PLAN AND AGREEMENT OF MERGER
BY AND AMONG
SEROLOGICALS CORPORATION
a Delaware corporation,
INTERGEN COMPANY L.P.
a Delaware limited partnership,
SEROCOR INCORPORATED
a Delaware corporation,
and
INTERGEN INVESTORS L.P.
as the General Partner
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NOVEMBER 5, 2001
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TABLE OF CONTENTS
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1. DEFINITIONS.................................................................................................1
1.1. DEFINITIONS..............................................................................................1
1.2. CROSS REFERENCE..........................................................................................6
2. EFFECTS OF THE MERGER AND CONVERSION OF INTERESTS...........................................................7
2.1. MERGER...................................................................................................7
2.2. FILING OF CERTIFICATE OF MERGER/EFFECTIVE TIME...........................................................7
2.3. EFFECT OF MERGER.........................................................................................7
2.4. ADDITIONAL ACTIONS.......................................................................................8
2.5. CONVERSION OF PARTNERSHIP INTERESTS......................................................................8
2.6. CLOSING PAYMENTS.........................................................................................9
2.7. ALLOCATION OF PURCHASE PRICE.............................................................................9
2.8. SECTION 116.............................................................................................10
2.9. DETERMINATION OF PROJECT COST...........................................................................10
2.10. EARNOUT TECHNOLOGIES..................................................................................10
3. REPRESENTATIONS AND WARRANTIES REGARDING INTERGEN..........................................................10
3.1. ORGANIZATION, POWER AND AUTHORITY.......................................................................10
3.2. NO CONFLICT.............................................................................................12
3.3. PARTNERSHIP INTEREST....................................................................................12
3.4. TRANSFER CLAIMS.........................................................................................13
3.5. FINANCIAL STATEMENTS....................................................................................13
3.6. NO UNDISCLOSED LIABILITIES..............................................................................13
3.7. NO VIOLATION OF LAW; REQUIRED LICENSES AND PERMITS......................................................14
3.8. PERSONAL PROPERTY.......................................................................................14
3.9. REAL PROPERTY...........................................................................................15
3.10. REQUIRED CONSENTS AND APPROVALS.......................................................................19
3.11. INDEBTEDNESS FOR BORROWED MONEY; SECURITY ARRANGEMENTS................................................19
3.12. INTELLECTUAL PROPERTY.................................................................................19
3.13. INVENTORY/PRODUCT WARRANTY............................................................................21
3.14. NOTES AND ACCOUNTS RECEIVABLE.........................................................................22
3.15. LEGAL PROCEEDINGS.....................................................................................22
3.16. EMPLOYEE BENEFIT PLANS................................................................................22
3.17. LABOR RELATIONS.......................................................................................25
3.18. ENVIRONMENTAL, HEALTH AND SAFETY REQUIREMENTS.........................................................27
3.19. INSURANCE POLICIES....................................................................................28
3.20. CONTRACTS AND COMMITMENTS.............................................................................29
3.21. ABSENCE OF CERTAIN CHANGES AND EVENTS.................................................................30
3.22. TAX MATTERS...........................................................................................32
3.23. CUSTOMER RELATIONS....................................................................................35
3.24. EMPLOYEE NOTICE.......................................................................................35
3.25. NO INTEREST IN PROPERTIES, COMPETITORS, ETC...........................................................35
3.26. BROKERS' AND FINDERS' FEES............................................................................35
3.27. DISCLOSURE............................................................................................35
3.28. COMPETITION ACT.......................................................................................35
4. REPRESENTATIONS AND WARRANTIES OF SEROLOGICALS AND SUB.....................................................36
4.1. ORGANIZATION, POWER AND AUTHORITY.......................................................................36
4.2. NO CONFLICT.............................................................................................36
4.3. BROKERS' AND FINDERS' FEES..............................................................................36
4.4. LEGAL PROCEEDINGS.......................................................................................37
4.5. FINANCING...............................................................................................37
5. COVENANTS OF INTERGEN AND GENERAL PARTNER..................................................................37
5.1. PRE-CLOSING OPERATIONS..................................................................................37
5.2. NEGATIVE COVENANTS OF THE INTERGEN ENTITIES.............................................................38
5.3. KEY EMPLOYEES...........................................................................................39
5.4. ACCESS..................................................................................................39
5.5. TRANSFER TAXES..........................................................................................39
5.6. FURTHER INFORMATION.....................................................................................39
5.7. CONSULTATION............................................................................................40
5.8. TAX ACCESS, ASSISTANCE AND FILINGS......................................................................40
5.9. NOTIFICATION............................................................................................40
5.10. CO-OPERATION BY INTERGEN..............................................................................40
5.11. ACQUISITION TRANSACTIONS..............................................................................41
5.12. SOLICITATION OF LIMITED PARTNERS......................................................................41
5.13. EXPENSE REIMBURSEMENT.................................................................................41
5.14. HSR ACT FILINGS.......................................................................................42
6. COVENANTS OF SEROLOGICALS..................................................................................43
6.1. MAINTENANCE OF BOOKS AND RECORDS........................................................................43
6.2. COVENANTS OF SEROLOGICALS...............................................................................43
6.3. NEGATIVE COVENANTS OF SEROLOGICALS......................................................................43
6.4. NOTIFICATION............................................................................................43
6.5. DIRECTORS' AND OFFICERS' INDEMNIFICATION AND INSURANCE..................................................43
6.6. LIMITATION ON CUSTOMER CONTACT..........................................................................44
6.7. INSURANCE NON-DISCRIMINATION............................................................................44
6.8. HSR ACT FILINGS.........................................................................................44
7. CONDITIONS TO INTERGEN'S OBLIGATIONS.......................................................................44
7.1. REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING DATE.....................................................44
7.2. REQUIRED GOVERNMENTAL APPROVALS.........................................................................45
7.3. LITIGATION..............................................................................................45
7.4. NO ORDER, DECREE OR INJUNCTION..........................................................................45
7.5. REQUIRED CONSENTS.......................................................................................45
7.6. OTHER CLOSING DELIVERIES................................................................................45
7.7. DETERMINATION OF ALLOCATION.............................................................................45
7.8. REQUIRED GOVERNMENTAL APPROVALS.........................................................................45
7.9. DETERMINATION OF PROJECT COST...........................................................................46
8. CONDITIONS TO SEROLOGICALS' OBLIGATIONS....................................................................46
8.1. REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING DATE.....................................................46
8.2. NO ADVERSE CHANGE.......................................................................................46
8.3. LITIGATION..............................................................................................46
8.4. OPINION OF COUNSEL TO INTERGEN AND THE PARTNERS.........................................................46
8.5. REQUIRED GOVERNMENTAL APPROVALS.........................................................................47
8.6. NO ORDER, DECREE OR INJUNCTION..........................................................................47
8.7. PAYMENT OF EXISTING INDEBTEDNESS AND RELEASE OF LIENS...................................................47
8.8. OTHER NECESSARY CONSENTS................................................................................47
8.9. OTHER CLOSING DELIVERIES................................................................................47
8.10. TRADENAME.............................................................................................48
8.11. REQUIRED CONSENTS.....................................................................................48
8.12. REQUIRED GOVERNMENTAL APPROVALS.......................................................................48
8.13. EFFECTIVENESS OF TERMINATION AGREEMENTS...............................................................48
8.14. GUARANTY..............................................................................................48
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8.15. DETERMINATION OF ALLOCATION...........................................................................48
8.16. RESIGNATIONS..........................................................................................48
8.17. DETERMINATION OF PROJECT COST.........................................................................48
9. CLOSING....................................................................................................48
10. INDEMNIFICATION............................................................................................49
10.1. SURVIVAL..............................................................................................49
10.2. BY THE PARTNERS.......................................................................................49
10.3. BY SEROLOGICALS.......................................................................................51
10.4. INDEMNIFICATION PROCEDURE.............................................................................53
10.5. NO IMPLICATIONS.......................................................................................54
10.6. NET PAYMENTS..........................................................................................54
11. TERMINATION PRIOR TO CLOSING; SPECIFIC PERFORMANCE.........................................................54
11.1. TERMINATION OF AGREEMENT..............................................................................54
11.2. TERMINATION OF OBLIGATIONS............................................................................55
11.3. SPECIFIC PERFORMANCE..................................................................................55
12. MISCELLANEOUS..............................................................................................55
12.1. ENTIRE AGREEMENT......................................................................................55
12.2. PARTIES BOUND BY AGREEMENT; SUCCESSORS AND ASSIGNS....................................................55
12.3. COUNTERPARTS..........................................................................................56
12.4. HEADINGS..............................................................................................56
12.5. MODIFICATION AND WAIVER...............................................................................56
12.6. NOTICES...............................................................................................56
12.7. ADVISORS' FEES AND EXPENSES...........................................................................57
12.8. GOVERNING LAW; CONSTRUCTION...........................................................................57
12.9. PUBLIC ANNOUNCEMENTS..................................................................................58
12.10. KNOWLEDGE.............................................................................................58
12.11. NO THIRD-PARTY BENEFICIARIES..........................................................................58
12.12. REFERENCES............................................................................................58
12.13. SEVERABILITY..........................................................................................58
12.14. PLANNING ACT..........................................................................................58
12.15. ARBITRATION...........................................................................................58
12.16. SCHEDULES.............................................................................................59
LIST OF SCHEDULES
1.1(m) Equipment Lease Obligations
1.1(w) Lien Proceedings
1.1(ee) Severance Payments
3.1(a) Counties and States Where Intergen Conducts Business
3.1(b) Purchase Commitments
3.1(c) Partnership Agreement
3.1(d) Officers of Intergen
3.1(e)(i) Partners of Intergen
3.1(e)(ii) Distribution of Profits and Merger Consideration
3.1(f) Required Approvals
3.2 Conflicts
3.3 Issuance or Redemption of Partnership Interests
3.5 Financial Statements
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3.6 Undisclosed Liabilities
3.7 Licenses and Permits
3.8(a) List of Personal Property
3.8(b)(i) Liens on Assets
3.8(b)(ii) Outstanding Financing Statements
3.8(c) Assets Not Located at Principal Place of Business
3.8(d) Commitments to Purchase and Sell Assets
3.9(a) Leased Real Property
3.9(b) Owned Real Property
3.9(b)(i) Third Party Interest in Owned Real Property
3.9(b)(vii) Contracts Related to Real Property
3.9(b)(xii) Material Defects in Owned Real Property
3.10(a) Required Consents
3.10(b) Required Notices
3.11 Indebtedness
3.12(a) Proprietary Rights
3.12(b) Infringement
3.12(c) Patents and Registrations
3.12(d) Licensed Proprietary Rights
3.13(b) Terms and Conditions of Warranties
3.15 Legal Proceedings of Intergen
3.16 Employee Benefit Plans
3.17 Labor Relations
3.18 Environmental, Health and Safety Matters
3.19 Insurance Policies
3.20(a) Contracts
3.20(b) Services by Insiders
3.20(c) Contracts Related to the Project
3.21 Certain Changes and Events
3.22(b) Tax Payments
3.22(c) Deficiencies in Tax Reserve
3.22(f) Tax Audits
3.22(h) Tax Extensions
3.22(m) Tax Attribute List
3.22(o) Partner or Member of an Affiliated Group
3.22(s) Foreign Persons
3.22(t) United States Property Interest
3.22(v) Arms Length Standards
3.22(w) Canadian Tax Standards
3.22(x) Foreign Tax Filings
3.23 Customer Notice
3.24 Employee Resignations
3.25 Conflicts of Interest
3.26 Brokers' and Finders' Fees
4.2 Conflicts
4.3 Brokers' and Finders' Fees
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4.4 Legal Proceedings of Serologicals
8.7 Indebtedness to be Repaid
8.8 Required Consents
LIST OF EXHIBITS
Exhibit A Consent of Limited Partners and Appointment of Partners'
Representative
Exhibit B Earnout Agreement
Exhibit C Escrow Agreement
Exhibit D Form of Opinion of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
Exhibit E Form of Opinion of Post & Xxxxxxx LLP
Exhibit F Form of Opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
Exhibit G Form of Opinion of Xxxxx Xxxxxxx & Xxxxxxxxx LLP
Exhibit H Guaranty
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PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER, dated as of the 5th day of
November, 2001, is by and among Serologicals Corporation, a Delaware
corporation ("Serologicals"); Intergen Company L.P., a Delaware limited
partnership ("Intergen"); Serocor Incorporated, a Delaware corporation ("Sub");
and Intergen Investors L.P., a Delaware limited partnership (the "General
Partner").
WITNESSETH:
WHEREAS, Intergen is engaged in the business of developing and
commercializing certain biopharmaceutical and diagnostic products (the
"Intergen Business");
WHEREAS, Intergen, Serologicals, Sub and the General Partner desire to
enter into this Agreement pursuant to which Intergen will be merged with and
into Sub and Sub shall be the surviving entity (the "Merger");
WHEREAS, Intergen, Serologicals and Sub desire to make certain
representations, warranties and agreements in connection with the Merger;
WHEREAS, concurrent with the execution and delivery of this Agreement,
limited partners of Intergen (the "Limited Partners") holding more than 50% of
the interest of all the limited partners of Intergen in the profits of Intergen
have executed and delivered a consent in the form attached as Exhibit A (the
"Partners' Consent"); and
WHEREAS, in accordance with the provisions of the Partnership
Agreement (as hereinafter defined) and Section 17-211 of the Delaware Revised
Uniform Limited Partnership Act (the "DRULPA") all of the general partners of
Intergen and limited partners holding more than 50% of the interest of all
limited partners in the profits of Intergen have authorized the Merger.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein, and on the terms and subject to the
conditions herein set forth, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS.
1.1. Definitions. When used herein the following terms
have the meanings set forth below:
(a) "Acquisition Transaction" shall mean (i)
any tender offer, exchange offer, merger, consolidation, share
exchange, joint venture, business combination or similar transaction
involving Intergen or any Intergen Entity (which transaction involves
substantially all of the assets and operations of Intergen as a
whole); (ii) any transaction pursuant to which any third party
acquires all of the outstanding Partnership Interests or all of the
outstanding equity interest in any Intergen Entity (that
constitutes substantially all of the assets or operations of Intergen
as a whole); or (iii) any transaction pursuant to which any third
party acquires all or substantially all of the assets of Intergen or
any Intergen Entity (that constitutes substantially all of the assets
or operations of Intergen as a whole).
(b) "Affiliate" shall mean with respect to any
person, (i) if such person is an individual, any relative of such
person and (ii) if such person is a corporation, partnership, limited
liability company, trust or other entity, then as defined in Rule
12b-2 promulgated under the Securities Exchange Act of 1934, as
amended.
(c) "Agreement" shall mean this Plan and
Agreement of Merger, including all exhibits and schedules hereto, as
it may be amended from time to time in accordance with its terms.
(d) "Applicable Limitation Date" shall mean
December 31, 2002.
(e) "Basket" shall mean an amount equal to the
product of (i) 1% and (ii) an amount equal to the Merger Consideration
less the aggregate of (A) the Debt Repayment, (B) the Project Cost and
(C) the Termination Payments.
(f) "Business" shall mean the Intergen Business
and all other operations, business or activities of the Intergen
Entities as of the date hereof or entered into by, commenced by, or
commenced for the benefit of the Intergen Entities prior to the
Closing Date.
(g) "Code" shall mean the Internal Revenue Code
of 1986, as amended.
(h) "Contract" or "Contracts" shall mean all
(i) contracts, agreements and instruments (written or oral) relating
to the sale of any inventory, assets, goods, services, properties,
materials or products, including all customer contracts, operating
contracts, and sales contracts; (ii) orders, contracts, supply
agreements and other agreements relating to the purchase of any
assets, services, properties, materials or products; and (iii) other
contracts, agreements, arrangements, undertakings, understandings, and
instruments (written or oral).
(i) "Debt Repayment" shall mean that amount
necessary (i) to pay in full all principal, interest, break fees,
prepayment penalties, fees and expenses and other like amounts due and
payable by any Intergen Entity with respect to the indebtedness for
borrowed money described on Schedule 8.7 and (ii) to fully discharge
all Liens related to such indebtedness and all other Liens (other than
Permitted Liens) encumbering any assets or properties of the Intergen
Entities, including all assets and properties used in the operation of
the Business.
(j) "Dollars" or "$" shall mean United States
Dollars, unless otherwise indicated.
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(k) "Environmental, Health and Safety
Requirements" shall mean all federal, state, provincial, local and
foreign statutes, regulations, ordinances, codes, policies,
guidelines, standards and other provisions, in all cases having the
force or effect of law, all judicial and administrative orders and
determinations, all contractual obligations and all common law
concerning public health and safety, worker health and safety, and
pollution or protection of the environment applicable to the Intergen
Entities, including without limitation all those relating to the
presence, use, production, generation, handling, transportation,
treatment, storage, disposal, distribution, labeling, testing,
processing, discharge, release, threatened release, control, or
cleanup of any Hazardous Materials each as amended and as now or
hereafter in effect.
(l) "ERISA Affiliate" shall mean any trade or
business (whether incorporated or unincorporated) which is a member of
a group described in Section 414(b), (c), (m) or (o) of the Code, of
which Intergen also is a member.
(m) "Equipment Lease Obligations" shall mean
those obligations to financial institutions, lessors or other lenders
arising from the lease of equipment (whether capitalized or not) by
any Intergen Equity, as set forth on Schedule 1.1(m).
(n) "GAAP" shall mean generally accepted
accounting principles as in force in the United States of America at
the date of the determination thereof.
(o) "Governmental Authority" shall mean any
nation, or political subdivision thereof, or any agency, court or body
of any such governmental authority exercising executive, legislative,
judicial, regulatory or administrative functions.
(p) "Hazardous Material" shall mean any waste,
pollutant, hazardous substance, toxic, ignitable, reactive or
corrosive substance, hazardous waste, special waste, industrial
substance, by-product, process intermediate product or waste,
petroleum or petroleum-derived substance or waste, chemical liquids or
solids, liquid or gaseous products, any biological, biomedical or
medical products, substance, or waste, or any constituent of any such
substance or waste, the use, handling or disposal of which is in any
way governed by or subject to any Environmental, Health and Safety
Requirements.
(q) "Intergen Entities" shall mean,
collectively, Intergen and all of its wholly or partially owned
subsidiaries and each individually shall be referred to from time to
time as an "Intergen Entity."
(r) "Liens" shall mean any mortgage, pledge,
security interest, encumbrance, restriction, lien, limitation, or
charge of any kind or nature (including, without limitation, any
conditional sale or other title retention agreement or lease in the
nature thereof), any sale of receivables with recourse against
Intergen, any filing or agreement to file a financing statement as
debtor under the Uniform Commercial Code or any similar statute, or
any subordination arrangement in favor of any person.
(s) "Merger Consideration" shall mean
$45,000,000.
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(t) "Ordinary Course of Business" shall mean
the ordinary course of business consistent with past practice
(including, without limitation, with respect to collection of accounts
receivable, purchases of supplies, repairs and maintenance, payment of
accounts payable and accrued expenses, terms of sale, levels of
capital expenditures, and operation of cash management practices
generally).
(u) "Partnership Agreement" shall mean that
certain First Amended and Restated Agreement of Limited Partnership of
Intergen Company L.P., made as of December 3, 1987, as amended through
the seventh amendment to Agreement of Limited Partnership of Intergen
Company L.P. dated October 31, 1997.
(v) "Partnership Interests" shall mean,
collectively, all general partnership, limited partnership, and all
other equity interests in, or options, agreements, contracts,
warrants, or rights to purchase or receive any equity interest in
Intergen.
(w) "Permitted Liens" shall mean (i) taxes,
assessments and other governmental fees or other charges levied and
not yet due and payable as of the Closing Date or which are reasonably
being contested in an appropriate proceeding described on Schedule
1.1(w); (ii) mechanic's, construction and similar statutory Liens
arising or incurred in the Ordinary Course of Business that are not
registered or recorded for amounts which are not delinquent and which
would not, individually or in the aggregate, have a material adverse
effect on the assets or operations of any Intergen Entity or the
Business or which are reasonably being contested in an appropriate
proceeding described on Schedule 1.1(w); (iii) present and future
zoning, entitlement, building and other land use and similar laws or
regulations imposed by any Governmental Authority now or hereafter
having jurisdiction over real property that are not violated by the
current use and operation thereof; (iv) easements, covenants,
conditions, restrictions and other similar matters of record affecting
title to real property that would not materially impair the use or
occupancy of such real property in the operation of the Business or
any Intergen Entity, provided such easements, covenants, conditions,
restrictions and other matters of record have been complied with; (v)
other imperfections of title or encumbrances, if any, that,
individually or in the aggregate, do not impair the use or value of
the property to which they relate; (vi) any Liens pursuant to any
Equipment Lease Obligation; and (vii) any interest evidenced by the
financing statements listed on Schedule 3.8(b)(ii).
(x) "Person" shall mean an individual, a
partnership, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization or a
Governmental Authority.
(y) "Project" shall mean the expansion project
at the Intergen plant located at 00 Xxxx Xxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxx.
(z) "Project Cost" shall mean the United States
Dollar equivalent of the amount determined in accordance with Section
2.9. The United States dollar equivalent of such amount shall be based
on the average currency exchange rate of Canadian Dollars to United
States Dollars based upon the noon buying rate in the City of
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New York for cable transfers in foreign currencies as announced by the
Federal Reserve Bank of New York for customs purposes on the business
day prior to the Closing Date.
(aa) "Project Plans" shall mean the detailed
blueprints, drawings and specifications for the Project provided to
Serologicals prior to the date of this Agreement.
(bb) "Proprietary Rights" means any and all (i)
patents, patent applications, patent disclosures, as well as any
reissues, continuations, continuations-in-part, divisions, extensions
or reexaminations thereof, (ii) trademarks, service marks, trade
dress, trade names, logos, and corporate names and registrations and
applications for registration thereof, together with all of the
goodwill associated therewith, (iii) copyrights (registered or
unregistered) and copyrightable works and registrations and
applications for registration thereof, (iv) mask works and
registrations and applications for registration thereof, (v) computer
software, data, data bases, and documentation thereof, (vi) trade
secrets and other confidential information (including, without
limitation, ideas, formulas, compositions, inventions (whether
patentable or unpatentable and whether or not reduced to practice),
know-how, manufacturing and production processes and techniques, if
any, research and development information, drawings, specifications,
designs, plans, proposals, technical data, financial and marketing
plans, and customer and supplier lists and information), (vii) other
intellectual property rights, (viii) copies and tangible embodiments
thereof (in whatever protectable form or medium), and (ix) license
agreements related thereto.
(cc) "Tax" or "Taxes" shall mean all taxes
attributable to any Intergen Entity or for which any Intergen Entity
may have liability including any premiums, taxes, assessments,
charges, duties, fees, levies or other governmental charges (including
interest, penalties or additions associated therewith) including
federal, state, provincial, city, county, foreign or other income,
branch, franchise, capital, capital stock, real property, ad valorem,
personal property, tangible, withholding, FICA, unemployment
compensation, disability, employment insurance, Canada or Quebec
pension plan, transfer, sales, use, goods and services, excise, gross
receipts and all other taxes and governmental charges of any kind
imposed by the United States, Canada or any state, province, county,
city, country or foreign government or subdivision or agency thereof,
whether disputed or not.
(dd) "Tax Return" shall mean any return,
declaration, report, claim for refund, or information return or
statement relating to Taxes, including any schedule or attachment
thereto, and including any amendment thereof.
(ee) "Termination Payments" shall mean the sum
of the following: (i) the payments to be made to Xxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxx pursuant to the termination agreements, each dated
November 5, 2001, between them and Intergen (the "Termination
Agreements"); (ii) bonuses due the participants in Intergen's "4%
Bonus Pool", listed on Schedule 1.1(ee), upon the consummation of the
Merger; (iii) bonuses due to the participants in Intergen's "2% Bonus
Pool", listed on Schedule 1.1(ee), upon the consummation of the
Merger.
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(ff) "WARN" shall mean the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. ss. U.S.C. ss. 2101, et seq.
1.2. Cross Reference. The following terms are defined in
the following Sections of this Agreement:
Term Section
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Accounting Firm 2.7
Advisor Fees 12.7
Allocation 2.7
Audited Balance Sheet 3.5
Audited Financial Statements 3.5
Biberon Agreement 3.16(a)
Break-up Fee 5.13
Cameron 10.2(a)(iv)(C)
Cameron Agreement 10.2(a)(iv)(C)
Canadian Tax Basis 3.22(m)
Canadian Tax Withholding Amount 2.8
Certificate of Merger 2.2
Closing 9
Closing Date 9
Consent 8.8
Xxx 10.2(a)(iv)(E)
Xxx Agreement 10.2(a)(iv)(E)
DGCL 2.1
DRULPA Recitals
Earnout Agreement 7.6(c)
Earnout Payments 2.5(b)
Effective Time 2.2
Employee Benefit Plans 3.16(a)
ERISA 3.16(a)
Escrow Agreement 7.6(d)
Escrow Fees 2.5(a)
FDA 3.7(a)
Financial Statements 3.5
General Partner First Paragraph
Guarantor Recitals
HSR Act 4.2
IBC 2.8
Immaterial Contracts 3.20(a)
Indemnified Party 10.4(a)
Indemnifying Party 10.4(a)
Intergen First Paragraph
Intergen Business Recitals
Intergen Losses 10.3(a)
Intergen Protected Parties 10.3(a)
Interim Balance Sheet 3.5
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Interim Balance Sheet Date 3.5
Interim Financial Statements 3.5
ITA 3.22(u)
Leased Real Property 3.9(a)
Letter Agreement 5.4
Licenses 3.7(b)
Limited Partners Recitals
Losses 10.3(a)
Merger Recitals
Notices 3.10(b)
Owned Real Property 3.9(b)
Partner 2.6(a)
Partners' Consent Recitals
Project Contracts 3.20(c)
Real Estate Permits 3.9(b)(vi)
Real Property Leases 3.9(a)
Remittance Day 2.8
Schedules 12.16
Serologicals First Paragraph
Serologicals Loss 10.2(a)
Serologicals Protected Parties 10.2(a)
Sub First Paragraph
Surviving Corporation 2.3(a)
Xxxxxx 10.2(a)(iv)(D)
Xxxxxx Agreement 10.2(a)(iv)(D)
Termination Agreements 1.1(ee)
U.S. Tax Basis 3.22(m)
2. EFFECTS OF THE MERGER AND CONVERSION OF INTERESTS
2.1. Merger. Subject to the terms and conditions of this
Agreement, the Certificate of Merger, the Delaware General Corporation Law
("DGCL") and the Delaware Revised Uniform Limited Partnership Act (the
"DRULPA") at the Effective Time, Intergen will be merged with and into Sub in
accordance with the applicable provisions of the DGCL and the DRULPA and the
separate existence of Intergen will thereupon cease.
2.2. Filing of Certificate of Merger/Effective Time. On
the Closing Date, as soon as practicable after satisfaction or waiver of all
conditions to the Merger, Sub and Intergen shall cause a Certificate of Merger
complying with the requirements of the DGCL and the DRULPA to be filed with the
Secretary of State of the State of Delaware ("Certificate of Merger"). The
Merger will become effective upon the filing of the Certificate of Merger, or
at such later time as shall be specified in the Certificate of Merger
("Effective Time").
2.3. Effect of Merger. The Merger will have the effects
specified in the DGCL and the DRULPA. Without limiting the generality of the
foregoing:
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(a) Sub will be the surviving entity in the
Merger (sometimes hereinafter referred to as the "Surviving
Corporation") and will continue to be governed by the laws of the
State of Delaware, and the separate corporate existence of Sub and all
of its rights, privileges, powers and franchises, public as well as
private, and all of its debts, liabilities and duties as a corporation
organized under the DGCL, will continue unaffected by the Merger.
(b) The certificate of incorporation and bylaws
of Sub in effect immediately prior to the Effective Time shall be the
certificate of incorporation and bylaws of the Surviving Corporation,
until amended in accordance with applicable law.
(c) The directors and officers of Sub
immediately prior to the Effective Time will be the directors and
officers, respectively, of the Surviving Corporation, from and after
the Effective Time, until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or
removal in accordance with the terms of the Surviving Corporation's
certificate of incorporation and bylaws and the DGCL.
2.4. Additional Actions. If, at any time after the
Effective Time, the Surviving Corporation shall consider or be advised that any
further deeds, assignments or assurances in law or any other acts are necessary
or desirable to (i) vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties or assets of Intergen, or (ii) otherwise carry out the
purposes of this Agreement, Intergen and its officers and Partners shall be
deemed to have granted to the Surviving Corporation an irrevocable power of
attorney to execute and deliver all such deeds, assignments or assurances in
law or any other acts as are necessary or desirable to (y) vest, perfect or
confirm, of record or otherwise, in the Surviving Corporation its right, title
or interest in, to or under any of the rights, properties or assets of Intergen
or (z) otherwise carry out the purposes of this Agreement, in all cases
consistent with the terms of this Agreement.
2.5. Conversion of Partnership Interests. Subject to the
provisions of Section 2.6, at the Effective Time all Partnership Interests,
without any further action on the part of Sub, Serologicals, Intergen or of any
holder of any Partnership Interest, shall be converted into the right to
receive in the aggregate:
(a) an amount equal to the (i) the Merger
Consideration less (ii) the aggregate of (A) the Project Cost, (B) the
Termination Payments, (C) the Debt Repayment, (D) the Advisor Fees,
and (E) one half of the fees to be paid to the Escrow Agent (as
defined in the Escrow Agreement) upon execution of the Escrow
Agreement as set forth in Exhibit B to the Escrow Agreement (the
"Escrow Fees"); and
(b) the earnout payments (if any) to be paid
pursuant to and as set forth in the Earnout Agreement (the "Earnout
Payments"),
allocated among the General Partner and limited partners in the aggregate in
accordance with Schedule 3.1(e)(ii) with such amounts allocated to the limited
partners being distributed among
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such limited partners in accordance with the limited partners' percentage
ownership set forth on Schedule 3.1(e)(i).
2.6. Closing Payments. At Closing, Serologicals shall
pay:
(a) subject to the provisions of Section 2.8,
to each holder of Partnership Interests (any such holder being a
"Partner") (or such other person as such holder shall designate in
writing) such holder's portion (determined in accordance with the
allocation shown on Schedule 3.1(e)(ii)) of an amount equal to (i) the
Merger Consideration less (ii) the aggregate of (A) the Project Cost,
(B) the Termination Payments, (C) the Debt Repayment, (D) the Advisor
Fees, and (E) one half of the Escrow Fees;
(b) to the entities named in Schedule 8.7, the
amount required to effect the Debt Repayment;
(c) to those persons named on Schedule 1.1(ee),
the Termination Payments in the amounts set forth on Schedule 1.1(ee);
(d) to those advisors, investment bankers,
attorneys, accountants, or other agents of any Partner or any Intergen
Entity identified by Intergen or the General Partner to Serologicals,
in writing not less than two days prior to Closing, such amount of
Advisor Fees (as hereinafter defined) as set forth in such writing,
for the account of Intergen and the Partners; and
(e) to the Escrow Agent, the Escrow Fees.
2.7. Allocation of Purchase Price.
(a) In determining the amounts realized by
Intergen and Serologicals' cost basis in the assets of Intergen
acquired pursuant to the Merger and for all purposes under Section
1060 of the Code, the parties shall use the agreed upon fair market
values of such assets as agreed to in writing by Serologicals and
Intergen prior to closing. In the event that Intergen and Serologicals
are unable to agree on the fair market value of the assets of Intergen
acquired pursuant to the Merger, Serologicals and Intergen shall
engage PricewaterhouseCoopers LLP (the "Accounting Firm") to make such
determination (the final determination of the fair market value of the
assets pursuant to this Section 2.7 being referred to as the
"Allocation"). The Accounting Firm shall determine the fair market
value of the assets in a manner that the Accounting Firm deems
appropriate, based on the professional judgment of the Accounting
Firm. The determination by the Accounting Firm shall be final and
binding on each of the parties hereto. The cost of the Accounting Firm
shall be borne equally by Serologicals and Intergen, with Intergen's
half of such fees being deemed Advisor Fees within the meaning of
Section 12.7 of this Agreement.
(b) Serologicals and the General Partner agree
to report an allocation of the Merger Consideration and the Earnout
Payments (if any) in a manner consistent with the Allocation, and
agree to act in accordance with the Allocation in the preparation
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and filing of Tax Returns (including, without limitation, the filing
of Form 8594 with its U.S. Federal income tax return for the taxable
year that includes the date of Closing) and in the course of any Tax
audit, Tax review or Tax litigation relating thereto.
2.8. Section 116. Notwithstanding anything in this
Agreement to the contrary, Serologicals shall withhold from the payment of the
Merger Consideration to be made pursuant to Section 2.6(a) an amount (the
"Canadian Tax Withholding Amount") equal to 25% of the portion of the Merger
Consideration to be allocated to the shares of Intergen Biomanufacturing
Corporation ("IBC"). Serologicals agrees that it will not remit the Canadian
Tax Withholding Amount to the Canadian Tax authority prior to the day (the
"Remittance Day") that is the thirtieth day of the first calendar month
immediately following the Closing Date (as hereinafter defined). If
Serologicals, receives prior to the business day immediately preceding the
Remittance Day, the purchaser's copy of a certificate issued under Section 116
of the ITA (as hereinafter defined) with respect to the disposition of the
shares of IBC in a form and substance satisfactory to Serologicals,
Serologicals shall forthwith deliver the Canadian Tax Withholding Amount in the
manner provided in Section 2.6(a).
2.9. Determination of Project Cost. Not less than two
Business Days prior to the Closing Date, Serologicals and Intergen shall agree
upon the amount required to complete the construction, commissioning and
equipping of the Project. Such amount shall be determined by subtracting from
Cdn $16,418,141 the amount of any payments (inclusive of any amounts
representing Canadian value added tax refundable to Intergen as a result of
such payments) made by Intergen through the Closing Date with respect to the
construction, commissioning and equipping of the Project.
2.10. Earnout Technologies. In connection with the Merger,
and without any further action on the part of Sub, Serologicals, Intergen or
any Partner, the Earnout Technologies (as defined in the Earnout Agreement)
shall be transferred, at the Effective Time, directly in the Surviving
Corporation, to the extent such Earnout Technologies are directly owned by
Intergen (or any entity owned by Intergen that is disregarded entity for US
federal tax purposes) prior to the Effective Time, as a result of the
provisions of Section 259 of the DGCL and Section 17-211 of the DRULPA in
consideration for the right to receive Technology Earnout Payments (as defined
in the Earnout Agreement). For the avoidance of doubt, Surviving Corporation
shall own all rights, title and interest in the Earnout Technologies at the
Effective Time, notwithstanding whether any Technology Earnout Payments have
been or will be made. The provisions of this Section 2.10 shall not in any
manner amend, modify, limit, or extend the provisions of any other Section of
this Agreement, including, without limitation, Section 2.3 or the provisions of
Section 259 of the DGCL or Section 17-211 of the DRULPA.
3. REPRESENTATIONS AND WARRANTIES REGARDING INTERGEN. Intergen
hereby represents and warrants to Serologicals and Sub as follows.
3.1. Organization, Power and Authority.
(a) Intergen is a limited partnership, duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Schedule 3.1(a) sets forth an accurate and complete
list of all Intergen Entities and their states or places of
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incorporation or organization. Each Intergen Entity is duly organized,
validly existing and in good standing under the laws of its state or
place of incorporation or organization. Each Intergen Entity has all
requisite or other power and authority to carry on and conduct its
respective business as it is now being conducted and to own or lease
its respective properties and assets, and, except as set forth on
Schedule 3.1(a), is duly qualified and in good standing in every state
of the United States or province of Canada in which the conduct of its
respective business or the ownership of such properties and assets
requires it to be so qualified. A list of counties, states and
countries in which each Intergen Entity currently conducts or, in the
past five years, has conducted business is set forth on Schedule
3.1(a). Intergen is the beneficial and record holder of all of the
issued and outstanding capital stock or other equity interests of each
Intergen Entity, other than Intergen.
(b) Except as set forth on Schedule 3.1(b), no
Intergen Entity has any interest, direct or indirect, or commitment to
purchase any interest, direct or indirect, in any corporation or in
any partnership, joint venture or other business enterprise or entity.
(c) Attached hereto as Schedule 3.1(c) is a
correct and complete copy of the Partnership Agreement, which reflects
all amendments made thereto at any time before the date hereof.
Intergen has delivered or made available to Serologicals copies of the
minutes of the meetings of the partners of Intergen which are the
complete, true and correct records of partners' meetings and reflect
all transactions required to be contained in such records, pursuant to
the applicable provisions of the DRULPA and the Partnership Agreement.
Intergen has also delivered or made available to Serologicals true and
correct copies of all articles of incorporation, charters, bylaws and
similar governing documents and all minutes for all meetings of
directors, stockholders and similar interest holders for each Intergen
Entity.
(d) The current officers of the Intergen
Entities are listed on Schedule 3.1(d).
(e) The current partners of Intergen together
with their respective Partnership Interests are listed on Schedule
3.1(e)(i). The General Partner is the sole general partner (within the
meaning of the Partnership Agreement and the DRULPA) of Intergen and
the Limited Partners are limited partners (within the meaning of the
Partnership Agreement and the DRULPA) holding more than 50% of the
interest of all the limited partners of Intergen in the profits of
Intergen. The General Partner has acted and will continue to act as
the Tax Matters Partner (as defined in the Code) of the Intergen.
Schedule 3.1(e)(ii) sets forth the appropriate allocation of the
Merger Consideration and the Earnout Payments to the General Partner
and limited partners in the aggregate and the amounts allocated to the
limited partners are distributed among such limited partners in
accordance with the limited partners' percentage ownership set forth
on Schedule 3.1(e)(i).
(f) Subject to receipt of approvals described
on Schedule 3.1(f), Intergen has all requisite limited partnership
power and authority to enter into this Agreement and each other
document contemplated hereby to be executed by Intergen.
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Except as set forth on Schedule 3.1(f), the execution, delivery and
performance of this Agreement by Intergen and the consummation by
Intergen of the transactions contemplated herein have been duly
authorized by all necessary limited partnership action on the part of
Intergen and the Partners. This Agreement and each other document
contemplated hereby have been (or when executed, will be) duly
executed and delivered by Intergen and constitute, or when executed
and delivered by Intergen (assuming that each other party thereto
executes and delivers such agreements) will constitute, the legal,
valid and binding agreement of Intergen, enforceable against Intergen
in accordance with its terms except as such enforceability may be
affected by bankruptcy, insolvency or similar laws affecting
creditors' rights and by judicial discretion in the enforcement of
equitable remedies.
3.2. No Conflict. Except as set forth on Schedule 3.2,
the execution and delivery of this Agreement by Intergen, the consummation of
the transactions contemplated herein by Intergen, and the performance of the
covenants and agreements of Intergen contained herein will not, with or without
the giving of notice or the lapse of time, or both, (i) violate or conflict
with any of the provisions of the Partnership Agreement or any governing
documents of any Intergen Entity, (ii) violate or conflict with any option,
right of first refusal or any similar right to purchase any Partnership
Interest or any other interest in Intergen, (iii) violate, conflict with or
result in a breach or default or loss of rights under, result in, cause or
create any liability, reassessment or revaluation of assets, or Lien pursuant
to or cause the termination or acceleration of or give any third party the
right to modify, terminate, or accelerate any obligation under any term or
condition of any indenture, mortgage, lease, loan agreement, license, permit,
contract, agreement or instrument to which any Intergen Entity, is a party or
by which any Intergen Entity, or any of their respective properties may be
bound, (iv) violate or conflict with any law, ordinance, rule, order, judgment,
decree or ruling of any Governmental Authority applicable to any Intergen
Entity or any of their respective assets or properties, (v) result in the
creation or imposition of any Lien (other than a Permitted Lien) upon any
assets or properties of Intergen, or (vi) except for approval pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), require any authorization, consent, approval, exemption, or other action
by or notice or declaration to or filing with, any court or administrative or
other governmental body or agency.
3.3. Partnership Interest. Schedule 3.1(e)(i) sets forth
a complete and accurate listing of all general and limited partners of Intergen
or any other Person with any equity or other interest in Intergen. Except as
set forth on Schedule 3.3 and except for this Agreement, no Intergen Entity is
bound by any subscriptions, options, warrants, calls, contracts, demands,
commitments, understandings or other agreements requiring any Intergen Entity
to issue or entitling any person or entity to acquire any additional
Partnership Interests or other equity interest in any Intergen Entity,
including any right of conversion or exchange under any outstanding security or
other instrument, and under which any Intergen Entity is obligated to issue any
equity or similar interest for any purpose. Other than as described on Schedule
3.3, no former or present holder of any Partnership Interests, any interest
therein or any capital stock or equity interest of any Intergen Entity has any
legal claim against Intergen based on any issuance, sale, purchase, redemption
or involvement in any transfer of any Partnership Interest by Intergen or
capital stock or equity interest in any Intergen Entity. Intergen does not have
outstanding any obligations to repurchase, redeem or otherwise acquire any
outstanding Partnership Interest.
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There are no voting trusts, proxies or any other similar agreements or
understandings with respect to the Partnership Interests.
3.4. Transfer Claims. No prior offer, issue, redemption,
call, purchase, sale, transfer, negotiation or other transaction of any nature
or kind with respect to any Partnership Interest or any capital stock or other
equity interest in any Intergen Entity (including shares, offers, options,
warrants or debt convertible into Partnership Interests) of Intergen has given
or would reasonably be likely to give rise to any valid claim or action by any
person which is enforceable against Intergen, and no fact or circumstance
exists which would reasonably be likely to give rise to any such right, claim
or action on behalf of any person. With respect to all issuances, transfers or
purchases of Partnership Interests, all have been performed in compliance with
all applicable agreements and all applicable laws, including federal and state
securities laws, none have been in violation of any pre-emptive or similar
right and all Taxes thereon have been paid.
3.5. Financial Statements. Schedule 3.5 contains
Intergen's audited consolidated balance sheets as of December 31, 1999 and
December 31, 2000 and the related audited consolidated statements of
operations, statements of partners' equity and statements of cash flows for the
years ended December 31, 1999 and December 31, 2000 (the "Audited Financial
Statements"), and Intergen's unaudited consolidated balance sheet dated as of
September 30, 2001 (the "Interim Balance Sheet Date"), and the related
unaudited consolidated statement of operations and statement of cash flows for
the nine month period ending on September 30, 2001 (the "Interim Financial
Statements" and, together with the "Audited Financial Statements," collectively
the "Financial Statements"). The Audited Financial Statements have been
prepared in accordance with GAAP and present fairly, in all material respects,
the consolidated financial position of Intergen as of the dates thereof, and
the related results of its consolidated operations and its consolidated cash
flows for the years then ended. The Interim Financial Statements have been
prepared in accordance with GAAP (subject to the absence of footnote disclosure
and year-end adjustments, which will not be material either individually or in
the aggregate, except as disclosed on Schedule 3.5), and present fairly, in all
material respects, the consolidated financial position of Intergen as of
September 30, 2001, and the related results of its consolidated operations and
its consolidated cash flows for the nine month period then ended, and are based
on Intergen's books and records which have been kept, and such Interim
Financial Statements have been prepared, in accordance with Intergen's
historical accounting methods, consistently applied. The balance sheet as of
December 31, 2000, included in the Audited Financial Statements is referred to
herein as the "Audited Balance Sheet" and the unaudited balance sheet as of
September 30, 2001 included in the Interim Financial Statements is referred to
herein as the "Interim Balance Sheet."
3.6. No Undisclosed Liabilities. Except as and to the
extent reflected and adequately reserved against in the Interim Balance Sheet
or as shown on Schedule 3.6, as of the Interim Balance Sheet Date, no Intergen
Entity had any debts, liabilities or obligations whatsoever, (whether accrued,
absolute, contingent or otherwise whether or not known, whether due or to
become due and regardless of when asserted) arising out of or relating to the
operation of the Business. Since the Interim Balance Sheet Date, no Intergen
Entity has incurred any debts, liabilities or obligations whatsoever, except
for debts, liabilities and obligations incurred in the Ordinary Course of
Business or as reflected on Schedule 3.6.
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3.7. No Violation of Law; Required Licenses and Permits.
(a) Except with regard to environmental and
occupational health and safety matters, which are addressed
exclusively in Section 3.18 below, the conduct of the Business of each
Intergen Entity has not, since January 1, 1996, violated, and as
presently conducted does not violate, any federal, state, local or
foreign laws, rules, regulations or ordinances, or judgments,
injunctions, writs, decrees, orders or guidance documents and memos of
any Governmental Authority, having the force of law, applicable to the
Intergen Entities, including, but not limited to, the Department of
Transportation, the Health Care Financing Administration and the
United States Food and Drug Administration ("FDA") (collectively, the
"Orders") nor has any Intergen Entity received any notice of any such
violation which remains outstanding except for those violations listed
on Schedule 3.7. No Intergen Entity is subject to any Order currently
in effect.
(b) Except as set forth on Schedule 3.7 and
with regard to environmental and occupational health and safety
matters, which are addressed exclusively in Section 3.18 below, each
Intergen Entity possesses all licenses, permits, consents,
authorizations, registrations and approvals of, with or from all
Governmental Authorities that have jurisdiction over it ("Licenses"),
including all export licenses, FDA Master Files, QPP Certificates or
approvals and occupancy, fire, business and other permits from local
officials, and is in compliance, in all material respects, with the
terms thereof. Schedule 3.7 sets forth a complete and accurate list of
all such Licenses and includes copies of all QPP Certificates.
(c) Each Intergen Entity has adhered, in all
material respects, to standard operating procedures accepted by the
FDA (or, if applicable, any equivalent Governmental Authority in any
jurisdiction outside the United States) and required by its customers
(copies of which standard operating procedures have previously been
delivered to Serologicals) and has properly tested and/or secured
appropriate testing of all blood and plasma products necessary for the
conduct of its Business. Schedule 3.7 includes a true, correct and
complete copy of all recall letters, warning letters and "483s"
received by any Intergen Entity since January 1, 1999.
3.8. Personal Property.
(a) Schedule 3.8(a) sets forth a complete and
accurate list of all personal property used in the operation of the
Business and that has a fair market or book value, on an individual
basis, in excess of $50,000.
(b) Each Intergen Entity has good and valid
title to or a valid leasehold interest in all the tangible and
intangible properties and assets used in the operation of the Business
which are shown or reflected on the Interim Balance Sheet (except for
assets sold after the date thereof in the Ordinary Course of
Business), free and clear of all Liens, except Permitted Liens and
liens set forth on Schedule 3.8(b)(i). The financing statements
described in Schedule 3.8(b)(ii) relate to personal property that is
no longer owned by any Intergen Entity or loans and other obligations
of Intergen Entities pursuant to which no Intergen Entity has any
current or continuing obligation.
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(c) All of the assets and properties used in
the operation of the Business are in reasonably good condition and
repair, normal wear and tear excepted (other than machinery and
equipment under repair or out of service in the Ordinary Course of
Business). All assets and properties exclusive of inventory or raw
materials in transit used in the operation of the Business are in the
Intergen Entities' possession or control, and no other person is
entitled to possession of any such properties and assets, except
pursuant to Permitted Liens and as reflected on Schedules 3.8(b)(i) or
3.11. Schedule 3.8(c) sets forth the location of any assets or
properties used in the operation of the Business that are not located
on the premises of the principal business operations of the Intergen
Entities.
(d) Except as set forth in Schedule 3.8(d),
there are no existing agreements, options, commitments or rights with,
of or to any person to acquire any of the Intergen Entities' assets,
properties or rights or any interests therein other than in the
Ordinary Course of Business.
3.9. Real Property.
(a) Schedule 3.9(a) sets forth the address of
each piece of real property (the "Leased Real Property") leased by any
Intergen Entity and a list of all leases, subleases, amendments,
extensions, renewals and guaranties with respect thereto for each
Leased Real Property to which any Intergen Entity is party (the "Real
Property Leases"). Intergen has delivered or made available to
Serologicals a true and complete copy of each written Real Property
Lease and in the case of any oral Real Property Lease, a written
summary of the terms thereof. With respect to each Real Property
Lease:
(i) each Real Property Lease is
legally valid, binding, enforceable and in full force and
effect with respect to the applicable Intergen Entity, except
as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights and by
general principles of equity that restrict the availability
of equitable remedies;
(ii) no Intergen Entity is, and to the
knowledge of Intergen no other party to the Real Property
Leases is, in material breach or default under the Real
Property Leases beyond applicable cure periods and no event
has occurred and no circumstance exists which, with the
delivery of notice, passage of time or both, would constitute
such a breach or default or permit the termination,
modification or acceleration of rent under any Real Property
Lease;
(iii) no Intergen Entity that is a party
to any Real Property Lease has repudiated any term thereof,
and to the knowledge of Intergen, no other party to any Real
Property Lease has repudiated any term thereof, and, to
Intergen's knowledge, there are no material disputes in
effect with respect to any Real Property Lease;
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(iv) no Intergen Entity has assigned,
subleased, mortgaged, deeded in trust or otherwise
transferred or encumbered any Real Property Lease or any
interest therein, except as set forth in Schedule 3.9(a) or
pursuant to a Permitted Lien; and
(v) the applicable Intergen Entity has
been in peaceable possession of the premises covered by each
of the Real Property Leases since the date it acquired its
interest in the lease.
(b) Schedule 3.9(b) sets forth a complete and
accurate legal description of all real property owned by any Intergen
Entity (which together with all buildings and improvements located
thereon is herein referred to as the "Owned Real Property"). Except as
set forth in Schedule 3.9(a), the applicable Intergen Entity
beneficially owns and is the registered and beneficial owner of good
and marketable fee simple title to the Owned Real Property free and
clear of all Liens, tenancies, licenses and adverse or other rights of
possession, and subject only to Permitted Liens.
(i) Neither the Owned Real Property
nor any interest of any Intergen Entity in the Owned Real
Property is subject to any outstanding agreement of sale,
option, right of first refusal or other rights of third
parties to acquire any interest therein, except as set forth
at Schedule 3.9(b)(i).
(ii) Except with regard to
environmental and occupational health and safety matters,
which are addressed exclusively in Section 3.18 below, the
Owned Real Property, and all present uses and operations
thereof, complies in all material respects with all
applicable zoning, land-use, building, fire, labor,
subdivision and other local, state, provincial or federal
laws, ordinances, regulations, by-laws, orders, decrees and
other requirements, having the force of law, of all
applicable Governmental Authorities or courts and all deed or
other title covenants and restrictions applicable to the
Owned Real Property. No Intergen Entity has made any
application or agreement with any Governmental Authority with
respect to any variance or exception from zoning, building or
other local, state or federal law, ordinance, regulation or
other similar requirement.
(iii) Intergen has delivered or made
available to Serologicals true and complete copies of all
engineering and architectural reports, test results,
inspection reports, maintenance plans, specifications,
surveys, and other documents relating to the Owned Real
Property that are in the actual possession or control of
Intergen.
(iv) There are no outstanding and
unpaid impact fees or other charges in connection with any
development of or otherwise related to the Owned Real
Property; there are not pending or, to Intergen's knowledge,
threatened any special assessments or obligations for roads,
services and other improvements with respect to the Owned
Real Property or any part thereof; and, there is not pending
or, to Intergen's knowledge, threatened any condemnation,
expropriation,
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requisition (temporary or permanent) or similar proceeding
with respect to the Owned Real Property or any part thereof.
(v) To Intergen's knowledge, all
water, sewer, electric, gas, telephone, and storm water and
drainage facilities and all other utilities required by
local, state, provincial or federal law, ordinance,
regulation, by-law or other requirement and in the normal
operation of all completed buildings and other improvements
located on the Owned Real Property are available and are
installed across public property or valid registered or
recorded easements to the property lines of the Owned Real
Property, are all connected with valid permits, and are
adequate to service the Owned Real Property for its current
use. All permits and connection fees that are currently due
and payable are fully paid or accrued, and there are no such
amounts that are deferred or payable under future
installments. All of the Owned Real Property has legally
enforceable access and, to Intergen's knowledge, all points
of access, both pedestrian and vehicular, to and from public
roads currently used at the Owned Real Property are
commercially adequate for the current use and operation of
the Owned Real Property in and in accordance with all
applicable local, state, provincial or federal laws,
ordinances, regulations, orders, decrees and other
requirements of applicable Governmental Authorities and, to
Intergen's knowledge, there is no existing fact or condition
that would currently result, or with the passage of time or
the giving of notice, or both, would result, in the
termination of such utility services or of such access.
(vi) Except with regard to environmental
and occupational health and safety matters, which are
addressed exclusively in Section 3.18 below, (i) all licenses,
building and other permits, certificates of use and occupancy,
including (but not limited to) underwriters certificates
relating to electrical work, all other building, safety, fire
and health certificates, approvals and permits, and all other
authorizations, consents, permits, licenses and other
approvals of all Governmental Authorities (the "Real Estate
Permits"), have been obtained as presently required by all
Governmental Authorities having jurisdiction over the Owned
Real Property in connection with any construction,
renovations, expansions, or other improvements at such Owned
Real Property (including, without limitation, the Project) and
in connection with the present use and operation of such Owned
Real Property, (ii) the Real Estate Permits are in full force
and effect and there exists no material violation that remains
uncured, (iii) each Intergen Entity is in compliance, in all
material respects, with all terms and conditions of any Real
Estate Permits, and (iv) no action or proceeding relating to
the Real Estate Permits is pending or, to Intergen's
knowledge, threatened, which may result in revocation or
cancellation of a Real Estate Permit.
(vii) Except with regard to
environmental and occupational health and safety matters,
which are addressed exclusively in Section 3.18 below,
Schedule 3.9(b)(vii) sets forth a complete list of all
material Contracts pertaining to the ownership, use,
management or operation of the Owned Real Property. No
Intergen Entity is in default in any material respect with
respect to any of such
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Contracts, nor are there any facts or circumstances that with
the passage of time or the giving of notice, or both, would
constitute or result in any such default.
(viii) Except with regard to
environmental and occupational health and safety matters,
which are addressed exclusively in Section 3.18 below, within
the immediately preceding twelve (12) month period, Intergen
has not received written notice of any actual, threatened or
imminent changes in the present zoning of any of the Owned
Real Property or any part thereof or any restrictions,
limitations or regulations issued, and Intergen has not
received written notice of any such changes being proposed or
under consideration by any Governmental Authorities having or
asserting jurisdiction over the Owned Real Property or the
ownership thereof. To Intergen's knowledge, no sewer
moratorium or like governmental order is in effect with
respect to any of the Owned Real Property.
(ix) There are no ad valorem Tax, land
transfer Tax or other property Tax protests, appeals,
reassessments or other proceedings pending or, to Intergen's
knowledge, threatened against the Owned Real Property.
(x) No portion of the Owned Real
Property is located within any flood plain or subject to any
similar type of restriction for which any permits or licenses
necessary to the use thereof have not been obtained.
(xi) To Intergen's knowledge, no fact
or circumstance exists that would prevent Serologicals from
operating the Owned Real Property after the Closing in the
manner in which such Owned Real Property is currently being
used and operated in all material respects.
(xii) Other than as set forth on
Schedule 3.9(b)(xii), to Intergen's knowledge, the Owned Real
Property contains no material defects in the design or
construction of improvements or the structural, mechanical,
or physical portions (including roofs) at, on or of the Owned
Real Property.
(xiii) As of the Closing Date, other than
the Project, any and all improvements to the Owned Real
Property and any services provided by any person or entity
and related to the Owned Real Property (the nonpayment of
which could result in the imposition of a Lien upon Owned
Real Property) will have been fully paid for by the relevant
Intergen Entity or will be properly accrued in the accounting
records of Intergen.
(xiv) No Intergen Entity has received a
work order, deficiency notice, notice of violation or similar
communication from any Governmental Authority with respect to
any of the Owned Real Property that has not been satisfied
and no Intergen Entity has knowledge of any fact or
circumstance that may give rise to the issuance thereof.
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3.10. Required Consents and Approvals.
(a) Except as set forth on Schedule 3.10(a), no
consent or approval is required by virtue of the execution of this
Agreement or the consummation of any of the transactions contemplated
herein to avoid the violation or breach of, or the default under, or
the creation of a Lien (other than a Permitted Lien) on any assets or
properties pursuant to the terms of, any regulation, order, decree or
award of any court or Governmental Authority or any lease, Contract,
mortgage, note, license or any other instrument (other than an
Immaterial Contract) to which any Intergen Entity is a party or to
which its property or any of the Partnership Interests are subject
(provided, however, that no representation is made with respect to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended).
(b) All notices (the "Notices") that are
required to be given to any Person under applicable law or pursuant to
any Contract (other than an Immaterial Contract) or other obligation
of an Intergen Entity or which is applicable in connection with the
completion of the transactions contemplated by this Agreement are
listed in Schedule 3.10(b) (provided, however, that no representation
is made with respect to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended). Except for the Notices, no notice is
required to be delivered to any Person in connection with the
execution and delivery of this Agreement and the completion of the
transactions contemplated by this Agreement or to permit any of the
Intergen Entities to carry on the Business after the Closing as the
Business is currently carried on by the Intergen Entities (provided,
however, that no representation is made with respect to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended).
3.11. Indebtedness for Borrowed Money; Security
Arrangements. Schedule 3.11 sets forth a complete and accurate list of all
instruments or other documents, to which any Intergen Entity is a party,
relating to any Intergen Entity's indebtedness for borrowed money, capitalized
lease obligations, lease-purchase arrangements, guarantees, undertakings on
which others rely in extending credit, conditional sales Contracts, chattel
mortgages and other security arrangements, in each case with respect to
personal property used or owned by any Intergen Entity. Except as set forth on
Schedule 3.11, no loan payable by any Intergen Entity provides for any
prepayment penalty or premium, and all such loans may be prepaid by such
Intergen Entity at its election. No letter of credit, payment or performance
bond or similar instrument securing any Intergen Entity's performance of its
obligation is outstanding.
3.12. Intellectual Property.
(a) The Intergen Entities own or have the right
to use pursuant to license, sublicense, agreement, or permission all
Proprietary Rights necessary for the operation of the Business.
Schedule 3.12(a) sets forth a list of all registered patents,
registered and unregistered trademarks, trade names, service marks,
assumed names, copyrights and all applications therefor owned, filed
or licensed to any of the Intergen Entities. Except as described in
Schedule 3.12(a), each item of Proprietary Rights owned or used by the
Intergen Entities immediately prior to the Closing hereunder will be
owned or available for use by Serologicals on identical terms and
conditions immediately
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subsequent to the Closing. The Intergen Entities have taken all
necessary and desirable action to maintain and protect each item of
Proprietary Rights that they own or use. With respect to each
Proprietary Right required to be identified on Schedule 3.12(a):
(i) the Intergen Entities possess all
right, title, and interest in and to the item, free and clear
of any Liens, license, or other restriction (other than
Permitted Liens);
(ii) the item is not subject to any
outstanding injunction, judgment, order, decree, ruling, or
charge;
(iii) no action, suit, proceeding,
hearing, investigation, charge, complaint, claim or demand is
pending or, to Intergen's knowledge, threatened which
challenges the legality, validity, enforceability, use, or
ownership of the item; and
(iv) none of the Intergen Entities has
ever agreed to indemnify any Person for or against any
interference, infringement, misappropriation, or other
conflict with respect to the item.
(b) To Intergen's knowledge, , except as set
forth on Schedule 3.12(b), (i) no Intergen Entity has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with
any Proprietary Rights of third parties, and none of the officers (and
employees with responsibility for Proprietary Rights matters) of the
Intergen Entities has ever received any charge, complaint, claim,
demand, or notice alleging any such interference, infringement,
misappropriation, or violation (including any claim that any Intergen
Entity must license or refrain from using any intellectual property
rights of any third party) and (ii) no third party has interfered
with, infringed upon, misappropriated, or otherwise come into conflict
with any Proprietary Rights of any Intergen Entity.
(c) Schedule 3.12(c) identifies each license,
sublicense agreement, or other permission that any Intergen Entity has
been granted by, or has granted to, any third party with respect to
any Proprietary Rights (together with any exceptions). Intergen has
delivered or made available to Serologicals correct and complete
copies of all such patents, registrations, applications, licenses,
agreements, and permissions (as amended to date) and has made
available to Serologicals correct and complete copies of all other
written documentation evidencing ownership and prosecution (if
applicable) of each such item.
(d) Schedule 3.12(d) identifies each
Proprietary Right that any third party owns and that any Intergen
Entity uses pursuant to a license, sublicense, agreement, or
permission and identifies each such license, sublicense, agreement or
permission. Intergen has delivered or made available to Serologicals
correct and complete copies of all such licenses, sublicenses,
agreements, and permissions (as amended to date). With respect to each
item of Proprietary Rights required to be identified on Schedule
3.12(d) and subject to the receipt of any relevant consents as set
forth on Schedule 3.10:
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(i) the license, sublicense,
agreement, or permission covering the item is legal, valid,
binding and enforceable against Intergen and, to Intergen's
knowledge, the other party or parties thereto, and in full
force and effect;
(ii) the license, sublicense,
agreement, or permission will continue to be legal, valid,
binding and enforceable against Intergen and, to Intergen's
knowledge, the other party or parties thereto, and in full
force and effect on identical terms following the
consummation of the transactions contemplated hereby;
(iii) no Intergen Entity is, and to
Intergen's knowledge, no other party to the license,
sublicense, agreement, or permission is, in breach or
default, and, to Intergen's knowledge, no event has occurred
that with notice or lapse of time would constitute a breach
or default or permit termination, modification, or
acceleration thereunder;
(iv) no Intergen Entity has, and to
Intergen's knowledge, no other party to the license,
sublicense, agreement, or permission has, repudiated any
provision thereof;
(v) with respect to each sublicense,
to Intergen's knowledge, the representations and warranties
set forth in subsections (i) through (iv) above are true and
correct with respect to the underlying license;
(vi) the underlying item of Proprietary
Rights is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge to which any
Intergen Entity is a party nor, to Intergen's knowledge, to
which any other person claiming an interest therein is a
party;
(vii) no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand
is pending or, to Intergen's knowledge, threatened which
challenges the legality, validity, or enforceability of the
underlying item of intellectual property; and
(viii) no Intergen Entity has granted any
sublicense or similar right with respect to the license,
sublicense, agreement, or permission.
3.13. Inventory/Product Warranty.
(a) The inventory of the Intergen Entities
consists of raw material and supplies, manufactured and purchased
parts, goods in process, and finished goods, none of which is
slow-moving (and that requires a reserve that has not been taken),
obsolete, damaged, or defective, subject only to the reserve for
inventory written down and set forth on the face of the Interim
Balance Sheet (rather than in the notes). The amount at which the
inventory of the Intergen Entities is carried on the Interim Balance
Sheet fairly represents, in all material respects, the cost (or market
value, if lower) of such inventory as determined in accordance with
GAAP.
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(b) None of the Intergen Entities has any
liability or obligation (and, to Intergen's knowledge, there is no
basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against any of them
giving rise to any liability or obligations) for replacement of any
product manufactured, sold, leased or delivered by any Intergen Entity
or damages in connection therewith, subject only to the reserve for
product warranty claims set forth on the face of the Interim Balance
Sheet (rather than in the notes). No product manufactured, sold,
leased or delivered by any Intergen Entity is subject to any guaranty,
warranty or other indemnity beyond Intergen's standard terms and
conditions, which are fully and accurately set forth on Schedule
3.13(b).
(c) No Intergen Entity has any liability or
obligations (and, to Intergen's knowledge, there is no basis for any
present or future action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand against any of them giving rise to
any liability or obligation) arising out of any injury to individuals
or property as a result of the ownership, possession, or use of any
product manufactured, sold, leased, or delivered by any Intergen
Entity.
3.14. Notes and Accounts Receivable. All notes and
accounts receivable of the Intergen Entities are (a) reflected properly on the
Interim Financial Statements and (b) valid receivables subject to no valid
setoffs or counterclaims. The allowance for doubtful accounts set forth on the
Interim Balance Sheet was calculated in accordance with past practice and is
adequate in light of all known facts and circumstances having a bearing on the
collectibility of the accounts and notes receivable of the Intergen Entities.
3.15. Legal Proceedings. Except as set forth on Schedule
3.15, and with respect to environmental and occupational health and safety
matters, which are addressed exclusively in Section 3.18 below, there are no
suits, actions, claims, proceedings or investigations pending or, to the
knowledge of Intergen, threatened against, relating to or involving any
Intergen Entity or any of its officers, directors or Partners, in their
capacities as officers, directors or partners of Intergen or any Intergen
Entity, before any court, arbitrator or administrative or governmental body.
None of such suits, actions, claims, proceedings or investigations, if finally
determined adversely, are reasonably likely, individually or in the aggregate,
to have a material adverse effect on the assets, liabilities, results of
operations or financial condition of the Business or the ability of Intergen or
the General Partner to perform their respective obligations hereunder. No
Intergen Entity is subject to, and no Intergen Entity has received any notice
that it may be subject to, any judgment, decree, injunction, rule or order of
any court. No Intergen Entity is subject to, nor has any Intergen Entity
received any notice that it may be subject to, any governmental restriction
that is reasonably likely to have a material adverse effect on the assets,
liabilities, results of operations or financial condition of the Business.
3.16. Employee Benefit Plans.
(a) Except for such payments set forth on
Schedule 1.1(ee), Schedule 3.16 sets forth a complete and accurate
list of all plans, programs, agreements, arrangements, commitments,
policies or understandings of any kind (whether written or oral)
providing compensation, remuneration or benefits of any kind or
description
-22-
whatsoever (whether current or deferred and whether paid in cash or in
kind) to, or on behalf of, any present or former officer, manager,
director, or employee (or any of their dependents) of any Intergen
Entity or any predecessors in interest thereto, that are currently in
effect or as to which any Intergen Entity has any liability, duty or
obligation whatsoever, including, but not limited to, any employment,
consulting or collective bargaining agreement and any "employee
benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") (all such plans,
programs, agreements, arrangements, commitments, policies and
understandings shall be referred to collectively as the "Employee
Benefit Plans"). Except as set forth on Schedule 3.16, all of the
Employee Benefit Plans are currently in effect. All welfare plans
providing or offering benefits to retirees and all retirement plans
intended to be qualified under Section 401(a) of the Code are
separately identified on Schedule 3.16. None of the Employee Benefit
Plans, other than plans maintained outside of the United States
primarily for the benefit of persons substantially all of whom are
nonresident aliens, are "multiemployer plans" as defined in Section
3(37) and Section 4001(a)(3) of ERISA and neither the Intergen
Entities nor any ERISA Affiliate of the Intergen Entities has at any
time established or maintained, or has at any time been obligated to
make, or made, contributions to or under any multiemployer plan
established pursuant to ERISA or any comparable federal, provincial or
local law. Except as set forth on Schedule 1.1(ee) and except for the
payments to be made to Bruno Biberon pursuant to the letter agreement
dated October 10, 2001 (the "Biberon Agreement"), no Intergen Entity
is obligated to pay any amount to any employee with respect to (i) the
termination of his or her employment following a change-of-control of
any Intergen Entity; (ii) a bonus based on the consummation of the
Merger or the value or amount of the Merger Consideration; or (iii) a
bonus based on his or her continuation of his or her employment with
any Intergen Entity pending or after the consummation of the Merger.
(b) Except as set forth on Schedule 3.16, (i)
each Intergen Entity has complied, in all material respects, with all
of its obligations with respect to all Employee Benefit Plans,
including the payment of all contributions required or due to be paid,
the satisfaction of all reporting and disclosure requirements to
federal, state, provincial and local governments and governmental
agencies and to all Employee Benefit Plan participants and
beneficiaries, and the payment or accrual of all expenses for all
periods, including the period between the end of the previous plan
year and the date hereof; (ii) the Employee Benefit Plans have been
established, maintained, invested, and administered in compliance in
all material respects with their respective terms and with all
applicable laws, regulations and administrative requirements; (iii)
the levels of insurance reserves and accrued liabilities with regard
to the Employee Benefit Plans are reasonable and are sufficient to
provide for all incurred but unreported claims and any retroactive
premium adjustments; (iv) the assets of all the Employee Benefit Plans
that are required under applicable laws to be held in trust (or other
form of funding vehicle which is separate and apart from the general
assets of the applicable Intergen Entity) are in fact so held, and the
assets of each such Employee Benefit Plan equal or exceed the
liabilities of each such plan; (v) the liabilities of each Employee
Benefit Plan are properly and accurately reported on the Financial
Statements; (vi) the assets of each Employee Benefit Plan are reported
at their fair market value on the books and records of each plan or
the related trust; and (vii) each Employee Benefit Plan intended to
qualify under
-23-
Section 401(a) of the Code is, and has been, so qualified and has
received a favorable determination letter from the Internal Revenue
Service on the current form of the plan stating that such plan is so
qualified.
(c) Intergen has furnished or made available to
Serologicals: (i) a correct, complete and current copy of (A) each
written Employee Benefit Plan and any amendments thereto together with
any trust agreements or other contracts or agreements which are a part
of such plan, and (B) with respect to each Employee Benefit Plan, all
Internal Revenue Service, Department of Labor or Pension Benefit
Guaranty Corporation rulings or determinations, all rulings or
determinations from any comparable foreign agency or body; (ii) a
complete written description of each unwritten Employee Benefit Plan;
(iii) with respect to each Employee Benefit Plan, the ERISA summary
plan description, if applicable, and any other summary of plan
provisions provided to participants and beneficiaries; and (iv) the
annual reports filed with the Department of Labor or the Internal
Revenue Service for the most recent three plan years and the most
recent financial statements, actuarial reports, and periodic
accounting for related plan assets with respect to each Employee
Benefit Plan (including copies of Forms 5500).
(d) Except as described on Schedule 3.16, (i)
no Intergen Entity has any agreement, arrangement, commitment or
understanding, whether legally binding or not, to create any
additional benefit plan, program, policy or arrangement or to increase
the rate of benefit accrual or contribution requirement under any of
the Employee Benefit Plans; to modify, change or terminate any
existing Employee Benefit Plan; or, except as specifically provided in
any existing law, regulations, revenue rulings or revenue procedures,
to continue any Employee Benefit Plan or any provision thereunder for
any period of time; (ii) the Intergen Entities have the right pursuant
to the terms of each Employee Benefit Plan and all agreements related
to such plan unilaterally to terminate such plan (or its participation
in such plan) or to amend the terms of such plan at any time without
triggering a penalty or an obligation to make any additional
contributions to such plan; and (iii) the Intergen Entities after the
date hereof shall have substantially the same rights to unilaterally
take such action as they did prior to the date hereof without
triggering any penalty or any obligation to make any additional
contributions to such plan.
(e) None of the Employee Benefit Plans is
currently under audit or, to the knowledge of Intergen, investigation
or review, by the Department of Labor, the Internal Revenue Service or
any other United States federal or state Governmental Authority or any
foreign Governmental Authority.
(f) Except as described on Schedule 3.16, there
are no pending or, to Intergen's knowledge, threatened claims with
respect to an Employee Benefit Plan (other than routine claims for
benefits made in the ordinary course of plan operations) or with
respect to the terms and conditions of employment or termination of
employment of any employee or former employee of Intergen Entity.
-24-
(g) Except as set forth on Schedule 3.16, no
Employee Benefit Plan is liable for any material amount of unpaid
Taxes nor is any Intergen Entity liable for any material amount of
unpaid Taxes with respect to any Employee Benefit Plan.
(h) Except as described in Schedule 3.16, the
transactions contemplated by this Agreement will not result in any
additional or accelerated payments to, or increase the vested interest
of, any current or former officer, employee or director or their
dependents under any Employee Benefit Plan.
(i) Except as described in Schedule 3.16, no
Intergen Entity has any obligation to indemnify or hold harmless any
person or entity in connection with any liability attributable to any
acts or omissions by such person or entity with respect to any
Employee Benefit Plan.
(j) Except as described on Schedule 3.16, no
assets have been set aside in any trust or account (other than an
account that is part of Intergen's general assets) to satisfy any
obligations under any Employee Benefit Plan.
(k) Neither the Intergen Entities, any ERISA
Affiliate, nor, to Intergen's knowledge, any fiduciary of any of the
Employee Benefit Plans has incurred (and no facts exist that may be
reasonably expected to cause an Intergen Entity, ERISA Affiliate or
fiduciary to incur) any liability for any material amount of Tax, fine
or penalty or funding or contribution obligation as a result of a
violation of the Code, ERISA or other applicable law with respect to
any Employee Benefit Plan or any plan of an ERISA Affiliate.
(l) Neither the Intergen Entities nor any ERISA
Affiliate makes or has any obligation to make, or has made or had any
obligation to make, either directly or indirectly (whether by
reimbursing another employer or otherwise), contributions to any plan,
program or arrangement, including a multiemployer plan, that is
subject to Title IV of ERISA.
(m) Except as described on Schedule 3.16,
compliance with the requirements of ERISA or the Code as in effect on
the date hereof, or with any agreement, arrangement, commitment or
understanding of any kind, will not result in any increase in the rate
of benefit accrual or contribution requirement under any Employee
Benefit Plan.
3.17. Labor Relations. Except to the extent set forth on
Schedule 3.17:
(a) No Intergen Entity is a party to or is
bound by any employment agreement, arrangement or understanding with
any officer, manager, director or employee or any pension, retirement,
stock option, stock purchase, savings, profit sharing, deferred
compensation, retainer, consultant, bonus, group insurance or other
incentive or welfare contract, plan or arrangement with any officer,
manager, director or employee. There are no agreements or arrangements
on behalf of any officer, manager, director or employee providing for
payment or other benefit to such person contingent upon the execution
of this Agreement. There are no collective bargaining agreements to
-25-
which any Intergen Entity is a party or is bound and there are no
certifications issued by a labor board or tribunal with respect to any
Intergen Entity.
(b) Since January 1, 1996, no Intergen Entity
has experienced any organized slow down, work interruption, strike or
work stoppage. There are no existing or, to Intergen's knowledge,
threatened labor disputes, requests or applications for union
representation. Since January 1, 1996, no Intergen Entity has failed
to pay when due any wages, salaries, bonuses, commissions, benefits,
taxes, penalties or assessments, owed to, or arising out of the
employment of, any officer, managers, director or employee.
(c) There are no investigations, administrative
proceedings or formal complaints of discrimination (including
discrimination based upon sex, age, family status, marital status,
race, national origin, sexual preference, disability or veteran
status) pending before the Equal Employment Opportunity Commission or
any federal, state, provincial or local Governmental Authority against
or involving any Intergen Entity with respect to such matters; nor, to
the knowledge of Intergen, are any such complaints threatened.
(d) Schedule 3.17 sets forth a true and correct
list of all employees employed by all Intergen Entities, together with
their respective job titles, continuous service dates, compensation
rates and accrued vacation and sick leave as of the most recent
practicable date.
(e) To Intergen's knowledge, there is no, and
there has not been any, condition or state of facts that may
negatively affect the Intergen Entities' relations with their
employees.
(f) Each individual who has received
compensation for the performance of services on behalf of any Intergen
Entity has been properly classified as an "employee" or "independent
contractor" in compliance with all applicable federal, state,
provincial, or local laws. There has been no complaint, investigation
or proceeding raised or brought relating to the classification of an
individual as an "independent contractor" of any Intergen Entity.
(g) No Intergen Entity has taken any action
that would constitute a "Mass Layoff" or "Plant Closing" within the
meaning of WARN or would otherwise trigger notice requirements or
liability under any state, provincial, or local plant closing notice
law. No agreement, arbitration or court decision or governmental order
in any way limits or restricts any Intergen Entity from relocating or
closing any of its operations.
(h) No Intergen Entity has failed to pay when
due any wages, salaries, bonuses, commissions, benefits, Taxes,
penalties or assessments or other monies, owed to, or arising out of
the employment of or any relationship or arrangement with, any
officer, director, stockholder, manager, employee, sales
representative, contractor, consultant or other agent.
(i) The Intergen Entities are in material
compliance with all immigration laws relating to employment and have
properly completed and maintained
-26-
all applicable forms (including but not limited to I-9 forms) and,
there are no citations, investigations, administrative proceedings or
formal complaints of violations of the immigration laws pending or, to
Intergen's knowledge, threatened before the Immigration and
Naturalization Service, Human Resources Development Canada, or any
federal, state, provincial or local Governmental Authority against or
involving Intergen with respect to such matters.
(j) No Intergen Entity is and no Intergen
Entity has, since January 1, 1996, been in violation, in any material
respect, of any applicable local, state, provincial or federal labor,
employment or wage law, ordinance, regulation, order or decree.
3.18. Environmental, Health and Safety Requirements.
Except as set forth in Schedule 3.18:
(a) Each Intergen Entity, and their respective
Affiliates and each piece of real property owned or occupied by them
is in compliance, in all material respects, with and has at all times
since January 1, 1996 complied, in all material respects, with all
Environmental, Health and Safety Requirements.
(b) Without limiting the generality of Section
3.18(a), each Intergen Entity has obtained and complied with and is in
compliance, in all material respects, with, all permits, licenses and
other authorizations that are required pursuant to Environmental,
Health and Safety Requirements for the occupation of its facilities
and the operation of its businesses; a list of all such licenses,
permits and other authorizations is set forth on Schedule 3.18.
(c) No Intergen Entity, nor, to Intergen's
knowledge, any of their respective predecessors, has received any
written or oral notice, report or other information regarding any
actual or alleged material violation of Environment, Health, and
Safety Requirements, or any liabilities or potential liabilities
(whether accrued, absolute, contingent unliquidated or otherwise),
including any investigatory, remedial, or corrective obligations
relating to any of them or their facilities arising under
Environmental, Health and Safety Requirements.
(d) None of the following exists at any
facility or property owned or operated by any Intergen Entity:
(i) underground storage tanks;
(ii) to Intergen's knowledge,
asbestos-containing material in any form or condition;
(iii) materials or equipment containing
polychlorinated biphenyls; or
(iv) landfills, surface impoundments or
disposal areas.
-27-
(e) None of the Intergen Entities, nor any of
their respective Affiliates, nor, to Intergen's knowledge, any of
their respective predecessors has treated, stored, disposed of,
arranged for or permitted the disposal of, transported, handled, or
released any substance, including, without limitation, any Hazardous
Material, or owned or operated any property or facility (and no such
property or facility is contaminated by any such Hazardous Material)
in a manner that has given or would reasonably be likely to give rise
to liabilities, including any liability for response costs, corrective
action costs, personal injury, property damage, natural resource
damage, or attorney fees, pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the
Solid Waste Disposal Act, as amended or any other Environmental,
Health and Safety Requirements.
(f) Neither this Agreement nor the consummation
of the transaction that is the subject of this Agreement will result
in any obligations for site investigation or cleanup, or notification
to or consent of government agencies or third parties, pursuant to any
of the so-called "transaction-triggered," or "responsible property
transfer" Environmental, Health and Safety Requirements or otherwise
pursuant to Environmental, Health and Safety Requirements.
(g) Neither the Intergen Entities, nor any of
their respective Affiliates, nor, to Intergen's knowledge, any of
their respective predecessors has either expressly or by operation of
law, assumed or undertaken any liability, including, without
limitation, any obligations for corrective or remedial action, of any
other Person relating to Environmental, Health and Safety
Requirements.
(h) Except as disclosed on Schedule 3.18, none
of the Intergen Entities nor, to Intergen's knowledge, any facility or
property owned or occupied by them, has ever been subject to an audit,
evaluation, assessment, review or study relating to compliance with
Environmental, Health and Safety Requirements or the presence or
release of Hazardous Materials.
3.19. Insurance Policies. Schedule 3.19 sets forth a
complete and accurate list of all insurance policies in force naming any
Intergen Entity or employees thereof as an insured or beneficiary or as a loss
payable payee or for which Intergen has paid or is obligated to pay all or part
of the premiums. All such policies are in full force and effect and no Intergen
Entity is in default under the terms of such policies or has received notice of
any pending or threatened cancellation or premium increase (retroactive or
otherwise) with respect thereto, and each Intergen Entity is in compliance in
all material respects with all conditions contained therein. Except as set
forth on Schedule 3.19, all such policies that provide insurance against
liability to third parties were written on an occurrence basis. There are no
pending claims against such insurance as to which insurers are defending under
reservation of rights or have denied liability and there exists no claim under
such insurance that has not been properly filed. Except as set forth on
Schedule 3.19, during the past three years, no Intergen insurance policy has
been canceled by any insurer and no application for insurance by Intergen has
been rejected by any insurer.
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3.20. Contracts and Commitments.
(a) Except for (i) (1) Contracts for the
purchase of services or goods by any Intergen Entity entered into in
the Ordinary Course of Business that do not individually involve an
amount in excess of $10,000 (treating each purchase order as a
separate agreement) and that are reasonably expected to be fully
performed within six months of their respective dates and (2)
Contracts for the purchase of raw materials in the Ordinary Course of
Business (collectively, the "Immaterial Contracts"), and (ii)
Contracts listed on Schedules 3.9(a), 3.11, 3.12(c), 3.12(d), and
3.20(c), each Contract to which any Intergen Entity is a party is
listed on Schedule 3.20(a). Notwithstanding the foregoing, no Project
Contract shall be an Immaterial Contract.
(b) Except as set forth on Schedule 3.20(b),
during the past five years no Intergen Entity has, directly or
indirectly, purchased, leased from others or otherwise acquired any
property or obtained any services from, or sold, leased to others or
otherwise disposed of any property or furnished any services to, or
otherwise dealt with (except with respect to remuneration for services
rendered as a director, officer, manager, or employee of Intergen), in
the Ordinary Course of Business or otherwise with: (i) any Partner or
(ii) any person, firm or corporation which, directly or indirectly,
alone or together with others, controls, is controlled by or is under
common control with any Intergen Entity or any Partner. Except as set
forth on Schedule 3.20(b), no Intergen Entity owes any amount to, and
has no contract with or commitment to, any Partner or any of the
Intergen Entities' directors, officers, managers, employees,
consultants or any Affiliates of any of the foregoing and none of such
persons owes any amount to any Intergen Entity, except with respect to
remuneration for services rendered as a director, officer, manager or
employee of Intergen.
(c) Schedule 3.20(c) sets forth a complete and
accurate list of all Contracts related to the Project, together with a
summary of the terms of any oral Contract (collectively, the "Project
Contracts"). Except as may be set forth on Schedule 3.20(c),
collectively, all of the Contracts listed on Schedule 3.20(c) set
forth and provide for all work necessary to complete the Project in
accordance with the Project Plans without amendment or adjustment
thereto including, without limitation, changes in the scope of work
set forth in such contracts or increases in the cost to Intergen or
the Surviving Corporation for such work.
(d) All of the Contracts are valid and binding,
and are in full force and effect and are enforceable in accordance
with their terms. To the knowledge of Intergen, there is no pending or
threatened bankruptcy, insolvency or similar proceeding with respect
to any party to any Contract, and no event has occurred which (whether
with or without notice, lapse of time or the happening or occurrence
of any other event) would constitute a default pursuant to such
Contracts by the Intergen Entities or, to Intergen's knowledge, any
other party thereto. The Intergen Entities have performed all
obligations required to be performed by them pursuant to, and are in
compliance with the terms and conditions of, each Contract and are not
in default under or in breach of, nor in receipt of any claim of
default or breach under any Contract. No condition or state of facts
exists that, with notice or the passage of time, or both, would
constitute a material default or
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material breach by any Intergen Entity under any Contract. Intergen
has made available to Serologicals correct and complete copies of all
written Contracts together with all amendments, waivers and other
changes thereto. Schedules 3.9(a), 3.11, 3.12(c), 3.12(d), 3.20(a) and
3.20(c) collectively contain an accurate and complete description of
all material terms of all oral Contracts referred to therein. No
representation is made in this Section 3.20(d) with respect to
Immaterial Contracts.
3.21. Absence of Certain Changes and Events. Except as set
forth on Schedule 3.21, since December 31, 2000, the Intergen Entities have
conducted the Business only in the Ordinary Course of Business, and have not:
(a) received any notice of termination of any
Contract (other than an Immaterial Contract), lease or other agreement
or suffered any damage, destruction or loss (whether or not covered by
insurance) which, in any case or in the aggregate, has had or would
reasonably be expected to have, a material adverse effect on the
business, earnings, financial condition or prospects of the Intergen
Entities;
(b) made any declaration, setting aside or
payment of any dividend or other distribution of assets (whether in
cash or property) with respect to the Intergen partnership interests
or any equity interest in Intergen or purchased, retired or redeemed,
or obligated itself to purchase, retire or redeem, any of the Intergen
partnership interests or other securities;
(c) except for customary increases based on
term of service or regular promotion of non-officer employees, (i)
increased the compensation payable or to become payable to any
employee, officer, shareholder, director, manager, distributor or
agent of the Intergen Entities or (ii) increased any bonus, insurance,
pension, vacation or other employee benefits, payments or arrangements
for such persons;
(d) entered into or amended any employment,
consulting, severance or similar agreement;
(e) paid, discharged or satisfied any lien,
charge or encumbrance other than those then required to be discharged
or satisfied, or paid any indebtedness, obligation or liability,
absolute, accrued, contingent or otherwise, whether due or to become
due, other than current liabilities shown on the Audited Balance Sheet
and current liabilities incurred since the date of the Audited Balance
Sheet in the Ordinary Course of Business;
(f) permitted any of their property, business
or assets to be subjected to any Lien, other than Permitted Liens;
(g) waived or released any claims or rights;
(h) sold, transferred, leased or otherwise
disposed of any of their assets or properties in excess of $25,000 per
transaction or $50,000 in the aggregate;
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(i) except with respect to the Project, made
any single capital expenditure or investment in excess of $25,000 or
capital expenditures in the aggregate in excess of $50,000;
(j) made any change in any method of accounting
or any practice or principle of accounting;
(k) paid, loaned or advanced any amount or
sold, transferred, loaned or leased any asset to any employee, except
for normal compensation involving salary and benefits;
(l) written off as uncollectible any note
receivable or account receivable or increased or decreased its
allowance for doubtful accounts by a total of more than $25,000;
(m) hired any employee with annual compensation
greater than $50,000;
(n) entered into any material commitment or
transaction, other than in the Ordinary Course of Business, affecting
their operations or suffered any material adverse change in their
business, earnings, financial condition or prospects;
(o) issued or sold partnership or equity
interest or other securities, or promised, issued, granted or sold any
options, rights or warrants with respect thereto, or acquired any
capital stock or other securities of any corporation or any interest
in any business enterprise, or otherwise made any loan or advance to
or investment in any person, firm or corporation;
(p) incurred any indebtedness for borrowed
money in excess of $50,000 that has not been repaid, other than with
request to the Project;
(q) materially changed any business practice
other than in the Ordinary Course of Business;
(r) conducted their cash management customs and
practices other than in the Ordinary Course of Business (including,
without limitation, with respect to collection of accounts receivable,
purchases of supplies, repairs and maintenance, payment of accounts
payable, accrued expenses and payroll, levels of capital expenditures
and operation of cash management practices generally);
(s) amended or terminated any material Contract
or any material agreement, including any Employee Benefit Plan (except
as otherwise contemplated by this Agreement) or any insurance policy,
in force on the date of the Audited Balance Sheet;
(t) written off, or increased the reserve for,
any inventory (including, without limitation, raw materials, supplies,
manufactured and purchased parts, goods or work in process and
finished goods) by a total of more than $25,000; or
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(u) agreed in writing, or otherwise, to take
any action described in this Section 3.21.
3.22. Tax Matters.
(a) All Tax Returns that are due to have been
filed in accordance with any applicable law have been duly filed and
are true, correct and complete in all material respects. Intergen has
delivered or made available to Serologicals true, correct and complete
copies of all such income Tax Returns and partnership information
returns filed for the three most recent years for which such returns
have been filed.
(b) Except as set forth on Schedule 3.22(b),
all material Taxes, deposits or other payments for which any Intergen
Entity may have any liability through the date hereof have been timely
paid in full, if due prior to the date hereof, or, if due after the
date hereof, are accrued as liabilities for Taxes on the Interim
Financial Statements or will be accrued in the accounting records of
Intergen as of the Closing Date (excluding any Taxes arising as a
result of the making, following the Closing Date of a designation
under paragraph 111(4)(e) of the Income Tax Act (Canada) or any
corresponding provincial legislation, or arising due to a change to
the amount of elective deductions under such legislation resulting
from the refiling or amendment following the Closing Date, of returns
filed before the Closing Date).
(c) Except as set forth in Schedule 3.22(c),
the amounts so paid on or before the date hereof, together with any
amounts designated in a reserve fund for the payment of taxes accrued
as liabilities for Taxes which are reflected on the Interim Balance
Sheet, are adequate to satisfy all liabilities for Taxes of the
Intergen Entities in all jurisdictions through the Closing Date,
including, without limitation, such liabilities with respect to all
taxation years ending on or before the Closing Date.
(d) There are no extensions of time in effect
with respect to the dates on which any Tax Returns were or are due to
be filed by any Intergen Entity.
(e) All deficiencies asserted or reassessments
made as a result of any examination or audit of any Tax Return have
been paid in full, accrued on the books of Intergen, or finally
settled and paid, and no issue has been raised in any such examination
or audit which, by application of the same or similar principles,
reasonably could be expected to result in a proposed deficiency or
reassessment against any Intergen Entity for any other period not so
examined.
(f) No claims for any Taxes have been asserted
and no proposals, adjustments or deficiencies for any Taxes are being
asserted, proposed or, to Intergen's knowledge, threatened, and no
audit or investigation of any Tax Return is currently underway,
pending or, to Intergen's knowledge, threatened by any Governmental
Authority. Schedule 3.22(f) sets forth each taxable year or other
period for which an audit or other examination of any Intergen Entity
was conducted by any Governmental Authority, the issues examined in
connection with such audit or examination, and the disposition
thereof.
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(g) All Intergen Entities have withheld and
paid on or before the due date thereof all Taxes required to have been
withheld and paid in connection with amounts paid (or deemed, by
applicable Tax law, to be paid) or owing to any employee, independent
contractor, creditor, member, Partner, shareholder or other third
party.
(h) Except as set forth on Schedule 3.22(h),
there are no outstanding waivers or agreements or requests to execute
such waivers or agreements by any Intergen Entity extending the time
for the assessment or payment of any Taxes or deficiency thereof, nor
are there any requests for rulings, outstanding subpoenas or requests
for information, notices of proposed reassessment of any property
owned or leased by any Intergen Entity or any other Tax matters
pending between any Intergen Entity and any Governmental Authority.
(i) There are no Liens for Taxes on any asset
or property used in the Business nor are there any Liens that are
pending or, to Intergen's knowledge, threatened, other than Liens for
Taxes not yet due and payable.
(j) No Intergen Entity is currently contesting
or has reason to contest any Tax liability before any Governmental
Authority.
(k) In each case, adequate provision, including
provision in the deferred tax account, has been made in the Financial
Statements for all of the Intergen Entities' deferred and accrued tax
liabilities as of their respective dates with respect to operations
for periods ending on such dates.
(l) No Intergen Entity has made any payment
which constitutes an "excess parachute payment" within the meaning of
Section 280G of the Code, and no payment by any Intergen Entity is
required to be made under any Contract that will, if made, constitute
an "excess parachute payment" within the meaning of Section 280G of
the Code.
(m) As of the year end of the tax year
preceding the date hereof, and as of the date hereof, the adjusted
basis of the depreciable or amortizable assets of the Intergen
Entities for U.S. Federal income tax purposes ("U.S. Tax Basis") and
the undepreciated capital cost of the depreciable assets (and, if
applicable, the cumulative eligible capital of eligible capital
properties) for Canadian federal income tax purposes of Intergen
Entities that are subject to Canadian income taxes ("Canadian Tax
Basis") are in both cases as set forth on the tax attributes list
attached as Schedule 3.22(m) showing, (i) in the case of U.S. Tax
Basis, the original tax cost of the assets and the tax depreciation or
amortization thereof as of the year end of the taxable year preceding
the date hereof, and as of the date hereof, and (ii) in the case of
Canadian Tax Basis, the undepreciated capital cost (and, if
applicable, the cumulative eligible capital) as of the year end of the
tax year preceding the date hereof, and as of the date hereof.
(n) No Intergen Entity is a party to any tax
allocation, tax sharing or similar agreement.
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(o) Except as set forth on Schedule 3.22(o), no
Intergen Entity is currently or has been a partner or member of any
partnership or other entity treated as a partnership for U.S. income
tax purposes or a member of an affiliated group (within the meaning of
Section 1504(a) of the Code) filing a consolidated United States
federal income tax return.
(p) No Intergen Entity has paid any
non-deductible compensation to any of its partners, officers,
directors or employees for the current Tax year or any prior Tax year.
(q) No property of any Intergen Entity is
"tax-exempt use property" within the meaning of Section 168(h) of the
Code nor property that Serologicals will be required to treat as being
owned by another Person pursuant to Section 168 of the Code (or any
corresponding provision of prior law).
(r) Intergen is properly treated as a
partnership for United States federal income tax purposes.
(s) Except as disclosed on Schedule 3.22(s), no
Partner is a "foreign person" as defined in Section 7701 of the Code.
(t) No Intergen Entity is a "United States real
property holding corporation" as such term is defined in section
897(c)(2) of the Code. Except as disclosed on Schedule 3.22(t), no
property owned by any Intergen Entity constitutes a "United States
real property interest" as such term is defined in section 897(c)(1)
of the Code.
(u) No tax withholding obligations under the
laws of Canada, including, but not limited to obligations under the
Ontario Land Transfer Tax Act and the Income Tax Act (Canada), R.S.C.
1985, Chap. 1, (5th Supp.) (the "ITA"), will arise as a result of the
transactions contemplated by this Agreement.
(v) Except as set forth in Schedule 3.22(v), all
"controlled transactions" between two or more Intergen Entities comply
with the arm's length standards set forth in Treas. Reg. ss.
1.482-1(b), and the results of all such transactions are accounted for
using the "best method rule" of Treas. Reg. ss. 1.482-1(c).
(w) Except as set forth in Schedule 3.22(w),
all transactions between any Intergen Entity subject to the taxing
jurisdiction of Canada and any other Intergen Entity comply with the
arm's length standards set forth in Section 247 of the ITA and Canada
Customs & Revenue Agency Information Circular 87-2R and are not liable
to a transfer pricing adjustment under section 247 of the ITA and
related provisions or under any analogous federal or provincial tax
legislation.
(x) Without limiting the generality of the
foregoing representations and warranties, except as set forth in
Schedule 3.22(x), each Intergen Entity conducting any business or
having any office, property or employee in Canada, the United Kingdom
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or France has filed all Tax Returns required to have been filed, paid
all Taxes due and payable, and otherwise complied with all Tax laws in
such jurisdictions.
(y) No Intergen Entity subject to the taxing
jurisdiction of Canada will at any time be deemed to have a capital
gain pursuant to subsection 80.03(2) of the ITA or any analogous
provincial tax legislation as a result of any transaction or event
taking place in any taxation year ending on or before the Closing
Date.
(z) There are no circumstances existing that
could result in the application of section 78 of the ITA or any
equivalent provincial legislative provision to any Intergen Entity
subject to the taxing jurisdiction of Canada.
3.23. Customer Relations. Except as set forth on Schedule
3.23, no Intergen Entity has received any written notice, or to the knowledge
of Intergen, oral notice, that any single client or customer of the Intergen
Entities during 2000 may terminate its business relations with such Intergen
Entity in 2001 or thereafter or intends to put its business out to bid or for
requests for proposals during 2001 or thereafter.
3.24. Employee Notice. Except as set forth on Schedule
3.24 hereto, no salaried employee of any Intergen Entity has notified any
Intergen Entity of his or her intention to resign or retire.
3.25. No Interest in Properties, Competitors, Etc. Except
as set forth in Schedule 3.25 hereto, no Intergen Entity nor, to Intergen's
knowledge, any of their respective directors, officers, managers or Partners,
directly or indirectly, owns any interest in, controls or is an employee,
officer, manager shareholder, director or agent of, or employee to, any person
or entity that is a competitor or supplier or otherwise has a material business
relationship with, any Intergen Entity. Schedule 3.25 hereto sets forth a list
of each director, manager, officer, employee or partner of any Intergen Entity
whose relationship as such was terminated at any time after January 1, 1997,
who, to Intergen's knowledge, has information and experience sufficient to
enable him or her to engage in activities competitive with the Business as
presently conducted.
3.26. Brokers' and Finders' Fees. Other than as set forth
on Schedule 3.26, neither Intergen, the Partners nor anyone acting on behalf of
any of them, has any liability to any party for any brokers' or finders' fees
or the like in connection with this Agreement or any transaction contemplated
hereby. Serologicals shall have no liability arising from any such action by
Intergen, the Partners, or anyone acting on behalf of them for any such fees,
expenses, or the like in connection with this Agreement or any transaction
contemplated hereby.
3.27. Disclosure. Neither this Agreement, nor any of the
agreements and documents specifically referred to herein, nor any of the
schedules, attachments or exhibits hereto, contain any untrue statement of a
material fact or fail to state a material fact necessary to make each statement
contained herein or therein, in light of the circumstances under which they
were made, not misleading.
3.28. Competition Act. Intergen will not be required to
file a pre-merger notification pursuant to Part IX of the Competition Act
(Canada) and the regulations thereunder
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with respect to the Merger. Neither the aggregate value of the Intergen
Entities' assets in Canada that are subject to the Merger nor the gross
revenues from sales in or from Canada generated by such assets exceed Cdn.
$35,000,000 as calculated in accordance with the Competition Act (Canada) and
the regulations thereunder.
4. REPRESENTATIONS AND WARRANTIES OF SEROLOGICALS AND SUB. Each
of Serologicals and Sub jointly and severally hereby represent and warrant to
Intergen as follows:
4.1. Organization, Power and Authority. Each of
Serologicals and Sub is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to enter into this Agreement and each other
document contemplated hereby. The execution, delivery and performance of this
Agreement by Serologicals and Sub and the consummation by Serologicals and Sub
of the transactions contemplated herein have been duly authorized by all
necessary corporate action on the part of Serologicals and Sub. This Agreement
and each other document contemplated hereby have been (or when executed, will
be) duly executed and delivered by Serologicals and Sub and constitute, and
each instrument delivered pursuant hereto, when executed and delivered by
Serologicals or Sub (as the case may be) (assuming that each other party
thereto executes and delivers such agreements) will constitute, the legal,
valid and binding agreement of Serologicals and Sub, enforceable in accordance
with its terms, except as such enforceability may be affected by bankruptcy,
insolvency or similar laws affecting creditors' rights and by judicial
discretion in the enforcement of equitable remedies.
4.2. No Conflict. Except as set forth on Schedule 4.2,
the execution and delivery of this Agreement by Serologicals or Sub, the
consummation of the transactions contemplated herein by Serologicals, and the
performance of the covenants and agreements of Serologicals contained herein
will not, with or without the giving of notice or the lapse of time, or both,
(i) violate or conflict with any of the provisions of the certificate of
incorporation or bylaws of Serologicals or Sub, (ii) violate, conflict with or
result in a breach or default or loss of rights under any material Contract to
which Serologicals or Sub is a party or by which Serologicals or Sub or any of
their respective properties may be bound, (iii) violate or conflict with any
law, ordinance, rule, order, judgment, decree or ruling of any Governmental
Authority applicable to Serologicals, Sub or any of their respective assets or
properties, (iv) result in the creation or imposition of any Lien upon any
assets or properties of Serologicals or Sub other than a Permitted Lien; or (v)
except for approval pursuant to the HSR Act, require any authorization,
consent, approval, exemption, or other action by or notice or declaration to or
filing with, any court or administrative or other governmental body or agency,
except in the cases of clauses (ii)-(v), for such violations, conflicts,
breaches, Liens, authorizations, consents or similar matters as to which
requisite waivers or consents will have been obtained prior to the Closing or
which individually, or in the aggregate, would not impair Serologicals' or
Subs' ability to perform their respective obligations hereunder.
4.3. Brokers' and Finders' Fees. Except as set forth on
Schedule 4.3, neither Serologicals, Sub nor anyone acting on their behalf has
any liability to any party for any brokers' or finders' fees or the like in
connection with this Agreement or any transaction contemplated hereby. Neither
Intergen nor the Partners shall have any liability arising from any such action
by
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Serologicals, or anyone acting on its behalf for any such fees, expenses, or
the like in connection with this Agreement or any transaction contemplated
hereby.
4.4. Legal Proceedings. Except as set forth on Schedule
4.4, there are no suits, actions, claims, proceedings or investigations pending
or, to the knowledge of Serologicals, threatened against, relating to or
involving Serologicals or Sub before any court, arbitrator or administrative or
governmental body, which if finally determined adversely, are reasonably
likely, individually or in the aggregate, to impair Serologicals' or Sub's
ability to perform their respective obligations hereunder. Neither Serologicals
nor Sub is subject to, and neither Serologicals nor Sub has received any notice
that it may be subject to, any judgment, decree, injunction, rule or order of
any court that is reasonably likely to impair Serologicals' or Sub's ability to
perform their respective obligations hereunder. Neither Serologicals nor Sub
has received written notice that it is subject to nor has Serologicals or Sub
received any notice that it may be subject to any governmental restriction that
is reasonably likely to impair Serologicals' or Sub's ability to perform their
respective obligations hereunder.
4.5. Financing. Serologicals has financial resources
sufficient to enable it to perform its obligations under this Agreement in
accordance with its terms.
5. COVENANTS OF INTERGEN AND GENERAL PARTNER.
5.1. Pre-Closing Operations. The General Partner and
Intergen hereby covenant and agree, except with the prior written consent of
Serologicals, between the date hereof and the Closing Date, that the Intergen
Entities shall operate and conduct the Business only in the Ordinary Course of
Business, and carry on the Business diligently and substantially in the manner
as heretofore conducted and not make or institute any methods of purchase,
sale, lease, management, accounting or operation, except in the Ordinary Course
of Business. By way of illustration and not in limitation of the foregoing, the
General Partner and Intergen each covenants and agrees that each Intergen
Entity shall:
(a) manage its working capital, including cash,
receivables, other current assets, trade payables and other current
liabilities, in a fashion consistent with the Ordinary Course of
Business;
(b) except to the extent required by
subparagraph (d) below and except, with respect to the Project, as
contemplated by the Project Status Report for September 2001 prepared
by SMA Biometics Ltd., a copy of which has been furnished to
Serologicals, not, without the prior written consent of Serologicals,
enter into any Contract or commitment of any kind relating to any
capital expenditure in excess of $10,000;
(c) use commercially reasonable efforts to keep
available the services of its employees, and preserve the goodwill of
the Business and relationships with the agents, customers, licensors,
suppliers, distributors and brokers with whom it has business
relations and shall continue and maintain all advertising, promotional
programs, incentives and pricing generally at a level consistent with
prior practice;
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(d) maintain the Owned Real Property, Leased
Real Property and other assets and property used in the operation of
the Business in good repair, order, and condition (normal wear and
tear excepted) consistent with current needs and replace in accordance
with prudent practices inoperable, worn out, or obsolete material
assets with assets of comparable quality consistent with the Ordinary
Course of Business;
(e) maintain the books, accounts, and records
of the Intergen Entities in accordance with GAAP, Intergen's
historical accounting practices consistently applied and consistent
with the custom and practice as used in the preparation of the
Financial Statements;
(f) pay all Taxes required to be paid, file all
Tax Returns required to be filed, comply with all requirements of all
Tax laws and otherwise conduct all Tax affairs in good faith,
consistent with past practice, and in the Ordinary Course of Business;
(g) promptly (once Intergen obtains knowledge
thereof) inform Serologicals in writing of any breaches of the
representations and warranties contained in Section 3 or any breach of
any covenant hereunder by any Intergen Entity or any Partner;
(h) cooperate with Serologicals and use
commercially reasonable efforts to cause the conditions to
Serologicals' obligation to close to be satisfied (including, without
limitation, the execution and delivery of all agreements contemplated
hereunder to be so executed and delivered and the use of commercially
reasonable efforts to make and obtain all third party and governmental
notices, filings, authorizations, approvals, consents, releases, and
terminations); and
(i) co-operate with Serologicals in
Serologicals' investigation of the business and properties of Intergen
by, among other things, providing such documentation with respect to
any Employee Benefit Plan of any Intergen Entity that Serologicals
shall reasonably request.
5.2. Negative Covenants of the Intergen Entities. Except
as expressly contemplated by this Agreement or agreed to in writing by
Serologicals, between the date hereof and the Closing Date, Intergen covenants
and agrees that no Intergen Entity will:
(a) take any action that would require
disclosure under Section 3.21;
(b) amend its partnership agreement, articles
of incorporation, by laws, or similar governing documents;
(c) repurchase any Partnership Interest or make
any change in issued and outstanding partnership or equity interests
or issue any warrant, option or other right to purchase any
Partnership Interest or any security convertible into any Partnership
Interest, or redeem, purchase or otherwise acquire any Partnership
Interest;
(d) cancel any debts or make any loans or enter
into any transaction with any Affiliate of any Intergen Entity or any
Partner, except for transactions in the
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Ordinary Course of Business with any other Intergen Entity or as
otherwise contemplated in the Termination Agreements;
(e) amend or terminate any material Contract or
any material agreement, including any Employee Benefit Plan (except as
otherwise contemplated by this Agreement or as required to comply with
changes in applicable law) or any insurance policy, in force on the
date hereof;
(f) do any act, omit to do any act or permit
any act within its control or the control of any Intergen Entity that
will cause a breach of any representation, warranty or obligation of
any Intergen Entity contained in this Agreement or any obligations
contained in any material Contract;
(g) organize any subsidiary, acquire any
capital stock or other equity securities of any corporation, or
acquire any equity or other ownership interest in any business; or
(h) agree, in writing, or otherwise, to take
any action described in this Section 5.2.
5.3. Key Employees. Intergen will use commercially
reasonable efforts to retain the services of its key employees for the benefit
of Serologicals.
5.4. Access. Subject to the terms and conditions of the
letter agreement regarding sensitive information by and between Serologicals
and Intergen dated February 8, 2001, as amended by that certain letter dated
June 11, 2001 (collectively, the "Letter Agreement"), from the date of this
Agreement to the Closing Date, Intergen shall, and shall cause each Intergen
Entity to, (a) provide Serologicals and its designees with such information as
Serologicals may from time to time reasonably request with respect to the
transactions contemplated by this Agreement, (b) provide Serologicals and its
designees, officers, counsel, accountants, investment bankers and other
authorized representatives such access during regular business hours and upon
reasonable notice to the books, records, offices, personnel, counsel, and
accountants of the Intergen Entities, as Serologicals or their designees may
from time to time reasonably request, and (c) permit Serologicals and its
designees to make, during regular business hours and upon reasonable notice,
such inspections thereof as such party may reasonably request.
5.5. Transfer Taxes. Any recording fees or any other fees
payable as a result of any action contemplated by this Agreement shall be paid
by Serologicals. Serologicals and the General Partner shall cooperate in the
preparation, execution and filing of all returns, questionnaires, applications,
or other documents regarding any real property transfer or gains, sales, use,
transfer, bulk sales, value added, stock transfer and stamp taxes, any
transfer, recording, registration and other fees, and any similar taxes which
become payable in connection with this Agreement and the transactions
contemplated hereby that are required or permitted to be filed on or before the
Closing.
5.6. Further Information. In addition to such actions as
Intergen may otherwise be required to take under this Agreement or applicable
law in order to consummate this
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Agreement and the transactions contemplated hereby, the Intergen Entities shall
take such action, shall furnish such information (subject to the Letter
Agreement), and shall prepare, or cooperate in preparing, and execute and
deliver such certificates, agreements and other instruments as Serologicals may
reasonably request from time to time, before or at the Closing.
5.7. Consultation. Until the Closing Date, Intergen shall
consult with Serologicals concerning all significant business and operating
decisions affecting the Intergen Entities; provided, however, that the
foregoing shall not be construed so as to require Intergen to engage in an
activity that would violate any law, regulation or order of any Governmental
Authority relating to the regulation of competition.
5.8. Tax Access, Assistance and Filings.
(a) Following the Closing, Serologicals and the
General Partner shall provide each other with such assistance as may
reasonably be requested by either of them in connection with the
preparation of any Tax Return, the response to any audit or other
examination by any Governmental Authority, or the preparation for any
judicial or administrative proceedings relating to liability for Taxes
of any Intergen Entity or any successor thereto. The party requesting
assistance hereunder shall reimburse the other for reasonable
out-of-pocket expenses incurred in providing such assistance.
(b) Following the Closing, Serologicals and the
General Partner agree to cooperate in the filing of IRS Form 8594 for
the tax year in which the Merger takes place consistent with Section
2.7.
5.9. Notification. Intergen shall promptly notify
Serologicals in writing of any material developments with respect to the
Business, and of any change in any of the information contained in the
representations and warranties contained in this Agreement or the disclosure
schedules referred to herein; provided, however, that the foregoing shall not
be construed so as to require Intergen to engage in an activity that would
violate any law, regulation or order of any Governmental Authority relating to
the regulation of competition. Serologicals shall not be obligated to accept
any such change and receipt of notice of any such change shall not be deemed to
be a waiver or release by Serologicals of any provisions of this Agreement.
Likewise, a notification provided by Intergen pursuant to Section 5.1(g) shall
not relieve the General Partner from any obligations or liability associated
with or resulting from the breach that is the subject of the notification.
5.10. Co-operation by Intergen.
(a) From the date hereof and until the Closing,
Intergen shall use commercially reasonable efforts and shall cooperate
with Serologicals to promptly secure the consents, approvals,
authorizations, exemptions and waivers from third parties listed on
Schedule 8.8 and will otherwise use commercially reasonable efforts to
cause the prompt consummation of such transactions in accordance with
the terms and conditions hereof.
(b) In connection with the foregoing, Intergen
shall use commercially reasonable efforts to resolve objections, if
any, as may be asserted with respect to the
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transactions hereby under any antitrust or trade or regulatory laws or
regulations of any Governmental Authority.
5.11. Acquisition Transactions. Neither the General
Partner nor Intergen shall, nor shall either of them knowingly permit any
Intergen Entity to, nor shall either of them authorize or knowingly permit any
officer, director, Partner, or employee of, or any investment banker, attorney
or other advisor or representative or agent of, Intergen or any Intergen Entity
to, directly or indirectly, (i) solicit, initiate, encourage or facilitate the
submission of any proposal relating to or involving an Acquisition Transaction
or (ii) enter into, encourage or facilitate any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take
any other action to encourage or facilitate any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, or
constitute an effort to facilitate, any proposal relating to or involving an
Acquisition Transaction. Intergen shall immediately terminate and cease any and
all discussions, negotiations and/or contacts with any other person or entity
which may exist relating to or involving an Acquisition Transaction.
5.12. Solicitation of Limited Partners. As soon as
practicable following the date of this Agreement, the General Partner:
(a) shall use its commercially reasonable
efforts to cause all limited partners of the Partnership to authorize
the execution of this Agreement, the consummation of the Merger and
the appointment of the General Partner to act on behalf of all limited
partners to the extent set forth in, and in the form of, the Partners'
Consent; and
(b) shall duly prepare an information
statement, proxy statement or similar document (the form and substance
of which shall be reasonably acceptable to Serologicals) (the
"Information Statement"), and shall deliver such Information Statement
together with any other necessary documentation (the form and
substance of which shall be reasonably acceptable to Serologicals) to
obtain the consent of the limited partners of the General Partner to
this Agreement and the transactions contemplated by this Agreement in
accordance with the partnership agreement and other governing
documents of the General Partner, and, in connection therewith, the
General Partner (i) shall recommend that the limited partners of the
General Partner ratify and approve this Agreement, the Merger and the
other transactions contemplated herein; (ii) shall use all reasonable
efforts to solicit such approval; (iii) shall not recommend or present
for approval of, consideration in any manner by, the limited partners
of the General Partner any other Acquisition Transaction, and (iv)
shall not withdraw or modify in any manner the approval or
recommendation by it of this Agreement or the Merger.
5.13. Expense Reimbursement.
(a) In order to induce Serologicals to enter
into this Agreement and to reimburse and compensate Serologicals for
its time, expenses and lost opportunity costs of pursuing the Merger
and seeking to consummate the transactions contemplated by this
Agreement, Intergen will make a cash payment to Serologicals of an
amount equal to two million dollars ($2,000,000) (the "Break-up Fee"):
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(i) (A) if Serologicals terminates
this Agreement pursuant to Section 11.1(c) and the
representations set forth in the second sentence of Section
3.1(e) are untrue or inaccurate to the extent that not all of
the general partners of Intergen or the limited partners
holding more than 50% of the interests of the limited
partners in profits of Intergen have authorized the merger
and such authorizations have not been obtained prior to
Closing; (B) if Serologicals or Intergen terminates this
Agreement pursuant to Sections 11.1(b), 11.1(c) or 11.1(d)
and Intergen or the General Partner has breached its
covenants set forth in Section 5.10, 5.11 or 5.12; (C) if
Intergen terminates this Agreement pursuant to Section
11.1(b) because the condition to closing set forth in Section
7.5 is not satisfied; or (D) if Serologicals terminates this
Agreement pursuant to Section 11.1(c) because the condition
to closing set forth in Section 8.11 is not satisfied; and
(ii) if, within six months of the date
of termination, a written agreement for an Acquisition
Transaction (which written agreement sets forth a proposed
purchase price) is entered into, in which case the Break-up
Fee shall be payable (by wire transfer of immediately
available funds to an account designated by Serologicals) on
the closing date of such Acquisition Transaction.
(b) The parties agree that the agreements
contained in this Section 5.13 are an integral part of the
transactions contemplated by this Agreement. The parties acknowledge
and agree that damages upon termination of the Agreement in the
circumstances referred to in Section 5.13(a) are not reasonably
ascertainable and the payment pursuant to Section 5.13(a) constitutes
liquidated damages and not a penalty.
(c) Notwithstanding anything in this Agreement
to the contrary, (i) in addition to any amounts paid or payable
pursuant to this Section 5.13, Intergen shall pay Serologicals the
costs and expenses (including legal fees and expenses) in connection
with any action, including the filing of any lawsuit or other legal
action, taken by Serologicals to collect the Break-up Fee, if it is
determined in such proceeding that Serologicals is entitled to the
Break-up Fee, together with interest on the unpaid amount at the
publicly announced prime rate of Citibank, N.A. from the date such
amount was required to be paid hereunder and (ii) Serologicals shall
pay Intergen the costs and expenses (including legal fees and
expenses) in connection with any action taken by Serologicals to
collect the Break-up Fee, if it is determined in such proceeding that
Serologicals is not entitled to the Break-up Fee.
5.14. HSR Act Filings. Intergen shall (i) as promptly as
practicable after the date hereof, with Intergen using its commercially
reasonable efforts to make a prompt filing, make such filings as may be
required by the HSR Act with respect to the transactions contemplated hereby,
(ii) respond promptly to inquiries from the Department of Justice and the
Federal Trade Commission in connection with such filings, (iii) file or cause
to be filed as promptly as practicable with the Department of Justice and
Federal Trade Commission any supplemental information that may be requested
pursuant to the HSR Act, and (iv) seek the earliest possible termination or
waiver of the waiting period under such statute. Intergen shall promptly inform
Serologicals of any material communication made to, or received by Intergen
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from, the Federal Trade Commission, the Antitrust Division of the Department of
Justice or any other Governmental Authority. Serologicals shall pay the filing
fees associated with any such filing pursuant to the HSR Act.
6. COVENANTS OF SEROLOGICALS.
6.1. Maintenance of Books and Records. Serologicals shall
maintain possession of all books and records related to the operation of the
Business prior to the Closing Date for a period of at least six (6) years
following the Closing Date and during such six (6) year period, shall provide
the General Partner with reasonable access to such books and records for tax
reporting purposes.
6.2. Covenants of Serologicals. Serologicals hereby
covenants and agrees, except with the prior written consent of the General
Partner, between the date hereof and the Closing Date, that Serologicals shall:
(a) promptly (once Serologicals obtains
knowledge thereof) inform the General Partner in writing of any
breaches of the representations and warranties contained in Section 4
or any breach of any covenant hereunder by Serologicals, provided that
such notification shall not relieve Serologicals from any obligation
or liability associated with or resulting from such breach; and
(b) cooperate with the General Partner and use
commercially reasonable efforts to cause the conditions to Intergen's
obligation to close to be satisfied (including, without limitation,
the execution and delivery of all agreements contemplated hereunder to
be so executed and delivered and the use of commercially reasonable
efforts to make and obtain all third party and governmental notices,
filings, authorizations, approvals, consents, releases, and
terminations).
6.3. Negative Covenants of Serologicals. Except as
expressly contemplated by this Agreement or agreed to in writing by the General
Partner, between the date hereof and the Closing Date, Serologicals covenants
and agrees that it will not do any act, omit to do any act or permit any act
within its control that will cause a breach of any representation, warranty or
obligation of Serologicals contained in this Agreement.
6.4. Notification. Serologicals shall promptly notify the
General Partner in writing of any change in any of the information contained in
Serologicals' representations and warranties contained in this Agreement.
6.5. Directors' and Officers' Indemnification and
Insurance. The Surviving Corporation shall (a) indemnify and hold harmless, and
provide advancement of expenses to, all past and present directors, officers
and employees of the Intergen Entities (in all of their capacities), to the
same extent such persons are indemnified or have the right to advancement of
expenses as of the date of this Agreement by the applicable Intergen Entity
pursuant to the certificate of incorporation and by-laws or partnership
agreement, as the case may be, of the applicable Intergen Entity in existence
on the date hereof for acts or omissions occurring at or prior to the Effective
Time (including acts or omissions occurring in connection with the approval of
this Agreement and the consummation of the transactions contemplated hereby),
and
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(b) include and cause to be maintained in effect in the Surviving Corporation's
(or any successor's) certificate of incorporation and by-laws for a period of
six years after the Effective Time, provisions regarding elimination of
liability of directors, indemnification of officers, directors and employees
and advancement of expenses at least as favorable to such persons as the
corresponding provisions contained in Intergen's partnership agreement, as of
the date hereof.
6.6. Limitation on Customer Contact. Notwithstanding any
other provision of this Agreement to the contrary, Serologicals shall not, and
shall not cause or permit its representatives to, contact the customers of the
Intergen Entities prior to the consummation of the Merger without the prior
written consent of Intergen, which consent shall not be unreasonably withheld.
The limitation set forth in the preceding sentence shall not prohibit or
restrict (i) contacts, in the Ordinary Course of Business of Serologicals,
between Serologicals and customers of Intergen that are also customers of
Serologicals or (ii) sales, marketing or promotional efforts conducted by
Serologicals in the Ordinary Course of Business.
6.7. Insurance Non-Discrimination. So long as the General
Partner has any obligation to Serologicals pursuant to Section 10 of this
Agreement, Serologicals shall not discriminate against the assets of the
Intergen Entities in its insurance program.
6.8. HSR Act Filings. Serologicals shall (i) as promptly
as practicable after the date hereof, with Serologicals using its commercially
reasonable efforts to make a prompt filing, make such filings as may be
required by the HSR Act with respect to the transactions contemplated hereby,
(ii) respond promptly to inquiries from the Department of Justice and the
Federal Trade Commission in connection with such filings, (iii) file or cause
to be filed as promptly as practicable with the Department of Justice and
Federal Trade Commission any supplemental information that may be requested
pursuant to the HSR Act, and (iv) seek the earliest possible termination or
waiver of the waiting period under such statute. Serologicals shall promptly
inform Intergen of any material communication made to, or received by
Serologicals from, the Federal Trade Commission, the Antitrust Division of the
Department of Justice or any other Governmental Authority.
7. CONDITIONS TO INTERGEN'S OBLIGATIONS. Intergen's obligations
to be performed hereunder shall be subject to the satisfaction (or written
waiver by Intergen) at or prior to the Closing Date of the following
conditions:
7.1. Representations and Warranties True at Closing Date.
Serologicals' representations and warranties contained in this Agreement shall
be true and correct, in all material respects, on and as of the Closing Date as
if made at and as of such time (other than those representations and warranties
that are qualified as to materiality or similar language, which shall be true
and correct in all respects on and as of the Closing Date, as if made at and as
of such time), except for representations and warranties relating to a time or
times other than the Closing Date which shall be true and correct, in all
material respects, at such time or times. Serologicals shall have complied in
all material respects with the covenants and agreements set forth herein
required to be performed by it on or prior to the Closing Date. Serologicals
shall have delivered to the General Partner a certificate dated the Closing
Date and signed on behalf of Serologicals by its duly authorized officer
attesting to all such effects described in this
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paragraph, which certificate shall state that such representations, warranties,
covenants and agreements are made with the same force and effect as if made in
this Agreement as of the date hereof.
7.2. Required Governmental Approvals. Any necessary
governmental approvals shall have been obtained.
7.3. Litigation. No suit, investigation, action or other
proceeding shall be threatened or pending against Serologicals, Intergen or the
Partners before any Governmental Authority which, in the opinion of counsel for
Intergen or the Partners, is likely to result in the restraint or prohibition
of the consummation of the transactions contemplated by this Agreement.
7.4. No Order, Decree or Injunction. Neither Intergen nor
the Partners shall be subject on the Closing Date to any order, decree or
injunction of a court of competent jurisdiction, and no statute, rule or
regulation shall have been enacted, promulgated or issued, which enjoins or
prohibits the consummation of the transactions contemplated by this Agreement.
7.5. Required Consents. The General Partner shall have
obtained the required consent of its limited partners to the consummation of
the Merger.
7.6. Other Closing Deliveries. Serologicals shall have
delivered or stand ready to deliver the following:
(a) A certified copy of the duly adopted
resolutions of the board of directors of Serologicals and Sub,
authorizing the execution, delivery and performance of this Agreement
and all actions taken or to be taken by Serologicals and Sub in
connection with this Agreement, which resolutions shall be in full
force and effect as of the Closing Date;
(b) Evidence of the good standing of
Serologicals and Sub certified by the Secretary of State of the State
of Delaware;
(c) An earnout agreement substantially in the
form attached hereto as Exhibit B (with such changes or modifications
as reasonably required by Serologicals if all of the limited partners
of Intergen do not execute and deliver the Partners' Consent) (the
"Earnout Agreement"); and
(d) An escrow agreement substantially in the
form attached hereto as Exhibit C (with such changes or modifications
as reasonably required by Serologicals if all of the limited partners
of Intergen do not execute and deliver the Partners' Consent) (the
"Escrow Agreement").
7.7. Determination of Allocation. The Allocation shall
have been determined in accordance with Section 2.7.
7.8. Required Governmental Approvals. Either (i)
Serologicals shall have delivered a certificate certifying that its board of
directors (or the board's designee) has
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determined, in accordance with the HSR Act and the rules thereunder, that the
merger does not meet the filing requirements of the HSR Act and the applicable
rules thereunder or (ii) all applicable waiting periods with respect to any
"Notifications and Report Form for Certain Mergers and Acquisitions" filed by
Serologicals, Intergen or any of their "ultimate parent entities" in compliance
with the HSR Act pursuant to the transactions contemplated hereby shall have
passed, or early termination of such waiting periods shall have been granted.
7.9. Determination of Project Cost. Serologicals and
Intergen shall have agreed to the Project Cost in accordance with Section 2.9.
8. CONDITIONS TO SEROLOGICALS' OBLIGATIONS. The obligations of
Serologicals to be performed hereunder shall be subject to the satisfaction (or
written waiver by Serologicals) on or before the Closing Date of each of the
following conditions:
8.1. Representations and Warranties True at Closing Date.
The representations and warranties of Intergen contained in this Agreement
shall be true and correct in all material respects on and as of the Closing
Date, as if made at and as of such time (other than those representations and
warranties that are qualified as to materiality or similar language, which
shall be true and correct in all respects on and as of the Closing Date, as if
made at and as of such time), except for representations and warranties
relating to a time or times other than the Closing Date, which shall be true
and correct in all material respects, at such time or times. Intergen and the
General Partner shall have complied in all material respects with the covenants
and agreements set forth herein required to be performed by them on or prior to
the Closing Date. Intergen and the General Partner shall have delivered to
Serologicals a certificate signed by a duly authorized officer of Intergen and
by the General Partner attesting to all of such effects described in this
paragraph, which certificate shall state that such representations, warranties,
covenants and agreements are made with the same force and effect as if made in
this Agreement as of the date hereof.
8.2. No Adverse Change. Intergen shall not have suffered
(nor shall Serologicals have become aware of) any material adverse change
(unless such change is described in any Schedule or unless such change relates
to or results from the economy or financial markets in general) in the
prospects, financial condition, working capital, assets, liabilities (absolute,
accrued, contingent or otherwise), or results of operations of the Business
taken as a whole, nor shall any event have occurred that is reasonably likely
to result in such a material adverse change.
8.3. Litigation. No suit, investigation, action or other
proceeding shall be threatened or pending against Serologicals, Intergen or the
Partners before any Governmental Authority which, in the opinion of counsel for
Serologicals, (i) is likely to result in the restraint or prohibition of the
consummation of the transactions contemplated by this Agreement or (ii) would
reasonably be expected to result in an order restricting Intergen or
Serologicals from conducting its business as now being conducted.
8.4. Opinion of Counsel to Intergen and the Partners.
Serologicals shall have received (i) from Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP,
United States counsel to Intergen, an opinion, dated the Closing Date,
substantially in the form of Exhibit D, (ii) from Post &
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Xxxxxxx XXX, counsel to the Guarantor and certain of the Partners, an opinion
substantially in the form of Exhibit E, (iii) from Davies Xxxx Xxxxxxxx &
Xxxxxxxx LLP, Canadian counsel to Intergen, an opinion, dated the Closing Date
substantially in the form of Exhibit F and (iv) from Xxxxx Xxxxxxx & Xxxxxxxxx
LLP, an opinion, dated the Closing Date substantially in the form of Exhibit G.
8.5. Required Governmental Approvals. All necessary
governmental approvals shall have been obtained.
8.6. No Order, Decree or Injunction. None of Intergen,
Serologicals or the Partners shall be subject on the Closing Date to any order,
decree or injunction of a court of competent jurisdiction, and no statute, rule
or regulation shall have been enacted, promulgated or issued, which enjoins or
prohibits the consummation of the transactions contemplated by this Agreement
or which would have a material adverse effect or which might impose material
limitations on the ability of Sub to effectively exercise full rights of
ownership of the assets and properties used in the operation of the Business as
a result of the consummation of the transactions contemplated hereby or to
operate the business.
8.7. Payment of Existing Indebtedness and Release of
Liens. Serologicals shall have received pay-off letter(s), in form and
substance reasonably satisfactory to Serologicals in its sole and absolute
discretion, in respect of (i) the payment, release and termination of the
indebtedness for borrowed money of the Intergen Entities described on Schedule
8.7, and (ii) the full release of any and all Liens related to such
indebtedness and any other Liens (other than Permitted Liens) encumbering any
assets and properties, of all Intergen Entities, including all assets and
properties used in the operation of the Business.
8.8. Other Necessary Consents. With respect to each
consent, approval or other action set forth on Schedule 8.8 (each such action
of any of the aforementioned kind being referred to as a "Consent") of another
party pursuant to any Lien, agreement, permit or similar instrument required by
virtue of the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby (including, without limitation, the
Merger), Serologicals shall have received written evidence, reasonably
satisfactory to it, that such Consent has been duly and lawfully obtained in a
form that does not materially affect the rights of the Surviving Corporation or
interfere with the Surviving Corporation's ability to conduct the Business in
substantially the same manner it was conducted prior to the Effective Time.
8.9. Other Closing Deliveries. Intergen, the General
Partner and/or the Partners shall have delivered or stand ready to deliver the
following:
(a) A certified copy of the duly adopted
resolutions of the general partner of Intergen, authorizing the
execution, delivery and performance of this Agreement and all other
actions taken or to be taken by Intergen in connection with this
Agreement, which resolutions shall be in full force and effect as of
the Closing Date;
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(b) Evidence of the good standing of Intergen
certified by the Secretary of State of the State of Delaware and each
state in which Intergen is qualified to do business;
(c) The Earnout Agreement; and
(d) The Escrow Agreement.
8.10. Tradename. Each entity affiliated with Intergen on
the date hereof the name of which includes the word "Intergen" or any
derivation thereof shall have executed and delivered to Serologicals an
agreement, in form and substance reasonably satisfactory to Serologicals,
pursuant to which it agrees that it shall not engage in any business unless it
changes its name to remove the word "Intergen" or any such derivation.
8.11. Required Consents. The General Partner shall have
obtained the required consent of its limited partners to the consummation of
the Merger.
8.12. Required Governmental Approvals. If Serologicals
determines that a filing under the HSR Act is required, all applicable waiting
periods with respect to any "Notifications and Report Form for Certain Mergers
and Acquisitions" filed by Serologicals, Intergen or any of their "ultimate
parent entities" in compliance with the HSR Act pursuant to the transactions
contemplated hereby shall have passed, or early termination of such waiting
periods shall have been granted.
8.13. Effectiveness of Termination Agreements. The
Termination Agreements shall have become effective in accordance with their
terms and shall remain in full force and effect.
8.14. Guaranty. Presidio Capital Investment Company, LLC,
a Delaware limited liability company shall have executed and delivered the
Guaranty substantially in the form attached hereto as Exhibit H.
8.15. Determination of Allocation. The Allocation shall
have been determined in accordance with Section 2.7.
8.16. Resignations. Each of the officers and directors of
each Intergen Entity, identified in writing to Intergen at least five days
prior to the Closing Date, shall have resigned such positions.
8.17. Determination of Project Cost. Serologicals and
Intergen shall have agreed to the Project Cost in accordance with Section 2.9.
9. CLOSING. Subject to the satisfaction or waiver of the
conditions set forth herein, the closing of the Merger (the "Closing") shall
take place, in the offices of King & Spalding, Atlanta, Georgia, 000 Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000, as promptly as practicable (and in any event
within three business days) following the satisfaction or waiver of the
conditions set forth in Sections 7 and 8 of this Agreement or at such other
date, time and place as the parties
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shall agree. The date of the Closing is referred to herein as the "Closing
Date." The pre-closing shall occur at 2:00 p.m. on the business day preceding
the Closing Date.
10. INDEMNIFICATION.
10.1. Survival. All representations and warranties set
forth in this Agreement or in any writing or certificate delivered in
connection with this Agreement shall survive the Closing Date until the
Applicable Limitation Date and shall not be affected by any examination made
for or on behalf of any party, the knowledge of any of such party's officers,
directors, managers, members, employees, or agents, or the acceptance of any
certificate or opinion. All covenants and agreements set forth in this
Agreement that require or contemplate any action on the part of any party after
the Closing Date shall survive the Closing Date and the consummation of the
transactions contemplated hereby indefinitely.
10.2. By the Partners.
(a) Subject to Section 10.2(b), the General
Partner shall hold harmless and reimburse Serologicals, and each
Serologicals Protected Party, for any and all claims, losses,
liabilities, damages (including fines, penalties, and criminal or
civil judgments and settlements), costs (including court costs) and
expenses (including reasonable attorneys' and accountants' fees billed
at normal hourly rates) (hereinafter a "Serologicals Loss" or
"Serologicals Losses") suffered or incurred by Serologicals, Sub or
their respective officers, directors, managers, employees, agents or
Affiliates or any successors or assigns thereto (the "Serologicals
Protected Parties") as a result of, or with respect to:
(i) any breach or inaccuracy of any
representation or warranty of Intergen set forth in this
Agreement, either on the date hereof or the Closing Date;
(ii) any breach of or noncompliance by
the General Partner or Intergen with any covenant or
agreement of the General Partner or Intergen contained in
this Agreement;
(iii) any liability or obligation of any
Intergen Entity for indebtedness for borrowed money
(excluding any Equipment Lease Obligation and any
indebtedness for borrowed money that Serologicals agreed
prior to the Closing Date to permit to remain outstanding
following the Closing Date and the Contingent Interest
Obligation) that remains outstanding following the Closing
Date;
(iv) the payment of any amount to any
employee of any Intergen Entity with respect to (1) the
termination of his or her employment following a
change-of-control of any Intergen Entity; (2) a bonus based
on the consummation of the Merger or the value or amount of
the Merger Consideration; or (3) a bonus based on his or her
continuation of his or her employment with any Intergen
Entity pending or after the consummation of the Merger except
for
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(A) the amount of Termination
Payments set forth on Schedule 1.1(ee);
(B) payments to be made
pursuant to the Biberon Agreement;
(C) payments made to Xxxxx
Xxxxxxx ("Xxxxxxx") pursuant to Section 1 of the
Agreement dated August 2000 between Cameron and
Intergen (the "Cameron Agreement"), for severance
benefits in the event of termination by Sub without
Good Cause (as defined in the Cameron Agreement) or
by Cameron for Good Reason (as defined in the
Cameron Agreement) after the consummation of the
Merger and before the first anniversary of the
Closing Date of the Merger;
(D) payments made to Xxxxxx
Xxxxxx ("Xxxxxx") pursuant to Section 1 of the
Agreement dated August 2000 between Xxxxxx and
Intergen (the "Xxxxxx Agreement"), for severance
benefits in the event of termination by Sub without
Good Cause (as defined in the Xxxxxx Agreement) or
by Xxxxxx for Good Reason (as defined in the Xxxxxx
Agreement) after the consummation of the Merger and
before the first anniversary of the Closing Date of
the Merger; and
(E) payments made to Xxxxxxx
X. Xxx ("Xxx") pursuant to Section 1 of the
Agreement dated August 2000 between Cox and Intergen
(the "Cox Agreement"), for severance benefits in the
event of termination by Sub without Good Cause (as
defined in the Cox Agreement) or by Cox for Good
Reason (as defined in the Cox Agreement) after the
consummation of the Merger and before the first
anniversary of the Closing Date of the Merger).
(v) fees and expenses of counsel,
accountants, brokers, financial advisors or other experts of
the Partners, the General Partner or Intergen and all other
costs and expenses of the Partners, the General Partner or
Intergen incurred in connection with the negotiation,
preparation and execution of this Agreement and the
transactions contemplated hereby;
(vi) any breach or inaccuracy of the
representations or warranties set forth in Section 3.1(e)
(including the information on Schedules 3.1(e)(i) or
3.1(e)(ii)) or any liability resulting from the distribution
by Serologicals of the amounts determined and distributed in
accordance with Section 2.6(a).
(b) The indemnification provided for in Section
10.2(a) above is subject to the following limitations:
(i) The General Partner will be liable
to the Serologicals Protected Parties with respect to claims
referred to in Section 10.2(a) only if a
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Serologicals Protected Party gives the General Partner
written notice thereof on or before the Applicable Limitation
Date.
(ii) Notwithstanding anything in this
Agreement to the contrary, (1) claims for indemnification of
Serologicals Losses by any Serologicals Party shall be made
against, and the sole remedy and means of recovery for such
Losses shall be, the Escrow Fund (as defined in the Escrow
Agreement) as such amount shall be increased pursuant to the
Escrow Agreement and as such payments shall be guaranteed by
the Guarantor and (2) the aggregate amount of all payments
made, for Serologicals Losses, by the General Partner and
Guarantor (collectively) in satisfaction of claims for
indemnification by any and all Serologicals Protected Parties
shall not exceed five million dollars ($5,000,000).
(iii) The General Partner shall not be
liable to indemnify any Serologicals Protected Parties
pursuant to Section 10.2(a) unless and until the Serologicals
Protected Parties have collectively suffered Serologicals
Losses in excess of the Basket (at which point, subject to
the other limitations herein, the General Partner shall be
liable to the Serologicals Protected Parties for all
Serologicals Losses in excess of the Basket); provided,
however, that the Basket and limitations set forth in this
Section 10.2(b)(iii) shall not apply to any indemnification
claims for any Serologicals Losses pursuant to Sections
10.2(a)(iii), 10.2(a)(iv), 10.2(a)(v) or 10.2(a)(vi).
(c) Notwithstanding any implication to the
contrary contained in this Agreement, so long as Serologicals delivers
written notice of a claim to the General Partner no later than the
Applicable Limitation Date, the General Partner shall be required to
indemnify the Serologicals Protected Parties for all Serologicals
Losses (subject to the limitations set forth in subparagraphs (b)(ii)
and (b)(iii) above) that the Serologicals Protected Parties may incur
in respect of the matters which are the subject of such claim,
regardless of when incurred.
(d) The Serologicals Protected Parties shall
take commercially reasonable steps to mitigate all indemnifiable
liabilities and damages upon and after becoming aware of any event
which could reasonably be expected to give rise to any liabilities or
damages that are indemnifiable hereunder.
(e) Notwithstanding any implication to the
contrary contained in this Agreement, the limits on indemnification
set forth in this Agreement shall not apply to claims for damages
arising from fraud.
10.3. By Serologicals.
(a) Except as otherwise limited by this Section
10, Serologicals shall indemnify and reimburse the Partners and their
respective officers, directors, managers, members, agents, advisors,
heirs, personal representatives, successors, and assigns (the
"Intergen Protected Parties") for any and all claims, losses,
liabilities, damages (including
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fines, penalties, and criminal or civil judgments and settlements),
costs (including court costs) and expenses (including reasonable
attorneys' and accountants' fees billed at normal hourly rates)
(hereinafter "Intergen Losses" and together with Serologicals Losses,
"Losses") suffered or incurred by the Intergen Protected Parties as a
result of, or with respect to:
(i) any breach or inaccuracy of any
representation or warranty of Serologicals or Sub set forth
in this Agreement; and
(ii) any breach of or noncompliance by
Serologicals or Sub with any covenant or agreement of
Serologicals or Sub contained in this Agreement.
(b) The indemnification provided for in Section
10.3(a) above is subject to the following limitations:
(i) Serologicals will be liable to the
Intergen Protected Parties with respect to claims referred to
in Section 10.3(a) only if the General Partner gives
Serologicals written notice thereof on or before the
Applicable Limitation Date;
(ii) Notwithstanding anything in this
Agreement to the contrary, the aggregate amount of all
payments made by Serologicals in satisfaction of claims for
indemnification by any and all Intergen Protected Parties
shall not exceed five million dollars ($5,000,000); and
(iii) Serologicals shall not be liable
to indemnify any Intergen Protected Party pursuant to Section
10.3(a) unless and until the Intergen Protected Parties have
collectively suffered Intergen Losses in excess of the Basket
(at which point, subject to the other limitations herein,
Serologicals shall be liable to the Intergen Protected
Parties for all Intergen Losses in excess of the Basket).
(c) Notwithstanding any implication to the
contrary contained in this Agreement, so long as the General Partner
delivers written notice of a claim to Serologicals no later than the
Applicable Limitation Date, Serologicals shall be required to
indemnify the Intergen Protected Parties for all Losses (subject to
the limitations set forth in subparagraphs (b)(ii) and (b)(iii) above)
that the Intergen Protected Parties may incur in respect of the
matters which are the subject of such claim, regardless of when
incurred.
(d) The Intergen Protected Parties shall take
all reasonable steps to mitigate all indemnifiable liabilities and
damages upon and after becoming aware of any event which could
reasonably be expected to give rise to any liabilities or damages that
are indemnifiable hereunder.
(e) Notwithstanding any implication to the
contrary contained in this Agreement, the limits on indemnification
set forth in this Agreement shall not apply to claims for damages
arising from fraud.
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10.4. Indemnification Procedure.
(a) Promptly after receipt by an Intergen
Protected Party or a Serologicals Protected Party (the "Indemnified
Party") of notice by a third party of any claim, assessment,
reassessment, complaint or the commencement of any action or
proceeding with respect to which such Indemnified Party may be
entitled to receive indemnification from the other party for any
Intergen Losses or Serologicals Losses such Indemnified Party shall
notify either (i) Serologicals, in the case of an Intergen Protected
Party seeking indemnification or (ii) the General Partner, in the case
of a Serologicals Protected Party seeking indemnification, (the
"Indemnifying Party") of such claim, assessment, reassessment,
complaint or of the commencement of such action or proceeding;
provided, however, that the failure to so notify the Indemnifying
Party shall relieve the Indemnifying Party from liability under this
Agreement with respect to such claim only if, and only to the extent
that, such failure to notify the Indemnifying Party results in the
forfeiture of rights and defenses otherwise available to the
Indemnifying Party or the Indemnified Party with respect to such
claim. The Indemnifying Party shall have the right, upon written
notice delivered to the Indemnified Party within 20 days thereafter,
to assume the defense of such action or proceeding or objection to or
appeal of such assessment or reassessment, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the
payment of the fees and disbursements of such counsel. In the event,
however, that the Indemnifying Party declines or fails to assume the
defense of the action, proceeding, objection or appeal or to employ
counsel reasonably satisfactory to the Indemnified Party, in either
case within such 20-day period, or the Indemnified Party shall have
reasonably concluded that separate counsel is required because a
conflict of interest would otherwise exist, then such Indemnified
Party may employ counsel to represent or defend it in any such action
or proceeding and the Indemnifying Party shall pay the reasonable fees
and disbursements of such counsel as incurred; provided, however, that
the Indemnifying Party shall not be required to pay the fees and
disbursements of more than one counsel for all Indemnified Parties in
any jurisdiction in any single action or proceeding. In any action,
proceeding, objection or appeal with respect to which indemnification
is being sought hereunder, the Indemnified Party or the Indemnifying
Party, whichever is not assuming the defense or pursuit of such
action, shall have the right to participate in such litigation and to
retain its own counsel at such party's own expense. The Indemnifying
Party or the Indemnified Party, as the case may be, shall at all times
use all commercially reasonable efforts to keep the Indemnifying Party
or the Indemnified Party, as the case may be, reasonably apprised of
the status of the defense of any action the defense of which they are
maintaining and to cooperate in good faith with each other with
respect to the defense or settlement of any such action.
(b) No Indemnified Party may settle or
compromise any claim, assessment, reassessment, or consent to the
entry of any judgment with respect to which indemnification is being
sought hereunder without the prior written consent of the Indemnifying
Party, which shall not be unreasonably withheld; provided that the
Indemnified Party may settle or compromise or choose not to object or
appeal any such claim, assessment, reassessment or consent to the
entry of a judgment with respect thereto if the Indemnifying Party
fails to assume and maintain the defense thereof
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pursuant to Section 10.4(a) and the Indemnified Party would be
reasonably likely to be materially prejudiced by the continuation of
such claim in such a manner that indemnification by the Indemnifying
Party would not be an adequate remedy. The Indemnifying Party shall
not settle any claim, assessment, reassessment, or assertion, unless
the Indemnified Party consents in writing to such settlement, which
consent shall not be unreasonably withheld.
(c) In the event an Indemnified Party shall
claim a right to payment pursuant to this Agreement other than
pursuant to Section 10.4(a) hereof, such Indemnified Party shall send
written notice of such claim to the Indemnifying Party. Such notice
shall specify the basis for such claim. As promptly as possible after
the Indemnified Party has given such notice, such Indemnified Party
and the Indemnifying Party shall establish the merits and amount of
such claim (by mutual agreement or litigation) and, within five (5)
business days after the date of the final determination of the merits
and amount of such claim, the Indemnifying Party shall pay to the
Indemnified Party immediately available funds in an amount equal to
such claim as determined hereunder; provided that if the Indemnified
Party is a Serologicals Protected Party such payment shall be made
pursuant to the Escrow Agreement.
10.5. No Implications. Neither the rights of any party to
indemnification from another party nor the obligations of any party to
indemnify another party under this Agreement shall in any way imply or create,
and each party specifically disclaims, any responsibility whatsoever by such
party for any other party's liabilities (except as expressly provided herein to
the contrary as among the parties only) to any other Person.
10.6. Net Payments. Any indemnification payable pursuant
to this Section 10 shall be treated by the parties as an adjustment to the
Merger Consideration and shall be net of any amounts actually recovered (after
deducting related costs and expenses) by the Indemnified Party for the Losses
for which such indemnification payment is made, under any insurance policy,
warranty or indemnity from any third party existing at the Closing Date;
provided that, the realization of any such benefits or recoveries shall not be
a condition to the Indemnifying Parties' obligations under this Section 10.
11. TERMINATION PRIOR TO CLOSING; SPECIFIC PERFORMANCE.
11.1. Termination of Agreement. This Agreement may be
terminated at any time prior to the Closing:
(a) By the mutual written consent of
Serologicals and the General Partner;
(b) By Intergen and the General Partner in
writing, if the conditions set forth in Section 7 hereof shall not
have been complied with or performed and such noncompliance or
nonperformance shall not have been cured or eliminated (or by its
nature cannot be cured or eliminated) by Serologicals on or before
December 31, 2001 (or such later date as may be mutually agreed upon
by the parties), unless satisfaction of such conditions has been
frustrated or made impossible by an act or failure to act of
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Intergen or the General Partner in breach or violation of its
covenants, agreements or obligations hereunder;
(c) By Serologicals in writing, if the
conditions set forth in Section 8 hereof shall not have been complied
with or performed and such noncompliance or nonperformance shall not
have been cured or eliminated (or by its nature cannot be cured or
eliminated) by Intergen or the General Partner on or before December
31, 2001 (or such later date as may be mutually agreed upon the
parties), unless satisfaction of such conditions has been frustrated
or made impossible by an act or failure to act of Serologicals in
breach or violation of its covenants, agreements or obligations
hereunder; or
(d) By either the General Partner or
Serologicals, in writing, without liability, if for any reason the
Closing has not occurred by January 31, 2002.
11.2. Termination of Obligations. Termination of this
Agreement pursuant to this Section 11 shall terminate all obligations of the
parties hereunder; provided, however, that termination pursuant to
subparagraphs (b), (c) or (d) of Section 11.1 shall not (i) relieve a
defaulting or breaching party from any liability to the other party hereto or
(ii) terminate either party's obligation pursuant to the Letter Agreement.
11.3. Specific Performance. Without intending to limit the
remedies available to any of the parties hereto, each of the parties hereto
acknowledges and agrees that if Intergen breaches this Agreement and refuses to
perform under the provisions of this Agreement, Serologicals would suffer
irreparable injury for which an adequate remedy at law is not available.
Therefore, the parties hereto agree that Serologicals shall be entitled, in
addition to any other remedies that may be available, to obtain specific
performance from any court of competent jurisdiction of the terms of this
Agreement. If any action is brought by Serologicals to enforce this Agreement,
each of the Partners hereby waives the defense that there is an adequate remedy
at law.
12. MISCELLANEOUS.
12.1. Entire Agreement. This Agreement (including the
Schedules) constitutes the sole understanding of the parties with respect to
the subject matter hereof and supercedes any prior agreement or understanding,
whether written or oral. No amendment, modification or alteration of the terms
or provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto.
12.2. Parties Bound by Agreement; Successors and Assigns.
The terms, conditions and obligations of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors, heirs, assigns and personal representatives. Without the prior
written consent of the other parties hereto, neither party may assign its
rights, duties or obligations hereunder or any part thereof to any other person
or entity. Notwithstanding the preceding sentence, the Partners hereby consent
to the assignment by Serologicals and Sub of their right, title and interest in
and to this Agreement and the obligations of the Partners hereunder to Bank of
America, N.A., as Administrative Agent pursuant to that
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certain Third Amended and Restated Credit Agreement, dated as of September 28,
1999, by and among Serologicals, as Borrower, the financial institutions that
are parties thereto, as Lenders, Wachovia Bank, N.A. and LaSalle Bank National
Association, as Co-Agents, and Bank of America, N.A., as Administrative Agent.
12.3. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument.
12.4. Headings. The headings of the Sections and
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
hereof.
12.5. Modification and Waiver. Any of the terms or
conditions of this Agreement may be waived in writing at any time by the party
that is entitled to the benefits thereof. No waiver of any of the provisions of
this Agreement shall be deemed to or shall constitute a waiver of any other
provision hereof (whether or not similar).
12.6. Notices. Any notice, request, instruction or other
document to be given hereunder by any party hereto to any other party hereto
shall be in writing and delivered personally or by telecopy transmission or
sent by registered or certified mail or by any express mail or overnight
courier service, postage or fees prepaid:
if to the General Partner, the Partners or Intergen:
NorthStar Capital Investment Corp.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx XxXxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
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and to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopier: (000) 000-0000
if to Serologicals, Sub or the Surviving Corporation to:
Serologicals Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
or at such other address or number for a party as shall be specified by like
notice.
Any notice that is delivered personally or by telecopy
transmission in the manner provided herein shall be deemed to have been duly
given to the party to whom it is directed upon actual receipt by such party or
its agent. Any notice that is addressed and mailed or sent by courier in the
manner herein provided shall be conclusively presumed to have been duly given
to the party to which it is addressed at the close of business, local time of
the recipient, on the fourth business day after the day it is so placed in the
mail or, if earlier, the time of actual receipt.
12.7. Advisors' Fees and Expenses. Serologicals shall be
responsible for paying all fees and expenses incurred by it in connection with
the preparation, negotiation, execution and delivery of this Agreement and the
consummation of the Merger, including, without limitation, their investment
bankers', attorneys' and accountants' fees. The Partners shall be responsible
for paying all fees and expenses incurred by them and the Intergen Entities in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the consummation of the Merger, including, without limitation,
their investment bankers', attorneys' and accountants' fees (the "Advisor
Fees"). Except as expressly provided in Section 2.6(d) in no event shall any
Intergen Entity pay any part of the fees and expenses referred to in the
preceding sentence.
12.8. Governing Law; Construction. This Agreement shall be
construed in accordance with and governed by the laws of the State of Delaware
without giving effect to the principles of conflicts of law thereof. No
provision of this agreement or any related document
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shall be construed against or interpreted to the disadvantage of any party
hereto by any court or other governmental or judicial authority by reason of
such party's having or being deemed to have structured or drafted such
provision. The parties hereto consent to jurisdiction and venue in the federal
and state courts for Xxxxxx County, Georgia.
12.9. Public Announcements. No public announcement shall
be made with regard to the transactions contemplated by this Agreement without
the prior consent of the parties; provided that any party may make such
disclosure if advised in writing by counsel that it is legally required to do
so.
12.10. Knowledge. As used herein, the term "knowledge of
Intergen" and similar terms shall mean the knowledge of each of (i) Xxxxxx X.
Xxxxxxx; (ii) Xxxxxx X. Xxxxx; (iii) Xxxxxxx X. XxXxxxxx; (iv) Cameron; (v)
Cox; (vi) Xxxxxx; and (vii) Xxxxxx X. Xxxxxxx. As used herein, the term
"knowledge of Serologicals" and similar terms shall mean the knowledge of
Serologicals' officers and directors. Knowledge shall include actual knowledge
as well as the knowledge a reasonable business person would have obtained after
making reasonable inquiry and after exercising reasonable diligence with
respect thereto. Except for such rights to withhold certain payments pursuant
to the Escrow Agreement and the Earnout Agreement, the individuals set forth in
this Section 12.10 and the officers and directors of Serologicals shall not
have any personal liability for any breaches of any representations or
warranties set forth herein.
12.11. No Third-Party Beneficiaries. With the exception of
the parties to this Agreement and their permitted successors and assigns, there
shall exist no right of any person to claim a beneficial interest in this
Agreement or any rights occurring by virtue of this Agreement.
12.12. References. Whenever reference is made in this
Agreement to any section, schedule or exhibit, such reference shall be deemed
to apply to the specified section of this Agreement or the specified schedule
or exhibit to this Agreement.
12.13. Severability. In the event that any provision hereof
would, under applicable law, be invalid or unenforceable in any respect, such
provision shall be construed by modifying or limiting it so as to be valid and
enforceable to the maximum extent compatible with, and permissible under,
applicable law. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement which shall remain in full force and effect.
12.14. Planning Act. This Agreement is effective to create
an interest in land only if the provisions of the Planning Act (Ontario) are
complied with. Any and all necessary consents shall be obtained by the Partners
and Intergen, prior to the Effective Time, in final form, at the Partners' cost
and expense.
12.15. Arbitration
(a) Any dispute arising in connection with this
Agreement or the transactions contemplated by this Agreement that is
not resolved by voluntary agreement of the parties shall be finally
and exclusively settled by arbitration in accordance with the
provisions of this Section 12.15. If any such dispute arises, any
party may at any time deliver written notice that it intends to submit
such dispute to arbitration to each other
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party. If such a notice is delivered to each other party, then the
party that delivered such notice shall be entitled to direct
submission of the dispute to arbitration. Notwithstanding this Section
12.15, each party shall have the right to seek, pending the
establishment of the arbitral tribunal, interim relief in aid of
arbitration or to protect the rights of such party in respect of this
Agreement from any court of competent jurisdiction. Any request for
such interim relief by a party shall not be deemed incompatible with,
or a waiver of, this agreement to arbitrate.
(b) Such arbitration shall be held in New York,
New York (which shall be the exclusive location of such arbitration
unless otherwise agreed by the parties) in accordance with the rules
and regulations of the American Arbitration Association, with
pre-hearing discovery as deemed necessary by the arbitrator. The
determination of the arbitrators shall be conclusive and binding upon
the parties, and any determination by the arbitrators of an award may
be filed with the clerk of a court of competent jurisdiction as a
final adjudication of the claim involved, where application may be
made to such court for a judicial acceptance of the award and an order
of enforcement, as the case may be. The expenses of each party,
including legal and accounting fees, if any, with respect to the
arbitration, shall be borne by such party, except to the extent
otherwise directed by the arbitrators. The arbitrators shall designate
the parties to bear the expenses of the arbitrators or the respective
amounts of such expense to be borne by each party.
12.16. Schedules. Any capitalized term used in any schedule
attached to this Agreement (collectively, the "Schedules") and not defined
therein shall have the meaning ascribed to it in this Agreement. The Schedules,
to the extent they respond to representations and warranties contained in
Sections 3 or 4 of this Agreement, are not intended to constitute, and shall
not be construed as constituting, representations or warranties of Intergen,
Serologicals or Sub (as the case may be) except as and to the extent provided
in this Agreement. The inclusion of any item or information on the Schedules
shall not be deemed an admission by a party that such item or information (i)
is material or (ii) did not otherwise arise in the Ordinary Course of Business.
Any headings in any Schedule are for reference only and shall not affect the
interpretation of such Schedule or this Agreement. Disclosure of any fact or
item in any party's Schedules shall be deemed to be disclosed with respect to
any other Schedule of such party if (a) an explicit cross-reference appears in
such other Schedule of such party or (b) based solely and exclusively on the
face of such disclosure on such first Schedule it is readily apparent and
clearly discernable that the disclosure applies to such other Schedule of such
party.
REMINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE FOLLOWS.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Plan
and Agreement of Merger to be executed on its behalf on the date indicated.
SEROLOGICALS CORPORATION INTERGEN COMPANY L.P.
By: Intergen Investors L.P., its
General Partner
/s/ Xxxxx X. Xxxx By: Intergen, Inc., its
--------------------------------- general partner
By: Xxxxx X. Xxxx
Title: President and Chief
Executive Officer
/s/ Xxxxxxx X. XxXxxxxx
----------------------------------
By: Xxxxxxx X. XxXxxxxx
SEROCOR INCORPORATED Title: Vice President
/s/ Xxxxx X. Xxxx
---------------------------------
By: Xxxxx X. Xxxx
Title: President
INTERGEN INVESTORS L.P., as the
General Partner
By: Intergen, Inc., its
general partner
/s/ Xxxxxxx X. XxXxxxxx
----------------------------------
By: Xxxxxxx X. XxXxxxxx
Title: Vice President
