EXHIBIT 10.2
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (hereinafter this "Agreement") is made and entered
into as of the 22nd day of February, 2005 (the "Closing Date"), by and between
Chemicon Specialty Media, Inc., a Delaware Corporation, and a wholly owned
subsidiary of Chemicon International, Inc. (the "Purchaser"), Sentigen Holding
Corp., a Delaware Corporation (the "Parent"), and Cell & Molecular Technologies,
Inc., a Delaware Corporation (the "Seller").
WITNESSETH:
WHEREAS, Seller is the owner of a certain parcel of land (hereinafter the
"Land"), located at 000 Xxxxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxxxx, Xxxxxx of Xxxxxx,
State of New Jersey, identified on the tax assessment map of said Town as Tax
Lot 1005, Block 2 and more particularly described on Exhibit A attached hereto
and made a part hereof, together with all improvements constructed thereon (the
"Improvements"), all right, title and interest, if any, of Seller in and to any
lands lying in the bed of any stream, street road or highway, open or proposed,
in front of, adjacent to or adjoining the Land, and all right, title and
interest of Seller in and to any awards to be made after the Closing Date in
lieu thereof and in and to any unpaid award for damage to the Land by reason of
the change of any street, or rights of way and easements appurtenant to said
Land which are now used in connection therewith (the Land and Improvements are
herein collectively referred to as the "Premises");
WHEREAS, Purchaser will pay off the loan (the "Loan") secured by the
mortgage held by Phillipsburg National Bank (the "Mortgage") and attached as
Exhibit 4.4(b) of the Asset Purchase Agreement; and
WHEREAS, Seller is desirous of selling the Premises and the Purchaser is
desirous of purchasing same on the terms and conditions hereafter set forth.
NOW THEREFORE, in consideration of the covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. THE SALE. Upon and subject to the terms and conditions of this Agreement,
Seller hereby sells and conveys the Premises to Purchaser, and Purchaser
hereby purchases the Premises from Seller.
2. CONDITION OF TITLE. The sale is being made by Seller to Purchaser
hereunder subject to the Permitted Exceptions. "Permitted Exceptions"
means (i) Liens for taxes, water charges, sewer rents and assessments not
yet due and payable, (ii) Liens of carriers, warehousemen, mechanics,
materialmen and repairmen incurred in the ordinary course consistent with
past practice, (iii) the Mortgage and all Liens arising out of or relating
to the Loan secured by such Mortgage, (iv) any state of facts which a
current, accurate survey or inspection of the Premises would disclose; (v)
zoning, building, land use and other laws, ordinances, rules and
regulations, and landmark or historic designations; and (vii) all Liens
and other matters of record.
3. CONCURRENT SALE. The sale is being made concurrently with the sale (the
"Concurrent Sale") to the Purchaser of the personal property comprising
the assets of the Specialty Media Division (the "Division") of the Seller
pursuant to that certain Asset Purchase Agreement, dated the date hereof
(the "Asset Purchase Agreement"), among the Purchaser, the Parent and the
Seller. The consideration for the sale of the Premises being paid
concurrently herewith is Four Hundred and Five Thousand Dollars
($405,000). All capitalized terms used herein without definition shall
have the meanings set forth in the Asset Purchase Agreement.
4. CLOSING DELIVERIES.
a. The following deliveries are being made by Seller at the closing
(the "Closing"):
i. a bargain and sale deed with covenants against grantor's acts,
in the proper form for recording so as to convey to Purchaser
title in fee simple to the Premises, subject only to the
Permitted Exceptions and the Buyer either assuming or paying off
the Mortgage, the form of which is attached hereto as Exhibit B.
ii. a certified copy of resolutions adopted by the Board of
Directors of Seller authorizing the sale of the Premises.
iii. an Affidavit as to its Non-Foreign Person Status, attached
hereto as Exhibit C.
iv. to the extent then in Seller's possession, originals (if
available) or copies of all warranties and guarantees affecting
the Premises or parts thereof, if any, and an executed
assignment of all Seller's rights, title and interest thereto to
the extent assignable by Seller.
v. all plans, specifications, keys, certificates of occupancy and
licenses relating to the use, occupancy and operation of the
Premises, which it may have in its possession, regardless of
whether originals or copies (where applicable).
vi. a completed 1099 reporting form.
vii. a closing statement showing all payments, adjustments, and
prorations of expenses at Closing.
viii. a "letter of non-applicability", "no further action" letter with
respect to the Premises or a "negative declaration" from the New
Jersey Department of Environmental Protection ("NJDEP") stating
that the Premises are no longer subject to the provisions of the
Industrial Site Recovery Act ("ISRA").
b. The Purchaser and the Seller are executing and delivering to the
other the Post-Closing Adjustment Letter, attached hereto in the
form of Exhibit D.
5. APPORTIONMENTS. The following are to be apportioned as of the date hereof,
with said date being a day of income and expense to Purchaser.
A. Any taxes, assessments, sewer, water or other municipal charges, if
any, on the basis of the fiscal year for which assessed. If the
Closing shall occur before the final tax xxxx is fixed, the
apportionment of real estate taxes shall be upon the basis of a
preliminary tax xxxx for the Premises.
B. All assessments imposed by any governmental agency (herein
"Assessments") for
improvements to the Premises for work completed on or before the
date hereof shall be paid in full by Seller at Closing. If at the
time for the delivery of the deed, the Premises or any part thereof
shall be or shall have been affected by an Assessment or Assessments
for work for which Seller is obligated to pay which are or may
become payable in annual installments of which the first installment
is then due or has been paid, then for the purposes of this
Agreement all of the unpaid installments of any such Assessment,
including those which are to become due and payable after the
delivery of the deed, shall be deemed to be due and payable and to
be liens upon the Premises affected thereby and shall be paid and
discharged by the Seller thereof, upon the delivery of the deed. The
provisions of this Section 5.b. shall survive Closing.
C. Notwithstanding the above, if any of the aforesaid prorations and
costs cannot be accurately calculated as of the Closing, then such
proration or cost shall be calculated as soon as reasonably possible
thereafter and the party owing the other party a sum as a result of
such calculation shall promptly pay said sum to the other party.
6. BROKERAGE COMMISSIONS.
A. Seller represents and warrants that Purchaser has not dealt with any
broker in connection with the sale of the Premises. Seller will
indemnify and hold harmless Purchaser from and against any and all
claims, loss, liability, cost and expense (including reasonable
attorney's fees) resulting from any claim that may be made against
Purchaser by any broker or other person claiming a commission, fee
or other compensation by reason of this transaction, if the same
shall arise by or on account of any act of Seller or Seller's
representatives. Purchaser represents and warrants that Purchaser
has not dealt with any broker in connection with the purchase of the
Premises. Purchaser will indemnify and hold harmless Seller from and
against any and all claims, loss, liability, cost and expense
(including reasonable attorney's fees) resulting from any claim that
may be made against Seller by any broker or other person claiming a
commission, fee or other compensation by reason of this transaction,
if the same shall arise by or on account of any act of Purchaser or
Purchaser's representatives.
B. The representations made by Seller and Purchaser in this Section 6
shall survive the Closing.
7. MERGER OF ALL PRIOR UNDERSTANDINGS. It is understood and agreed that all
understandings and agreements heretofore had between Seller and Purchaser
regarding the Premises are merged in this Agreement, which together with
the Asset Purchase Agreement fully and completely expresses their
agreement, and that the same is entered into after full investigation,
neither party relying upon any statement or representation not embodied in
this Agreement, made by the other.
8. NO ORAL CHANGE; ASSIGNMENT. This Agreement may not be changed or
terminated
orally. The stipulations aforesaid are to apply to and bind the legal
representatives, successors and assigns of the respective parties.
Purchaser shall have the absolute right to assign this Agreement, but such
assignment shall not constitute a release by Seller to Purchaser of its
obligations hereunder.
9. TITLE INSURANCE; OTHER CLOSING EXPENSES.
A. SELLER'S COSTS. Seller shall pay, in addition to its apportionments,
the cost of its legal counsel, the New Jersey realty transfer tax,
and all other costs and expenses in connection with the transfer of
title hereunder assumed by Seller.
B. PURCHASER'S COSTS. Purchaser shall pay, in addition to its
apportionments, the cost of its legal counsel, accountants,
engineers, architects and advisors, plus the cost, if applicable, of
its title commitment or abstract and the title insurance issued
pursuant thereto, and any survey required or obtained by Purchaser,
and all other costs and expenses in connection with the transfer of
title that are not expressly assumed by Seller under this Agreement.
10. NOTICES. All notices, demands, consents, requests or other communications
provided for or permitted to be given hereunder by a party hereto pursuant
to this Agreement must be in writing and must be given in accordance with
Section 8.1 of the Asset Purchase Agreement. Furthermore, a copy of any
such notice, demand, consent, request or other communication given to the
Purchaser shall be furnished in the same manner to Booker, Rabinowitz,
Trenk, Lubetkin, Tully, DiPasquale & Xxxxxxx, P.C., 000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxx Xxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxx XX.
11. GOVERNING LAW. The Parties hereby acknowledge that the enforcement of the
terms and conditions of this Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
without reference to its choice of law rules. However, enforcement of any
title provisions or obligations relating directly to the Owned Real
Property shall be governed by and construed and enforced in accordance
with the internal laws of the State of New Jersey without reference to its
choice of law rules.
12. RECORDING. Neither this Agreement nor any memorandum thereof may be
recorded.
13. MISCELLANEOUS.
A. CAPTIONS AND HEADINGS. The paragraph and/or section headings and the
arrangement of this Agreement are for the convenience of the parties
hereto and do not in any way affect, limit, amplify or modify the
terms and provisions hereof.
B. PURCHASER'S RESERVED RIGHT. Notwithstanding anything to the contrary
set forth herein, Purchaser at any time reserves the right to waive
any contingency in this Agreement.
C. SINGULAR, PLURAL, ETC. Wherever herein the singular number is used
the same
shall include the plural and the masculine gender shall include the
feminine and neuter genders and vice versa, as the context shall
require.
D. COUNTERPARTS. This Agreement may be executed in several
counterparts, which shall constitute one and the same instrument.
E. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the Seller and Purchaser hereto and their
respective heirs, personal representatives, successors and assigns.
F. FURTHER ASSURANCES. Seller and Purchaser each agree to execute any
and all documents necessary to effectuate the purposes of this
Agreement.
G. PATRIOT ACT. Purchaser is not a person or entity with whom United
States persons or entities are restricted from doing business under
regulations of the Office of Foreign Asset Control ("OFAC") of the
Department of the Treasury (including those named on the OFAC's
specially designated and blocked persons lists) or under any
statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit or Support Terrorism), or
other governmental action and is not and will not engage in any
dealings or transactions or be otherwise associated with such
persons or entities.
H. DEFINITIONS. All definitions in the Asset Purchase Agreement are
hereby incorporated into this Agreement and are hereby made a part
as if set forth in full herein.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
CHEMICON SPECIALTY MEDIA, INC.
/s/ Xxxxxx Xxxxxxx
------------------------
SENTIGEN HOLDING CORP.
/s/ Xxxxxxxx X. Xxxxx
------------------------
CELL & MOLECULAR TECHNOLOGIES,
INC.
/s/ Xxxxxxxx X. Xxxxx
------------------------
EXHIBIT A
DESCRIPTION OF LAND
All that certain tract, lot and parcel of land lying and being in the Town of
Phillipsburg, County of Xxxxxx, and State of New Jersey, being more particularly
described as follows: BEGINNING AT A POINT IN THE NORTHERLY RIGHT OF WAY OF
XXXXXXX STREET, SAID POINT BEING THE SOUTHEASTERLY XXXXXX XX XXXXX 0000, XXX 0
XXXXX XXX OR FORMERLY OF THE NORTON PARTNERSHIP AND THE POINT OF BEGINNING
REFERRED TO IN A DEED BETWEEN XXXXXXX X. XXXXXX, XX., AND XXXXXXX X. XXXXXX,
DATED NOVEMBER 6, 1985 RECORDED IN BOOK 938 PAGE 115 AND BEING ALSO DISTANT
367.33 FEET IN A NORTHEASTERLY DIRECTION ALONG THE NORTHWESTERLY SIDE LINE OF
XXXXXXX STREET FROM ITS INTERSECTION WITH THE NORTHEASTERLY SIDE LINE OF
XXXXXXXX STREET AND RUNNING THENCE(1) ALONG THE EASTERLY LINE OF LOT 3, NORTH
THIRTY-SEVEN DEGREES, FIFTY-THREE MINUTES, TWENTY-SEVEN SECONDS WEST (N.
37(degree) 53' 27" W) A DISTANCE OF ONE HUNDRED NINETY-FIVE AND TWENTY-NINE
HUNDREDTHS FEET (195.29') TO A POINT IN THE SOUTHERLY RIGHT OF WAY OF XXXXXXXX
STREET, BEING THE NORTHEASTERLY CORNER OF LOT 3 THENCE (2) ALONG THE SOUTHERLY
RIGHT OF WAY OF XXXXXXXX STREET, NORTH SIXTY-EIGHT DEGREES, FORTY-NINE MINUTES,
NO SECONDS EAST (N. 68(degree) 49' 00" E), A DISTANCE OF ONE HUNDRED THIRTY-FIVE
AND NINETY-FOUR HUNDREDTHS FEET (135.94') TO A POINT, BEING THE NORTHWESTERLY
XXXXXX XX XXXXX 0000, XXX 0 XXXXX XXX OR FORMERLY OF XXXXXXX X. XXXXXX, THENCE
(3) ALONG THE WESTERLY LINE OF LOT 1, SOUTH THIRTY-EIGHT DEGREES, THIRTY-EIGHT
MINUTES, FIFTY-THREE SECONDS EAST (S. 38(degree) 38' 53" E) A DISTANCE OF ONE
HUNDRED FIFTY-EIGHT AND SEVENTY-FOUR HUNDREDTHS FEET (158.74') TO A POINT IN THE
NORTHERLY RIGHT OF WAY OF XXXXXXX STREET, BEING THE SOUTHWESTERLY CORNER OF LOT
1 THENCE (4) ALONG THE NORTHERLY RIGHT OF WAY OF XXXXXXX STREET, SOUTH
FIFTY-THREE DEGREES, TWELVE MINUTES, NO SECONDS WEST (S.53(degree) 12' 00" W) A
DISTANCE OF ONE HUNDRED THIRTY-TWO AND THIRTY-TWO HUNDREDTHS FEET (132.32') TO
THE POINT AND PLACE OF BEGINNING
ALL IN ACCORDANCE WITH A SURVEY PREPARED BY XXXXXXX ASSOCIATES, INC., L.S.,
DATED DECEMBER 23, 1996.
EXHIBIT B
BARGAIN AND SALE DEED
EXHIBIT C
NON-FOREIGN CERTIFICATION
UNDER INTERNAL REVENUE CODE
SECTION 1445(b)(2)
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. For U.S. tax purposes (including Section 1445), the owner of a
disregarded entity (which has legal title to a U.S. real property interest under
local law) will be the transferor of the property and not the disregarded
entity. To inform Chemicon Specialty Media, Inc., a Delaware Corporation, and
wholly owned subsidiary of Chemicon International, Inc. (the "Purchaser") that
withholding of tax will not be required upon the disposition of a U.S. real
property interest by Cell & Molecular Technologies, Inc., a Delaware Corporation
(the "Seller"), the undersigned hereby certifies to Purchaser the following:
1. The Seller is not a "foreign corporation," "foreign partnership,"
"foreign trust" or "foreign estate" (as those terms are defined in
Section 1445 of the Internal Revenue Code and Income Tax
Regulations);
2. The Seller is not a "disregarded entity" as defined in Treasury
Regulation ss. 1.1445-2(b)(2)(iii);
3. The Seller's taxpayer identification number is _____________ ; and
4. The Seller's address is ________________________________________.
The Seller understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury the undersigned declare that, to the best of
their knowledge and belief, all the information stated in this Certificate is
accurate and complete.
CELL & MOLECULAR TECHNOLOGIES, INC.
By:
---------------------------------
Name:
Title:
EXHIBIT D
POST CLOSING ADJUSTMENT LETTER
____________________, 2005
Serologicals Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
RE: Agreement of Sale
000 Xxxxxxxx Xxxxxx
Xxx, Xxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx
Gentlemen:
This document shall serve as a letter agreement with respect to the
closing of title under that certain Agreement of Sale
dated______________________________, 2005 by and between Chemicon Specialty
Media, Inc., a Delaware Corporation, and a wholly owned subsidiary of Chemicon
International, Inc. (the "PURCHASER"), Sentigen Holding Corp., a Delaware
Corporation (the "PARENT") and Cell & Molecular Technologies, Inc., a Delaware
Corporation (the "SELLER") as to the following matters:
1. It is agreed that all closing adjustments as more fully set forth on
the attached Statement of Closing Title have been computed as of
________________________, 2005.
2. If any errors or omissions have been made in any closing adjustment, we
will correct the same at the request of either party hereto within one (1) year
from the date of this letter,
3. Any party responsible to make a payment to the other will do so within
thirty (30) days of receipt of notice that an amount is due together with
adequate supporting data for such amount.
4. The provisions of this letter agreement with respect to closing
adjustments shall survive the closing of title to the referenced property for a
period of one (1) year.
Please acknowledge your agreement to the foregoing by countersigning this
letter agreement below in the space provided.
CELL & MOLECULAR TECHNOLOGIES, INC.
By:
--------------------------------
Name:
Title:
ACCEPTED AND AGREED TO:
CHEMICON SPECIALTY MEDIA, INC.
By:
-----------------------------
Name:
Title:
