Exhibit 10.1
Confidential Treatment. The portions of this exhibit that have been replaced
with "[*****]" have been filed separately with the Securities and Exchange
Commission and are the subject of an application for confidential treatment.
PROGRAMS TRANSFER AGREEMENT
THIS PROGRAMS TRANSFER AGREEMENT (this "Agreement"), effective on this
15th day of April, 1999, is by and between Regeneration Technologies, Inc. a
Florida corporation having its principal place of business at 0 Xxxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx ("RTI"), and the University of Florida Tissue Bank,
Inc., a Florida not-for-profit corporation also having its principal place of
business at 0 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx ("UFTB").
WITNESSETH
WHEREAS, RTI and UFTB are parties to the "Revised Agreement on
Intercompany Service Billing and Inventory Ownership" made and entered into the
11th of January, 1999, and the "Tissue Recovery, Processing and Distribution
Agreement" made and entered into by the parties on the 23rd of January, 1998
(the "Previous Agreements") attached hereto as Composite Exhibit "A"; and
WHEREAS, on the effective date of this Agreement the parties are also
entering into a "Tissue Recovery Agreement"; and
WHEREAS, the parties wish to replace the Previous Agreements with both
this Agreement and with the Tissue Recovery Agreement; and
WHEREAS, the parties wish to have all other written agreements between the
parties remain in full force and effect; and
WHEREAS, in the normal course of business, UFTB has become indebted to RTI
(the "Debt"), a current statement of which is attached hereto as Exhibit "B";
and
WHEREAS, UFTB desires to focus its efforts on human donor tissue recovery
in its Local Service Area (further defined below), and eliminate its
Distribution Services (further defined below); and
WHEREAS, RTI desires to assume both UFTB's human donor tissue recovery
activities outside the UFTB Local Service Area and UFTB's Distribution Services.
NOW, THEREFORE, in view of the representations made above and in
consideration of the terms and conditions set forth below, the parties agree as
follows:
[CONFIDENTIAL]
ARTICLE I - Definitions
For the purposes of this Agreement the following definitions shall apply:
1.1 "Local Service Area" shall mean the states of Florida and Georgia.
1.2 "Distribution Services" shall mean the services associated directly
and indirectly with providing customers with processed human donor tissue
("allograft" tissue) for transplant or research, including but not limited to
those services set forth on "Distribution Services" -- Exhibit 1.2 attached
hereto.
1.3 "The Debt" shall mean the net amount ($4,963,865.31) of intercompany
charges and cash receipts owed to RTI by UFTB as of April 15, 1999 and set forth
on Exhibit B attached hereto.
ARTICLE II - Consideration
2.1 Upon the effective date of this Agreement, and the simultaneous
execution of the Tissue Recovery Agreement, the Previous Agreements shall
terminate.
2.2 As consideration for RTI entering into this Agreement, UFTB shall,
upon the effective date of this Agreement:
(a) Grant to RTI a security interest in all outstanding and future
"Accounts Receivable" - Exhibit 2.2(a), to secure the Debt (the "Security
Interest"); RTI's Security Interest shall be subordinate only to the security
interest of NationsBank, if any, in UFTB accounts receivables;
(b) Continue its collection efforts of such receivables, so long as
any balance of Debt remains outstanding, and shall transfer a minimum of one
hundred thousand dollars ($100,000) to RTI twice per month within ten (10)
business days from the fifteenth (15th) and thirtieth (30th) day of each
calendar month commencing with July 1, 1999 which amounts shall be reductions of
the Debt;
(c) Hereby convey to RTI all UFTB's right, title, and interest, free
and clear of all encumbrances, in the equipment and fixtures identified on the
"Schedule of Conveyed Equipment and Fixtures" -- Exhibit 2.2(c) attached hereto;
2
(d) assign to RTI the contracts related to human donor recovery
activities identified in the "Schedule of Assigned Recovery Contracts"-- Exhibit
2.2(d)-1 attached hereto, and the contracts related to Distribution Services
identified in the "Schedule of Assigned Distribution Contracts" -- Exhibit
2.2(d)-2 attached hereto;
(e) assign and convey to RTI all of UFTB's rights and interest in
the allograft tissue inventory described in the "Allograft Inventory" -- Exhibit
2.2(e) attached hereto, (a credit to UFTB of $3,030,154 applied by RTI against
the Debt), and refrain from performing Distribution Services which compete with
RTI for the term of this Agreement and for a period of five (5) years beyond the
term of this Agreement in the Local Service Region;
(f) enter the Tissue Recovery Agreement; and
(g) provide RTI with a monthly UFTB balance sheet and income
statement within thirty (30) calendar days from the end of each business month.
(h) UFTB's obligations and RTI's rights under Article 2.2 (a),(b),
and (g) herein shall cease immediately upon the satisfaction of the Debt. If,
within six (6) months from the effective date of this Agreement, the Debt has
not been satisfied, UFTB shall pay any such remaining balance, in full, to RTI
within ninety (90) days from such sixth month date.
2.3 As consideration for UFTB entering this Agreement, RTI shall, upon the
effective date of this Agreement:
(a) reduce the Debt by the value assigned to Allograft Inventory,
which value is specified in Exhibit 2.2(e);
(b) reduce the Debt by the value of the Schedule of Conveyed
Equipment and Fixtures; and
(c) apply the credits referred to in 2.3(a) and (b) herein such that
after application, the balance of the Debt shall be the "Secured Debt" as set
forth in Exhibit 2.3(c) attached hereto;
3
(d) apply, as a reduction to the Debt "Recovery Fees and
Intercompany Charges" set forth on Exhibit 2.3(d) attached hereto, net of a
one-time payment to UFTB of one hundred fifty thousand dollar ($150,000) which
shall be paid to UFTB upon the date of the last signatory to this Agreement.
(e) Within five (5) months from the effective date of this
Agreement, the parties shall make an adjustment to the debt, with respect to the
"Undetermined Equipment" -- Exhibit 2.3(e) attached hereto, as mutually agreed
to by the auditors of both parties.
ARTICLE III - Technical and Professional Assistance
3.1 UFTB agrees to provide RTI with written documentation of the details
regarding UFTB's distribution relationship with each and every party to which
UFTB distributes allograft tissue. Such documentation for each such relationship
shall include, but is not limited to:
(a) the name, address, telephone number, facsimile number, of all
contact persons for each and every party to the relationship;
(b) a description of the method and manner of distribution and the
chain of distribution for relationship;
(c) a statement of the historic distribution volume by year and type
of tissue distributed under the relationship; and
(d) a description of any issues material to any of the relationships
with each and every party to the relationship.
UFTB shall, in addition to the foregoing, provide RTI with
additional written information about any or all of the distribution
relationships within ten (10) days of such request by RTI.
3.2 UFTB additionally agrees to promptly forward to RTI all payments,
returned tissue, inquiries, and communication relating to such distribution
relationships and all other things that may be routed to UFTB, but which should
have been directed to RTI. Such UFTB duty shall survive the termination of this
Agreement.
4
ARTICLE IV - Term and Termination
4.1 This Agreement shall terminate upon the satisfaction of the Debt
provided however the Tissue Recovery Agreement shall remain in full force and
effect.
4.2 This Agreement may be terminated early:
(a) by either party due to a material breach by the other party of
any of its obligations or covenants herein if the breaching party fails to
remedy said breach within thirty (30) calendar days of receiving written notice
from the non-breaching party of such breach; or
(b) by either party upon an adjudication of the other party as
bankrupt or insolvent, or the admission in writing by such party of its
inability to pay its debts as they mature; or an assignment by such other party
for the benefit of its creditors; or such other party applying for or consenting
to the appointment of a receiver, trustee or similar officer for its assets; or
the appointment of such receiver, trustee or similar officer for such other
party's assets without the application or consent of such party, if such
appointment shall continue undischarged for a period of ninety (90) days.
ARTICLE V - Warranty, Indemnity and Other Representations
5.1 Both parties represent and warrant that the rights granted herein do
not violate any rights previously granted by either party to any third party.
5.2 RTI warrants that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of Florida and has all corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder;
(b) the execution, delivery and performance by RTI of this Agreement
and the consummation of the transactions contemplated hereby has been duly and
validly authorized by all requisite corporate action, and no other corporate act
or proceeding on the party of RTI is necessary to authorize the execution and
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby;
(c) it is not subject to nor obligated under its Articles of
Incorporation or bylaws, any applicable law, rule or regulation of any
governmental authority, or any agreement, instrument, license or permit or
subject to any order, writ, injunction or
5
degree, which would be breached or violated by its execution, delivery or
performance of this agreement;
(d) its execution and delivery of this Agreement and the performance
of its obligations hereunder, including the obligations of any payments
hereunder, do not and will not conflict with, violate, or result in any default
under any agreement, instrument or other contract to which RTI is a party or by
which it is bound; and
(e) there are no claims, actions, suits or other proceedings
pending, or to the knowledge of RTI threatened which, if adversely determined,
would adversely affect the ability of RTI to consummate the transactions
contemplated by this Agreement or perform its obligations hereunder.
5.3 UFTB warrants that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of Florida and has all corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder;
(b) the execution, delivery and performance by UFTB of this
Agreement and the consummation of the transactions contemplated hereby has been
duly and validly authorized by all requisite corporate action, and no other
corporate act or proceeding on the party of UFTB is necessary to authorize the
execution and delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby;
(c) it is not subject to nor obligated under its Articles of
Incorporation or bylaws, any applicable law, rule or regulation of any
governmental authority, or any agreement,instrument, license or permit or
subject to any order, writ, injunction or degree, which would be breached or
violated by its execution, delivery or performance of this agreement;
(d) its execution and delivery of this Agreement and the performance
of its obligations hereunder, including the obligations of any payments
hereunder, do not and will not conflict with, violate, or result in any default
under any agreement, instrument or other contract to which UFTB is a party or by
which it is bound; and
6
(e) there are no claims, actions, suits or other proceedings
pending, or to the knowledge of UFTB threatened which, if adversely determined,
would adversely affect the ability of UFTB to consummate the transactions
contemplated by this Agreement or perform its obligations hereunder.
5.4 Apart from any warranty expressly made in this Agreement, neither
party hereto makes any representations and extends no warranties of any kind,
either express or implied. Nothing in this Agreement shall be construed as an
obligation to furnish any other information except as specifically provided
herein, or a warranty or representation by RTI that it will not procure any
tissues from other sources.
5.5 UFTB shall at all times during the term of this Agreement and
thereafter, indemnify, defend and hold RTI, RTI Affiliates (as hereinafter
defined), or any of its assigns, harmless against all claims and expenses,
including legal expenses and reasonable attorney fees, arising out of any other
claims, proceeding, demand, expense, loss, and liability of any kind whatsoever
including any breach of its obligations hereunder (collectively, "RTI Losses")
resulting from the activities of UFTB under this Agreement except where such RTI
Losses result solely from RTI's negligence or willful misconduct. As used in
this Agreement, "RTI Affiliates" shall mean RTI's directors, officers, agents
and employees. Notwithstanding the above, RTI at all times reserves the right to
retain counsel of its own, at its own expense, to defend RTI's interests. This
Article 5.5 shall survive the termination of this Agreement.
5.6 RTI shall at all times during the term of this Agreement and
thereafter, indemnify, defend and hold UFTB, UFTB Affiliates (as hereinafter
defined), or any of its assigns, harmless against all claims and expenses,
including legal expenses and reasonable attorney fees, arising out of any other
claims, proceeding, demand, expense, loss, and liability of any kind whatsoever
including any breach of its obligations hereunder (collectively, "UFTB Losses")
resulting from the activities of RTI under this Agreement except where such UFTB
Losses result from solely UFTB's negligence or willful misconduct. As used in
this Agreement, "UFTB Affiliates" shall mean UFTB's directors, officers, agents
and employees. Notwithstanding the above, UFTB at all times
7
reserves the right to retain counsel of its own, at its own expense, to defend
UFTB's interests. This Article 5.6 shall survive the termination of this
Agreement
5.7 Each party warrants that it now maintains and will continue to
maintain liability insurance coverage in an amount of two million dollars
($2,000,000) for UFTB, and five million dollars ($5,000,000) for RTI, per
occurrence and that such insurance coverage lists each party as an additional
insured. Each party shall provide the other party with at least thirty (30) days
written notice of any change or cancellation of such insurance coverage.
ARTICLE VI- Assignment
6.1 (a) This Agreement may be assigned by either party with the express
prior written approval of the other party, whose approval shall not be
unreasonably withheld; and
(b) UFTB shall provide RTI with written notice of its intention to
approve or not approve any assignment by RTI within fifteen (15) business days
of UFTB's receipt of written request from RTI. In the event that RTI does not
receive such written notice of intention from UFTB within such fifteen (15) day
time period, UFTB shall be deemed to have consented to such assignment. In the
event that UFTB withholds consent to such assignment UFTB shall, in such fifteen
(15) day time period, provide RTI, in writing, with the reasonable reasons for
withholding of such consent.
ARTICLE VII- Miscellaneous
7.1 A waiver of any specific breach of any provision of this Agreement
shall not be construed as a continuing waiver of other breaches of the same or
other provisions of this Agreement.
7.2 The right of either party to terminate under the provisions of this
Agreement shall not be an exclusive remedy, and either party shall be entitled,
if the circumstances warrant, alternatively or cumulatively, to damages for
breach of this Agreement to an order requiring performance of the obligations of
this Agreement, or to any other available remedy.
8
7.3 Nothing herein shall be deemed to create an agency, joint venture or
partnership relationship between the parties hereto.
7.4 This Agreement constitutes the entire agreement and understanding of
the parties with regard to the subject matter hereof, and supercedes the
Previous Agreements and all prior discussions, negotiations, understandings and
agreements between the parties concerning the subject matter hereof. Neither
party shall be bound by any definition, condition, warranty, right, duty or
covenant other than as expressly stated in this Agreement or as subsequently set
forth in a written document signed by both parties. Each party expressly waives
any implied right or obligation regarding the subject matter hereof. All other
written agreements between the parties shall remain in full force and effect
7.5 This Agreement shall be interpreted and construed in accordance with
the laws of the State of Florida and both parties agree that: (a) they are
subject to the jurisdiction of the state and Federal courts located within the
state of Florida; (b) the exclusive venue for actions related to this Agreement
shall be the Circuit Court for Alachua County, Florida or the United States
District Court having jurisdiction over Alachua County, Florida; and (c) in any
action brought to enforce or interpret the rights or obligations relating to
this Agreement the prevailing party in such action shall be entitled to an award
of it's reasonable attorneys' fees and costs, including pre-suit and appellate
attorneys' fees and costs, from the non-prevailing party.
7.6 This Agreement may be amended only by a written document signed by
authorized representatives of both parties.
7.7 Each party hereto agrees to execute, acknowledge and deliver all such
further instruments as may be necessary or appropriate to carry out the intent
and purposes of this Agreement. This Agreement shall be binding upon and inure
to the benefit of the respective parties hereto, their heirs, legal
representatives, successors and pennitted assigns.
7.8 The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
9
7.9 Should any part or provision of this Agreement be held unenforceable
or in conflict with the law of any jurisdiction, the validity of the remaining
parts or provisions shall not be affected by such holding. In the event a part
or provision of this Agreement is held unenforceable or in conflict with the law
affecting consideration to either party, the parties agree to negotiate in good
faith amendment of such part or provision in a manner consistent with the
intention of the parties as expressed in this Agreement
7.10 Neither party shall be responsible or liable to the other party for
nonperformance or delay in performance of any terms or conditions of this
Agreement due to acts or occurrences beyond the control of the nonperforming or
delayed party including, but not limited to, acts of God, acts of government,
year 2000 related occurrences, wars, riots, strikes or other labor disputes,
shortages of labor or materials, fires and floods, provided the nonperforming or
delayed party provides to the other party written notice of the existence and
the reason for such nonperformance or delay. The nonperformance or delay by
either party in excess of one hundred eighty (180) days shall constitute cause
for termination of this Agreement with such notice given in writing by one party
to the other.
7.11 Any and all notices or other communications required or permitted by
this Agreement or by law to be served on or given to either party by the other
party shall be in writing and delivered or sent to:
RTI: Xxxxx X. Xxxxxx, Chief Executive Officer
Regeneration Technologies, Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
UFTB: Xxxxx X. Xxxxxxx, Chief Executive Officer
University of Florida Tissue Bank
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx Xxxxxxxxxxx
General Counsel, University of Florida
10
7.12 Each party may change its address for purposes of this Agreement by
written notice to the other party. All notices or other communications shall be
deemed duly served and given on the date when personally delivered to the party
to whom it is directed, when sent by FedEx or other reasonably similar courier,
or when deposited in the United States mail, first class, postage prepaid, and
addressed to the party at the address in ARTICLE 7.11 herein.
7.13 Absent express, prior written permission by the disclosing party to
the receiving party, the parties to this Agreement, their officers, directors,
employees and agents, shall strictly maintain the confidentiality of, and shall
not disclose to any third party, the personal data of donors, any processes,
patent applications, technical, financial and business information, general or
otherwise, and any other information normally treated as confidential by the
disclosing party. The parties to this Agreement shall use their best efforts to
assure that all of their employees and agents maintain such confidentiality.
This Article 7.13 shall survive the termination of this Agreement.
7.14 This Agreement shall be executed by each party in duplicate
originals, each of which shall be deemed an original, but both originals
together shall constitute only one and the same instrument.
(Signatures on the following page)
11
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
on the signature page hereof.
Regeneration Technologies, Inc.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: President and CEO
Date: 7/16/99
University of Florida Tissue Bank, Inc.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Title: President and CEO
Date: 7/13/99
Attachments:
- Composite Exhibit A
- "Debt" - Exhibit B
- "Distribution Services" -- Exhibit 1.2
- "Accounts Receivable" -- Exhibit 2.2(a)
- "Schedule of Conveyed Equipment and Fixtures" -- Exhibit 2.2(c)
- "Schedule of Assigned Recovery Contracts" -- Exhibit 2.2(d)-1
- "Schedule of Assigned Distribution Contracts -- Exhibit 2.2(d)-2
- "Allograft Inventory" -- Exhibit 2.2(c)
- "Secured Debt" -- Exhibit 2.3(c)
- "Recovery Fees and Intercompany Charges" -- Exhibit 2.3(d)
- "Undetermined Equipment" -- Exhibit 2.3(e)
"Distribution Services"--Exhibit 1.2
* Order Processing
* Returns processing
* Custom order requests
* Requests for x-rays
* Customer complaints
* Customer/sales rep support
* Back orders
* Billing (regular, consignments, and loaner)
* New customer set up
* Sales reports & analysis
* Commissions
* Quotas
* Forecasting
* Fee schedules
* Special pricing
* Consignments
* Loaners
"Schedule of Assigned Recovery Contracts"
Exhibit 2.2(d)-1
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[CONFIDENTIAL]
"Schedule of Assigned Distribution Contracts"
Exhibit 2.2(d)-2
[*****]
[*****]
[*****]
[*****]
[CONFIDENTIAL]
"Secured Debt"- Exhibit 2.3(c)
Regeneration Technologies, Inc.
RTI/UFTB Debt
2/12/98 - 4/15/99
-----------------
Total Debt Through 4/15/99 4,963,865.31
Current Inventory Valuation (3,030,154.35)
Conveyed Equipment (89,842.28)
--------------
The Secured Debt 1,843,868.68
==============
Security Interest in Accounts Receivable 1,861,947.76
--------------
Balance Unsecured 0.00
==============
Exhibit 2.3(d)
Recovery Fees and Intercompany Charges
Regeneration Technologies, Inc.
University of Florida Tissue Bank, Inc.
Post 4/15/99 through 6/30/99 Transactions
AMOUNTS DUE TO UFTB FROM RTI
----------------------------
Total Recovery Fee Xxxxxxxx (Net of Credits) 769,700.00
Total Administrative Expense Xxxxxxxx 60,708.33
Total Medical Records Xxxxxxxx 71,000.00
Total Referral Room Xxxxxxxx 14,832.00
Total NYTS Payroll Xxxxxxxx (Net of Payments) 47,577.47
----------
Total Amount due to UFTB from RTI at 6/30/99 963,817.80
==========
AMOUNTS DUE TO RTI FROM UFTB
----------------------------
Total Administrative Expense Xxxxxxxx (Net of Adjustments) 36,429.38
Total Lab Charges--(pending final verification) 16,248.00
Cash Collected by UFTB net of Payments & UFTB Cash 79,270.47
Other Reimbursements to RTI 25,322.62
----------
Total Amount due to RTI from UFTB at 6/30/99 157,270.47
==========
Net Amount due to UFTB at 6/30/99 806,547.33
==========
One Time Payment to UFTB at signing 150,000.00
----------
Net amount applied as reduction of Debt 656,547.33
==========
REVIEWED AND APPROVED
---------------------
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx Xxxx
------------------------ ------------------------
Xxxxx X. Xxxxxx Xxxxxxx Xxxx
RTI Controller UFTB Controller
