EXHIBIT 6.12
CONTRACT FOR EXCHANGE OF CORPORATE STOCK
This contract for the exchange of corporate stock ("this contract") is
made this 9th day of July, 1996, between Xx. Xxxx X. XxXxxx ("XxXxxx") and
SeraCare, Inc. ("SeraCare"), a Delaware corporation.
WHEREAS, XxXxxx is the owner of all of the issued and outstanding
stock of BHM Labs, Inc. ("BHM Labs"), an Arkansas corporation;
WHEREAS, BHM Labs operates a blood plasma collection center in Fort
Xxxxx, Arkansas;
WHEREAS, XxXxxx desires to exchange his stock in BHM Labs for THREE
THOUSAND SIX HUNDRED (3,600) shares of the Series A preferred stock of SeraCare;
NOW THEREFORE on the mutual covenants of the parties it is agreed
that:
1. EXCHANGE OF CORPORATE SHARES. At closing, XxXxxx shall endorse
and deliver to SeraCare, free and clear of all encumbrances, certificates for
all of the issued and outstanding shares of the stock of BHM Labs in negotiable
form. At closing, SeraCare, Inc. shall deliver to XxXxxx, free and clear of all
encumbrances, certificates for THREE THOUSAND SIX HUNDRED (3,600) shares of
Series A preferred stock of SeraCare ("the preferred stock").
2. CLOSING. The closing of the exchange of corporate stock shall
take place at a time and place agreed upon by the parties on July 9, 1996 (the
"closing" or "closing date").
3. REPRESENTATIONS AND WARRANTIES OF BHM LABS, INC. XxXxxx
represents and warrants as follows:
a. BHM Labs is a corporation duly organized,
validly existing and in good standing under
the laws of the state of Arkansas.
x. XxXxxx is the sole owner of and has good and
marketable title to all of the issued and
outstanding stock of BHM Labs (the "Stock"),
free and clear of all pledges, liens, claims,
mortgages and encumbrances. The Stock is
duly authorized, validly issued and
outstanding, and is fully-paid and
nonassessable.
c. Neither the execution and delivery of this contract, nor the
consummation of the transactions contemplated hereby will
constitute a violation or breach of (1) the articles of
incorporation or by-laws of BHM Labs, (2) any provision of
any contract or other instruments to which XxXxxx or BHM
Labs is a party or by which XxXxxx'x or BHM Labs's business,
assets, or properties may be affected or secured, or (3) any
order, writ, injunction, decree, statute, rule or
regulation. This agreement constitutes the legal, valid and
binding obligation of XxXxxx, enforceable against XxXxxx in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, and
other similar laws and equitable principles relating to or
limiting creditors' rights generally.
d. The equipment located at the Plasma Collection Center in
Fort Xxxxx, Arkansas includes all the equipment necessary to
conduct the business of BHM Labs. Such equipment is in
working order, reasonable wear and tear excepted, and there
exists no material defect in the condition of any of the
equipment. True and correct lists of the equipment owned and
leased by BHM Labs are attached hereto as Schedules 1 and 2,
respectively.
x. XxXxxx has delivered to SeraCare a balance sheet for BHM
Labs at May 31, 1996, and the related statement of
operations and cash flows and changes in stockholder's
equity for the period then ended. All such financial
statements have been prepared on an accrual basis and in
conformity with GAAP applied on a consistent basis except
for changes, if any, required by GAAP and as disclosed
therein. The statement of operations and cash flows
presents fairly the results of operations and cash flows of
BHM Labs for the period covered, and the balance sheet
presents fairly the financial condition of BHM Labs as of
its date.
f. Since May 31, 1996, whether or not in the ordinary course of
business, there has not been, occurred or arisen any change
in or event affecting BHM Labs that has had or may
reasonably be expected to have a material adverse effect on
BHM Labs.
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g. BHM Labs has no liabilities or obligations, other than those
disclosed in this agreement or on Schedule 3 hereto.
h. BHM Labs has currently and shall have as of the closing date
all of the permits, licenses and labels necessary to operate
BHM Labs's business.
x. XxXxxx'x representations and warranties contained herein
shall be true and correct on the closing date and shall be
made again at that time.
4. REPRESENTATIONS AND WARRANTIES OF SERACARE, INC. SeraCare, Inc.
represents and warrants as follows:
a. SeraCare, Inc. is a corporation duly organized, validly
existing and in good standing under the laws of the state of
Delaware, which has taken all corporate, shareholder, and
other action necessary to authorize the execution and
delivery of this agreement, and the transactions
contemplated hereby. This agreement is a valid and binding
obligation of SeraCare, enforceable in accordance with its
terms except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, and other similar laws and
equitable principles relating to or limiting creditors'
rights generally.
b. SeraCare, Inc. has the right and authority to issue the
preferred stock, free and clear of all pledges, liens,
claims, mortgages and encumbrances.
c. Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby
will constitute a violation or breach of (1) the certificate
of incorporation or by-laws of SeraCare, (2) any provision
of any contract or other instruments to which SeraCare is a
party or by which SeraCare's business, assets, or properties
may be affected or secured, or (3) any order, writ,
injunction, decree, statute, rule or regulation binding on
SeraCare.
d. SeraCare has delivered to XxXxxx financial statements for
1995 and for the period ending May 31, 1996. All such
financial statements have been prepared on an accrual basis
and in
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conformity with GAAP applied on a consistent basis except
for changes, if any, required by GAAP and as disclosed
therein. The statement of operations and cash flows
presents fairly the results of operations and cash flows of
SeraCare for the periods covered, and the balance sheets
present fairly the financial condition of SeraCare as of
their dates.
e. Since May 31, 1996, whether or not in the ordinary course of
business, there has not been, occurred or arisen any change
in or event affecting SeraCare that has had or may
reasonably be expected to have a material adverse effect on
SeraCare.
f. SeraCare is not currently a party to any loan agreement,
security agreement, financing statement or similar agreement
with a third party under which SeraCare has agreed to grant
the third party a security interest in or has otherwise
agreed to encumber the stock of BHM Labs or the assets of
BHM Labs.
g. SeraCare's representations and warranties contained herein
shall be true and correct on the closing date and shall be
made again at that time.
5. ACCESS TO INFORMATION. (a) XxXxxx has caused BHM Labs to give to
SeraCare and SeraCare's counsel, accountants and other representatives full
access, during normal business hours throughout the period prior to the closing,
to all of BHM Labs's properties, books, contracts, commitments and records and
has furnished to SeraCare during such period with all such information
concerning BHM Labs's affairs as SeraCare reasonably requested.
(b) SeraCare gave to XxXxxx and XxXxxx'x counsel, accountants
and other representatives full access, during normal business hours throughout
the period prior to the closing, to (1) the financial statements of SeraCare for
1995 and 1996; (2) any filing with the Securities and Exchange Commission; (3)
the disclosure statement, and any amendments thereto, in case BK. No. LA 94-
11730A; (4) the loan agreement with CVD; (5) the amendments to the certificate
of incorporation of SeraCare; and (6) the resolutions by the board of directors
of SeraCare regarding the issuance, value, rights, preferences, privileges and
restrictions of its preferred stock and furnished to XxXxxx during such period
with all such information regarding the above described documents as XxXxxx
reasonably requested.
6. CONDITIONS PRECEDENT TO SERACARE'S CLOSING
SeraCare's obligations hereunder are specifically conditioned on
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receipt of a copy of a lease with BHM Labs as the lessee for 000 0/0 Xxxxxx
Xxxxxx, Xxxx Xxxxx, Xxxxxxxx. Said lease shall have a primary term of five (5)
years with an option in favor of BHM Labs to extend for an additional five (5)
years. The provisions of the lease, including the amount of rent and any
escalation of the rent, shall be on terms satisfactory to SeraCare.
7. CONDITIONS PRECEDENT TO XXXXXX'X CLOSING.
XxXxxx'x obligations hereunder are specifically conditioned on receipt of a
certificate or resolution by the Board of Directors of SeraCare approving the
contract and authorizing the issuance of the preferred stock.
8. FAILURE OF CONDITIONS PRECEDENT. If the conditions precedent
contained in paragraph 7 or 8 fail to occur prior to closing for any reason,
this contract shall terminate and neither party shall have any further liability
to the other party hereunder.
9. CASH, BANK ACCOUNTS AND ACCOUNTS RECEIVABLE OF BHM LABS. At
closing, BHM Labs shall deliver to XxXxxx its cash on hand and all funds in any
bank or other account of BHM Labs (to the extent that checks or drafts have not
been written) and shall assign to XxXxxx the accounts receivable listed in
Exhibit A and any account receivable generated prior to closing (collectively
referred to hereinafter as the "assigned assets").
10. TRANSFERS TO XXXXXX. At closing, BHM Labs shall (i) assign to
XxXxxx that certain promissory note in favor of BHM Labs from Plank Street Labs,
and (ii) XxXxxx shall assume the liabilities and obligations of BHM set forth on
Schedule 3 hereto.
11. ACCOUNTS PAYABLE AND OTHER INDEBTEDNESS. At closing, XxXxxx
shall assume and shall indemnify and hold BHM Labs and SeraCare harmless from
any losses arising from: (1) the accounts payable listed in Exhibit B and any
accounts payable incurred prior to closing (for which a check or draft has not
been written or for which sufficient funds do not remain in any account of BHM
Labs pursuant to Section 9; and (2) except for the contract to purchase the
Minolta copier (the "Minolta contract"), any indebtedness or obligation of BHM
Labs, including but not limited to any of BHM Labs' federal, state or local tax
liability, arising on or prior to the date of closing (collectively referred to
hereinafter as the "assumed indebtedness"). At closing, XxXxxx will forgive and
cancel that certain indebtedness in favor of XxXxxx in the approximate amount of
$10,000 from BHM Labs. XxXxxx represents and warrants that at closing, except
for the assumed indebtedness, the Minolta contract, the Alpha Therapeutic
contract, and the lease, BHM Labs shall have no liabilities of any nature,
whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities due or to become due.
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12. RESPONSIBLE HEAD/GOOD STANDING CERTIFICATE.
(a) RESPONSIBLE HEAD. XxXxxx is currently the "responsible head"
under BHM Labs's FDA label. After closing XxXxxx agrees, at the option of
SeraCare, to continue to act as and to perform the functions of the "responsible
head" under BHM Labs's label until such time as a new "responsible head" has
been approved by the FDA and the change in the ownership of the stock of BHM
Labs has been approved by the FDA. After closing, SeraCare or BHM Labs, or
both, shall forthwith apply for and shall use their reasonable efforts to
promptly obtain FDA approval of a change of the responsible head and the change
in the stock ownership of BHM Labs.
(b) GOOD STANDING CERTIFICATE. XxXxxx agrees to deliver to SeraCare a
good standing certificate from the Arkansas Secretary of State for BHM Labs,
evidencing the good standing of BHM Labs as of the closing date.
13. NONCOMPETITION AGREEMENT.
(a) RESTRICTIONS. XxXxxx agrees for a period of three years
after the Closing, XxXxxx shall not, directly or indirectly, within 50 miles of
any collection center owned by SeraCare or BHM Labs, compete with, assist any
person in competing with or acquire an interest in any person competing with,
SeraCare or BHM Labs, whether as an owner, shareholder, joint venturer, partner,
officer, employee, consultant, agent or otherwise.
(b) SPECIAL REMEDIES AND ENFORCEMENT. SeraCare and XxXxxx agree
that a breach by XxXxxx of any of the covenants set forth in this Section 13
could cause irreparable harm to SeraCare, that SeraCare's remedies at law in the
event of such breach would be inadequate, and that, accordingly, in the event of
such breach, a restraining order or injunction or both may be issued against
Seller, in addition to any other rights and remedies that are available to
SeraCare. In connection with any such action or proceeding for injunctive
relief, XxXxxx hereby waives the claim or defense that a remedy at law alone is
adequate and agrees, to the maximum extent permitted by Law, to have each
provision of this Section 13 specifically enforced against XxXxxx and consents
to the entry of injunctive relief against XxXxxx enforcing or restraining any
breach or threatened breach of this Section 13.
(c) SEVERABILITY. If this Section 13 is more restrictive than
permitted by the laws of any jurisdiction in which SeraCare seeks enforcement
hereof, this Section 13 shall be limited to the extent required to permit
enforcement under such laws. If the provisions of this Section 13 shall ever be
deemed to exceed the duration or geographic limitations or scope permitted by
applicable law, then such provisions shall be
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reformed to the maximum time or geographic limitations in scope, as the case may
be, permitted by applicable Law.
14. INDEMNIFICATION BY SERACARE. (a) SeraCare warrants that all
statements contained herein or in any document delivered in connection with the
transactions contemplated hereby shall be true and correct. Said warranties
shall be unaffected by any investigation conducted by, to be conducted by, or
which could have been conducted by XxXxxx. Except as limited herein below,
SeraCare agrees to defend, indemnify and hold XxXxxx harmless from and against
any and all demands, claims, causes of action, losses, damages, liabilities,
costs and expenses asserted against, resulting to or incurred by XxXxxx by
reason of or resulting from any breach of said warranty. The liability of
SeraCare under this indemnification shall continue for the maximum period
provided by law. SeraCare's indemnity obligation shall be limited to the value
of the preferred shares immediately at closing.
(b) SeraCare also agrees to indemnify and hold XxXxxx harmless
from all claims arising from the operation of BHM Labs's business after closing,
including but not limited to any claim arising from any act or omission by an
officer, director, employee or representative of BHM Labs other than XxXxxx, so
long as the act or omission giving rise to the claim occurs after the date of
closing.
15. INDEMNIFICATION BY XXXXXX. (a) XxXxxx warrants that all
statements contained herein or in any document delivered in connection with the
transactions contemplated hereby shall be true and correct. Said warranties
shall be unaffected by an investigation conducted by, to be conducted by, or
which could have been conducted by SeraCare. Except as limited herein below,
XxXxxx agrees to defend, indemnify and hold SeraCare, its shareholders,
directors and officers harmless from and against any and all demands, claims,
causes of action, losses, damages, liabilities, costs and expenses asserted
against, resulting to or incurred by SeraCare, its shareholders, directors or
officers by reason of or resulting from any breach of said warranty. The
liability of XxXxxx under this indemnification shall continue for the maximum
period provided by law. XxXxxx'x indemnity obligation shall be limited to the
value of the preferred shares immediately at closing.
(b) XxXxxx also agrees to indemnify and hold SeraCare harmless
from all claims arising from the operation of BHM Labs's business whether prior
to or after closing, including but not limited to any claim arising from any act
or omission by an officer, director, employee or representative of BHM Labs so
long as the act or omission giving rise to the claim occurs on or prior to the
date of closing.
16. RESIGNATION OF OFFICERS AND DIRECTORS. At closing, XxXxxx shall
make available to SeraCare the written
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resignation of BHM Labs current directors and officers and shall take, or cause
to be taken, such action as SeraCare may request with respect to changes in
directors and officers.
17. SPECIFIC PERFORMANCE. Upon execution of this contract, XxXxxx
and SeraCare shall both have the right to demand specific performance on the
part of the other as a remedy for either party's breach of this agreement.
18. CONFIDENTIALITY. The parties agree that the terms of this
agreement shall remain absolutely confidential. Unless required by law, neither
party shall disclose the existence or the terms of this agreement without the
express, written consent of the other party, which consent shall not be
unreasonably withheld.
19. ARBITRATION. All disputes arising out of or in connection with
this contract, which cannot be settled by mutual agreement between the parties,
shall be settled by arbitration in Fort Xxxxx, Arkansas in accordance with the
rules in effect of the American Arbitration Association. Within ten (10) days
from the date either party receives notice from the other party of its appointed
arbitrator, such party shall appoint its arbitrator. In the event such party has
not appointed its arbitrator within such time, the arbitration may be conducted
by the sole arbitrator appointed by the first appointing party. In the event
such party does appoint an arbitrator within such time period, the two
arbitrators shall then appoint a third arbitrator, within ten (10) business days
from the date of appointment of the second arbitrator. If the arbitrators are
unable to agree upon the selection of the third arbitrator within such time
period, then the appointment of such third arbitrator shall be deemed a
"controversy" and either party hereto may request the American Arbitration
Association to appoint such third arbitrator. Any award by the Arbitrator shall
be final, binding and non-appealable. Notwithstanding anything herein to the
contrary, the parties may apply to any court of competent jurisdiction for
injunctive relief without breach of this arbitration provision.
20. MISCELLANEOUS.
a. JOINT DRAFTING. Both XxXxxx and SeraCare have jointly
participated in the negotiations and drafting of this
contract. In the event of a question of intent or
interpretation arises, this contract shall be construed as
if drafted by both parties.
b. ATTORNEY'S FEES. In the event of any dispute arising out of
or related to this contract, the prevailing party shall be
entitled to recover, in addition to any other damages
afforded by law, all reasonable attorney's
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fees incurred in the prosecution and defense of such an
action.
c. GOVERNING LAW. This contract shall be governed by Arkansas
law.
21. PURCHASE FOR INVESTMENT. The parties acknowledge that they have
had full and free access to and have reviewed all books, records, financial
statements and other information of SeraCare and BHM Labs in formulating their
decision to invest in, and in evaluating the risk of exchanging, the stock. The
parties represent that they are acquiring their respective stock solely for
their own account and not for the interest of any other party and not for resale
to others or with a view to further distribution. The parties further represent
that they have sufficient knowledge and experience in the operation of SeraCare
and BHM Labs to evaluate the risk of the exchange and to make an informed
investment decision. The parties acknowledge that the stock of BHM Labs and
SeraCare have not been registered, or exempted from registration, under the
securities or other laws of the United States or the states of California and
Arkansas. All stock certificates representing the shares exchanged under this
agreement shall be endorsed with the following restrictive legends:
The securities represented by this certificate have not been
registered under United States or state securities laws, and were
acquired by the registered holder pursuant to a representation that
such holder was acquiring such securities for investment. These
securities may not be sold, transferred or assigned in the absence of
an effective registration statement for the securities under
applicable United States or states securities law or an opinion of
counsel satisfactory to the issuer to the effect that registration is
not required thereunder.
22. SURVIVAL OP REPRESENTATIONS. All representations, warranties,
indemnifications and agreements made by XxXxxx and SeraCare in this contract, or
pursuant hereto, shall survive the closing and any investigation at any time
made by or on behalf of SeraCare for a period of 3 years.
23. BENEFIT. This contract shall be binding upon, and inure to the
benefit of, the respective successors, assigns and legal representatives of
XxXxxx and SeraCare.
24. NOTICES. All notices, requests, demands, and other
communications hereunder shall be in writing, and shall be deemed to have been
duly given if delivered or mailed, first class postage prepaid, if to XxXxxx, at
1923 So. 00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxxx 00000, or at such other address as
XxXxxx
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may have furnished to SeraCare in writing, or, if to SeraCare, 0000 Xxxxxxx Xxxx
Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx, 00000 or such other address as
SeraCare may furnish to XxXxxx in writing.
25. COUNTERPARTS. This contract may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties have set their hands and seals on the
date above first written.
SERACARE, INC.
By: /s/ Xxxxx Xxxxx
---------------------------
Its: President and CEO
---------------------------
ATTEST:
/s/ Xxxxx X. Xxxxxxx
-----------------------------
Secretary
/s/ Xxxx X. XxXxxx
--------------------------------
Xxxx X. XxXxxx
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SCHEDULE 1
OWNED EQUIPMENT
MICROCENTRIFUGE 4 (3 not working)
REFRACTOMETER 2
LIGHT STAND 1 (for refractometer)
CHAIRS 4
HEAT SEALER 2
DESK 4
FREEZER 1
REFRIGERATOR 1
BED 19 (upstairs)
PILLOWS 00
XXXXXX 00 (xx xxxxxxxxx xxxx)
BREAKROOM FURNITURE: TABLE 1
CHAIRS 4
MICROWAVE 1
MINOLTA 2130 PHOTOCOPIER 1 (serial no. 3623430)
(Purchase agreement with Bull's Office Systems)
SCHEDULE 2
LEASED EQUIPMENT
None
SCHEDULE 3
LIABILITIES TO BE ASSUMED BY XXXXXX
None.
The following liabilities are obligations of Xxxx XxXxxx individually, and not
of BHM Labs, Inc.:
1. City National Bank Loan
2. Xxxxxxxx X. Page Loans
3. Merchant National Bank Loans
/s/ Xxxx X. XxXxxx
-------------------------------
Xxxx X. XxXxxx
EXHIBIT A
Accounts receivable to be determined by Xxxxx Xxxxxx of Xxxxx & Co.,
plc, within 30 days of the date hereof.
EXHIBIT B
Accounts payable and accrued liabilities to be determined by Xxxxx
Xxxxxx of Xxxxx & Co., plc, within 30 days of the date hereof.
