EXHIBIT 2.1
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AMENDED AND RESTATED
SECURITIES PURCHASE AGREEMENT
by and among
SEROLOGICALS RESEARCH PRODUCTS, INC.
a Delaware corporation
and
FALCON INTERNATIONAL INVESTMENT HOLDINGS LLC
a Delaware Limited Liability Company
as of February 11, 2003
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TABLE OF CONTENTS
Page
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1. DEFINITIONS; CONSTRUCTION................................................................................ 2
1.1 Definitions..................................................................................... 2
1.2 Cross References................................................................................ 8
1.3 Construction.................................................................................... 9
2. PURCHASE AND SALE....................................................................................... 10
2.1 Agreement to Purchase and Sell................................................................. 10
2.2 Purchase Price................................................................................. 10
2.3 Payment of Purchase Price; Additional Payment.................................................. 10
2.4 Closing Statement.............................................................................. 11
2.5 Adjustment of Purchase Price................................................................... 12
2.6 Tax Withholding................................................................................ 13
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER....................................................... 13
3.1 Organization................................................................................... 13
3.2 Shareholder Authority.......................................................................... 14
3.3 No Conflict.................................................................................... 15
3.4 Capitalization................................................................................. 15
3.5 Transfer Claims................................................................................ 16
3.6 Financial Statements........................................................................... 16
3.7 No Undisclosed Liabilities..................................................................... 16
3.8 No Violation of Law; Required Licenses and Permits............................................. 17
3.9 Personal Property.............................................................................. 17
3.10 Real Property.................................................................................. 17
3.11 Required Consents and Approvals................................................................ 21
3.12 Indebtedness for Borrowed Money; Security Arrangements......................................... 21
3.13 Intellectual Property.......................................................................... 22
3.14 Inventory/Product Warranty..................................................................... 24
3.15 Notes and Accounts Receivable.................................................................. 24
3.16 Legal Proceedings.............................................................................. 24
3.17 Employee Benefit Plans......................................................................... 25
3.18 Labor Relations................................................................................ 27
3.19 Environmental, Health and Safety Requirements.................................................. 29
3.20 Insurance Policies............................................................................. 30
3.21 Contracts and Commitments...................................................................... 30
3.22 Absence of Certain Changes and Events.......................................................... 32
3.23 Tax Matters.................................................................................... 34
3.24 Employee Notice................................................................................ 36
3.25 No Interest in Properties, Competitors, Etc.................................................... 36
3.26 Brokers' and Finders' Fees..................................................................... 36
3.27 Ethical Practices.............................................................................. 37
3.28 Australian Representations..................................................................... 37
3.29 U.S. Food and Drug Administration Representations.............................................. 37
4. REPRESENTATIONS AND WARRANTIES OF SEROLOGICALS.......................................................... 39
4.1 Organization, Power and Authority.............................................................. 39
4.2 No Conflict.................................................................................... 39
4.3 Brokers' and Finders' Fees..................................................................... 40
4.4 Legal Proceedings.............................................................................. 40
4.5 Purchase for Investment........................................................................ 40
4.6 Financing...................................................................................... 40
5. CERTAIN COVENANTS AND AGREEMENTS........................................................................ 40
5.1 Conduct of Business by Chemicon................................................................ 40
5.2 Inspection and Access to Information........................................................... 44
5.3 No Solicitation of Transactions................................................................ 44
5.4 Reasonable Efforts; Further Assurances; Cooperation............................................ 45
5.5 Compliance with Antitrust Requirements......................................................... 47
5.6 Public Announcements........................................................................... 48
5.7 Supplements to Schedules....................................................................... 48
5.8 Insurance...................................................................................... 49
5.9 Tax Matters.................................................................................... 49
5.10 Merger of Xxxxxx BioFarms, LLC................................................................. 50
5.11 Insurance...................................................................................... 50
6. CONDITIONS TO CLOSING................................................................................... 50
6.1 Conditions to Each Party's Obligations......................................................... 50
6.2 Conditions to Obligations of Serologicals...................................................... 51
6.3 Conditions to Obligations of the Shareholder................................................... 54
7. CLOSING................................................................................................. 55
8. TERMINATION............................................................................................. 55
8.1 Termination.................................................................................... 55
8.2 Effect of Termination.......................................................................... 56
8.3 Specific Performance and Other Remedies........................................................ 57
9. MISCELLANEOUS........................................................................................... 57
9.1 Notices........................................................................................ 57
9.2 Schedules and Exhibits......................................................................... 58
9.3 Assignment; Successors in Interest............................................................. 58
9.4 Captions....................................................................................... 59
9.5 Controlling Law; Amendment..................................................................... 59
9.6 Consent to Jurisdiction, Etc................................................................... 59
9.7 Severability................................................................................... 60
9.8 Counterparts................................................................................... 60
9.9 Enforcement of Certain Rights.................................................................. 60
9.10 Waiver......................................................................................... 60
9.11 Integration.................................................................................... 60
9.12 Cooperation Following the Closing.............................................................. 60
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9.13 Transaction Costs.............................................................................. 60
9.14 Knowledge of the Shareholder................................................................... 61
9.15 References to this Agreement................................................................... 61
LIST OF EXHIBITS
Exhibit A Form of Escrow Agreement
Exhibit B Form of Opinion of Xxxx, Forward, Xxxxxxxx & Scripps LLP
Exhibit C Form of Opinion of Altheimer & Xxxx
Exhibit D Form of Opinion of Xxxxxxx X. Xxx & Associates
Exhibit E Form of Noncompetition Agreement
Exhibit F Form of Consulting Agreement
Exhibit G Form of Shareholder Release
Exhibit H Form of Opinion of King & Spalding LLP
Exhibit I Form of Opinion of Morris, Polich, & Xxxxx LLP
LIST OF SCHEDULES
2.4(a) Accounting Principles
3.1(a) Chemicon Entities
3.1(b) Places where Chemicon Entities Conduct Business
3.1(c) Interest in Other Entities
3.1(d) Articles of Incorporation and Bylaws of Chemicon
3.1(e) Certificate of Organization and Limited Liability Company
Agreement of Shareholder
3.1(f) Officers and Directors of Chemicon Entities and
Shareholder
3.3 Conflicts
3.4 Subscriptions, etc.
3.5 Transfer Claims
3.6 Financial Statements
3.7 Undisclosed Liabilities
3.8 Violations of Law
3.9(a) List of Personal Property
3.9(b) Liens and Ownership of Property
3.9(c) Possession of Property
3.9(d) Options to Acquire Property
3.10(a) Leased Real Property
3.10(b) Formerly Owned Real Property
3.10(c) Owned Real Property
3.10(c)(viii) Permit Violations
3.10(c)(ix) Contracts Related to Owned Real Property
3.11(a) Consents and Approvals
3.11(b) Notices
3.12 Financing Documents
3.13(a) Owned Proprietary Rights
3.13(b) Continued Used of Owned Proprietary Rights
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3.13(c) Infringements
3.13(d) Licenses Out
3.13(e) Licensed Proprietary Rights
3.14(a) Inventory Valuation
3.14(b) Product Warranty Terms
3.16 Legal Proceedings
3.17 Employee Benefit Plans
3.18 Labor Relations
3.19 Environmental, Health and Safety Requirements
3.20 Insurance Policies
3.21(a) Chemicon Contracts
3.21(b) Affiliated Transactions
3.22 Changes and Events
3.23(d) Time Extensions for Tax Returns
3.23(f) List of Audited Tax Years
3.23(g) Tax Waivers
3.23(k) US Tax Basis
3.23(m) Chemicon Entities Taxed as Partnerships
3.24 Employee Notices
3.25 Interests in Properties, Competitors, Etc.
3.26 Brokers' and Finders' Fees
3.28 Australian Representations
3.29 FDA Matters
4.2 No Conflict
4.3 Brokers' and Finders' Fees
4.6 Financing Commitment Letter
5.1 Actions Permitted Between Signing and Closing
6.2(k) Terms of Amendment for Real Property Leases
6.2(l) Terminated Affiliate Transactions
6.2(m) Amendment Terms for Genome Contract
6.3(e) Xxxxxxx Releases
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AMENDED AND RESTATED
SECURITIES PURCHASE AGREEMENT
THIS AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT (this
"Agreement"), dated as of February 11, 2003, is made and entered into by and
among Serologicals Research Products, Inc., a Delaware corporation
("Serologicals"), and Falcon International Investment Holdings LLC, a Delaware
limited liability company (the "Shareholder"). Serologicals and the Shareholder
are sometimes individually referred to herein as a "Party" and collectively as
the "Parties."
RECITALS
WHEREAS, the Parties entered into that certain Securities Purchase
Agreement, dated as of February 11, 2003 (the "Original Agreement"), pursuant to
which the Shareholder agreed to sell to Serologicals, and Serologicals agreed to
purchase from the Shareholder (the "Acquisition"), all of the issued and
outstanding common stock, no par value (the "Common Stock") of Chemicon
International, Inc., a California corporation ("Chemicon");
WHEREAS, the Parties desire to amend and restate the Original Agreement
as set forth herein;
WHEREAS, simultaneously with the execution and delivery of the Original
Agreement, the Shareholder and Serologicals executed and delivered an agreement
(the "European Purchase Agreement") providing for the sale by the Shareholder of
all of the issued and outstanding capital stock of Chemicon Europe, Ltd., a
limited liability company organized under the laws of England and Wales
("Chemicon Europe"), to Serologicals in a transaction that the parties intend to
consummate simultaneously with the Acquisition;
WHEREAS, simultaneously with the execution and delivery of the Original
Agreement, the Shareholder, The Xxxxxxx Family Trust, a revocable living trust
created pursuant to the laws of the State of California (the "Trust"), Xxxxx
Xxxx Xxxxxxx, an individual resident of the State of California ("X. Xxxxxxx"),
and Xxxxx Xxxx Xxxxxxx, an individual resident of the State of California ("X.
Xxxxxxx" and together with X. Xxxxxxx, the "Beckmans"), executed and delivered
an agreement (the "Indemnification Agreement") pursuant to which the
Shareholder, the Trust and the Beckmans, jointly and severally, agreed to
indemnify Serologicals from and against the matters set forth therein and
Serologicals agreed to indemnify the Shareholder, the Trust and the Beckmans
from and against the matters set forth therein;
WHEREAS, simultaneously with the execution and delivery of the Original
Agreement, Serologicals Corporation, a Delaware corporation and the parent
corporation of Serologicals (the "Parent"), executed and delivered an agreement
(the "Parent Guaranty") pursuant to which it agreed to guarantee the full and
prompt performance by Serologicals of all of its obligations pursuant to this
Agreement, the European Purchase Agreement and the Indemnification Agreement;
and
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Serologicals and certain of the officers of Chemicon executed and
delivered employment agreements to be effective as of the consummation of the
Acquisition;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the Parties agree as
follows:
1. DEFINITIONS; CONSTRUCTION.
1.1 Definitions.
(a) "Actual Working Capital" means (i) if the
Shareholder fails to timely deliver an Objection Notice pursuant to
Section 2.4(b), the Estimated Closing Working Capital set forth on the
Closing Statement or (ii) if the Shareholder timely delivers an
Objection Notice pursuant to Section 2.4(b), the amount of Working
Capital determined pursuant to Section 2.4(c) or, if not determined by
Section 2.4(c), determined by Section 2.4(d).
(b) "Accounting Referee" means
PriceWaterhouseCoopers, L.L.P.
(c) "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.
(d) "Antitrust Law" shall mean (i) the Xxxxxxx
Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal
Trade Commission Act, as amended, and all other federal, state and
local statutes, rules, regulations, orders, decrees, administrative and
judicial doctrines and other laws that are designed or intended to
prohibit, restrict or regulate actions having the purpose or effect of
monopolization or restraint of trade or lessening of competition
through merger or acquisition and (ii) all Foreign Antitrust Laws.
(e) "Assets and Properties" shall mean, with
respect to any Person, all assets and properties of every kind, nature,
characteristic and description (whether real, personal or mixed,
whether tangible or intangible, whether absolute, accrued, contingent,
fixed or otherwise and wherever situated), including the goodwill
related thereto, operated, owned or leased by such Person, including,
cash, cash equivalents, investments, accounts and notes receivable,
chattel paper, documents, instruments, general intangibles, real
estate, equipment, inventory, goods and intellectual property.
(f) "Business" shall mean (i) with respect to
Chemicon, the business of (A) developing, manufacturing, marketing and
distributing products relating to various scientific disciplines,
including neuroscience, adhesion, apoptosis, cell signaling and
infectious disease, (B) selling high value reagents to biomedical
researchers for use
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in industrial and academic research, (C) providing kits and reagents
for clinical laboratories, and (D) developing custom molecular and
immunological products and reagents that are sold to diagnostics,
pharmaceutical and drug discovery companies; and (ii) all other
operations, business or activities of the Chemicon Entities as of the
date hereof or entered into by, commenced by, or commenced for the
benefit of any of the Chemicon Entities prior to the Closing Date.
(g) "Business Day" shall mean any day except
Saturday, Sunday or any day on which banks are generally not open for
business in the City of Atlanta, Georgia.
(h) "Capitalized Lease Obligations" shall mean
those obligations to financial institutions, lessors or other lenders
arising from any lease that is or would be characterized as a
capitalized lease in accordance with GAAP.
(i) "Chemicon Debt" shall mean that amount
necessary, without duplication, (i) to pay in full all principal,
interest, break fees, prepayment penalties, fees and expenses and other
like amounts (including current portions of long-term debt and any fees
and expenses (if any) to cancel any letters of credit) due and payable
by any Chemicon Entity, Chemicon Europe or any European Subsidiary;
(ii) to fully discharge all Liens related to such indebtedness and all
other Liens encumbering any assets or properties of any Chemicon
Entity, Chemicon Europe or any European Subsidiary, including all
assets and properties used in the operation of the Business; and (iii)
to satisfy in full all Capitalized Lease Obligations. Furthermore,
solely for purposes of the Indemnification Agreement, "Chemicon Debt"
shall include any amount that the Shareholder is obligated to pay
Serologicals pursuant to Section 2.5(a) hereof that remains unpaid for
ten business days after demand for payment by Serologicals.
(j) "Chemicon Entities" shall mean,
collectively, Chemicon and any corporation, partnership, limited
liability company or other entity or association in which Chemicon has
an ownership or equity interest, whether direct or indirect, and shall
also include any direct or indirect subsidiary of each Chemicon Entity
and each individually shall be referred to from time to time as a
"Chemicon Entity."
(k) "Code" shall mean the Internal Revenue Code
of 1986, as amended.
(l) "Contract" or "Contracts" shall mean all
written or oral:
(i) contracts, agreements and
instruments 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
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(iii) all mortgages, promissory notes,
credit agreements, security agreements, letter agreements and
all other contracts, agreements, arrangements, undertakings,
understandings, and instruments.
(m) "Disclosure Letter" shall mean the
Disclosure Letter referred to in and delivered pursuant to the European
Purchase Agreement.
(n) "Dollars" or "$" shall mean United States
Dollars.
(o) "Effective Date" shall mean April 1, 2003.
(p) "Environmental, Health and Safety
Requirements" shall mean all federal, state, local, provincial 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 any Chemicon Entity, including 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.
(q) "Environmental Laws" means all local, state
and federal Laws relating to protection of surface or ground water,
drinking water supply, soil, surface or subsurface strata or medium, or
ambient air, pollution control, and Hazardous Materials.
(r) "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 any Chemicon Entity also is a member.
(s) "Escrow Agent" shall mean a bank or
financial institution mutually acceptable by the Parties.
(t) "European Subsidiaries" shall mean
collectively any corporation, partnership, limited liability company or
other entity or association in which Chemicon Europe has an ownership
or equity interest, whether direct or indirect, and shall also include
any direct or indirect subsidiary of each European Subsidiary.
(u) "Foreign Antitrust Laws" shall mean all
non-U.S. laws and regulations intended to prohibit, restrict or
regulate foreign investment or actions or transactions having the
purpose or effect of monopolization, restraint of trade, or harm to
competition, including the FTA.
(v) "GAAP" shall mean generally accepted
accounting principles as in force in the United States of America at
the date of the determination thereof, consistently applied.
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(w) "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.
(x) "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.
(y) "Laws" means all statutes, rules, codes,
regulations, restrictions, ordinances, orders, decrees, approvals,
directives, judgments, injunctions, writs, awards and decrees of, or
issued by, all Governmental Authorities.
(z) "Liens" shall mean any mortgage, pledge,
security interest, encumbrance, restriction, lien, limitation, or
charge of any kind or nature (including, any conditional sale or other
title retention agreement or lease in the nature thereof), any sale of
receivables with recourse against any Chemicon Entity, Chemicon Europe
or any European Subsidiary, 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.
(aa) "Lower Limit" shall mean an amount equal to
Target Working Capital minus $1,500,000.
(bb) "Material Adverse Effect" shall mean any
event, condition or circumstance that could reasonably be expected to
have a material adverse effect on (i) the assets, liabilities, results
of operations or financial condition of the Business, the Chemicon
Entities, Chemicon Europe and the European Subsidiaries, taken as a
whole; (ii) the ability of the Chemicon Entities, Chemicon Europe and
the European Subsidiaries, taken as a whole, to achieve the revenue and
earnings growth forecast by the management of Chemicon; or (iii) the
ability of the Shareholder to perform its obligations hereunder;
provided that the term Material Adverse Effect shall not include
effects resulting from any change in the general economic conditions
relating to the market in which the Chemicon Entities, Chemicon Europe
and the European Subsidiaries operate that do not have a materially
disproportionate effect (relative to other industry participants) on
the Chemicon Entities Chemicon Europe, and the Chemicon Subsidiaries,
taken as a whole.
(cc) "Xxxxxx and Xxxxx Payment" shall mean the
aggregate amounts due and payable to Drs. Julian Xxxxx Xxxxxx and
Xxxxxxx Xxxx Xxxxx pursuant to that certain Agreement by Deed by and
among Xx. Xxxxxxx Xxxx Xxxxx, Xx. Xxxxxx Xxxxx Xxxxxx, Chemicon
International Limited (n/k/a Chemicon Europe Limited), Xxxxx Xxxxxxx,
Chemicon International, Inc. and Cymbus Biotechnology Limited.
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(dd) "Ordinary Course of Business" shall mean the
ordinary course of business consistent with past practice (including,
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).
(ee) "Permitted Liens" shall mean (i) Liens for
taxes not yet due and payable, (ii) statutory Liens of landlords, (iii)
Liens of carriers, warehousemen, mechanics, materialmen and repairmen
incurred in the ordinary course of business consistent with past
practice and not yet delinquent and (iv) in the case of owned or leased
real property, zoning, building, or other restrictions, variances,
covenants, rights of way, encumbrances, easements and other minor
irregularities in title, none of which, individually or in the
aggregate, (1) interfere in any material respect with the present use
of or occupancy of the affected parcel by the relevant entity, (2) have
more than an immaterial effect on the value thereof or its use or (3)
would impair the ability of such parcel to be sold for its present use.
(ff) "Person" shall mean an individual, a
partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a Governmental Authority.
(gg) "Proprietary Rights" means any and all:
(i) United States, foreign and
international patents, patent applications and patent
disclosures, as well as any reissues, continuations,
continuations-in-part, divisions, extensions or reexaminations
thereof;
(ii) United States, foreign and
international 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) United States, foreign and
international 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, 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,
schematics,
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technology, financial and marketing plans, and customer and
supplier lists and information);
(vii) other United States, foreign and
international intellectual property rights;
(viii) copies and tangible embodiments
thereof (in whatever protectable form or medium);
(ix) rights of privacy, personal and
moral rights, publicity and endorsement, and all other rights
associated therewith in any jurisdiction; and
(x) license agreements related thereto.
(hh) "Target Working Capital" shall mean an
amount equal to $7,795,000.
(ii) "Tax" or "Taxes" shall mean all taxes,
including any premiums, taxes, assessments, charges, duties, fees,
levies or other governmental charges (including interest, penalties or
additions associated therewith), whether disputed or not and including
any obligation to indemnify or otherwise assume or succeed to the tax
liability of another Person, including federal, state, provincial,
city, county, foreign or other income, branch, franchise, capital,
capital stock, real property, ad valorem, personal property, tangible,
intangible, payroll, employment, withholding, FICA, unemployment
compensation, disability, employment insurance, transfer, registration,
sales, use, goods and services, excise, gross receipts, severance,
stamp, occupation, windfall profits, environmental, customs duties,
value-added, alternative or add-on minimum, estimated and all other
taxes and governmental charges of any kind, imposed by the United
States, any foreign government, or any state, province, county, city,
country or subdivision or agency thereof, or any Governmental
Authority.
(jj) "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.
(kk) "Top IP Contracts" shall mean those
contracts that relate to the Proprietary Rights required for or
utilized in the production, sale or distribution of those forty (40)
products of the Chemicon Entities that produced the greatest sales
revenue for the nine-month period ending September 30, 2002.
(ll) "Upper Limit" shall mean an amount equal to
Target Working Capital plus $1,500,000.
(mm) "WARN" shall mean the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. Section 2101, et seq.
(nn) "Working Capital" means for the Chemicon
Entities, Chemicon Europe and Cymbus Biotechnology Limited (i) the
aggregate of all current asset line
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items shown on Schedule 2.4(a) minus (ii) the aggregate of all current
liability line items shown on Schedule 2.4(a), all to be prepared in
accordance with the accounting principles set forth on Schedule 2.4(a)
and otherwise in accordance with GAAP.
1.2 Cross References. The following terms are defined in
the following Sections of this Agreement:
Terms Section
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Acquisition................................................................... Recitals
Agreement .................................................................... Preamble
Audited Balance Sheet......................................................... 3.6
Audited Financial Statements.................................................. 3.6
Beckmans...................................................................... Recitals
CGCL.......................................................................... 3.1(d)
Chemicon...................................................................... Recitals
Chemicon Australia............................................................ 6.2(r)
Chemicon Contracts............................................................ 3.21(c)
Chemicon Europe............................................................... Recitals
Closing Date.................................................................. 7
Closing....................................................................... 7
Closing Statement............................................................. 2.4(a)
Common Stock.................................................................. Recitals
X. Xxxxxxx.................................................................... Recitals
DOJ........................................................................... 5.5(b)
EIRs.......................................................................... 3.29(d)(v)
Employee Benefit Plans........................................................ 3.17(a)
ERISA......................................................................... 3.17(a)
Escrow Agreement.............................................................. 2.3(a)(i)
Escrow Amount................................................................. 2.3(a)(i)
Estimated Closing Working Capital............................................. 2.4(a)
European Purchase Agreement................................................... Recitals
FDA........................................................................... 3.29(a)
Financial Statements.......................................................... 3.6
FTA........................................................................... 3.3
FTC........................................................................... 5.5(b)
GMP........................................................................... 3.29(d)(iii)
HSR Act....................................................................... 3.3
Immaterial Contracts.......................................................... 3.21(a)
Indemnification Agreement..................................................... Recitals
Interim Balance Sheet Date.................................................... 3.6
Interim Balance Sheet......................................................... 3.6
Interim Financial Statements.................................................. 3.6
X. Xxxxxxx.................................................................... Recitals
Knowledge..................................................................... 9.14
Leased Real Property.......................................................... 3.10(a)
Legal Dispute................................................................. 9.6
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Notices....................................................................... 3.11(b)
Novus......................................................................... 2.3(a)(iii)
Objection Notice.............................................................. 2.4(b)
Owned Real Property........................................................... 10(c)
Parent........................................................................ Recitals
Parent Guaranty............................................................... Recitals
Parties....................................................................... Preamble
Party......................................................................... Preamble
Predecessor Entity............................................................ 3.19(c)
Prime Rate.................................................................... 2.5(a)
Purchase Price................................................................ 2.2
Real Estate Permits.......................................................... 3.10(c)(viii)
Real Property Leases.......................................................... 3.10(a)
Serologicals.................................................................. Preamble
Shareholder................................................................... Preamble
Termination Date.............................................................. 8.1
Trust......................................................................... Recitals
U.S. Tax Basis................................................................ 3.23(k)
1.3 Construction.
(a) Unless the context of this Agreement
otherwise clearly requires, (i) references to the plural include the
singular, and references to the singular include the plural, (ii)
references to any gender include the other genders, (iii) the words
"include," "includes" and "including" do not limit the preceding terms
or words and shall be deemed to be followed by the words "without
limitation", (iv) the terms "hereof", "herein", "hereunder", "hereto"
and similar terms in this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement, (v) the terms
"day" and "days" mean and refer to calendar day(s) and (f) the terms
"year" and "years" mean and refer to calendar year(s).
(b) Unless otherwise set forth herein,
references in this Agreement to (i) any document, instrument or
agreement (including this Agreement) (A) includes and incorporates all
exhibits, schedules and other attachments thereto, (B) includes all
documents, instruments or agreements issued or executed in replacement
thereof and (C) means such document, instrument or agreement, or
replacement or predecessor thereto, as amended, modified or
supplemented from time to time in accordance with its terms and in
effect at any given time, and (ii) a particular Law means such Law as
in effect on the date hereof and as amended, modified, supplemented or
succeeded, prior to the Closing Date.
(c) This Agreement shall not be construed as if
prepared by one (1) of the Parties, but rather according to its fair
meaning as a whole, as if all Parties had prepared it.
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2. PURCHASE AND SALE
2.1 Agreement to Purchase and Sell. Subject to the terms
and conditions of this Agreement, at the Closing the Shareholder will sell,
deliver and transfer to Serologicals, and Serologicals will purchase and acquire
from the Shareholder, all of the issued and outstanding Common Stock, free and
clear of any and all Liens.
2.2 Purchase Price. The aggregate amount to be paid in
the Acquisition shall be $80,975,000 (the "Purchase Price").
2.3 Payment of Purchase Price; Additional Payment.
(a) Subject to Section 2.6, on the Closing Date,
Serologicals shall:
(i) deposit in escrow with the Escrow
Agent $19,000,000 (the "Escrow Amount"), which amount shall be
held and disbursed in accordance with the terms of an Escrow
Agreement, substantially in the form attached hereto as
Exhibit A (the "Escrow Agreement");
(ii) remit to the holders of the
Chemicon Debt, for the account of the appropriate Chemicon
Entity, the amount due to the holders of the Chemicon Debt as
of the Closing Date; provided, however, that notwithstanding
the foregoing, Serologicals shall retain from the Purchase
Price the amount of $331,539.60 and, on April 17, 2003, shall
remit the same in accordance with the pay-off letter provided
by the lender to Chemicon to repay in full SBA Loan #
0000000000;
(iii) remit to Novus Molecular, Inc., a
California corporation ("Novus"), for the account and benefit
of Chemicon, the amount of $2,000,000, $1,000,000 of which
shall be in consideration for Novus' execution and delivery of
the non-compete agreement described in Section 6.2(q);
(iv) retain the amount of $5,442,295.10,
plus the interest to be paid in accordance with Sectin 2.3(b),
which amount shall be held and disbursed in accordance with
instructions to be furnished by the Shareholder to
Serologicals no later than April 22, 2003;
(v) remit the Xxxxxx and Xxxxx Payment
in accordance with instructions to be provided by the
Shareholder; and
(vi) pay or cause to be paid to the
Shareholder (or to such other persons identified by
Shareholder in writing to Serologicals not less than two
Business Days prior to the Closing Date) an amount equal to
the Purchase Price minus the sum of (i) the Escrow Amount,
(ii) the Chemicon Debt, (iii) the amount paid to Novus
pursuant to Section 2.3(a)(iii), (iv) the amount retained
pursuant to Section 2.3(a)(iv), and (v) the Xxxxxx and Xxxxx
Payment.
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(b) Serologicals shall pay to the recipient
specified pursuant to Section 2.3(a)(iv) interest, at a rate per annum
of 3.0 %, from the Effective Date through the Closing Date on an amount
equal to the sum of (i) the amount described in Section 2.3(a)(i); (ii)
the amount described in Section 2.3(a)(iii); (iii) the amount described
in Section 2.3(a)(iv); (iv) the amount described in Section 2.3(a)(vi);
and (v) the amount described in Clause 3.1 of the European Purchase
Agreement.
(c) Promptly following the Closing Date,
(i) Serologicals shall pay to the
Shareholder an amount equal to the excess, if any, of (x) the
amount remitted to the holders of the Chemicon Debt pursuant
to Section 2.3(a)(ii) over (y) the amount that would have been
sufficient to repay in full the Chemicon Debt at the close of
business on March 31, 2003; or
(ii) the Shareholder shall pay to
Serologicals the excess, if any, of (x) the amount that would
have been sufficient to repay in full the Chemicon Debt at the
close of business on March 31, 2003 over (y) the amount
remitted to the holders of the Chemicon Debt pursuant to
Section 2.3(a)(ii).
2.4 Closing Statement.
(a) No later than sixty (60) days after the
Closing Date, Serologicals will prepare and deliver to the Shareholder
a statement (the "Closing Statement") setting forth Serologicals'
calculation of Working Capital (the "Estimated Closing Working
Capital") as of the close of business on March 31, 2003. The Closing
Statement shall be prepared in accordance with the accounting
principles set forth on Schedule 2.4(a) and otherwise in accordance
with GAAP, shall set forth by line item the components of Working
Capital with such line items corresponding to the line items in the
Audited Balance Sheets and shall be accompanied by such detail and
supporting schedules as may be necessary, or may be reasonably
requested by the Shareholder, to verify Serologicals' calculation of
Working Capital. Notwithstanding anything to the contrary set forth in
Schedule 2.4(a), the current assets of the Chemicon Entities shall be
increased for the purpose of the calculation of Working Capital by
$25,000.00 relating to insurance premiums paid to renew the insurance
of the Chemicon Entities for the period between the Effective Date and
the Closing Date.
(b) If the Shareholder disagrees with
Serologicals' calculation of Working Capital delivered pursuant to
Section 2.4(a), the Shareholder may, within sixty (60) days after
delivery of the documents referred to in Section 2.4(a), deliver a
notice (an "Objection Notice") to Serologicals disagreeing with such
calculation and setting forth the Shareholder's calculation of Working
Capital. Any such Objection Notice shall specify those line items in
the Closing Statement and the items, amounts, calculations, or
valuations used to determine such line items, as to which the
Shareholder disagrees. The Shareholder shall be deemed to have agreed
with all line items or amounts contained in the Closing Statement and
all calculations or valuations used in determining any line item of the
Estimated Closing Working Capital set forth in the Closing Statement
delivered
- 11 -
pursuant to Section 2.4(a), unless, and only to the extent that, such
items, amounts, calculations or valuations are specifically objected to
in the Objection Notice.
(c) If an Objection Notice is duly delivered
pursuant to Section 2.4(b), Serologicals and the Shareholder shall,
during the fifteen (15) days following such delivery, use their best
efforts to reach agreement on the disputed items or amounts.
(d) If during such period set forth in Section
2.4(c), Serologicals and the Shareholder are unable to reach a final
resolution, Serologicals and the Shareholder will jointly retain the
Accounting Referee to resolve any remaining disagreements. If the
Accounting Referee is unable or unwilling to accept such engagement,
Serologicals and the Shareholder shall appoint another nationally
recognized accounting firm to serve as the Accounting Referee. If
Serologicals and the Shareholder are unable to agree on the choice of
the Accounting Referee, then the Accounting Referee will be chosen by
lot from among KPMG LLP, Xxxxx Xxxxxxxx and BDO Xxxxxxx. Serologicals
and the Shareholder will direct the Accounting Referee to render a
determination and send notice of such determination to Serologicals and
Shareholder pursuant to the provisions of Section 9.1 within sixty (60)
days of its retention and Serologicals, the Shareholder, and their
respective agents will cooperate with the Accounting Referee during its
engagement. The Accounting Referee will consider only those line items
and amounts in the Closing Statement set forth in the Objection Notice
which Serologicals and the Shareholder are unable to resolve.
Serologicals and the Shareholder shall each submit a binder to the
Accounting Referee promptly (and in any event within twenty (20) days
after the Accounting Referee's engagement), which binder shall contain
such party's computation of those line items or amounts contained in
the Closing Statement about which the parties could not resolve any
differences and such party's calculation of Working Capital. The
Accounting Referee shall review such binders and base its determination
solely on them. In resolving all disputed line items and amounts, the
Accounting Referee's determination of Working Capital may not exceed
the amount of Working Capital set forth on the Objection Notice and may
not be less than the amount of Estimated Closing Working Capital set
forth on the Closing Statement. The Accounting Referee's determination
will be based on the definition of Working Capital set forth in this
Agreement. The determination of the Accounting Referee will be
conclusive and binding upon the parties. The Shareholder shall bear a
percentage of the costs and expenses of the Accounting Referee equal to
the difference between the aggregate amount contested by the
Shareholder as set forth on the Objection Notice and amounts actually
paid to (or by) the Shareholder with respect to contested items, as a
percentage of the aggregate amount so contested. Serologicals shall
bear the remainder of such costs and expenses.
(e) Serologicals and the Shareholder agree that
they will, and agree to cause their respective independent accountants
to, cooperate and assist in the preparation of the Closing Statement
and the calculation of Working Capital and in the conduct of the
reviews and procedures referred to in this Section 2.4, including
without limitation, the making available, to the extent necessary, of
books, records, work papers and personnel.
2.5 Adjustment of Purchase Price.
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(a) If Actual Working Capital is less than the
Lower Limit, the Shareholder shall, within five (5) Business Days after
the determination of Actual Working Capital (or if determined pursuant
to Section 2.4(d), within five (5) Business Days after the earlier of
actual receipt of the determination of the Accounting Referee or deemed
delivery of such determination pursuant to Section 9.1), pay to
Serologicals an amount equal to the excess of the Lower Limit over
Actual Working Capital plus interest on such amount from the Closing
Date to the date of payment at an interest rate equal to the "Prime
Rate" as listed in the Wall Street Journal (Southeastern Edition) on
the Closing Date calculated daily on the basis of a year of 365 days
and the actual number of days elapsed (the "Prime Rate").
(b) If Actual Working Capital is greater than
the Upper Limit, Serologicals shall, within five (5) Business Days
after the determination of Actual Working Capital (or if determined
pursuant to Section 2.4(d), within five (5) Business Days after the
earlier of actual receipt of the determination of the Accounting
Referee or deemed delivery of such determination pursuant to Section
9.1), pay to the Shareholder an amount equal to the excess of Actual
Working Capital over the Upper Limit plus interest on such amount from
the Closing Date to the date of payment at an interest rate equal to
the Prime Rate.
2.6 Tax Withholding. With respect to each payment made by
Serologicals pursuant to this Agreement to persons other than the Shareholder,
including any persons identified by the Shareholder pursuant to Section
2.3(a)(vi), Serologicals shall be entitled to deduct, withhold and remit to the
appropriate Governmental Authorities (or cause to be deducted, withheld and
remitted) any and all Taxes required by Law, in the reasonable judgment of
Serologicals, to be so remitted. Any such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the party who otherwise
would have received such amounts but for such withholding.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The
Shareholder hereby represents and warrants to Serologicals as follows:
3.1 Organization.
(a) Chemicon is a corporation, duly
incorporated, validly existing and in good standing under the laws of
the State of California. Schedule 3.1(a) sets forth an accurate and
complete list of all Chemicon Entities and their states or
jurisdictions of incorporation or organization. Each such Chemicon
Entity is duly organized, validly existing and in good standing under
the laws of its state or jurisdiction of incorporation or organization.
Except as set forth on Schedule 3.1(a) or as set forth in paragraph (a)
of Schedule 3.28, Chemicon is the beneficial and record holder of all
of the issued and outstanding capital stock or other equity interests
of each Chemicon Entity (except for Chemicon). Except as set forth on
Schedule 3.1(a), no shares of the Common Stock or shares of the capital
stock of any other Chemicon Entity have been pledged to secure the
repayment of the Chemicon Debt.
(b) Each Chemicon Entity has all requisite
corporate power and corporate authority to carry on and conduct its
business as it is now being conducted and
- 13 -
to own or lease its properties and assets. No Chemicon Entity is
required to be qualified to do business in any state or jurisdiction in
which it is not so qualified except to the extent that such failure to
be qualified would not have, or could not reasonably be expected to
have, a Material Adverse Effect. A list of countries and states in
which each Chemicon Entity currently conducts or, in the past five (5)
years, has conducted business is set forth on Schedule 3.1(b).
(c) Except as set forth on Schedule 3.1(c) and
except for Chemicon's ownership of the other Chemicon Entities, no
Chemicon Entity has any interest, direct or indirect, or commitment to
purchase any interest, direct or indirect, in any corporation,
partnership, joint venture or other business enterprise or entity.
(d) Attached hereto as Schedule 3.1(d) is a
correct and complete copy of the articles of incorporation and bylaws
of Chemicon, which reflect all amendments made thereto at any time
before the date hereof. Chemicon has delivered or made available to
Serologicals copies of the minutes of the meetings of each of the board
of directors and shareholders of Chemicon that are the complete, true
and correct records of the meetings of the board of directors and
shareholders of Chemicon and reflect all transactions required to be
contained in such records, pursuant to the applicable provisions of the
California General Corporations Law (the "CGCL"). Chemicon has also
delivered or made available to Serologicals true and correct copies of
all articles of incorporation, charters, bylaws, operating agreements,
partnership agreements, and similar governing documents and all minutes
for all meetings of directors, stockholders, members, managers,
partners, and similar interest holders for each Chemicon Entity.
(e) Attached hereto as Schedule 3.1(e) is a
correct and complete copy of the certificate of organization and
limited liability company agreement (or similar agreements) of the
Shareholder, which reflects all amendments made thereto at any time
before the date hereof.
(f) The current officers, directors, managers,
or partners (as the case may be) of the Chemicon Entities and the
Shareholder are listed on Schedule 3.1(f).
3.2 Shareholder Authority. The Shareholder has all
requisite limited liability company power and limited liability company
authority to enter into this Agreement and the Indemnification Agreement and
each other document contemplated hereby and thereby to be executed by the
Shareholder. The execution, delivery and performance of this Agreement and the
Indemnification Agreement by the Shareholder and the consummation by the
Shareholder of the transactions contemplated herein and therein have been duly
authorized by all necessary action on the part of the Shareholder. This
Agreement and the Indemnification Agreement and each other document contemplated
hereby and thereby have been (or when executed, will be) duly executed and
delivered by the Shareholder and constitute, or when executed and delivered by
the Shareholder (assuming that Serologicals executes and delivers such
agreements) will constitute, the legal, valid and binding agreements of the
Shareholder, enforceable against the Shareholder in accordance with their
respective 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.
- 14 -
3.3 No Conflict. Except as set forth on Schedule 3.3, the
execution and delivery of this Agreement and the Indemnification Agreement by
the Shareholder, the consummation of the transactions contemplated herein and
therein by the Shareholder, and the performance of the covenants and agreements
of the Shareholder contained herein and therein 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 organization, limited liability company
agreement or any governing documents of the Shareholder or any of the Chemicon
Entities, (ii) violate or conflict with any option, right of first refusal or
any similar right to purchase any Common Stock or any equity interest in any
Chemicon Entity, (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 the Shareholder or any Chemicon Entity is a party or by
which the Shareholder or any Chemicon 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 the Shareholder or any Chemicon Entity or any of their respective assets or
properties, (v) result in the creation or imposition of any Lien upon any assets
or properties of any Chemicon Entity, or (vi) except for approval pursuant to
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act") or the Fair Trading Act of 1973, as amended (the "FTA"), 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.
3.4 Capitalization.
(a) The capital stock of Chemicon consists of
100 million shares of Common Stock, of which 1,960 shares are issued
and outstanding. The Shareholder is the sole record and beneficial
owner of all of the issued and outstanding Common Stock, and there
exists no other capital stock or other equity interest in Chemicon.
(b) Except as set forth on Schedule 3.4 and
except for this Agreement, no Chemicon Entity is bound by any
subscriptions, options, warrants, calls, contracts, demands,
commitments, understandings or other agreements requiring any Chemicon
Entity to issue or entitling any person or entity to acquire any shares
of Common Stock or any equity interest in any Chemicon Entity,
including any right of conversion or exchange under any outstanding
security or other instrument, and under which any Chemicon Entity is
obligated to issue any equity or similar interest for any purpose. No
former or present holder of any Common Stock, any interest therein or
any capital stock or equity interest of any Chemicon Entity has any
legal claim against Chemicon based on any issuance, sale, purchase,
redemption or involvement in any transfer of any Common Stock by
Chemicon or capital stock or equity interest in any Chemicon Entity. No
Chemicon Entity has outstanding any obligation to repurchase, redeem or
otherwise acquire any outstanding Common Stock or any capital stock or
equity interest of any Chemicon Entity. There are no voting trusts,
proxies or any other similar agreements or understandings with respect
to the Common Stock.
- 15 -
3.5 Transfer Claims. Except as set forth on Schedule 3.5,
no prior offer, issue, redemption, call, purchase, sale, transfer, negotiation
or other transaction of any nature or kind with respect to any Common Stock or
any capital stock or other equity interest in any Chemicon Entity (including
shares, offers, options, warrants or debt convertible into Common Stock or any
capital stock or equity interest of any Chemicon Entity) has given or would
reasonably be likely to give rise to any valid claim or action by any person
which is enforceable against any Chemicon Entity, 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 Common Stock, 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.
3.6 Financial Statements. Schedule 3.6 contains the
audited consolidated balance sheets for Chemicon as of December 31, 2000 and
December 31, 2001 and the related audited consolidated statements of operations,
statements of shareholders' equity and statements of cash flows for the years
ended December 31, 2000 and December 31, 2001 (the "Audited Financial
Statements"), and the unaudited combined balance sheet for Chemicon, Chemicon
Europe and Cymbus Biotechnology Limited, dated as of October 31, 2002 (the
"Interim Balance Sheet Date"), and the related unaudited combined statement of
operations and statement of cash flows for the ten-month period ending on
October 31, 2002 (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 (subject
to the exception disclosed on Schedule 3.14(a)) and present fairly, in all
material respects, the consolidated financial position of Chemicon as of the
date thereof, and the related results of 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 and subject to the exception disclosed on
Schedule 3.14(a)), and present fairly, in all material respects, the combined
financial position of Chemicon, Chemicon Europe and Cymbus Biotechnology Limited
as of October 31, 2002, and the related results of their combined operations and
their combined cash flows for the ten-month period then ended, and are based on
the Chemicon Entities' books and records, which have been kept, and such Interim
Financial Statements have been prepared, in accordance with the historical
accounting methods of Chemicon, Chemicon Europe and Cymbus Biotechnology
Limited, as the case may be, consistently applied. The balance sheet as of
December 31, 2001, included in the Audited Financial Statements is referred to
herein as the "Audited Balance Sheet" and the unaudited balance sheet as of
October 31, 2002 included in the Interim Financial Statements is referred to
herein as the "Interim Balance Sheet."
3.7 No Undisclosed Liabilities. Except as and to the
extent reflected and adequately reserved against in the Interim Balance Sheet or
as shown on Schedule 3.7, as of the Interim Balance Sheet Date, Chemicon had no
debts, liabilities or obligations whatsoever, (whether accrued, absolute,
contingent or otherwise, 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, Chemicon has incurred no debts, liabilities or
obligations whatsoever, except for debts, liabilities and obligations incurred
in the Ordinary Course of Business or as reflected on Schedule 3.7.
- 16 -
3.8 No Violation of Law; Required Licenses and Permits.
Each Chemicon Entity is (and has been at all times during the past five (5)
years) in compliance in all material respects with all applicable Laws
(including applicable Laws relating to zoning, environmental matters and the
safety and health of employees). Except as set forth on Schedule 3.8, (i) no
Chemicon Entity is presently charged with, nor has any Chemicon Entity received
written notice that it is under investigation with respect to, and, to the
Knowledge of the Shareholder, is not otherwise now under investigation with
respect to, a violation of any applicable material Law, (ii) no Chemicon Entity
is a party to, or bound by, any order, judgment, decree or injunction of any
Governmental Authority and (iii) each Chemicon Entity has filed all reports and
has all licenses and permits required to be filed with any Governmental
Authority on or prior to the date hereof.
3.9 Personal Property.
(a) Schedule 3.9(a) sets forth a complete and
accurate list of all personal property used in the operation of the
Business, as such list is maintained in Chemicon Entities' fixed asset
listings on the date hereof.
(b) Each Chemicon 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
that 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 liens set forth on Schedule 3.9(b)
and Permitted Liens.
(c) All of the personal property described on
Schedule 3.9(a) 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). The personal
property listed on Schedule 3.9(a) is in the possession or control of
the relevant Chemicon Entity, and no other person is entitled to
possession of any such properties and assets, except as set forth on
Schedule 3.9(c).
(d) Except as set forth in Schedule 3.9(d),
there are no existing agreements, options, commitments or rights with,
of or to any person to acquire any assets, properties or rights or any
interests therein of any Chemicon Entity.
3.10 Real Property.
(a) Schedule 3.10(a) sets forth the address of
each piece of real property (the "Leased Real Property") leased by any
Chemicon Entity and a list of all leases, subleases, amendments,
extensions, renewals and guaranties with respect thereto for each
Leased Real Property to which any Chemicon Entity is party (the "Real
Property Leases"). Chemicon has 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,
against the applicable Chemicon Entity and any Affiliate of
any Chemicon Entity a party thereto and, to the Knowledge
- 17 -
of the Shareholder, is legally valid, binding, enforceable and
in full force and effect against any person, not an Affiliate
of any Chemicon Entity, a party thereto, except, in either
case, 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 Chemicon Entity is, and to the
Knowledge of the Shareholder no other party to the Real
Property Leases is, in 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 Chemicon Entity that is a party
to any Real Property Lease has repudiated any term thereof,
and to the Knowledge of the Shareholder, no other party to any
Real Property Lease has repudiated any term thereof, and there
are no material disputes in effect with respect to any Real
Property Lease;
(iv) No Chemicon 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 3.10(a); and
(v) The applicable Chemicon Entity (as
the case may be) 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) Except as set forth on Schedule 3.10(b), no
Chemicon Entity currently owns or has ever owned any real property.
(c) Schedule 3.10(c) sets forth a complete and
accurate legal description of the real property currently owned by
Chemicon (which together with all buildings and improvements located
thereon is herein referred to as the "Owned Real Property"). Except as
set forth in Schedule 3.10(c), Chemicon 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 Chemicon 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.
(ii) Except as set forth in Schedule
3.10(c), the Owned Real Property, and all present uses and
operations thereof, comply 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
- 18 -
Governmental Authorities or courts and all deed or other title
covenants and restrictions applicable to the Owned Real
Property. Chemicon has not 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) Shareholder 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 available to Shareholder or any Chemicon
Entity.
(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.
(v) There are not pending or, to the
Knowledge of the Shareholder, threatened any special
assessments or obligations for roads, services and other
improvements with respect to the Owned Real Property or any
part thereof.
(vi) There is not pending or, to the
Knowledge of the Shareholder, threatened any condemnation,
expropriation, requisition (temporary or permanent) or similar
proceeding with respect to the Owned Real Property or any part
thereof.
(vii) 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, 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 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 the Knowledge of the Shareholder, 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.
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(viii) Except with regard to environmental
and occupational health and safety matters (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) except as set forth on Schedule 3.10(c)(viii),
Chemicon 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 the Knowledge of the Shareholder, threatened,
which may result in revocation or cancellation of a Real
Estate Permit.
(ix) Schedule 3.10(c)(ix) sets forth a
complete list of all material Contracts pertaining to the
ownership, use, management or operation of the Owned Real
Property. Chemicon is not in default in any material respect
with respect to any of such 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.
(x) Chemicon has not received written
notice (1) of any actual, threatened or imminent changes in
the present zoning of any of the Owned Real Property or of any
part thereof or any restrictions, limitations or regulations
issued or 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 the Knowledge of the Shareholder, no
sewer moratorium or like governmental order is in effect with
respect to any of the Owned Real Property.
(xi) There are no ad valorem Tax, land
transfer Tax or other property Tax protests, appeals,
reassessments or other proceedings pending or, to the
Knowledge of the Shareholder, threatened against the Owned
Real Property.
(xii) 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.
(xiii) To the Knowledge of the
Shareholder, 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.
- 20 -
(xiv) To the Knowledge of the
Shareholder, 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.
(xv) As of the Closing Date 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 Chemicon.
(xvi) Chemicon has not 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
Shareholder has no Knowledge of any fact or circumstance that
may give rise to the issuance thereof.
3.11 Required Consents and Approvals.
(a) Except as set forth on Schedule 3.11(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 Permitted Liens) on any assets or
properties pursuant to the terms of, any regulation, order, decree or
award of any court or Governmental Authority or any Chemicon Contract
(other than licenses for Proprietary Rights owned by third parties that
are not Top IP Contracts) or any Contract to which the Shareholder is a
party or to which any of their respective properties, any of the shares
of Common Stock or any capital stock or equity interests of any
Chemicon Entity are subject.
(b) All notices (the "Notices") that are
required to be given to any Person under applicable Law or pursuant to
any Chemicon Contract or which is applicable in connection with the
completion of the transactions contemplated by this Agreement are
listed in Schedule 3.11(b). Except for the Notices, no notice is
required to be delivered to any Person pursuant to any Chemicon
Contract 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 Chemicon Entities to carry on the
Business after the Closing as the Business is currently carried on by
the Chemicon Entities.
3.12 Indebtedness for Borrowed Money; Security
Arrangements. Schedule 3.12 sets forth a complete and accurate list of all
instruments or other documents, to which any Chemicon Entity is a party,
relating to their respective 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 property used or
owned by any Chemicon Entity. Except as set forth in Schedule 3.12, no letter of
credit, payment or performance bond or similar instrument securing any Chemicon
Entity's performance of its obligations is outstanding.
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3.13 Intellectual Property.
(a) The Chemicon 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 3.13(a) sets forth a list of all registered patents,
registered and unregistered trademarks, trade names, service marks,
assumed names and copyrights owned by any Chemicon Entity and all
applications therefor filed by any Chemicon Entity. Chemicon has made
available to Serologicals correct and complete copies of all such
patents, registrations, and applications. The Chemicon Entities have
taken all necessary and desirable action to maintain and protect each
item of Proprietary Rights required to be identified on Schedule
3.13(a) in each jurisdiction in which the Business is conducted as of
the date hereof. With respect to each Proprietary Right required to be
identified on Schedule 3.13(a):
(i) except as set forth on Schedule
3.13(a), the appropriate Chemicon Entity possesses 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 or ruling;
(iii) no action, suit, proceeding,
hearing, investigation, complaint, claim or demand is pending
or, to the Knowledge of the Shareholder, threatened which
challenges the legality, validity, enforceability, use, or
ownership of the item; and
(iv) no Chemicon Entity has ever agreed
to indemnify any Person for or against any interference,
infringement, misappropriation, or other conflict with respect
to the item.
(b) Except as described in Schedule 3.13(b),
each item of Proprietary Rights required to be identified on Schedule
3.13(a) will not be affected by consummation of the transactions
contemplated by this Agreement.
(c) To the Knowledge of the Shareholder, no
Chemicon Entity has interfered with, infringed upon, misappropriated,
or otherwise come into conflict with any Proprietary Rights of third
parties, and, except as set forth on Schedule 3.13(c), none of the
officers (and employees with responsibility for Proprietary Rights
matters) of any Chemicon Entity has received, since December 31, 2000,
any written charge, complaint, claim, demand, or notice alleging any
such interference, infringement, misappropriation, or violation
(including any claim that any Chemicon Entity must license or refrain
from using any intellectual property rights of any third party). To the
Knowledge of the Shareholder, no third party has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with
any Proprietary Rights of any Chemicon Entity listed or required to be
listed on Schedule 3.13(a).
(d) Schedule 3.13(d) identifies each license,
sublicense agreement, or other permission that any Chemicon Entity has
granted to any third party with respect to
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any Proprietary Rights (together with any exceptions). Chemicon has
made available to Serologicals correct and complete copies of all such
licenses, sublicenses, 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.
(e) Schedule 3.13(e) identifies each Proprietary
Right that any third party owns and that any Chemicon Entity uses
pursuant to a license, sublicense, agreement, or permission and
identifies each such license, sublicense, agreement or permission.
Chemicon has made available to Serologicals correct and complete copies
of all such licenses, sublicenses, agreements, and permissions (as
amended to date). Schedule 3.13(e) identifies the Top IP Contracts.
With respect to the Top IP Contracts and subject to the receipt of any
relevant consents as set forth on Schedule 3.11(a) or the provision of
any relevant notices as set forth on Schedule 3.11(b):
(i) the license, sublicense, agreement,
or permission covering the item is legal, valid, binding and
enforceable and in full force and effect;
(ii) the license, sublicense, agreement,
or permission will not be affected by consummation of the
transactions contemplated by this Agreement;
(iii) no Chemicon Entity is, and to the
Knowledge of the Shareholder, no other party to the license,
sublicense, agreement, or permission is, in breach or default,
and, to the Knowledge of the Shareholder, 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 Chemicon Entity has, and to the
Knowledge of the Shareholder, no other party to any Top IP
Contract has, repudiated any provision thereof;
(v) with respect to each sublicense, to
the Knowledge of the Shareholder, the representations and
warranties set forth in Sections 3.13(e)(i) through
3.13(e)(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 or ruling to which any Chemicon Entity is a
party nor, to the Shareholder'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 the Knowledge of the Shareholder, threatened
which challenges the legality, validity, or enforceability of
the Proprietary Rights underlying the Top IP Contracts; and
(viii) no Chemicon Entity has granted any
sublicense or similar right with respect to any Top IP
Contract.
- 23 -
3.14 Inventory/Product Warranty.
(a) The inventory of the Chemicon Entities
consists of raw material and supplies, manufactured and purchased parts
and materials, goods in process, and finished goods. The book value of
any such inventory that is slow-moving, obsolete, damaged, or defective
does not exceed the reserve for inventory set forth on the face of the
Interim Balance Sheet (rather than in the notes) and the book value of
any such inventory that is slow-moving, obsolete, damaged, or defective
as of the Closing Date will not exceed the reserve for inventory used
to determine Actual Working Capital in accordance with Section 2.4.
Except as set forth in Schedule 3.14(a), the amount at which the
inventory of the Chemicon 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.
(b) No Chemicon Entity has any liability or
obligation (and, to the Knowledge of the Shareholder, 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 Chemicon 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 Chemicon Entity is subject to any guaranty,
warranty or other indemnity beyond the standard terms and conditions
thereof, which are fully and accurately set forth on Schedule 3.14(b).
(c) No Chemicon Entity has any liability or
obligations (and, to the Knowledge of the Shareholder, 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
Chemicon Entity.
3.15 Notes and Accounts Receivable. All notes and accounts
receivable of the Chemicon Entities are (a) reflected properly on the Interim
Financial Statements and (b) valid receivables, subject to no 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 Chemicon Entities.
3.16 Legal Proceedings. Except as set forth on Schedule
3.16, there are no suits, actions, claims, proceedings or investigations pending
or, to the Knowledge of the Shareholder, threatened against, relating to or
involving any Chemicon Entity or any of their officers, directors or
shareholders, in their capacities as officers, directors or shareholders of any
Chemicon Entity, before any court, arbitrator or administrative or Governmental
Authority. None of such suits, actions, claims, proceedings or investigations,
if finally determined adversely, would have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. No Chemicon
Entity is subject to, or has received any notice that it
- 24 -
may be subject to, any judgment, decree, injunction, rule or order of any court.
No Chemicon Entity is subject to, or has received any notice that it may be
subject to, any governmental restriction that would have, or could reasonably be
expected to have, a Material Adverse Effect.
3.17 Employee Benefit Plans.
(a) Schedule 3.17 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 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, employee, or consultant or other independent
contractor (or any of their dependents) of the Chemicon Entities or any
predecessors in interest thereto, that are currently in effect or as to
which any Chemicon Entity has any liability, duty or obligation
whatsoever (whether fixed or contingent), including, any stock option,
employment, change of control, consulting, severance, 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") without regard to whether such plan is subject to
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 3.17, all of
the Employee Benefit Plans are currently in effect. All retirement
plans intended to be qualified under Section 401(a) of the Code are
separately identified on Schedule 3.17. No Employee Benefit Plan that
is described in Section 3(1) of ERISA provides any benefits after a
termination of employment except to the extent such benefits are
required to satisfy the minimum requirements under Part 6 of Subtitle B
of Title I of ERISA. None of the Employee Benefit Plans are
"multiemployer plans" as defined in Section 3(37) and Section
4001(a)(3) of ERISA and no Chemicon Entity nor any ERISA Affiliate of
either of them 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 or any plan described in Sections 4063
and 4064 of ERISA. No Chemicon Entity is obligated to pay any amount to
any officer, manager, director or employee with respect to or
contingent upon (i) the termination of his or her employment following
consummation of the Acquisition; (ii) the execution of this Agreement
or the consummation of the Acquisition; or (iii) the continuation of
his or her employment with the relevant Chemicon Entity pending or
after the consummation of the Acquisition.
(b) Except as set forth on Schedule 3.17, (i)
the Chemicon Entities have complied, in all material respects, with all
of their respective 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 all material
respects, in compliance with their respective terms and with all
applicable Laws, regulations and administrative requirements; (iii) the
levels of
- 25 -
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 Chemicon Entity) are in fact so held, and the fair market
value of 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 Section 401(a) of the Code is, and has been, so qualified and has
received a current favorable determination letter from the Internal
Revenue Service on the current form of the plan stating that such plan
is so qualified.
(c) Chemicon has 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 and Pension Benefit Guaranty
Corporation rulings or determinations, and 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; (iv) the annual
reports filed with the Department of Labor or the Internal Revenue
Service for the most recent three (3) plan years and the most recent
financial statements, actuarial reports, and periodic accounting for
related plan assets with respect to each Employee Benefit Plan; and (v)
such other documentation with respect to any Employee Benefit Plan as
reasonably requested by Serologicals
(d) Except as described on Schedule 3.17, (i) no
Chemicon 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 amend or terminate any 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
Chemicon 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) and 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 Chemicon Entities after the date hereof shall have 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) To the Knowledge of the Shareholder, none of
the Employee Benefit Plans is currently under audit or, investigation
or review, by the Department of
- 26 -
Labor, the Internal Revenue Service or any other United States federal
or state Governmental Authority or any foreign Governmental Authority,
and to the Knowledge of the Shareholder, no such audit, investigation
or review has been proposed.
(f) There are no pending or, to the Knowledge of
the Shareholder, threatened claims with respect to an Employee Benefit
Plan (other than routine and reasonable 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 any Chemicon Entity.
(g) No Employee Benefit Plan is liable for any
unpaid Taxes nor is any Chemicon Entity liable for any unpaid Taxes
with respect to any Employee Benefit Plan.
(h) Except as described in Schedule 3.17, the
transactions contemplated by this Agreement will not result in any
additional or accelerated payments to, increased benefit accruals for
or increase the vested interest of, any current or former officer,
employee or director or their dependents under any Employee Benefit
Plan.
(i) There have been no prohibited transactions
or breaches of fiduciary duty under ERISA or prohibited transactions
under the Code for which any Chemicon Entity has any liability, and
except as described in Schedule 3.17, no Chemicon 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 3.17, no
assets have been set aside in any trust or account (other than an
account that is part of a Chemicon Entity's general assets) to satisfy
any obligations under any Employee Benefit Plan.
(k) Neither any Chemicon Entity, nor any ERISA
Affiliate, nor, to the Knowledge of the Shareholder, any fiduciary of
any of the Employee Benefit Plans has incurred (and no facts exist that
may be reasonably expected to cause a Chemicon Entity, ERISA Affiliate
or fiduciary to incur) any liability for any 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) No Chemicon Entity 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.
3.18 Labor Relations. Except to the extent set forth on
Schedule 3.18:
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(a) There are no collective bargaining
agreements to which any Chemicon Entity is a party or is bound and
there are no certifications issued by a labor board or tribunal with
respect to any Chemicon Entity.
(b) Since January 1, 1996, no Chemicon Entity
has experienced any organized slow down, work interruption, strike or
work stoppage. There are no existing or, to the Knowledge of the
Shareholder, threatened labor disputes, requests or applications for
union representation.
(c) There are no investigations, administrative
proceedings or formal complaints of discrimination (including
discrimination based on 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, local or foreign Governmental Authority against or
involving any Chemicon Entity with respect to such matters; nor, to the
Knowledge of the Shareholder, are any such complaints threatened.
(d) Schedule 3.18 sets forth a true and correct
list of all employees employed by the Chemicon Entities, together with
their respective job titles, continuous service dates, compensation
rates and accrued vacation leave (and any applicable leave loading),
long service leave and sick leave as of the most recent practicable
date.
(e) Each individual who has received
compensation for the performance of services on behalf of any Chemicon
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 pending, or to the Knowledge of the Shareholder,
threatened, relating to the classification of an individual as an
"independent contractor" of any Chemicon Entity.
(f) No Chemicon 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 federal, state, provincial, county, local or foreign plant
closing notice law. No agreement, arbitration or court decision or
order or rules of any Governmental Authority in any way limits or
restricts any Chemicon Entity from relocating or closing any of its
operations.
(g) No Chemicon 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.
(h) The Chemicon Entities are in material
compliance with all United States and foreign immigration laws relating
to employment and have properly completed and maintained all applicable
forms (including I-9 forms) and, there are no citations,
investigations, administrative proceedings or formal complaints of
violations of the immigration laws pending or, to the Knowledge of the
Shareholder, threatened before the
- 28 -
Immigration and Naturalization Service or any federal, state or local
Governmental Authority against or involving any Chemicon Entity with
respect to such matters.
(i) No Chemicon Entity is nor 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.
3.19 Environmental, Health and Safety Requirements. Except
as set forth in Schedule 3.19:
(a) Each Chemicon Entity, and their respective
Affiliates and each piece of real property occupied by them is in
compliance, in all material respects, and has at all times during such
occupancy since January 1, 1996 complied, in all material respects,
with all Environmental, Health and Safety Requirements.
(b) Without limiting the generality of Section
3.19(a), each Chemicon 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 3.19.
(c) No Chemicon Entity, nor, to the Knowledge of
the Shareholder, any legal entity that was merged with or into any
Chemicon Entity, that was consolidated with any Chemicon Entity, or the
liabilities of which for matters related to Environmental, Health and
Safety Requirements were assumed by any Chemicon Entity (each a
"Predecessor Entity") has received any written or oral notice, report
or other information regarding any actual or alleged material violation
of Environmental, 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, operated or leased by any Chemicon Entity:
(i) underground storage tanks;
(ii) asbestos-containing material in any
form or condition;
(iii) materials or equipment containing
polychlorinated biphenyls; or
(iv) landfills, surface impoundments or
disposal areas.
(e) No Chemicon Entity, nor any of their
respective Affiliates, nor, to the Knowledge of the Shareholder, any
Predecessor Entity has treated, stored, disposed of, arranged for or
permitted the disposal of, transported, handled, or released any
- 29 -
substance, including, 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 Acquisition 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) No Chemicon Entity, nor, to the Knowledge of
the Shareholder, any Predecessor Entity has either expressly or by
operation of law, assumed or undertaken any liability, including any
obligations for corrective or remedial action, of any other Person
relating to Environmental, Health and Safety Requirements.
(h) Since January 1, 1997, no Chemicon Entity
nor, to the Knowledge of the Shareholder, 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.
3.20 Insurance Policies. Schedule 3.20 sets forth a
complete and accurate list of all insurance policies in force naming any
Chemicon Entity or employees thereof as an insured or beneficiary or as a loss
payable payee or for which any Chemicon Entity has paid or is obligated to pay
all or part of the premiums. All such policies are in full force and effect and
no Chemicon 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 the relevant Chemicon
Entity is in compliance in all material respects with all conditions contained
therein. Except as set forth on Schedule 3.20, 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 3.20, during the past three (3) years, no insurance policy
has been canceled by any insurer and no application for insurance by any
Chemicon Entity has been rejected by any insurer.
3.21 Contracts and Commitments.
(a) Except for (i) Contracts for the purchase of
services, goods or raw materials by a Chemicon Entity entered into in
the Ordinary Course of Business that do not individually involve an
amount in excess of $50,000 (treating each purchase order as a separate
agreement) and that are reasonably expected to be fully performed
within six
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(6) months of their respective dates (collectively, the "Immaterial
Contracts"), and (ii) Contracts listed on Schedules 3.10(a), 3.12,
3.13(a), 3.13(d) and 3.13(e) (or that would have been listed on such
schedules but for the disclosure thresholds set forth therein), each
Contract to which any Chemicon Entity is a party is listed on Schedule
3.21(a).
(b) Except as set forth on Schedule 3.21(b),
during the past five (5) years no Chemicon 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 the relevant
Chemicon Entity), in the Ordinary Course of Business or otherwise: (i)
any direct or indirect record or beneficial owner of Common Stock, the
Trust or the Beckmans or (ii) any person, firm or corporation (other
than a Chemicon Entity) which, directly or indirectly, alone or
together with others, controls, is controlled by or is under common
control with any direct or indirect record or beneficial owner of
Common Stock, the Trust or the Beckmans. Except as set forth on
Schedule 3.21(b) and except for amounts currently due
or that become due with respect to those Contracts set forth on
Schedule 3.21(b), no Chemicon Entity owes any amount
to, or has any contract with or commitment to, the Shareholder or any
of the directors, officers, managers, employees, consultants or any
Affiliates of any of the Shareholder (other than a Chemicon Entity),
the Trust or the Beckmans and none of such persons owes any amount to
any Chemicon Entity, except with respect to remuneration for services
rendered as a director, officer, manager or employee of the relevant
Chemicon Entity.
(c) To the Knowledge of the Shareholder, all of
the Contracts listed or required to be listed on Schedules 3.10(a),
3.12, 3.13(a), 3.13(d), 3.13(e), or 3.21(a) (collectively, the
"Chemicon Contracts") are valid and binding, and are in full force and
effect and are enforceable in accordance with their terms. To the
Knowledge of the Shareholder, there is no pending or threatened
bankruptcy, insolvency or similar proceeding with respect to any party
to any Chemicon Contract. 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 Chemicon
Contracts by the relevant Chemicon Entity or, to the Knowledge of the
Shareholder, any other party thereto. Each Chemicon Entity has
performed all obligations required to be performed by it pursuant to,
and is in compliance with the terms and conditions of, each Chemicon
Contract to which it is a party and is not in default under or in
breach of, nor in receipt of any claim of default or breach under any
Chemicon Contract. No condition or state of facts exists that, with
notice or the passage of time, or both, would constitute a material
default or material breach by the relevant Chemicon Entity under any
Chemicon Contract. Chemicon has made available to Serologicals correct
and complete copies of all written Chemicon Contracts together with all
amendments, waivers and other changes thereto. Schedules 3.10(a), 3.12,
3.13(a), 3.13(d), 3.13(e), and 3.21(a) collectively contain an accurate
and complete description of all material terms of all oral Chemicon
Contracts referred to therein.
- 31 -
3.22 Absence of Certain Changes and Events. Except as set
forth on Schedule 3.22 and as otherwise contemplated by this Agreement, since
the date of the Interim Balance Sheet, each Chemicon Entity has conducted the
Business only in the Ordinary Course of Business, and has not:
(a) received any notice of termination of any
Chemicon 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 could reasonably be expected to
have, a Material Adverse Effect;
(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 Common Stock or any equity
interest in any Chemicon Entity or purchased, retired or redeemed, or
obligated itself to purchase, retire or redeem, any Common Stock or any
equity interest in any Chemicon Entity 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, member, distributor or agent of any
Chemicon Entity 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
(other than "at-will" employment agreements), consulting, severance,
change in control, 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 Interim 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 $50,000 per
transaction or $100,000 in the aggregate;
(i) made any single capital expenditure or
investment in excess of $50,000 or capital expenditures in the
aggregate in excess of $100,000;
(j) made any change in any method of accounting
or any practice or principle of accounting;
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(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 $50,000;
(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 event or occurrence that has had, or
could reasonably be expected to have, a Material Adverse Effect;
(o) issued or sold Common Stock or other 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;
(q) materially changed any material 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,
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 Chemicon Contract,
including any Employee Benefit Plan (except as otherwise contemplated
by this Agreement or required by law) or any insurance policy, in force
on December 31, 2002;
(t) written off, or increased the reserve for,
any inventory (including, raw materials, supplies, manufactured and
purchased parts, goods or work in process and finished goods) by a
total of more than $50,000; or
(u) agreed in writing, or otherwise, to take any
action described in this Section 3.22.
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3.23 Tax Matters.
(a) All Tax Returns of any Chemicon Entity that
are due to have been filed in accordance with any applicable Law have
been duly filed, are true, correct and complete in all material
respects, and have been prepared in substantial compliance with all
applicable Laws. Chemicon has delivered or made available to
Serologicals true, correct and complete copies of all such Tax Returns
filed for the three (3) most recent years for which such returns have
been filed.
(b) All Taxes due and owing by any Chemicon
Entity (whether or not shown on any Tax Return) have been timely paid
in full. Each Chemicon Entity has withheld and paid all Taxes required
to have been withheld and paid in connection with any amounts paid or
owing to any employee, independent contractor, creditor, stockholder or
other third party.
(c) The unpaid Taxes of each Chemicon Entity (i)
did not, as of the date of the Interim Financial Statements, exceed the
reserve for Tax liability (rather than any reserve for deferred Taxes
established to reflect timing differences between book and Tax income)
set forth on the face of the Interim Balance Sheet (rather than in any
notes thereto) and (ii) do not exceed that reserve as adjusted for the
passage of time through the Closing Date in accordance with the past
custom and practice of the Chemicon Entities in filing their Tax
Returns. Since the date of the Interim Financial Statement, no Chemicon
Entity has incurred any liability for Taxes arising from extraordinary
gains or losses, as that term is used in GAAP, outside the Ordinary
Course of Business.
(d) Except as set forth on Schedule 3.23(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 Chemicon
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 as liabilities in the full amount of the
deficiency or reassessment on the Interim Balance Sheets 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 Chemicon 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, to the
Knowledge of the Shareholder, being asserted, proposed or threatened,
and, to the Knowledge of the Shareholder, no audit or investigation of
any Tax Return is currently under way, pending or threatened by any
Governmental Authority. No claim has ever been made by a Governmental
Authority in a jurisdiction in which any Chemicon Entity does not file
Tax Returns that such Chemicon Entity is or may be subject to taxation
by that jurisdiction. Schedule 3.23(f) sets forth each taxable year or
other period for which an audit or other examination of any Chemicon
Entity was conducted by any Governmental Authority
- 34 -
with respect to taxable periods beginning on or after January 1, 1996,
the issues examined in connection with such audit or examination, and
the disposition thereof.
(g) Except as set forth on Schedule 3.23(g),
there are no outstanding waivers or agreements or requests to execute
such waivers or agreements by any Chemicon 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 Chemicon Entity or any other Tax matters pending
between any Chemicon Entity and any Governmental Authority.
(h) There are no Liens for Taxes on any asset or
property used in the Business nor are there any Liens that are, to the
Knowledge of the Shareholder, pending or threatened, other than Liens
for Taxes not yet due and payable.
(i) No Chemicon Entity is currently contesting
or has reason to contest any Tax liability before any Governmental
Authority.
(j) No Chemicon 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 Chemicon Entity is
required to be made under any Chemicon Contract that will, if made,
constitute an "excess parachute payment" within the meaning of Section
280G of the Code.
(k) 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 any Chemicon Entity for U.S.
federal income tax purposes ("U.S. Tax Basis") are in both cases as set
forth on the tax attributes list attached as Schedule 3.23(k) showing
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.
(l) No Chemicon Entity is a party to any tax
allocation, tax sharing or similar agreement. No Chemicon Entity has
any liability for the Taxes of another Person (other than another
Chemicon Entity) under Treasury Regulation section 1.1502-6 (or any
similar provision of state, local or foreign law), as a transferee or
successor, by contact, or pursuant to any law, rule or regulation or
otherwise.
(m) Except as set forth on Schedule 3.23(m), no
Chemicon 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.
(n) No Chemicon Entity has paid any
non-deductible compensation to any of its shareholders, officers,
directors or employees for the current Tax year or any prior Tax year.
- 35 -
(o) No property of any Chemicon 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).
(p) No Chemicon Entity is a "United States real
property holding corporation" as such term is defined in Section
897(c)(2) of the Code.
(q) To the Knowledge of the Shareholder, all
"controlled transactions" between two (2) or more Chemicon Entities or
between one (1) or more Chemicon Entities comply, in all material
respects, with the arm's length standards set forth in Section 482 of
the Code.
(r) None of the Chemicon Entities has filed a
consent under Section 341(f) of the Code concerning collapsible
corporations.
(s) No Chemicon Entity has distributed stock of
another Person, or has had its stock distributed by another Person, in
a transaction that was purported or intended to be governed in whole or
in part by Section 355 or Section 361 of the Code.
(t) From February 1, 1987 through December 31,
2002, Chemicon was subject to income Tax as a qualifying subchapter S
corporation within the meaning of Sections 1361 and 1362 of the Code
and for purposes of the corresponding provisions of California Tax Law.
3.24 Employee Notice. Except as set forth on Schedule 3.24
hereto, no salaried employee of any Chemicon Entity has notified any Chemicon
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 and except for transactions between or
among the Chemicon Entities, Chemicon Europe and the European Subsidiaries, no
Chemicon Entity nor, to the Knowledge of the Shareholder, any of their
respective directors, officers, managers or shareholders, directly or
indirectly, owns any interest in, controls or is an employee, officer, manager,
shareholder, member, 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 Chemicon Entity.
3.26 Brokers' and Finders' Fees. Other than as set forth
on Schedule 3.26, neither any Chemicon Entity, the Shareholder nor anyone acting
on behalf of any of them, has any liability to any party for any brokers' or
finders' fees or the like or any other liability that is contingent upon the
consummation of the Acquisition in connection with this Agreement, the European
Purchase Agreement or any transaction contemplated hereby or thereby.
Serologicals shall have no liability arising from any such action by any
Chemicon Entity, the Shareholder, or anyone acting on behalf of any of them for
any such fees, expenses, or the like in connection with this Agreement, the
European Purchase Agreement or any transaction contemplated hereby or thereby.
- 36 -
3.27 Ethical Practices. Neither any Chemicon Entity nor
any officer, director, employee, member, manager, agent or any representative
thereof has offered or given anything of value to: (i) any official of a
Governmental Authority, any political party or official thereof, or any
candidate for political office; (ii) any customer or member of the government;
or (iii) any other Person, in any such case while knowing or having reason to
know that all or a portion of such money or thing of value may be offered, given
or promised, directly or indirectly, to any customer, member of the government
or candidate for political office for the purpose of the following: (x)
influencing any action or decision of such Person, in his or its official
capacity, including a decision to fail to perform his or its official function;
(y) inducing such Person to use his or its influence with any government or
instrumentality thereof to affect or influence any act or decision of such
government or instrumentality to assist any Chemicon Entity in obtaining or
retaining business for, or with, or directing business to, any Person; or (z)
where such payment would constitute a bribe, kickback or illegal or improper
payment to assist any Chemicon Entity in obtaining or retaining business for, or
with, or directing business to, any Person. The business and operations of each
Chemicon Entity have been conducted in material compliance with all applicable
Laws.
3.28 Australian Representations. The Shareholder further
represents and warrants, as to Chemicon Australia Pty. Ltd., a private limited
company organized under the corporation laws of Victoria, Australia, and wholly
owned subsidiary of Chemicon, as set forth on Schedule 3.28, such schedule being
incorporated herein by reference as if the text of such schedule were set forth
in full herein.
3.29 U.S. Food and Drug Administration Representations.
Except as set forth on Schedule 3.29.
(a) Each Chemicon Entity is in compliance, in
all material respects, with all current applicable statutes, rules,
regulations, standards, guidelines, policies and orders administered or
issued by the United States Food and Drug Administration ("FDA") or any
applicable, comparable foreign governmental entity.
(b) Registration and Listing.
(i) All establishments required to be
registered by any Chemicon Entity with FDA are validly
registered.
(ii) All devices required to be listed
by any Chemicon Entity with FDA are validly listed.
(iii) Each Chemicon Entity has provided
complete copies of all Forms FDA-2891, 2891a, and 2892 and
other correspondence with FDA relating to establishment
registration and device listing.
(c) Product Applications.
(i) All products, where required, are
being marketed under a valid 510(k) or PMA exclusively owned
by any Chemicon Entity and approved or cleared, as
appropriate, by FDA.
- 37 -
(ii) Any 510(k) or PMA documents and
related documents for each of the products of any Chemicon
Entity are in compliance, in all material respects, with all
applicable federal statutes, rules, regulations, standards,
guidelines, policies and orders administered or promulgated by
FDA and there is no reason to believe that FDA is considering
limiting, suspending, or revoking such approvals or clearances
or changing the marketing classification or labeling of any
such products.
(iii) To the Knowledge of the
Shareholder, there is no false information or significant
omission in any product application or product-related
submission to FDA.
(iv) Each Chemicon Entity has obtained
all necessary regulatory approvals from any applicable foreign
governmental entities related to the products manufactured and
distributed by the relevant Chemicon Entity.
(d) Warning Letters, Etc.
(i) Each Chemicon Entity has provided
all Form FDA-483 forms received by it.
(ii) Each Chemicon Entity has provided
all responses to Form FDA-483 forms made to FDA.
(iii) Each Chemicon Entity has provided
any and all Warning Letters and untitled letters concerning
good manufacturing practices ("GMP") issues received by it.
(iv) Each Chemicon Entity has provided
all responses to Warning Letters and untitled letters related
to GMP issues submitted to FDA.
(v) Each Chemicon Entity has provided
any and all FDA establishment inspection reports ("EIRs") they
have received from FDA.
(e) Import and Exports
(i) Except as otherwise disclosed on
Schedule 3.29, no Chemicon Entity is subject to any FDA Import
Alerts.
(ii) Each Chemicon Entity complies with
all applicable FDA import and export requirements, including
import-for-export requirements, export notification or
authorization requirements, and recordkeeping requirements, as
applicable.
(iii) Each Chemicon Entity has provided
complete documentation concerning all device-related imports
and exports.
- 38 -
(f) Enforcement Issues. The Shareholder has no
Knowledge of any acts that furnish a reasonable basis for a Warning
Letter, untitled letter, Section 305 notice or other similar
communication.
4. REPRESENTATIONS AND WARRANTIES OF SEROLOGICALS. Serologicals
hereby represents and warrants to the Shareholder as follows:
4.1 Organization, Power and Authority. Each of
Serologicals and Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and each has all requisite
corporate power and authority to enter into this Agreement, the European
Purchase Agreement, the Indemnification Agreement and the Parent Guaranty (as
the case may be) and each other document contemplated hereby and thereby to
which it is a party. The execution, delivery and performance of this Agreement,
the European Purchase Agreement and the Indemnification Agreement by
Serologicals and the consummation by Serologicals of the transactions
contemplated herein and therein have been duly authorized by all necessary
corporate action on the part of Serologicals. The execution, delivery and
performance of the Parent Guaranty by the Parent and the consummation by the
Parent of the transactions contemplated therein have been duly authorized by all
necessary corporate action on the part of Parent. The execution and delivery of
the Parent Guaranty by Parent does not require the authorization, consent or
approval of the stockholders of Serologicals or Parent. This Agreement, the
European Purchase Agreement, the Indemnification Agreement and the Parent
Guaranty and each other document contemplated hereby or thereby have been (or
when executed, will be) duly executed and delivered by Serologicals or Parent
(as the case may be) and constitute, and each instrument delivered pursuant
hereto, when executed and delivered by Serologicals or Parent (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 or Parent (as the case may be), 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, the European Purchase Agreement and
the Indemnification Agreement by Serologicals and the Parent Guaranty by the
Parent, the consummation of the transactions contemplated herein and therein by
Serologicals, and the performance of the covenants and agreements of
Serologicals contained herein and of Parent contained in the Parent Guaranty
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 Parent, (ii) 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 obligations under, any term or
condition of any indenture, mortgage, lease, loan agreement, license, permit,
contract, agreement or instrument to which Serologicals or Parent either is a
party or by which 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 or Parent 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 Parent, or (v) except
for approval pursuant to the HSR Act and the FTA, require any
- 39 -
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'
ability to perform its obligations hereunder or under the European Purchase
Agreement or the Indemnification Agreement or Parent's ability to perform its
obligations under the Parent Guaranty.
4.3 Brokers' and Finders' Fees. Except as set forth on
Schedule 4.3, neither Parent, Serologicals 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, the European Purchase Agreement or any
transaction contemplated hereby or thereby. The Shareholder will not have any
liability arising from any such action by Parent, Serologicals or anyone acting
on their behalf for any such fees, expenses, or the like in connection with this
Agreement, the European Purchase Agreement or any transaction contemplated
hereby or thereby.
4.4 Legal Proceedings. There are no suits, actions,
claims, proceedings or investigations pending, or to the knowledge of
Serologicals, threatened against, relating to or affecting Parent, Serologicals
or any of their respective Assets and Properties which could reasonably be
expected to have a material adverse effect on the consummation of any of the
transactions contemplated by this Agreement or the Parent Guaranty.
4.5 Purchase for Investment. Serologicals is purchasing
the Common Stock for its own account for the purpose of investment and not with
a view to any sale or distribution thereof.
4.6 Financing. Parent has obtained a commitment letter
from UBS AG, Stamford, Connecticut Branch, a copy of which is attached hereto as
Schedule 4.6, pursuant to which UBS AG, Stamford, Connecticut Branch has
committed to lend to Parent an aggregate of up to $125 million, consisting of a
$100 million term loan facility and a $25 million revolving credit facility, in
connection with the transactions contemplated by this Agreement, subject to the
terms and conditions set forth therein.
5. CERTAIN COVENANTS AND AGREEMENTS
5.1 Conduct of Business by Chemicon. From the date hereof
until the Closing Date, the Shareholder shall cause each Chemicon Entity,
Chemicon Europe and the European Subsidiaries to, except as required in
connection with the transactions contemplated by this Agreement, except as
otherwise consented to in writing by Serologicals and except as set forth on
Schedule 5.1:
(a) conduct its business in the Ordinary Course
of Business and not engage in any new line of business or enter into
any agreement, transaction or activity or make any commitment with
respect to any Chemicon Entity, Chemicon Europe or any European
Subsidiary, as the case may be, or any of their respective properties
and assets,
- 40 -
except those in the Ordinary Course of Business and not otherwise
prohibited under this Section 5.1;
(b) use commercially reasonable efforts to
preserve intact the goodwill and business organization of each Chemicon
Entity, Chemicon Europe and each European Subsidiary, keep their
respective officers and employees available to Serologicals and
preserve the relationships and goodwill of each Chemicon Entity,
Chemicon Europe and each European Subsidiary with customers,
distributors, suppliers, employees and others having business relations
with any Chemicon Entity, Chemicon Europe or any European Subsidiary,
as the case may be;
(c) maintain its existence and good standing in
its jurisdiction of organization and in each jurisdiction in which the
ownership or leasing of its property or the conduct of its business
requires such qualification;
(d) duly and timely file or cause to be filed
all reports and returns required to be filed with any Governmental
Authority and promptly pay or cause to be paid when due all Taxes,
assessments and governmental charges, including interest and penalties
levied or assessed, unless diligently contested in good faith by
appropriate proceedings;
(e) maintain in existing condition and repair
(ordinary wear and tear excepted), consistent with past practices, all
buildings, offices, shops and other structures located on the Leased
Real Property or on the Properties (as defined in the European Purchase
Agreement), and all equipment, fixtures and other tangible personal
property located on the Leased Real Property or on the Properties (as
defined in the European Purchase Agreement);
(f) not authorize for issuance, issue and
deliver any additional shares of its capital stock or securities
convertible into or exchangeable for shares of its capital stock, or
issue or grant any right, option or other commitment for the issuance
of shares of its capital stock or of such securities, or split, combine
or reclassify any shares of its capital stock;
(g) not amend or modify its charter or
constitutional documents;
(h) not declare any dividend, pay or set aside
for payment any dividend or other distribution or make any payment to
any related parties other than the payment of salaries in the Ordinary
Course of Business;
(i) not create any subsidiary, acquire any
capital stock or other equity securities of any corporation or acquire
any equity or ownership interest in any business or entity;
(j) not dispose of or permit to lapse any rights
to the use of any Proprietary Rights of any Chemicon Entity described
or required to be described on Schedule 3.13(a) or Schedule 3.13(e) or
any Intellectual Property (as defined in the European Purchase
Agreement) of Chemicon Europe or any European Subsidiary
- 41 -
described in the Disclosure Letter or dispose of or disclose to any
Person, any trade secret, formula, process, technology or know-how of
any Chemicon Entity, Chemicon Europe or any European Subsidiary, as the
case may be, not heretofore a matter of public knowledge; provided,
however, that a disposal or lapse of any Proprietary Right other than
those described or required to be described on Schedule 3.13(a) or
Schedule 3.13(e) in the Ordinary Course of Business shall not be a
violation of this covenant;
(k) not (i) sell any assets, other than finished
goods sold in the Ordinary Course of Business, (ii) create, incur or
assume any indebtedness secured by the real or personal property of any
Chemicon Entity, Chemicon Europe or any European Subsidiary, (iii)
grant, create, incur or suffer to exist any Liens or any Encumbrance
(as defined in the European Purchase Agreement) on the real or personal
properties of any Chemicon Entity, Chemicon Europe or any European
Subsidiary which did not exist on the date hereof (other than Permitted
Liens), (iv) incur any liability or obligation (absolute, accrued or
contingent) except in the Ordinary Course of Business, (v) write-off
any guaranteed checks, notes or accounts receivable except in the
Ordinary Course of Business, (vi) write-down the value of any asset or
investment on the books or records of any Chemicon Entity, Chemicon
Europe or any European Subsidiary, except for depreciation and
amortization in the Ordinary Course of Business, (vii) cancel any debt
or waive any claims or rights, (viii) make any commitment for any
capital expenditure to be made on or after the Closing Date in excess
of $50,000 in the case of any single expenditure or $100,000 in the
case of all capital expenditures or (ix) enter into any material
Contract or agreement;
(l) not increase in any manner the base
compensation of, or enter into any new bonus or incentive agreement or
arrangement with, any of its employees, directors or consultants,
except in the Ordinary Course of Business; provided, however, no
Chemicon Entity and no European Subsidiary shall take, and Chemicon
Europe shall not take, any action described in this paragraph with
respect to (i) any manager, officer or director of any Chemicon Entity,
Chemicon Europe or any European Subsidiary or (ii) any person whose
annualized compensation is $50,000 or more or whose annual compensation
for the twelve (12) month period following the Closing is expected to
be $100,000 or more;
(m) pay or agree to pay any additional pension,
retirement allowance or other employee benefit under any Employee
Benefit Plan to any employee, whether past or present, except in the
Ordinary Course of Business; provided, however, no Chemicon Entity and
no European Subsidiary shall take, and Chemicon Europe shall not take,
any action described in this paragraph with respect to (i) any manager,
officer or director of any Chemicon Entity, Chemicon Europe or any
European Subsidiary or (ii) any person whose annualized compensation is
$50,000 or more or whose annual compensation for the twelve (12) month
period following the Closing Date is expected to be $100,000 or more;
(n) not adopt, amend or terminate any employee
benefit plan, program, agreement, arrangement, commitment, policy or
understanding or increase the benefits
- 42 -
provided under any Employee Benefit Plan, or promise or commit to
undertake any of the foregoing in the future;
(o) not enter into any new collective bargaining
agreement;
(p) not amend or terminate any existing
employment, severance, consulting, or other compensation agreement,
hire any new employees or enter into any new employment, severance,
change in control, consulting or other compensation agreement, except
in the Ordinary Course of Business; provided, however, no Chemicon
Entity and no European Subsidiary shall take, and Chemicon Europe shall
not take, any action described in this paragraph with respect to any
person whose annualized compensation is $50,000 or more or whose annual
compensation for the twelve (12) month period following the Closing
Date is expected to be $100,000 or more;
(q) maintain supplies and inventory at levels
that are in the Ordinary Course of Business;
(r) continue to extend customers credit, collect
accounts receivable and pay accounts payable and similar obligations in
the Ordinary Course of Business;
(s) perform in all material respects all of its
obligations under all, and not default or suffer to exist any event or
condition which with notice or lapse of time or both would constitute a
default under any Contract (except those being contested in good faith)
and not enter into, assume or amend any Contract or commitment that is
or would be a Chemicon Contract or a Contract referred to in Schedule
1, Section 13.1 of the European Purchase Agreement;
(t) not pay, discharge or satisfy any claim,
liability or obligation (absolute, contingent or otherwise) other than
in the Ordinary Course of Business;
(u) not increase any reserves for contingent
liabilities (excluding any adjustment to bad debt reserves in the
Ordinary Course of Business);
(v) maintain in full force and effect and in the
same amounts policies of insurance comparable in amount and scope of
coverage to that now maintained by or on behalf of each Chemicon
Entity, Chemicon Europe or a European Subsidiary;
(w) in the case of the Chemicon Entities,
continue to maintain its books and records in accordance with GAAP
consistently applied (subject to the exception disclosed in Schedule
3.14(a)), and on a basis consistent with past practice and in the case
of Chemicon Europe and the European Subsidiaries, continue to maintain
its books and records in accordance with generally accepted accounting
principles in the United Kingdom, consistently applied;
(x) continue its cash management practices in
the Ordinary Course of Business;
- 43 -
(y) not make or consent to any election relating
to Taxes outside the Ordinary Course of Business; and
(z) not authorize, or commit or agree to take,
any of the foregoing actions that are prohibited by this Section 5.1.
In connection with the continued operation of the Chemicon Entities,
Chemicon Europe and the European Subsidiaries between the date hereof and the
Closing Date, the Shareholder will confer in good faith on a regular and
frequent basis with Serologicals regarding operational matters and the general
status of ongoing operations of the Chemicon Entities, Chemicon Europe and the
European Subsidiaries promptly and will notify Serologicals of any event or
occurrence that has had, or could reasonably be expected to have, a Material
Adverse Effect. The Shareholder acknowledges that Serologicals does not waive,
and will not waive, any rights it may have under this Agreement as a result of
such consultations or notifications. The Shareholder shall not, and shall cause
each Chemicon Entity, Chemicon Europe and each European Subsidiary not to, take
any action that would, or that could reasonably be expected to, result in any of
the representations and warranties of the Shareholder set forth in this
Agreement (or, with respect to Chemicon Europe and the European Subsidiaries,
set forth in the European Purchase Agreement) becoming untrue.
5.2 Inspection and Access to Information. From the date
hereof to the Closing Date or until this Agreement is terminated as provided in
Article VII, the Shareholder will (and will cause each Chemicon Entity's,
Chemicon Europe's and the European Subsidiaries' respective officers, directors,
employees, auditors and agents to) provide Serologicals and its accountants,
investment bankers, counsel, environmental consultants and other authorized
representatives full access, during reasonable hours and under reasonable
circumstances, to any and all of its premises, employees (including executive
officers), properties, Contracts, commitments, books, records and other
information (including Tax Returns filed and those in preparation) and will
cause the officers or managers of each Chemicon Entity, Chemicon Europe and each
European Subsidiary to furnish to Serologicals and its authorized
representatives, promptly upon request therefor, any and all financial,
technical and operating data and other information pertaining to the Chemicon
Entities, Chemicon Europe, and the European Subsidiaries and otherwise fully
co-operate with the conduct of due diligence by Serologicals and its
representatives.
5.3 No Solicitation of Transactions. The Shareholder will
not, and shall cause each Chemicon Entity, Chemicon Europe, each European
Subsidiary and each of their respective Affiliates not to, directly or
indirectly, through any officer, director or agent of any of them or otherwise,
initiate, solicit or encourage (including by way of furnishing non-public
information or assistance), or enter into negotiations of any type, directly or
indirectly, or enter into a confidentiality agreement, letter of intent or
purchase agreement, merger agreement or other similar agreement or any
transaction, arrangement, or other understanding (whether written or oral) with
any Person, firm or corporation, other than Serologicals, with respect to the
Acquisition, any purchase, sale, hypothecation, pledge or transfer, directly or
indirectly, of all or any portion of the Common Stock or any capital stock or
equity interest in any other Chemicon Entity, Chemicon Europe, or any European
Subsidiary or a merger, consolidation, business combination, sale of all or any
substantial portion of the assets of any Chemicon Entity,
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Chemicon Europe, or any European Subsidiary, or the liquidation or a similar
extraordinary transaction with respect to any Chemicon Entity, Chemicon Europe,
or any European Subsidiary. The Shareholder will notify Serologicals orally
(within one (1) Business Day) and in writing (as promptly as practicable) of all
relevant terms of any proposals by a third party to do any of the foregoing
which any Chemicon Entity or any of its Affiliates or any of their respective
officers, directors, investment bankers or financial advisors, may receive
relating to any of such matters and, if such proposal is in writing, the
Shareholder will deliver to Serologicals a copy of such inquiry or proposal.
5.4 Reasonable Efforts; Further Assurances; Cooperation.
(a) Subject to the other provisions of this Agreement,
the Parties will use, and the Shareholder will cause each Chemicon
Entity, Chemicon Europe and each European Subsidiary to use, its
reasonable, good faith efforts to perform its obligations in this
Agreement and to take, or cause to be taken, and do, or cause to be
done, all things necessary, proper or advisable under applicable Law to
obtain all consents required and all regulatory approvals and to
satisfy all conditions under this Agreement and to cause the
transactions contemplated in this Agreement to be effected on or prior
to April 30, 2003, in accordance with the terms of this Agreement.
(b) Subject to the provisions of Section 5.5, in the
event any claim, action, suit, investigation or other proceeding by any
Governmental Authority or other Person is commenced which questions the
validity or legality of the Acquisition or any of the other
transactions contemplated by this Agreement or the European Purchase
Agreement or seeks damages in connection therewith, the Parties agree
to cooperate and use all reasonable efforts to defend against such
claim, action, suit, investigation or other proceeding and, if an
injunction or other order is issued in any such action, suit or other
proceeding, to use all reasonable efforts to have such injunction or
other order lifted and to cooperate reasonably regarding any other
impediment to the consummation of the transactions contemplated by this
Agreement or the European Purchase Agreement.
(c) The Shareholder will cause each Chemicon Entity,
Chemicon Europe and each European Subsidiary to give any notices to
third parties and use its best efforts (in consultation with
Serologicals) to obtain any third party consents necessary, proper or
advisable to consummate the transactions contemplated by this Agreement
or the European Purchase Agreement.
(d) The Shareholder will give prompt notice to
Serologicals of (i) the occurrence, or failure to occur, of any event
which occurrence or failure would be likely to cause any representation
or warranty of the Shareholder, contained in this Agreement or in any
schedule to this Agreement or the European Purchase Agreement, to be
untrue or inaccurate at any time from the date hereof to the Closing
Date or that will or may result in the failure to satisfy any of the
conditions specified in Section 6 of this Agreement and (ii) any
failure of the Shareholder to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by Shareholder
under this Agreement or the European Purchase Agreement. The
Shareholder acknowledges that Serologicals does not waive, and will not
waive, any rights it may have under this
- 45 -
Agreement as a result of any such notifications; provided, however,
that if Serologicals does not terminate this Agreement or the European
Purchase Agreement as a result of any event or occurrence, first
occurring after the date hereof and set forth in the notice from
Shareholder to Serologicals, causing any representation or warranty to
be untrue or inaccurate after the date hereof or causing the failure of
any of the conditions specified in Section 6 to occur or any failure of
Shareholder to comply with any of its covenants, conditions or
agreements contained herein, such event or occurrence set forth in the
notice shall not serve as a basis for any indemnification claim
pursuant to the Indemnification Agreement.
(e) Serologicals will give prompt notice to Shareholder
of (i) the occurrence, or failure to occur, of any event which
occurrence or failure would be likely to cause any representation or
warranty of Serologicals contained in this Agreement or in any Schedule
to this Agreement or the European Purchase Agreement to be untrue or
inaccurate at any time from the date hereof to the Closing Date or that
will or may result in the failure to satisfy any of the conditions
specified in Section 6 of this Agreement and (ii) any failure of
Serologicals to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by Serologicals under this
Agreement or the European Purchase Agreement. Serologicals acknowledges
that the Shareholder does not waive, and will not waive, any rights it
may have under this Agreement or the European Purchase Agreement as a
result of any such notifications; provided, however, that if
Shareholder does not terminate this Agreement or the European Purchase
Agreement as a result of any event or occurrence, first occurring after
the date hereof and set forth in the notice from Serologicals to
Shareholder, causing any representation or warranty to be untrue or
inaccurate after the date hereof or causing the failure of any of the
conditions specified in Section 6 to occur or any failure of
Serologicals to comply with any of its covenants, conditions or
agreements contained herein, such event or occurrence set forth in the
notice shall not serve as a basis for any indemnification claim
pursuant to the Indemnification Agreement.
(f) Subject to the provisions of Section 5.5, in
the event any claim, action, suit, investigation or other proceeding by
any Governmental Authority or other Person is commenced which questions
the validity or legality of the Acquisition or any of the other
transactions contemplated by this Agreement or the European Purchase
Agreement or seeks damages in connection therewith, the Parties agree
to cooperate and use all reasonable efforts to defend against such
claim, action, suit, investigation or other proceeding and, if an
injunction or other order is issued in any such action, suit or other
proceeding, to use all reasonable efforts to have such injunction or
other order lifted and to cooperate reasonably regarding any other
impediment to the consummation of the transactions contemplated by this
Agreement or the European Purchase Agreement.
(g) The Shareholder will cause each Chemicon
Entity, Chemicon Europe and each European Subsidiary to give any
notices to third parties and use commercially reasonable efforts (in
consultation with Serologicals) to obtain any third party consents (i)
necessary, proper or advisable to consummate the transactions
contemplated by this Agreement or the European Purchase Agreement, (ii)
disclosed or required to be disclosed in the Schedules to this
Agreement, including, the consents
- 46 -
described in Schedule 3.11(a), the Real Property Leases described on
Schedule 3.10(a) and all other consents described in such schedule or
in the Disclosure Letter, (iii) required to avoid a breach of or
default under any Contracts to which any Chemicon Entity, Chemicon
Europe or any European Subsidiary is a party as a result of the
consummation of the transactions contemplated by this Agreement or the
European Purchase Agreement or (iv) required to prevent the occurrence
of any event, condition or circumstance that would have, or could
reasonably be expected to have, a Material Adverse Effect.
5.5 Compliance with Antitrust Requirements.
(a) Each party hereto agrees to make an
appropriate filing of a Notification and Report Form pursuant to the
HSR Act with respect to the transactions contemplated hereby as
promptly as practicable and to supply as promptly as practicable any
additional information and documentary material that may be requested
pursuant to the HSR Act, to make any additional filings required by any
applicable Antitrust Law, and to take all other actions reasonably
necessary, proper or advisable to cause the expiration or termination
of the applicable waiting periods under the approval of the Acquisition
pursuant to the HSR Act or other Antitrust Laws as soon as practicable.
Each of Serologicals and the Shareholder (to the extent directed by
Serologicals) shall as promptly as practicable comply with the Foreign
Antitrust Laws.
(b) Serologicals shall, and the Shareholder
shall cause each Chemicon Entity to (to the extent necessary), in
connection with the efforts referenced in Section 5.5(a), obtain all
requisite approvals and authorizations for the transactions
contemplated by this Agreement under the HSR Act or any other Antitrust
Law, use its reasonable best efforts to (i) cooperate in all respects
with each other in connection with any filing or submission and in
connection with any investigation or other inquiry, including any
proceeding initiated by a private party (including sharing copies of
any such filings or submissions reasonably in advance of the filing or
submission thereof); (ii) keep the other party informed of any
communication received by such party from, or given by such party to,
the Federal Trade Commission (the "FTC"), the Antitrust Division of the
Department of Justice (the "DOJ") or any other U.S. or foreign
Governmental Authority and of any communication received or given in
connection with any proceeding by a private party, in each case
regarding any of the transactions contemplated hereby; and (iii) permit
each of the other parties hereto to review in advance any communication
intended to be given by it to, and consult with the other parties in
advance of any meeting or conference with, the FTC, the DOJ or any such
other Governmental Authority or, in connection with any proceeding by a
private party, with any other person, and to the extent permitted by
the FTC, the DOJ or such other applicable Governmental Authority or
other person, give the other parties the opportunity to attend and
participate in such meetings and conferences.
(c) In furtherance and not in limitation of the
covenants of the Parties contained in Sections 5.5(a) and (b), each
party hereto shall use its best efforts to resolve objections, if any,
as may be asserted with respect to the transactions contemplated by
this Agreement under any Antitrust Law. Notwithstanding anything to the
contrary contained in this Agreement, in connection with any filing or
submission required or
- 47 -
action to be taken by any party to consummate the Acquisition, in no
event shall Serologicals or any of its subsidiaries or Affiliates be
obligated to propose or agree to accept any undertaking or condition,
to enter into any consent decree, to make any divestiture or accept any
operational restriction, or take or commit to take any action that, in
the sole and absolute discretion of Serologicals, could be expected to
limit (A) the freedom of action of Serologicals or its subsidiaries or
Affiliates with respect to the operation of, or Serologicals' or its
subsidiaries' or Affiliates' ability to retain, any Chemicon Entity or
any businesses, product lines or assets of any Chemicon Entity, or (B)
the ability to retain, own or operate any portion of the businesses,
product lines, or assets, of Serologicals or any of its subsidiaries or
Affiliates, or alter or restrict in any way the business or commercial
practices of any Chemicon Entity, Serologicals or its subsidiaries or
Affiliates.
(d) In the event that any administrative or judicial
action or proceeding is instituted (or threatened to be instituted) by
a Governmental Authority or private party challenging any transaction
contemplated by this Agreement or the European Purchase Agreement (i)
each of the Parties shall cooperate with each other and use its
respective best efforts to defend, contest and resist any such action
or proceeding and to have vacated, lifted, reversed or overturned any
decree, judgment, injunction or other order, whether temporary,
preliminary or permanent, that is in effect and that prohibits,
prevents or restricts consummation of the transactions contemplated by
this Agreement or the European Purchase Agreement, and (ii) the Parties
shall defend, at their cost and expense, any action or actions, whether
judicial or administrative, in connection with the transactions
contemplated by this Agreement or the European Purchase Agreement.
5.6 Public Announcements. Prior to the consummation of
the transaction contemplated by this Agreement, no Party shall make any public
announcement, except to the extent required by Law (including requirements of
stock exchanges and other similar regulatory bodies), regarding any aspect of
this Agreement or the transactions contemplated hereby.
5.7 Supplements to Schedules.
(a) From time to time up to the Closing Date,
the Shareholder will promptly supplement or amend the Schedules which
it has delivered pursuant to this Agreement or the Disclosure Letter
with respect to any matter first existing or occurring after the date
hereof which, if existing or occurring at or prior to the date hereof,
(i) would have been required to be set forth or described in such
Schedules or the Disclosure Letter or (ii) would have been necessary to
correct any information in such Schedules or the Disclosure Letter
which has been rendered inaccurate thereby. No supplement or amendment
to any Schedule will have any effect for the purpose of determining
satisfaction of the conditions set forth in Section 6.2. If
Serologicals does not terminate this Agreement or the European Purchase
Agreement as a result of any event, occurrence or item, first occurring
after the date hereof and set forth on any supplement or amendment,
such event, occurrence or item set forth on such supplement or
amendment shall not serve as a basis for any indemnification claim
pursuant to the Indemnification Agreement.
- 48 -
(b) From time to time up to the Closing Date,
Serologicals will promptly supplement or amend the Schedules which it
has delivered pursuant to this Agreement with respect to any matter
first existing or occurring after the date hereof which, if existing or
occurring at or prior to the date hereof, (i) would have been required
to be set forth or described in such Schedules or (ii) would have been
necessary to correct any information in such Schedules which has been
rendered inaccurate thereby. No supplement or amendment to any Schedule
will have any effect for the purpose of determining satisfaction of the
conditions set forth in Section 6.3. If the Shareholder does not
terminate this Agreement as a result of any event, occurrence or item,
first occurring after the date hereof and set forth on any supplement
or amendment, such event, occurrence or item set forth on such
supplement or amendment shall not serve as a basis for any
indemnification claim pursuant to the Indemnification Agreement.
5.8 Insurance. If requested by Serologicals, the
Shareholder shall in good faith cooperate with Serologicals and take all actions
reasonably requested by Serologicals that are necessary or desirable to permit
Serologicals to have available to it following the Closing the benefits (whether
direct or indirect) of the insurance policies maintained by or on behalf of any
Chemicon Entity, Chemicon Europe or any European Subsidiary that are currently
in force.
5.9 Tax Matters.
(a) The Shareholder shall be responsible for the
preparation and filing of all Tax Returns for each Chemicon Entity that
are actually filed before the Closing Date. Such Tax Returns shall be
prepared and filed in a manner consistent with the past practices of
the Chemicon Entities in preparing their Tax Returns. Serologicals
shall be responsible for the preparation and filing of all Tax Returns
for each Chemicon Entity that are actually filed after the Closing
Date. The party responsible for the preparation and filing of a Tax
Return under this Section 5.9(a) shall submit a draft return to the
other party within a reasonable period prior to filing and shall make
such revisions to such Tax Return as are reasonably requested by such
other party; provided, however, that Serologicals shall not be required
to seek the Shareholder's comments with respect to Tax Returns covering
periods beginning after the Closing Date.
(b) Each of the Parties shall cooperate fully,
as and to the extent reasonably requested by the other party, in
connection with the filing of Tax Returns pursuant to this Section and
any audit, litigation or other proceeding with respect to Taxes. Such
cooperation shall include the retention and (upon the other party's
request) the provision of records and information which are reasonably
relevant to any such audit, litigation or other proceeding and making
employees available on a mutually convenient basis to provide
additional information and explanation of any material provided
hereunder. Serologicals and the Shareholder agree (i) to retain all
books and records, in their respective possessions or under their
respective control, with respect to Tax matters pertinent to any
Chemicon Entity relating to any Taxable period beginning before the
Closing Date until the expiration of the statute of limitations (and,
to the extent notified by Serologicals or the Shareholder, any
extensions thereof) of the respective taxable periods, and to abide by
all record retention agreements entered into with any taxing authority,
and (ii) to give the other party reasonable written notice prior to
transferring,
- 49 -
destroying or discarding any such books and records and, if the other
party so requests, to allow such other party to take possession of such
books and records. The Shareholder further agrees, upon request, to use
its best efforts to obtain any certificate or other document from any
governmental authority or any other Person as may be necessary to
mitigate, reduce or eliminate any Tax that could be imposed (including,
with respect to the transactions contemplated hereby). The Shareholder
further agrees, upon request, to provide Serologicals with all
information that either party may be required to report pursuant to
Section 6043 of the Code and all Treasury Regulations promulgated
thereunder.
(c) All transfer, documentary, sales, use,
stamp, registration and other such Taxes and fees (including any
penalties and interest) incurred in connection with this Agreement
shall be paid by the Shareholder when due, and the Shareholder will, at
its own expense, file all necessary Tax Returns and other documentation
with respect to all such transfer, documentary, sales, use, stamp,
registration and other Taxes and fees, and, if required by applicable
Law, Serologicals will, and will cause its affiliates to, join in the
execution of any such Tax Returns and other documentation.
5.10 Merger of Xxxxxx BioFarms, LLC. Prior to, or
concurrent with the Closing, Ramona BioFarms, LLC, a California limited
liability company, shall be merged with and into Chemicon.
5.11 Insurance. Concurrent with the Closing or immediately
following the Closing, Serologicals shall, or shall cause Chemicon to, obtain
and pay the premium for an extended discovery period endorsement for the product
liability insurance policies maintained by each Chemicon Entity on the date
hereof, with such endorsement being for a period of not less than four years and
being in a form and substance reasonably satisfactory to Shareholder.
6. CONDITIONS TO CLOSING
6.1 Conditions to Each Party's Obligations. The
respective obligations of each Party to effect the transactions contemplated by
this Agreement will be subject to the fulfillment at or prior to the Closing of
each of the following conditions:
(a) There will be no effective injunction, writ
or preliminary restraining order or any order of any nature issued by a
Governmental Authority of competent jurisdiction to the effect that the
Acquisition or the acquisition of the shares in Chemicon Europe as
contemplated by the European Purchase Agreement may not be consummated
as provided in this Agreement or the European Purchase Agreement, no
proceeding or lawsuit will have been commenced by any Governmental
Authority for the purpose of obtaining any such injunction, writ or
preliminary restraining order and no written notice will have been
received from any Governmental Authority indicating an intent to
restrain, prevent, materially delay or restructure the transactions
contemplated by this Agreement or the European Purchase Agreement.
(b) All consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any
Governmental Authority required in
- 50 -
connection with the execution, delivery or performance of this
Agreement or the European Purchase Agreement will have been obtained or
made, except where the failure to have obtained or made any such
consent, approval, order, authorization, declaration or filing would
not have, or could not reasonably be expected to have, a Material
Adverse Effect.
(c) The waiting period applicable to the
consummation of the Acquisition under the HSR Act shall have expired or
been terminated.
6.2 Conditions to Obligations of Serologicals. The
obligations of Serologicals to consummate the transactions contemplated by this
Agreement will be subject to the fulfillment at or prior to the Closing of each
of the following additional conditions:
(a) The representations and warranties of the
Shareholder set forth in Section 3 and the representations and
warranties of the Shareholder set forth in the European Purchase
Agreement shall have been true and correct in all material respects as
of the date hereof and shall be true and correct in all material
respects as of the Closing Date as though made on and as of the Closing
Date, except that those representations and warranties that by their
terms are qualified by materiality shall be true and correct in all
respects;
(b) The Shareholder shall have performed in all
material respects all covenants and agreements required to be performed
by it under this Agreement on or prior to the Closing Date;
(c) Between the date hereof and the Closing
Date, there shall not have occurred any event, condition, circumstance
or occurrence that has had, or could reasonably be expected to have, a
Material Adverse Effect;
(d) The Shareholder shall have executed and
delivered to Serologicals a certificate as to compliance with the
conditions set forth in Sections 6.2(a), (b) and (c);
(e) The Shareholder shall have obtained and
delivered to Serologicals the written consents of third parties, as set
forth in Schedule 3.11(a) and shall have provided the notices set forth
on Schedule 3.11(b), with respect to the consummation of the
Acquisition and/or any deemed assignment of any Contract that will
result therefrom (all such consents and waivers shall be in full force
and effect);
(f) Serologicals shall have received pay-off
letter(s) in form and substance reasonably satisfactory to Serologicals
in respect of (i) the repayment, release and termination of the
Chemicon Debt and (ii) the full release of any and Liens related to the
Chemicon Debt and any and all other Liens (other than Permitted Liens)
encumbering any assets and properties of any Chemicon Entity,
including, all assets and properties used in the operation of the
Business;
(g) Serologicals shall have received an opinion
of Xxxx, Forward, Xxxxxxxx & Scripps LLP, counsel to the Chemicon
Entities, dated the Closing Date, in substantially the form attached as
Exhibit B; an opinion of Altheimer & Xxxx, counsel to
- 51 -
the Shareholder, dated the Closing Date, in substantially the form
attached as Exhibit C; and an opinion of Xxxxxxx X. Xxx & Associates,
counsel to the Trust, in substantially the form attached hereto as
Exhibit D;
(h) The transactions contemplated in the
European Purchase Agreement shall have been or will be
contemporaneously closed;
(i) Serologicals shall have received at least
$100 million in cash from a new senior term loan and shall have at
least $25 million of unused availability under a new revolving credit
facility, all on terms and conditions and in form and substance
acceptable to Serologicals;
(j) X. Xxxxxxx shall have executed and delivered
(1) a non-competition agreement substantially in the form attached
hereto as Exhibit E and (2) a consulting agreement substantially in the
form attached hereto as Exhibit F, and the Beckmans shall have executed
and delivered a resignation from all positions of employment with all
Chemicon Entities effective as of the Closing Date;
(k) The Real Property Leases listed on Schedule
6.2(k) shall have been amended in accordance with the terms set forth
on Schedule 6.2(k);
(l) The transactions with Affiliates of each
Chemicon Entity, Chemicon Europe and each European Subsidiary set forth
on Schedule 6.2(l) shall have been terminated and be of no further
force and effect, such terminations to be on terms and conditions
reasonably acceptable to Serologicals and title to the assets described
on Schedule 6.2(l) shall have been transferred to the relevant Chemicon
Entity free and clear of all Liens (other than Permitted Liens) for
nominal consideration;
(m) The Marketing and Administrative Services
Agreement, dated November 18, 2002, between Chemicon and Genome
Biosciences, LLC, as amended by the First Amendment to Marketing and
Administrative Services Agreement dated December 10, 2002 shall have
been amended in accordance with the amendment set forth in Schedule
6.2(m);
(n) Serologicals shall have received the audited
combined balance sheets for the Chemicon Entities, Chemicon Europe, and
Cymbus Biotechnology Limited as of December 31, 2001 and 2002, and the
related audited combined statements of operations, statements of
shareholders equity and statements of cash flows for the years ended
December 31, 2000, 2001 and 2002;
(o) Serologicals shall have received the
agreement of Xxxxxxx Corporation (i) to provide a written consent to
file the audited combined financial statements referred to Section
6.2(n) with Serologicals' current report on Form 8-K in connection with
the Acquisition, promptly following Serologicals' request for such
consent and (ii) to provide a written consent to the incorporation of
all such statements into the registration statements filed by
Serologicals pursuant to the Securities Act of 1933, as amended, to the
extent required by such Act or the regulations promulgated thereunder,
upon the payment by Serologicals of the reasonable fees and expenses
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incurred by such firm in performing the procedures required in
connection with the issuance of such consents;
(p) Serologicals shall have received a release
from the Shareholder, X. Xxxxxxx, X. Xxxxxxx and the Trust each in a
form attached hereto as Exhibit G;
(q) Novus shall have executed and delivered a
non-compete agreement in a form and substance acceptable to
Serologicals;
(r) The Shareholder shall have caused 000
Xxxxxxx Xxxxxx Pty. Ltd. to transfer record ownership of all of the
issued and outstanding shares and other equity interest of Chemicon
Australia Pty. Ltd. ("Chemicon Australia") to Chemicon, without cost or
obligation to Chemicon, such that, prior to the Closing Date, Chemicon
shall be the beneficial and record holder of all of the issued and
outstanding capital stock and all other equity interest of Chemicon
Australia free and clear of all Liens, other than Liens described on
Schedule 3.1(a);
(s) the Board of Directors of Chemicon shall
have adopted resolutions terminating the Chemicon 401(k) plan
immediately prior to the Closing and Chemicon shall have provided a
copy of such resolutions to Serologicals; and
(t) The Shareholder shall have delivered, or
caused to be delivered, to Serologicals the following:
(i) the stock certificates representing
all of the issued and outstanding Common Stock and
accompanying stock powers evidencing the transfer of the
Common Stock to Serologicals;
(ii) resignations, effective as of the
Closing Date, of the officers and directors of each Chemicon
Entity;
(iii) a certificate by the Secretary or
any Assistant Secretary or similar officer of each Chemicon
Entity, dated the Closing Date, as to (1) the good standing of
each Chemicon Entity in its jurisdiction of incorporation and
in each other jurisdiction where it is qualified to do
business, (2) no amendments to its charter documents and (3)
the effectiveness of any board, shareholder, manager, member
or similar resolutions of each Chemicon Entity passed in
connection with this Agreement and transactions contemplated
hereby;
(iv) the organizational record books,
minute books and corporate seal of each Chemicon Entity;
(v) the Escrow Agreement; and
(vi) all other documents required to be
entered into by the Shareholder pursuant to this Agreement or
reasonably requested by Serologicals to otherwise consummate
the transactions contemplated by this Agreement.
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6.3 Conditions to Obligations of the Shareholder. The
obligations of the Shareholder to consummate the transactions contemplated by
this Agreement will be subject to the fulfillment at or prior to the Closing
Date of each of the following additional conditions:
(a) The representations and warranties of
Serologicals set forth in Section 4 shall have been true and correct in
all material respects as of the date hereof and shall be true and
correct in all material respects as of the Closing Date as though made
on and as of the Closing Date, except that those representations and
warranties that by their terms are qualified by materiality shall be
true and correct in all respects;
(b) Serologicals and Parent shall have performed
in all material respects all covenants and agreements required to be
performed by them under this Agreement or the Parent Guaranty on or
prior to the Closing Date;
(c) Serologicals shall have delivered to the
Shareholder a certificate of an authorized officer as to compliance
with the conditions set forth in Sections 6.3(a) and (b);
(d) Shareholder shall have received an opinion
of King & Spalding LLP, counsel to Serologicals and Parent, dated the
Closing Date, in substantially the form attached as Exhibit H and an
opinion of Morris, Polich, & Xxxxx LLP, counsel to Serologicals and
Parent, dated the Closing Date, in substantially the form attached as
Exhibit I;
(e) Chemicon shall have received releases of the
Beckmans as guarantors of those Contracts listed on Schedule 6.3(e) or
if such releases have not been obtained, Serologicals shall have
delivered a guaranty or other similar agreement, in a form and
substance reasonably satisfactory to the Beckmans, indemnifying the
Beckmans for any obligations pursuant to any Contracts listed on
Schedule 6.3(e) for which releases have not been obtained;
(f) The transactions contemplated in the
European Purchase Agreement shall have been or will be
contemporaneously closed;
(g) Serologicals shall have executed and
delivered to Xx. Xxxxxxx a letter agreement pursuant to which
Serologicals agrees to indemnify the Shareholder, Chemicon, the
Beckmans and their respective affiliates from any and all liability
related to the termination of the Chemicon 401(k) plan immediately
prior to Closing, which letter agreement shall be reasonably
satisfactory to Xx. Xxxxxxx in form and substance; and
(h) Serologicals shall have delivered, or caused
to be delivered, to the Shareholder the following:
(i) the Purchase Price, paid and
delivered in accordance with Section 2.3;
(ii) a certificate by the Secretary or
any Assistant Secretary of Serologicals, dated the Closing
Date, as to (1) the good standing of Serologicals
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in its jurisdiction of incorporation and (2) the effectiveness
of the board resolutions of Serologicals passed in connection
with this Agreement and the transactions contemplated hereby;
(iii) a certificate by the Secretary or
any Assistant Secretary of the Parent, dated the Closing Date,
as to (i) the good standing of the Parent in its jurisdiction
of incorporation and (2) the effectiveness of the board
resolutions of the Parent passed in connection with the Parent
Guaranty and the transactions contemplated thereby;
(iv) the Escrow Agreement; and
(v) all other documents required to be
entered into or delivered by Serologicals or the Parent at or
prior to the Closing pursuant to this Agreement.
7. CLOSING. The consummation of the transactions contemplated by
this Agreement is referred to in this Agreement as the "Closing." The "Closing
Date" will be the date on which the Closing occurs. The Closing will occur as
promptly as practicable following the satisfaction or waiver of the conditions
set forth in Section 6. The Closing will take place at the offices of Xxxx,
Forward, Xxxxxxxx & Scripps LLP, 000 Xxxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx or at
such other place as the Parties may agree. The Parties agree that,
notwithstanding the date on which the Closing occurs, the Acquisition shall be
deemed to be effective, as between the Parties, at 12:01 a.m. Eastern Standard
Time on the Effective Date.
8. TERMINATION.
8.1 Termination. This Agreement and the European Purchase
Agreement may be terminated at any time at or prior to the Closing (the
"Termination Date"):
(a) in writing by mutual consent of the Parties;
(b) by written notice from Serologicals to the
Shareholder, if the Shareholder (i) fails to perform in any material
respect any of its covenants contained in this Agreement or the
European Purchase Agreement required to be performed by it on or prior
to the Closing Date or (ii) materially breaches any of its
representations and warranties contained in this Agreement or the
European Purchase Agreement, which failure or breach is not cured
within fifteen (15) days after Serologicals has notified the
Shareholder of Serologicals' intent to terminate this Agreement and the
European Purchase Agreement pursuant to this Section 8.1(b);
(c) by written notice from the Shareholder to
Serologicals, if Serologicals (i) fails to perform in any material
respect any of its covenants contained in this Agreement or the
European Purchase Agreement required to be performed by it on or prior
to the Closing Date or (ii) materially breaches any of its
representations and warranties contained in this Agreement or the
European Purchase Agreement, which failure or breach is not cured
within fifteen (15) days after the Shareholder has notified
- 55 -
Serologicals of the Shareholder's intent to terminate this Agreement
and the European Purchase Agreement pursuant to this Section 8.1(c);
(d) by the Shareholder if any of the conditions
specified in Sections 6.1 and 6.3 have not been met or waived by the
Shareholder at such time as such condition can no longer be satisfied
provided, however, that the Shareholder's right to terminate this
Agreement and the European Purchase Agreement pursuant to this Section
8.1(d) shall not be available if the Shareholder is in material breach
of its obligations under this Agreement or the European Purchase
Agreement or its failure to fulfill any of its obligations contained in
this Agreement or the European Purchase Agreement has been the cause
of, or resulted in, the failure of the condition to be satisfied;
(e) by Serologicals if any of the conditions
specified in Sections 6.1 and 6.2 have not been met or waived by
Serologicals at such time as such condition can no longer be satisfied
provided, however, that Serologicals' right to terminate this Agreement
and the European Purchase Agreement pursuant to this Section 8.1(e)
shall not be available if Serologicals is in material breach of its
obligations under this Agreement or the European Purchase Agreement or
its failure to fulfill any of its obligations contained in this
Agreement or the European Purchase Agreement has been the cause of, or
resulted in, the failure of the condition to be satisfied; or
(f) by written notice by the Shareholder to
Serologicals or by Serologicals to the Shareholder, as the case may be,
if the Closing has not occurred on or prior to April 30, 2003 for any
reason other than delay or nonperformance of the Party seeking such
termination.
8.2 Effect of Termination.
(a) Subject to the provisions of Section 8.2(b),
in the event of termination of this Agreement and the European Purchase
Agreement pursuant to Section 8, this Agreement and the European
Purchase Agreement will forthwith become void and there will be no
liability on the part of any Party or its respective officers,
directors or stockholders, except for obligations under Sections 5.6
and 9.13 and this Section and the obligations set out in clause 4.2 of
the European Purchase Agreement, all of which will survive the
Termination Date. Notwithstanding the foregoing, nothing contained in
this Agreement will relieve any Party from liability for any breach of
this Agreement.
(b) In order to induce the Shareholder to enter
into this Agreement and to reimburse and compensate the Shareholder for
its time and lost opportunity costs for pursuing the Acquisition,
Serologicals shall pay to the Shareholder (by wire transfer of
immediately available funds to an account identified in writing to
Serologicals by Shareholder) within five Business Days of written
demand by the Shareholder an amount equal to $5,000,000 if:
(i) Serologicals terminates this
Agreement pursuant to Section 8.1(e) solely because of the
failure of the condition set forth in Section 6.2(i) to be
satisfied; or
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(ii) Either party terminates this
Agreement pursuant to Section 8.1(f) and all of the conditions
set forth in Section 6 have been satisfied or waived by the
appropriate party other than (A) the condition set forth in
Section 6.2(i); (B) the condition set forth in Section 6.2(g)
provided that each of the firms indicated in Section 6.2(g)
confirm that they would deliver opinions substantially in the
forms set forth in Exhibits B, C and D if the Closing were to
occur; and (C) the conditions set forth in Sections 6.2(h) and
6.3(f), provided that the sole reason for the failure to
satisfy the conditions set forth in Sections 6.2(h) and 6.3(f)
shall be the failure to satisfy the condition set forth in
Section 6.2(i).
The Shareholder acknowledges and agrees that the payment of the fee
provided for in this Section 8.2(b) shall be the sole and exclusive
remedy for termination of this Agreement pursuant to Sections 8.1(e) or
8.1(f) in the event of such termination.
8.3 Specific Performance and Other Remedies. The Parties
each acknowledge that the rights of each Party to consummate the transactions
contemplated by this Agreement and the European Purchase Agreement are special,
unique and of extraordinary character and that, in the event that any Party
violates or fails or refuses to perform any covenant or agreement made by it in
this Agreement or the European Purchase Agreement, the non-breaching Party may
be without an adequate remedy at law. The Parties agree, therefore, that in the
event that any Party violates or fails or refuses to perform any covenant or
agreement made by such Party in this Agreement or the European Purchase
Agreement, the non-breaching Party may, subject to the terms of this Agreement
and in addition to any remedies at law for damages or other relief, institute
and prosecute an action in any court of competent jurisdiction to enforce
specific performance of such covenant or agreement or seek any other equitable
relief.
9. MISCELLANEOUS
9.1 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 sent by registered or certified
mail or by any express mail or overnight courier service, postage or fees
prepaid:
If to the Shareholder:
Falcon International Investment Holdings LLC
c/o X.X. Xxxx & Company, LLC
0000 X. Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxx
with a copies to:
Xxxxx X. Xxxxxxx
39193 Calle Companero
Xxxxxxxx, Xxxxxxxxxx 00000
- 00 -
xxx
Xxxx, Xxxxxxx, Xxxxxxxx & Scripps, LLP
000 X. Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxx, Esq.
if to Serologicals:
Serologicals Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
with a copy to:
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
or at such other address or number for a party as shall be specified by like
notice.
Any notice that is delivered personally 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.
9.2 Schedules and Exhibits. The Schedules and Exhibits to
this Agreement are hereby incorporated into this Agreement and are hereby made a
part of this Agreement as if set out in full in this Agreement.
9.3 Assignment; Successors in Interest. No assignment or
transfer by any Party of its rights and obligations under this Agreement will be
made except with the prior written consent of the other Party to this Agreement;
provided that Serologicals shall, without the obligation to obtain the prior
written consent of the Shareholder, be entitled to assign this Agreement or all
or any part of its rights or obligations hereunder to any one (1) or more
Affiliates of Serologicals; provided, further, however, that Serologicals shall,
without the obligation to obtain the prior written consent of the Shareholder,
be entitled to assign its rights hereunder to UBS AG, Stamford Branch, as
Administrative Agent, as collateral for its obligations and the obligations of
the Parent with respect to the financing referred to in Section 6.2(i) hereof.
This Agreement will be binding upon and will inure to the benefit of the Parties
and their successors and permitted assigns, and any reference to a Party will
also be a reference to a successor or permitted assign.
- 58 -
9.4 Captions. The titles, captions and table of contents
contained in this Agreement are inserted in this Agreement only as a matter of
convenience and for reference and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision of this Agreement.
Unless otherwise specified to the contrary, all references to Articles and
Sections are references to Articles and Sections of this Agreement and all
references to Schedules or Exhibits are references to Schedules and Exhibits,
respectively, to this Agreement.
9.5 Controlling Law; Amendment. This Agreement will be
governed by and construed and enforced in accordance with the internal laws of
the State of California without reference to its choice of law rules. This
Agreement may not be amended, modified or supplemented except by written
agreement of the Parties.
9.6 Consent to Jurisdiction, Etc. Each of the Parties
hereby irrevocably consents and agrees that, except as provided in the next
sentence, any action, suit or proceeding arising in connection with any
disagreement, dispute, controversy or claim arising out of or relating to this
Agreement or any related document (for purposes of this Section, a "Legal
Dispute") shall be brought only to the exclusive jurisdiction of the courts of
the State of California or the federal courts located in the State of
California, County of San Diego. Notwithstanding the preceding sentence, the
Parties hereby irrevocably consent and agree that any Legal Dispute with respect
to any claim for indemnification pursuant to the Indemnification Agreement shall
be brought only in such federal or state court to which any third party claims
giving rise to such indemnification has been brought; provided, however, that no
party shall be prevented from raising an objection to subject matter
jurisdiction in such forum. The Parties agree that, after a Legal Dispute is
before a court as specified in this Section 9.6 and during the pendency of such
Legal Dispute before such court, all actions, suits or proceedings with respect
to such Legal Dispute or any other Legal Dispute, including, any counterclaim,
cross-claim or interpleader, shall be subject to the exclusive jurisdiction of
such court. Each of the Parties hereby waives, and agrees not to assert, as a
defense in any Legal Dispute, that it is not subject thereto or that such
action, suit or proceeding may not be brought or is not maintainable in such
court (other than as set forth above with respect to subject-matter
jurisdiction)or that its property is exempt or immune from execution, that the
action, suit or proceeding is brought in an inconvenient forum or that the venue
of the action, suit or proceeding is improper (other than as set forth above
with respect to subject-matter jurisdiction). Each Party hereto agrees that a
final judgment in any action, suit or proceeding described in this Section 9.6
after the expiration of any period permitted for appeal and subject to any stay
during appeal shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by applicable Laws. The
provisions of this Section 9.6 are without prejudice to the rights of the
parties to apply to the English Court for interim relief (to include, but not
limited to, injunctions) and to obtain the same in aid of actual or contemplated
proceedings before the courts of the State of California or the federal courts
located in the State of California, San Diego County in connection with the
matters arising from or contemplated in this Agreement, and for the purpose of
an application pursuant to this sentence, the parties hereby submit to the
non-exclusive jurisdiction of the English Court and waive all rights to
challenge such application on grounds of jurisdiction and/or forum non
conveniens. For the purpose of any proceedings pursuant to the preceding
sentence, the Shareholder, the Trust and the Beckmans hereby appoint Xxxxxx
Xxxxxxx
- 59 -
of 00 Xxxxxxxx Xxxxxx, Xxxxxx, XXX 0XX to accept service of process on their
behalf, such service to be effected at 00 Xxxxxxxx Xxxxxx, Xxxxxx, XXX 0XX.
9.7 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in any jurisdiction will
not invalidate or render unenforceable such provision in any other jurisdiction.
To the extent permitted by law, the Parties waive any provision of law which
renders any such provision prohibited or unenforceable in any respect.
9.8 Counterparts. This Agreement may be executed in two
(2) or more counterparts, each of which will be deemed an original, and it will
not be necessary in making proof of this Agreement or the terms of this
Agreement to produce or account for more than one (1) of such counterparts.
9.9 Enforcement of Certain Rights. Nothing expressed or
implied in this Agreement is intended, or will be construed, to confer upon or
give any Person other than the Parties, and their successors or permitted
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, or result in such Person being deemed a third party beneficiary
of this Agreement.
9.10 Waiver. Any agreement on the part of a Party to any
extension or waiver of any provision of this Agreement will be valid only if set
forth in an instrument in writing signed on behalf of such Party. A waiver by a
Party of the performance of any covenant, agreement, obligation, condition,
representation or warranty will not be construed as a waiver of any other
covenant, agreement, obligation, condition, representation or warranty. A waiver
by any Party of the performance of any act will not constitute a waiver of the
performance of any other act or an identical act required to be performed at a
later time.
9.11 Integration. This Agreement, the European Purchase
Agreement, the Indemnification Agreement and the other documents executed
pursuant to this Agreement and the European Purchase Agreement supersede all
negotiations, agreements and understandings among the Parties with respect to
the subject matter of this Agreement and constitutes the entire agreement
between the Parties. Specifically, the Parties intend that this Agreement shall
replace and supercede in all respects the Original Agreement.
9.12 Cooperation Following the Closing. Following the
Closing, each of the Parties shall deliver to the others such further
information and documents and shall execute and deliver to the others such
further instruments and agreements as the other Party shall reasonably request
to consummate or confirm the transactions provided for in this Agreement, to
accomplish the purpose of this Agreement or to assure to the other Party the
benefits of this Agreement.
9.13 Transaction Costs. Except as provided above or as
otherwise expressly provided herein, (a) Serologicals will pay its own fees,
costs and expenses incurred in connection with this Agreement and the
transactions contemplated by this Agreement, including the fees, costs and
expenses of its financial advisors, accountants and counsel, and (b) the
Shareholder
- 60 -
will pay the fees, costs and expenses of the Shareholder, the Xxxxxxx'x, the
Trust, the Chemicon Entities, Chemicon Europe, and the European Subsidiaries
incurred in connection with this Agreement and the transactions contemplated by
this Agreement, the European Purchase Agreement, the Indemnification Agreement
and, including the fees, costs and expenses of their financial advisors,
accountants and counsel. Notwithstanding the foregoing, Serologicals shall pay
the filing fee due upon the filing of the Notification and Report Form required
pursuant to the HSR Act.
9.14 Knowledge of the Shareholder. As used in this
Agreement, the term "Knowledge" with respect to the Shareholder shall mean (i)
all facts known by any Person named in Schedule 3.1(f), X. Xxxxxxx or X. Xxxxxxx
after due inquiry and diligence with respect to the matters at hand and (ii) all
facts that such persons should have known with respect to the matters at hand if
they had made due inquiry and exercised diligence.
9.15 References to this Agreement. The Parties agree that
references to the Securities Purchase Agreement in the Indemnification
Agreement, the Parent Guaranty and in all other documents, agreements and
instruments executed and delivered by the Parties with respect to the
Acquisition shall be deemed to be references to this Amended and Restated
Securities Purchase Agreement.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS
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Execution Draft
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed, as of the date first above written.
SEROLOGICALS RESEARCH
PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: President
FALCON INTERNATIONAL INVESTMENT
HOLDINGS LLC
By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
Title: Sole Manager
