizations and assets and maintain its rights, franchises and
existing relations with customers, suppliers, employees and business associates,
knowingly take any action that would adversely affect or delay the ability of Planet
to perform any of its obligations on a timely basis under this Agreement, or
knowingly take any action that would have a Material Adverse Effect on Antigen,
including, without limitation, selling to customers more than a normal periodic
supply of products and/or purchasing or failing to purchase raw materials, or
producing or failing to produce products, outside of their historical practice.
(ii) Compensation; Employment Agreements; Etc. Enter into or amend or
renew any employment, consulting, severance or similar agreements or arrangements
with any employee listed on Schedule 6(o)(i) or grant any salary or wage increase or
increase any employee benefit (including incentive or bonus payments), except (i)
for normal individual increases in compensation to employees in the ordinary course
of business consistent with past practice, provided that no such increase shall
result in an annual adjustment of more than 5%, (ii) for other changes that are
required by applicable law, (iii) to satisfy contractual obligations existing as of
the date hereof.
(iii) Dispositions. Sell, transfer, mortgage, encumber or otherwise
dispose of or discontinue any of the Assets, except Inventory in the ordinary course
of business.
(iv) Capital Expenditures. Make any capital expenditures relating to
the Business other than capital expenditures in the ordinary course of business
consistent with past practice in amounts not exceeding $20,000 individually or
$100,000 in the aggregate.
17
(v) Accounting Methods. Implement or adopt any change in accounting
principles, practices or methods, other than as may be required by GAAP.
(vi) Contracts. Enter into, renew or terminate, or make any payment
not then required under, any contract or agreement that calls for aggregate annual
payments of $50,000 or more and which is not terminable at will or with 60 days or
less notice without payment of a premium or penalty.
(c) Employment of Key Employees. Sellers will use commercially reasonable
efforts to cause Antigen to cause the Key Employees listed on Schedule 9(c) to remain
employed with Antigen through the Closing. As of the Closing, all directors of Antigen
shall resign.
(d) Employment of Other Employees. From and after the Closing, Planet will
continue the employment of all employees of Antigen on terms substantially equivalent to the
salary and benefits provided to such employees prior to the date hereof, including the
implementation of a stock option plan to be agreed upon and described on Schedule 9(d)
hereto prior to Closing. Any such employees shall be at-will employees terminable at any
time with or without cause, subject to normal termination policies considering the length of
employment of such employee.
(e) Intentionally omitted.
(f) Sales and Taxes. All sales and other transfer taxes relating to or arising
from the sale of the Stock pursuant to the terms hereof shall be paid by Sellers.
(g) Change of Name. On and after the Acquisition Date, no Seller shall use the
name or any name confusingly similar to “Antigen” or “Antigen Laboratories” in relation to
any business activity.
(h) Commercially Reasonable Efforts. Subject to the terms and conditions of
this Agreement, Sellers and Planet each agree to use their respective commercially
reasonable efforts in good faith to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or desirable, or advisable under applicable
laws, so as to permit consummation of the transactions contemplated hereby, including the
satisfaction of the conditions set forth in Article 10 hereof, and shall cooperate fully
with the other party hereto to that end.
(i) Access; Information. Xx. Xxxxxxxxxx agrees that upon reasonable notice and
subject to applicable laws relating to the exchange of information, he shall afford and
cause Antigen to afford Planet and Planet’s officers, employees, counsel, accountants and
other authorized representatives such access during normal business hours throughout the
period prior to the Acquisition Date to the books, records (including, without limitation,
Tax Returns and work papers of independent auditors), properties and personnel and to such
other information as Planet may reasonably request and, during such period, it shall furnish
promptly to Planet all information concerning its business, properties and personnel as
Planet may reasonably request.
18
(j) Regulatory Applications. Planet and Antigen shall cooperate and use their
respective commercially reasonable efforts to prepare all documentation, to effect all
filings and to obtain all permits, consents, approvals and authorizations of all
Governmental Authorities necessary to consummate the transactions contemplated by this
Agreement. Each party shall have the right to review in advance, and to the extent
practicable each shall consult with the other, in each case subject to applicable laws
relating to the exchange of information, with respect to all material written information
submitted to any Governmental Authority in connection with the transactions contemplated by
this Agreement.
(k) Notification of Certain Matters. Antigen, Sellers, and Planet shall each
give prompt notice to the others of any fact, event or circumstance known to it that (i) is
reasonably likely, individually or taken together with all other facts, events and
circumstances known to it, to result in any Material Adverse Effect with respect to it or
(ii) would cause or constitute a material breach of any of its respective representations,
warranties, covenants or agreements contained herein.
(l) Assistance with Third-Party Agreements. Sellers and Antigen shall
cooperate with and use all commercially reasonable efforts to assist Planet in (a) gaining
access to and obtaining any required consents from all of Antigen’s third-party vendors,
landlords of all of their leased properties and other parties to material agreements,
promptly after the date of this Agreement, and (b) obtaining the cooperation of such third
parties in a smooth transition in accordance with Planet’s timetable at or after the
Closing. Without limiting anything in the preceding sentence, Antigen shall use
commercially reasonable efforts to provide data processing and other processing support to
assist Planet in performing all tasks reasonably required to result in a successful
conversion of data and other files and records to Planet’s production environment, or vice
versa at the election of Planet, when requested by Planet and sufficient to ensure that a
successful conversion can occur at such time as Planet requests at or after the Closing.
Among other things, Antigen shall:
(i) cooperate with Planet to establish a mutually agreeable project plan to
effectuate the conversion; and
(ii) use commercially reasonable efforts to have Antigen’s personnel or outside
contractors continue to support both the conversion effort and its needs until the
conversion can be established,
(m) Financing. Planet shall use its best good faith efforts to obtain equity
and/or debt financing in an amount not less than $10,000,000 on or prior to the Closing on
terms and conditions reasonable and customary for similar transactions of the size and scope
of the transactions contemplated by this Agreement.
10. Conditions.
(a) Conditions to Each Parties Obligations. The respective obligation of each
of the parties hereto to consummate the Acquisition is subject to the fulfillment or written
19
waiver by the parties hereto prior to the Acquisition Date of each of the following
conditions:
(i) Regulatory Matters. All Permits of any Governmental Authority
required to be obtained or made shall have been obtained or made, including without
limitation any FDA approval and issuance of FDA license.
(ii) Employment Agreement. Xx. Xxxxxxxxxx and Planet shall have
entered into an employment agreement in the form attached hereto as Exhibit A (the
“Employment Agreement”).
(iii) No Injunction. No Governmental Authority of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) which is in effect and prohibits consummation
of the transactions contemplated by this Agreement.
(iv) Arbitrator. The parties shall have agreed upon the firm to serve
as the Arbitrator.
(b) The obligation of Sellers to consummate the Acquisition is also subject to the
fulfillment or written waiver prior to the Acquisition Date of each of the following
additional conditions:
(i) Representations and Warranties. The representations and warranties
of Planet set forth in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Acquisition Date as though
made on and as of the Acquisition Date (except that representations and warranties
that by their terms speak as of the date of this Agreement or some other date shall
be true and correct as of such date). For purposes of this paragraph, such
representations and warranties shall be deemed to be true and correct in all
material respects unless the failure or failures of such representations and
warranties to be true and correct in all material respects, either individually or
in the aggregate, and without giving effect to any materiality, material adverse
effect or similar qualifications set forth in such representations and warranties,
will have or would reasonably be expected to have a Material Adverse Effect on
Planet. The Sellers shall have received a certificate, dated the Acquisition Date,
signed on behalf of Planet by the Chief Executive Officer and the Chief Financial
Officer of Planet to such effect.
(ii) Satisfaction of Covenants. Planet shall have satisfied each
obligation of Planet to be performed by Planet at or prior to the Acquisition Date.
The Sellers shall have received a certificate, dated the Acquisition Date, signed on
behalf of Planet by the Chief Executive Officer and the Chief Financial Officer of
Planet to such effect.
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(iii) Personal Guarantees. All personal guarantees and related liens
of the Sellers (and Xxxxxx Xxxxxxxxxx as an individual) with respect to the Business
shall have been released.
(c) The obligation of Planet to consummate the Acquisition is also subject to the
fulfillment or written waiver prior to the Acquisition Date of each of the following
additional conditions:
(i) Representations and Warranties. The respective representations and
warranties of each Seller set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and as of the Acquisition
Date as though made on and as of the Acquisition Date (except that representations
and warranties that by their terms speak as of the date of this Agreement or some
other date shall be true and correct as of such date). For purposes of this
paragraph, such representations and warranties shall be deemed to be true and
correct in all material respects unless the failure or failures of such
representations and warranties to be true and correct in all material respects,
either individually or in the aggregate, and without giving effect to any
materiality, material adverse effect or similar qualifications set forth in such
representations and warranties, will have or would reasonably be expected to have a
Material Adverse Effect on Antigen. Planet shall have received a certificate, dated
the Acquisition Date, signed on behalf of each Seller with regard to their
respective representations and warranties.
(ii) Performance of Obligations of Seller and Antigen. Sellers and
Antigen shall have performed in all material respects all obligations required to be
performed by them, respectively, under this Agreement at or prior to the Acquisition
Date, and Planet shall have received a certificate, dated the Acquisition Date,
signed on behalf of each Seller with regard to their respective obligations
hereunder.
(iii) Financing. Planet shall have obtained equity and/or debt
financing in an amount not less than $10,000,000.
(iv) Environmental Condition of Real Property. Planet shall have
satisfied itself with the results of a Phase I environmental report for the Real
Property and if deemed reasonably prudent by Planet, Planet may conduct Phase II
testing on the Real Property and shall have satisfied itself with the results of the
Phase II environmental report.
(d) If Conditions Not Satisfied. If any of the conditions set forth in this
Article 10 are not satisfied, and the parties nevertheless consummate the transactions
contemplated by this Agreement, the parties shall be deemed to have waived any claim for
damages or other relief arising from or in connection with such non-satisfaction.
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11. Termination.
(a) This Agreement may be terminated:
(i) Mutual Consent. At any time prior to the Acquisition Date, by the
mutual consent of Planet, Sellers and Antigen.
(ii) Breach. At any time prior to the Acquisition Date, by Planet or
either Seller in the event of a breach of any representation, warranty, covenant or
obligation contained herein by a Seller or Antigen, in the case of termination by
Planet, or by Planet, in the case of termination by a Seller, which breach cannot be
or has not been cured within thirty (30) days after the giving of written notice to
the breaching party or parties of such breach provided that such breach would be
reasonably likely, individually or in the aggregate with other breaches, to result
in a Material Adverse Effect with respect to Planet or Antigen, as the case may be.
(iii) Delay. By Planet or a Seller in the event that the Acquisition
is not consummated by December 15, 2007, except that Planet or a Seller, as the case
may be, shall not have the right to terminate pursuant to this Section 11(a)(iii) to
the extent that the failure to close arises out of or results from the knowing
action or inaction of the party seeking to terminate pursuant to this Section
11(a)(iii), which action or inaction is in violation of its obligations under this
Agreement.
(iv) Financing. By Planet or a Seller, if at or prior to December 15,
2007, Planet is not able to obtain commitments from financial investors to provide
debt and/or equity financing, subject to customary conditions to provide the capital
necessary to complete the transactions contemplated by this Agreement on terms
acceptable to Planet’s board of directors, and Planet notifies Antigen that it has
decided not to pursue the transaction contemplated by this Agreement.
(b) Effect of Termination. In the event of termination of this Agreement
pursuant to this Section 11, no party to this Agreement shall have any liability or
obligation to any other party hereunder provided that termination will not relieve a
breaching party from any liability for any willful breach of any covenant, agreement,
representation or warranty in this Agreement giving rise to such termination.
12. Deliveries. Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing, the parties shall make the following deliveries:
(a) Instruments of Conveyance. Each Seller is delivering to Planet the
certificate or certificates representing his or her Stock together with such other
instruments of transfer, assignment and conveyance, and other instruments as the parties and
their respective counsel shall deem reasonably necessary or appropriate, to convey, transfer
and assign to Planet and effectively vest in Planet all right, title and interest in and to,
and good and marketable title to, his or her Stock.
22
(b) Purchase Price. Planet shall deliver to Sellers by wire transfer the
Closing Cash Payment and Planet shall make the other Purchase Price deliveries in accordance
with Section 4(a).
(c) Possession. Sellers shall cause to be transferred and delivered to Planet
on the Acquisition Date such keys, passwords, codes, lock and safe combinations and other
similar items as Planet shall require to obtain immediate and full possession and control of
Antigen and the Assets, and shall also make available to Planet at their then existing
locations the originals of all documents in Sellers’ possession that are required to be
transferred to Planet by this Agreement.
(d) Tax Clearance Certificates. Antigen shall deliver to Planet tax clearance
certificates from each taxing authority in each jurisdiction as reasonably requested by
Buyer.
(e) Other Deliveries. The delivery by each party of any certificate or other
document called for in this Agreement or reasonably requested by the other party and
customarily provided in like transactions.
13. Indemnification by Xx. Xxxxxxxxxx. Subject to the limitations hereinafter set
forth, Xx. Xxxxxxxxxx shall indemnify, defend and save Planet and its officers, directors and
shareholders (collectively, the “Planet Indemnitees”), harmless from, against, for and in
respect of any and all Damages suffered, sustained, incurred or required to be paid by any Planet
Indemnitee caused by, resulting from or arising out of (A) the claims of any broker or finder
engaged by Xx. Xxxxxxxxxx or Antigen, (B) the untruth, inaccuracy or breach of any representation
or warranty of Xx. Xxxxxxxxxx contained in this Agreement, (C) the breach of any agreement or
covenant of Xx. Xxxxxxxxxx contained in this Agreement, (D) any failure of Antigen to pay, perform
or discharge any Taxes for any period prior to the Acquisition Date (other than (i) income or
property Taxes for the current period and (ii) Taxes that would not be a breach of Sections
6(d)(iii)(a) or (c)) (the “Xxxxxxxxxx Tax Indemnification”), (E) warranty and product
liability claims arising from sales of product prior to the Acquisition Date, and (F) employment
claims by any employee, agent or independent contractor prior to the Acquisition Date.
14. Indemnification by the Trust. Subject to the limitations hereinafter set forth,
the Trust shall indemnify, defend and save the Planet Indemnitees harmless from, against, for and
in respect of any and all Damages suffered, sustained, incurred or required to be paid by any
Planet Indemnitee caused by, resulting from or arising out of (A) the claims of any broker or
finder engaged by the Trust, (B) the untruth, inaccuracy or breach of any representation or
warranty of the Trust contained in this Agreement, (C) the breach of any agreement or covenant of
the Trust contained in this Agreement, and (D) any failure of Antigen to pay, perform or discharge
any Taxes for any period prior to the Acquisition Date (other than (i) income or property Taxes for
the current period and (ii) Taxes that would not be a breach of Sections 6(d)(iii)(a) or (c)) (the
“Trust Tax Indemnification”).
15. Indemnification by Planet. Subject to the limitations hereinafter set forth,
Planet shall indemnify, defend and save Xx. Xxxxxxxxxx and the Trust, and its past, present and
future
23
trustees and beneficiaries (collectively, the “Seller Indemnitees”) harmless from,
against, for and in respect of any and all Damages suffered, sustained, incurred or required to be
paid by any Seller Indemnitee because of (A) the claims of any broker or finder engaged by Planet,
(B) the untruth, inaccuracy or breach of any representation, warranty, agreement or covenant of
Planet contained in this Agreement, (C) the breach of any agreement or covenant of Planet contained
in this Agreement, and (D) any Liability arising out of the operation of Antigen after the
Acquisition Date, except to the extent the foregoing is otherwise subject to indemnification by
either Seller under this Agreement.
16. Further Provisions Regarding Indemnification.
(a) Survival.
(i) All representations and warranties, and all covenants, agreements and
obligations to be performed prior to Closing, of each Seller, Antigen and Planet in
this Agreement and all claims of an Indemnified Party (as defined below) in respect
of any breach of any representation, warranty, covenant, agreement or obligation of
any Indemnifying Party (as defined below) contained in this Agreement, shall survive
the consummation of the transactions contemplated herein and shall expire on the
first (1st) anniversary of the Acquisition Date, other than the Xxxxxxxxxx Tax
Indemnification and the Trust Tax Indemnification which shall survive the
consummation of the transactions contemplated herein and shall not expire until all
applicable statute of limitations periods run on such claims.
(ii) Notwithstanding anything herein to the contrary, indemnification for
claims for which written notice as provided in Section 16(b) has been given prior to
the expiration of the representation, warranty, covenant, agreement or obligation
upon which such claim is based shall not expire, and claims for indemnification may
be pursued, until the final resolution of such claim.
(iii) Nothing in this Section 16(a) shall modify in any respect any covenant,
agreement or obligation to be performed by any party after the Closing pursuant to
the provisions of this Agreement.
(iv) Nothing contained in this Agreement or otherwise shall in any way limit
any claim, suit, cause of action or remedy that may be available to any party based
on Fraud.
(b) Defense of Claims. Whenever any claim shall arise for indemnification
hereunder, the party entitled to indemnification (the “Indemnified Party”) shall
promptly notify the other party (the “Indemnifying Party”) in writing of the claim
and, when known, the facts constituting the basis for such claim. The Indemnifying Party
may, upon written notice to the Indemnified Party within 30 calendar days of receipt of the
notice specified in the first sentence of this paragraph, assume the defense of any such
claim if the Indemnifying Party acknowledges to the Indemnified Party the Indemnified
Party’s right to indemnity pursuant hereto in respect of the entirety of such claim. If the
24
Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall
select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such
claim, shall take all steps reasonably necessary in the defense or settlement thereof and
shall at all times use commercially reasonable efforts to diligently and promptly pursue the
resolution thereof. If the Indemnifying Party shall have assumed the defense of any claim
in accordance with this Section 16(b), the Indemnifying Party shall be authorized to consent
to a settlement of, or the entry of any judgment arising from, any such claim, without the
prior written consent of the Indemnified Party; provided, however, that (i) the Indemnifying
Party shall pay or cause to be paid all amounts arising out of such settlement or judgment
concurrently with the effectiveness thereof; (ii) the Indemnifying Party shall not be
authorized to encumber any of the assets of the Indemnified Party or to agree to any
restriction that would apply to the Indemnified Party or to its conduct of business; and
(iii) a condition to any such settlement shall be a complete release of the Indemnified
Party with respect to such claim which contains no admission of liability on the part of the
Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of
any such action, with its own counsel and at its own expense. The Indemnified Party shall,
and shall cause each of its Affiliates, officers, employees, consultants and agents to,
cooperate fully with the Indemnifying Party in the defense of any claim or Proceeding being
defended by the Indemnifying Party pursuant to this Section 16(b). If the Indemnifying
Party does not assume the defense of any claim resulting therefrom in accordance with the
terms of this Section 16(b), the Indemnified Party may defend against such claim in such
manner as it may deem appropriate, including settling such claim after giving notice of the
same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate.
(c) Indemnification Threshold for Sellers. Other than the Xxxxxxxxxx Tax
Indemnification and the Trust Tax Indemnification, no claim for indemnification will be made
by any Planet Indemnitee against either Seller unless the aggregate of all Damages incurred
by the Planet Indemnitees exceeds $100,000, in which case the Planet Indemnitee’s claim for
Damages may include the initial $100,000.
(d) Indemnification Threshold for Planet. No claim for indemnification will be
made by any Seller Indemnitee against Planet unless the aggregate of all Damages incurred by
the Seller Indemnitees exceeds $100,000, in which case the Seller Indemnitee’s claim for
Damages may include the initial $100,000.
(e) Exclusive Remedy. Other than any Damages resulting from actual Fraud which
Damages shall not be capped,, Sections 13, 14 and 15 (together with Section 5(c)) set forth
the exclusive remedy for monetary damages owing from each Seller to the Planet Indemnitees
and from Planet to the Seller Indemnitees that arise from the matters described therein.
Each of the parties hereby waives any claim or cause of action for monetary damages that it
might assert against the other, with respect to the matters described in such Sections,
whether under any statute, common law, regulation or other law.
(f) Miscellaneous. No party shall have any obligation to indemnify any
Indemnified Party for: (i) any Consequential Damages (except arising pursuant to a third-
25
party claim); or (ii) any other Damages that are: (A) recovered or recoverable by the
Indemnified Party from any other Person (including insurers); or (B) offset by Tax savings
realized on account of such Damages by the Indemnified Party or any of its Affiliates.
(g) Tax Indemnification. The parties agree that any indemnification pursuant
to Sections 13(D) or 14(D) shall be (i) allocated and paid by the Sellers pro rata in
accordance with the relative percentage of the Stock owned by each Seller, and (ii) net of
any Tax refunds to which Antigen is entitled with regard to any period prior to the
Acquisition Date.
17. General Provisions.
(a) Further Assurances. The parties shall cooperate and take such actions, and
execute such other documents subsequent to the Acquisition Date as either may reasonably
request in order to carry out the provisions or purpose of this Agreement.
(b) Notices. All notices or other communications in connection with this
Agreement shall be in writing and shall be deemed given (a) if personally delivered, when
delivered, (b) if mailed, two Business Days after having been sent by registered or
certified mail, postage prepaid, return receipt requested, or (c) if sent through an
overnight delivery service in circumstances to which such service guarantees next-day
delivery, the next day, to be sent as follows:
(i) | If to a Seller or Antigen, to both: | ||
Xx. Xxx Xxxxxxxxxx 00000 XX 000xx Xxxxxx Xxxxxxx, XX 00000 |
|||
Xx. Xxxxxx Xxxxxxxxxx 000 Xxxxxxx Xxxxx Xxxxxxx, XX 00000 With a copy to: Xxxxxxxxxx Xxxxxxx Xxxxxxxx Suelthaus PC Attn: Xxxxxxx X. Xxxxxx 000 Xxxx 00xx Xxxxxx, Xxxxx 0000 Xxxxxx Xxxx, XX 00000 |
(ii) | If to Planet: Planet Technologies, Inc. Attn: President/CEO 00 Xxxxxxx Xxxx Xxxxxxxxxx, XX 00000 |
26
With a copy to: |
|||
Xxxxxxxxx, Xxxxxxx & French Attn: Xxxxxx X. Xxxxxxxxx 000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx Xx Xxxxx, XX 00000 |
(c) Entire Agreement; Amendment; No Waiver. This Agreement (which includes the
Schedules and Exhibits hereto) sets forth the parties’ final and entire agreement with
respect to its subject matter and supersedes any and all prior understandings and
agreements. This Agreement can be amended or supplemented, and any provision hereof can be
waived, only by a written instrument making specific reference to this Agreement, in the
case of amendment or supplement, signed by all the parties hereto, or in the case of a
waiver, signed by the party against whom enforcement of such waiver is sought. No waiver by
a party of any default, misrepresentation or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent default,
misrepresentation or breach of warranty or covenant hereunder or affect in any way any
rights arising by virtue of any prior or subsequent occurrence. No failure or delay by a
party in exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(d) Public Announcements. The parties agree that they will not make any public
announcement, including any announcement to the employees of the Business, or otherwise
cause to be publicized in any manner by way of press interviews, responses to press
questions or inquiries, press releases or otherwise in any manner designed for release to
the general or trade press, any aspect or proposed aspect of this transaction (including but
not limited to the price paid and other terms of the transaction) without the mutual
agreement of all of the parties hereto.
(e) Successors; Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and assigns. This Agreement or any of
the rights, interests or obligations hereunder may not be assigned or transferred (other
than as part of a distribution pursuant to the Trust instrument) by any party without the
prior written consent of the other party. Any assignment or transfer in violation of this
section shall be null and void.
(f) Captions. The section and paragraph headings in this Agreement and in the
Schedules hereto are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Fees and Expenses. Whether or not the transactions contemplated hereby are
consummated, the parties hereto shall pay their own respective expenses, provided legal
27
expenses incurred by Sellers in connection with or related to the transactions
contemplated by this Agreement shall be paid by Antigen.
(h) Severability; Construction. If any provision of this Agreement shall be
held by any court of competent jurisdiction to be illegal, invalid, unenforceable or void,
such provision shall be construed and enforced as if it had been more narrowly drawn so as
not to be illegal, invalid, unenforceable or void, and such illegality, invalidity or
unenforceability shall have no affect upon and shall not impair the enforceability of any
other provision of this Agreement. The parties hereto intend that each representation,
warranty and covenant contained herein will have independent significance. If any party has
breached any representation, warranty or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the same subject
matter (regardless of the relative levels of specificity) that the party has not breached
will not detract from or mitigate the fact that the party is in breach of the first
representation, warranty or covenant.
(i) Governing Law; Exclusive Jurisdiction. This Agreement shall be governed by
and construed and interpreted in accordance with the internal law of the State of Delaware.
(j) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
(k) Interpretation. When a reference is made in this Agreement to a Section or
Article such reference shall be to a Section or Article of this Agreement unless otherwise
indicated. The word “including” and words of similar import when used in this Agreement
will mean “including, without limitation,” unless otherwise specified.
(l) Submission to Jurisdiction. Each of the parties irrevocably agrees that
any legal action or proceeding arising out of or relating to this Agreement or for
recognition and enforcement of any judgment in respect hereof brought by the other party or
its successors or assigns may be brought and determined (i) in any Missouri court sitting in
Clay County Missouri or the Western District of Missouri federal court, if brought by
Planet, and (ii) in any Connecticut or District of Connecticut federal court, if brought by
a Seller or Antigen, and each of the parties hereby irrevocably submits to the exclusive
jurisdiction of the aforesaid courts for itself and with respect to its property, generally
and unconditionally, with regard to any such action or proceeding arising out of or relating
to this Agreement and the transactions contemplated hereby (and agrees not to commence any
action, suit or proceeding relating thereto except in such courts). Each of the parties
further agrees to accept service of process in any manner permitted by such courts. Each of
the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way
of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim
that it is not personally subject to the jurisdiction of the above-named courts for any
reason other than the failure lawfully to serve process, (b) that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process
28
commenced in such courts (whether through service of notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or otherwise)
and (c) to the fullest extent permitted by law, that (i) the suit, action or proceeding in
any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
(m) The parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, each of the parties shall be entitled to specific
performance of the terms hereof, including an injunction or injunctions to prevent breaches
of this Agreement and to enforce specifically the terms and provisions of this Agreement (in
the courts as set forth above), this being in addition to any other remedy to which they are
entitled at law or in equity. Each of the parties further hereby waives (a) any defense in
any action for specific performance that a remedy at law would be adequate and (b) any
requirement under any law to post security as a prerequisite to obtaining equitable relief.
(n) Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(o) Facsimile Signature. This Agreement may be executed by facsimile signature
and a facsimile signature shall constitute an original for all purposes
(p) Time of Essence. Time is of the essence with regard to all dates and time
periods set forth or referred to in this Agreement.
[The remainder of this page is intentionally left blank]
29
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date first above
written.
PLANET TECHNOLOGIES, INC. |
||||
By: | ||||
Xxxxxx Xxxxxx | ||||
President/CEO | ||||
ANTIGEN LABORATORIES, INC. |
||||
By: | ||||
Xxxxxxx Xxxxxx Xxxxxxxxxx | ||||
President | ||||
Xxxxxxx Xxxxxx Xxxxxxxxxx | ||||
Xxxxxx X. Xxxxxxxxxx Trust |
||||
By: | ||||
Xxxxxx X. Xxxxxxxxxx, Trustee | ||||
Schedule 1
Defined Terms
“Acquisition” shall mean the transaction contemplated by this Agreement.
“Acquisition Date” will have the meaning ascribed to such term in Section 4(b).
“Affiliate” means, with respect to any Person, a Person directly or indirectly
controlling, controlled by or under common control with the Person, through the ownership of all or
part of the Person.
“Agreement” will have the meaning ascribed to such term in the Preamble.
“Antigen” means Antigen Laboratories, Inc.
“Applicable Law” means any domestic or foreign, federal, state or local statute, law,
common law, ordinance, policy, guidance, rule, administrative interpretation, regulation, order,
writ, injunction, directive, judgment, decree, permit or other requirement of any Governmental
Authority.
“Arbitrator” will have the meaning ascribed to such term in Section 5(b).
“Assets” will have the meaning ascribed to such term in Section 6(i).
“Business” will have the meaning ascribed to such term in the recitals of this
Agreement.
“Business Day” means a day of the week (but not a Saturday, Sunday, or holiday) on
which banking institutions in Kansas City, Missouri are open. All references to “days” in this
Agreement will be to calendar days unless specifically referenced as a Business Day.
“Cash Holdback” means the amount set forth in Section 4(a)(v).
“Closing” will have the meaning ascribed to such term in Section 4(b).
“Closing Cash Payment” will have the meaning ascribed to such term in Section 4(a)(i).
“Code” means the Internal Revenue Code of 1986 as amended.
“Consequential Damages” means Losses arising out of any interruption of business, loss of
profits, loss of use of facilities, claims of customers, loss of goodwill or other indirect,
incidental, special or punitive damages.
“Contracts” will have the meaning ascribed to such term in Section 6(i)(vii).
“Copyrights” means all of the following: (i) all copyrights, all registrations and
recordings thereof, and all applications in connection therewith, including all registrations,
recordings and applications in the United States Copyright Office or in any similar office or
agency of the United States, any State or territory thereof, or any other country or any
political subdivision thereof, and (ii) all reissues, extensions or renewals thereof.
“Damages” means all demands, claims, actions or causes of action, assessments, losses,
damages, costs, expenses, liabilities, judgments, awards, fines, sanctions, penalties, charges and
amounts paid in settlement, including (i) interest on cash disbursements in respect of any of the
foregoing at a rate of five percent (5%) per annum from the date each such cash disbursement is
made until the Person incurring the same is indemnified in respect thereof, and (ii) reasonable
costs, fees and expenses of attorneys, accountants and other agents of the Person reasonably
incurred with respect to the foregoing.
“Employment Agreement” will have the meaning ascribed to such term in Section
10(a)(ii).
“Environmental Laws” will have the meaning ascribed to such term in Section 6(t)(i).
“Equipment” means all machinery and equipment, including processing equipment,
conveyors, machine tools, tools, tooling, data processing and computer equipment, including
embedded software and peripheral equipment and all engineering, processing and manufacturing
equipment, office machinery, furniture, materials handling equipment, tools, attachments,
accessories, automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor
vehicles, rolling stock and other equipment of every kind and nature, trade fixtures and fixtures
not forming a part of real property, together with all additions and accessions thereto,
replacements therefor, all parts therefor, all substitutes for any of the foregoing, fuel therefor,
and all manuals, drawings, instructions, warranties and rights with respect thereto, and all
products and proceeds thereof and condemnation awards and insurance proceeds with respect thereto
of the Antigen Business.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“FDA” means the Food and Drug Administration.
“Financial Statements” will have the meaning ascribed to such term in Section 6(d)(i).
“Fraud” means any fraud, intentional misrepresentation, theft, or embezzlement.
“GAAP” means generally accepted accounting principles as applied on a consistent
basis.
“Governmental Authority” means any foreign or domestic, federal, territorial, state or
local governmental authority, instrumentality, court, government commission, tribunal or
organization, or any regulatory, administrative or other agency, including the FDA, or any
political or other subdivision, department or branch of any of the foregoing.
“Hazardous Substances” means any substance, material or waste that is regulated by any
Governmental Authority, including, without limitation, (i) petroleum; (ii) asbestos; and (iii) any
material or substance that is defined as a “hazardous waste,” “hazardous material,” “hazardous
substance,” “extremely hazardous waste,” or “restricted hazardous waste” under any provision of any
Applicable Law, including, without limitation, Section 307 and Section 311 of the Clean
Water Act, 33 U.S.C. § 1251 et seq. (33 U.S.C. §§ 1317, 1321), Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903), and Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (42
U.S.C. § 9601).
“Indemnified Party” will have the meaning ascribed to such term in Section 16(b).
“Indemnifying Party” will have the meaning ascribed to such term in Section 16(b).
“Intangible Property” will have the meaning ascribed to such term in Section
6(i)(iii).
“Intellectual Property” will have the meaning ascribed to such term in Section 6(k).
“Interim Financial Statements” will have the meaning ascribed to such term in Section
6(d)(i).
“Inventory” will have the meaning ascribed to such term in Section 6(i)(i).
“IRS” means the Internal Revenue Service.
“Know-how” will have the meaning ascribed to such term in Section 6(i)(iv).
“Knowledge” means actual present knowledge.
“Liability” or “Liabilities” means, with respect to any Person, any liability
or obligation of any kind, character or description, whether known or unknown, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated, secured or unsecured, joint or
several, due or to become due, vested or unvested, executory, determined, determinable or otherwise
and whether or not the same is required to be accrued on the financial statements of the Person or
is disclosed on any Schedule hereto.
“License” means any rights under any written agreement owned or acquired by a party
granting any right (i) to use any Copyright or Copyright registration; (ii) any right with respect
to any invention on which a Patent is in existence; (iii) to use any Trademark; or (iv) any other
license of rights or interests held or acquired by such party.
“Liens” means any security interests, liens, pledges, charges, options, rights of
first refusal, encumbrances, claims or other third party rights of any kind.
“Material Adverse Effect” means a change in, or effect on, the operations, affairs,
condition (financial or otherwise), results of operations, assets, properties, Liabilities,
earnings, prospects, reserves or any other aspect of the Business or the Planet Business, as the
context requires, that results in a material adverse effect on, or a material adverse change in the
Assets of the Business or the Planet Business, as the context requires, taken as a whole; provided,
however, to the extent such effect results from any of the following, such effect shall not be
considered a Material Adverse Effect: (x) general conditions applicable to the economy of the
United States or elsewhere, including changes in interest rates and changes in the stock or other
financial markets; (y) conditions generally affecting the allergy immunotherapy testing and
treatment product industry without any disproportionate impact on Antigen or Planet; or (z)
conditions or effects resulting from or relating to the announcement, the existence, or the terms
of this Agreement or the consummation of the transactions contemplated hereby.
“Patents” means all of the following in which Antigen holds any interest: (i) all
letters patent of the United States or of any other country, all registrations and recordings
thereof, and all applications for letters patent of the United States or of any other country,
including registrations, recordings and applications in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State or territory thereof, or
any other country, and (ii) all reissues, continuations, continuations-in-part or extensions
thereof.
“Permit” will have the meaning ascribed to such term in Section 6(n)(iii).
“Person” means an individual, corporation, partnership, joint venture, trust, limited
liability company or other business entity.
“Proceeding” or “Proceedings” means any lawsuit, claim, hearing, arbitration,
proceeding (public or private), governmental investigation, or legal, administrative or other
action.
“Proprietary Information” will have the meaning ascribed to such term in Section
6(i)(v).
“Planet” will have the meaning ascribed to such term in the Preamble.
“Planet Indemnitees” will have the meaning ascribed to such term in Section 13.
“Planet Financial Statements” will have the meaning ascribed to such term in Section
8(e).
“Planet’s Documents” will have the meaning ascribed to such term in Section 8(b).
“Planet SEC Reports” will have the meaning ascribed to such term in Section 8(e).
“Reference Date” shall mean the date of this Agreement set forth on page 1 hereof.
“Reference Balance Sheet” will have the meaning ascribed to such term in Section
6(d)(i).
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Seller Indemnitees” will have the meaning ascribed to such term in Section 15.
“Sellers” will have the meaning ascribed to such term in the Preamble.
“Stock” will have the meaning ascribed to such term in the recitals to this Agreement.
“Subsidiary” means, with respect to any Person, (i) any corporation in which such
Person, then owns stock possessing more than fifty percent (50%) of the total combined voting
power of all classes of stock, (ii) any partnership in which such Person is a general partner
or (iii) any limited liability company, partnership or other entity in which such Person possesses
a fifty percent (50%) or greater interest in the total capital or total income of such limited
liability company, partnership or other entity.
“Tax” or “Taxes” means any taxes, fees, levies, duties, tariffs, imposts, and
governmental impositions or charges of any kind in the nature of (or similar to) taxes, payable to
any taxing authority, including any Governmental Authority and any taxing agency thereof,
including, without limitation, (i) any federal, state, local or foreign net income tax, alternative
or add-on minimum tax, profits or excess profits tax, franchise tax, gross income, adjusted gross
income or gross receipts tax, employment related tax (including employee withholding or employer
payroll tax, FICA or FUTA), real or personal property tax or ad valorem tax, sales and use tax,
excise tax, stamp tax or duty, any withholding or back up withholding tax, value added tax,
severance tax, prohibited transaction tax, premiums tax, environmental tax, intangibles tax,
occupation tax, net worth tax, estimated tax, transfer and gains tax, (ii) any interest or any
penalty, addition to tax or additional amount imposed by any Governmental Authority responsible for
the imposition of any such tax, and (iii) any liability with respect to the foregoing as a result
of being a member of any affiliated, consolidated, combined, unitary, or similar group, as a result
of any transferee liability in respect of the foregoing, as a result of any agreement or otherwise
by operation of law.
“Tax Returns” mean any return, report, form or other information filed or required to
be filed with the IRS or any other federal, foreign, state, local, provincial taxing authority with
respect to any Tax, including any claim for refund of Taxes and any amendments or supplements of
any of the foregoing.
“Trademarks” means all of the following owned by Antigen: (i) all trademarks, trade
names, corporate names, business names, trade styles, service marks, logos, other source or
business identifiers, prints and labels on which any of the foregoing have appeared or appear,
designs and general intangibles of like nature (whether registered or unregistered), all
registrations and recordings thereof, and all applications in connection therewith, including
registrations, recordings and applications in the United States Patent and Trademark Office or in
any similar office or agency of the United States, any state or territory thereof, or any other
country or any political subdivision thereof; (ii) all reissues, extensions or renewals thereof;
and (c) all goodwill associated with or symbolized by any of the foregoing.
“Trust Tax Indemnification” will have the meaning ascribed to such term in Section 14.
“Xxxxxxxxxx Tax Indemnification” will have the meaning ascribed to such term in
Section 13.
Exhibit A
Employment Agreement