Exhibit 10.1
RESTRUCTURING AGREEMENT
THIS RESTRUCTURING AGREEMENT (the "Agreement"), dated January 23, 1997, is
made and entered into by and among HemaSure Inc., a Delaware corporation with
its principle place of business at 000 Xxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 XXX
("HemaSure"), HemaPharm Inc., a Delaware corporation and a wholly-owned
subsidiary of HemaSure (the "Buyer"), HemaSure A/S, a corporation organized
under the laws of Denmark and a wholly-owned subsidiary of the Buyer ("HemaSure
A/S"), and Novo Nordisk A/S, a corporation organized under the laws of Denmark
with its principle place of business at Xxxx Xxxx, XX-0000, Xxxxxxxx, Xxxxxxx
(the "Seller"). The Buyer, the Seller, HemaSure, and HemaSure A/S are
collectively referred to herein as the "Parties."
WHEREAS, Parties have entered into an Asset Purchase Agreement, dated May
2, 1996 (the "Asset Purchase Agreement"), pursuant to which the Buyer purchased
from the Seller the business and assets comprising the Seller's Plasma Product
Unit (the "Acquisition");
WHEREAS, in connection with the Acquisition and the Asset Purchase
Agreement, (i) the Parties entered into a Technical and Administrative Service
Agreement, dated May 2, 1996 (the "Technical Service Agreement"), and a Sales
Service Agreement, dated May 2, 1996 (the "Sales Service Agreement" and,
together with the Asset Purchase Agreement and the Technical Service Agreement,
the "Acquisition Agreements"), (ii) the Buyer made and delivered to the Seller
the Raw Materials Promissory Note (the "RM Note"), (iii) HemaSure A/S made and
delivered to the Seller the Work-In-Process Promissory Note (the "WIP Note" and,
together with the RM Note, the "Notes"), and (iv) Novo Nordisk became entitled
to receive the Raw Materials Differential (together with the Notes, the
"Indebtedness"); and
WHEREAS, the Parties now desire to (i) amend the Asset Purchase Agreement,
(ii) consolidate and restructure the Indebtedness due and owing to the Seller,
(iii) provide for certain mutual waivers and releases of certain potential
claims among the Parties, (iv) amend certain provisions of the Technical Service
Agreement and the Sales Service Agreement, and (v) provide for certain other
actions and relationships between the Parties.
NOW, THEREFORE, in consideration of these premises, the representations,
warranties and covenants of the respective Parties set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
1. Definitions. Capitalized terms used, but not defined, herein shall
have the respective meanings ascribed thereto in the Asset Purchase Agreement.
2. Amendment of Asset Purchase Agreement. Section 1.3(b) (Purchase
Price) of the Asset Purchase Agreement is hereby amended and restated in its
entirety as follows:
"(b) A business shut down (a "Business Shut Down") shall have
occurred if, before March 31, 1998, the manufacturing facility in Denmark for
the Business shall have been shut down and at least 75% of the employees of the
Business in Denmark shall have been terminated; a determination to effect a
Business Shut Down shall be at the sole discretion of the Buyer."
In addition, the Seller agrees that neither HemaSure, the Buyer, nor
HemaSure A/S now has or shall have in the future, any liability or obligation
whatsoever to the Seller with respect to the Raw
Materials Differential, as such may have existed on or prior to the date hereof,
and the Seller hereby expressly forgives and cancels any and all such
indebtedness.
3. Payment of Outstanding Invoices and Paydown of WIP Note.
(a) Concurrent with the execution and delivery of this Agreement,
the Seller shall pay to HemaSure A/S an aggregate amount of DKK 53,836,300 as
payment in respect of certain invoices which previously have been delivered and
invoiced by HemaSure A/S to the Seller. The payment described in the preceding
sentence shall take the form of a deemed paydown by HemaSure A/S, effective on
the date hereof, of an aggregate amount of DKK 53,836,300 of the principal
amount currently due and outstanding under the WIP Note.
(b) The transactions and payments provided for in this Section 3
shall be deemed to have occurred immediately prior to the consummation of the
transactions set forth in Sections 4 and 5 below.
4. Assignment of Right to and Interest in WIP Note.
(a) The Seller hereby transfers and assigns to HemaSure, all of the
Seller's right, title and interest in and to the WIP Note, and the Seller shall
appropriately endorse and deliver to HemaSure such WIP Note, so as to validly
transfer and assign to HemaSure all such right, title and interest in and to the
WIP Note.
(b) In consideration for, among other things, the transfer and
assignment to HemaSure by the Seller of all of its right, title and interest in
and to the WIP Note, HemaSure shall, on the date hereof, make and deliver to the
Seller the New HemaSure Note described in Section 5(c) below and enter into the
registration rights agreement described in such section.
5. Restructuring of Indebtedness. The Indebtedness due and owing to the
Seller pursuant to the Notes is hereby restructured and quantified as follows:
(a) Concurrent with the execution and delivery of this Agreement,
the Seller is surrendering and delivering to the Buyer the Raw Materials
Promissory Note for cancellation. The Seller hereby forgives and cancels any and
all liabilities, obligations, and indebtedness under the Raw Materials
Promissory Note.
(b) As set forth in Section 2 above, concurrent with the execution
and delivery of this Agreement, the Seller hereby forgives and cancels any and
all indebtedness formerly represented by the Raw Materials Differential under
the Asset Purchase Agreement.
(c) Concurrent with the execution and delivery of this Agreement,
(i) HemaSure shall make and deliver to the Seller a convertible subordinated
promissory note, in the form attached hereto as Exhibit A (the "New HemaSure
Note"), in the original principal amount of US $11,721,989.00, and, in
connection therewith, HemaSure and the Seller shall enter into a registration
rights agreement, in the form attached hereto as Exhibit B.
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6. Mutual Release and Waiver. The Parties hereby release and forever
discharge one another, their affiliates, subsidiaries and divisions, and their
respective officers and directors, from any and all claims, demands, damages,
causes of action, or suits, whether in contract, tort, equity, statute, or
otherwise, that they have, have ever had, or may potentially have as of the date
hereof, against one another (but not with respect to claims asserted by third
parties), arising, directly or indirectly, from any one or more of the
Acquisition Agreements (including, but not limited to, the Raw Materials
Differential), and/or the Notes.
7. Amendment of Technical Service Agreement and Sales Service Agreement.
Concurrent with the execution and delivery of this Agreement, the Seller and
HemaSure A/S shall execute and deliver a Prolongation Agreement - Technical,
Administrative and Sales Services, in the form attached hereto as Exhibit C.
8. Agreement Regarding Sales to Iran. Concurrent with the execution and
delivery of this Agreement, the Seller and HemaSure A/S shall execute and
deliver an agreement, in the form attached hereto as Exhibit D, relating to
certain invoices and payments between the Seller and HemaSure A/S in connection
with certain sales to the Islamic Republic of Iran.
9. Sublease Letter. Concurrent with the execution and delivery of this
Agreement, HemaSure shall sign and deliver to the Seller a letter, in the form
attached hereto as Exhibit E, with respect to certain potential sublease
security obligations that may arise from and after April 1, 1998.
10. Rent Payments (Warehouse Facility). The Seller and the Buyer hereby
acknowledge and agree that the aggregate annual rent payments under the sublease
agreement between the Seller and the Buyer with respect to the warehouse
facility at Kanalholmen, Hvidovre, Denmark (the "Sublease"), shall be DKK
456,200 (which rent payments shall be set forth in the written assignment, in
the form of Exhibit F attached hereto and described in Section 11 below),
exclusive of VAT, based on 544 square meters (freeze house facilities of 250
square meters and a laboratory of 294 square meters).
11. Assignment and Recordation of Sublease. Concurrent with the execution
and delivery of this Agreement, the Buyer shall assign to HemaSure A/S all of
the Buyer's rights, title and interest in and to the Sublease, and the Buyer
shall assume and agree to be liable for all liabilities and obligations under
such Sublease, pursuant to a written assignment, in the form of Exhibit F, which
assignment shall be executed by the Buyer, HemaSure A/S, and the Seller, and
recorded in the appropriate land records in Denmark.
12. Representations and Warranties.
(a) Each of HemaSure, the Buyer, and HemaSure A/S, represents and
warrants to the Seller that it has the requisite power and authority to execute
and deliver this Agreement, and each exhibit hereto to which it is to be a
party, and to perform its obligations hereunder and thereunder, and this
Agreement, and each such exhibit, has been duly authorized, executed and
delivered by it and is binding and enforceable against it in accordance with its
terms.
(b) The Seller represents and warrants to, and covenants and agrees
with, each of HemaSure, the Buyer, and HemaSure A/S that:
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(i) it has the requisite power and authority to execute and
deliver this Agreement, and each exhibit hereto to which it is to be a party,
and to perform its obligations hereunder and thereunder, and this Agreement, and
each such exhibit, has been duly authorized, executed and delivered by it and is
binding and enforceable against it in accordance with its terms;
(ii) it understands that neither the New HemaSure Note nor the
securities that may be issuable upon conversion thereof have been registered
under the Securities Act of 1933, as amended (the Securities Act"), in reliance
on an exemption therefrom for transactions not involving any public offering,
that neither the New HemaSure Note nor the securities that may be issuable upon
conversion thereof have been approved or disapproved by the United States
Securities and Exchange Commission or by any other Federal or state agency;
(iii) it is acquiring the New HemaSure Note, and the rights
specified therein to acquire securities of HemaSure upon conversion thereof, for
its own account for investment and not with a view to the sale or distribution
thereof (except pursuant to a registration statement under the Securities Act);
and
(iv) it understands that neither the New HemaSure Note nor the
securities that may be issuable upon conversion thereof can be resold unless
registered by HemaSure pursuant to the Securities Act and any applicable state
securities laws, or unless an exemption therefrom is available, and,
accordingly, it may not be possible for the undersigned to liquidate its
investment in HemaSure; and it agrees not to sell, assign or otherwise transfer
or dispose of the New HemaSure Note, or any securities of HemaSure issuable upon
conversion thereof, unless such note and securities have been so registered or
an exemption from the requirements of registration is available.
13. Press Releases and Announcements. Neither HemaSure, the Buyer nor
HemaSure A/S, on the one hand, or the Seller, on the other hand, shall issue any
press release or announcement relating to the subject matter of this Agreement
without the prior written approval of the other; provided, however, that either
may make any public disclosure that it believes in good faith is required by law
or regulation (in which case the disclosing party shall advise the other party
and provided it with a copy of the proposed disclosure prior to making the
disclosure).
14. No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their respective
successors and permitted assigns.
15. Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. Neither Party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the other Party.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
18. Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be
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deemed duly delivered two business days after it is sent by registered or
certified mail, return receipt requested, postage prepaid, or one business day
after it is sent via a reputable nationwide overnight courier service, in each
case to the intended recipient as set forth below:
If to the Seller: Copy to:
Novo Nordisk A/S Novo Nordisk A/S
Novo Alle, DK-2880 Novo Alle, XX-0000
Xxxxxxxx, Xxxxxxx Bagsvard, Denmark
Attn: Attn: General Counsel
Fax: Fax:
Novo Nordisk of North America, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Fax: 000-000-0000
If to HemaSure, the Buyer or
HemaSure A/S: Copy to:
HemaSure Inc. Battle Xxxxxx LLP
000 Xxxxx Xxxxx Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000 00 Xxxx 00xx Xxxxxx
Attn: President and Chief Xxx Xxxx, Xxx Xxxx 00000
Executive Officer Attn: Xxxx X. Xxxxxx, III, Esq.
Fax: 000-000-0000
Any Party may give any notice, request, demand, claim, or other communication
hereunder using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it actually is received by the individual
for whom it is intended. Any Party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Party notice in the manner herein set forth.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
provision of conflicts of law thereof.
20. Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by each
of the Parties. No waiver by either Party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
21. Expenses. Each Party shall bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
(signature page follows)
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
HEMASURE INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
HEMAPHARM INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President
HEMASURE A/S
By: /s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxx Xxxxxxx
-------------------------- -------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxx Xxxxxxx
Title: Director Title: Managing Director
NOVO NORDISK A/S
By: /s/ Xxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
-------------------- ------------------
Name: Xxxx X. Xxxxxxx Xxxxxx Xxxxxx
Title: Deputy CEO Managing Director
(end of signature page)
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