ASSET EXCHANGE AGREEMENT
dated as of
July 2, 1996
between
Silver State Plasma Products, Inc.
and
SeraCare, Inc.
TABLE OF CONTENTS
SECTION PAGE
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Recitals
ARTICLE 1
EXCHANGE OF ASSETS . . . . . . . . . . 1
1.1 Transfer of Nevada Assets . . . . . . . . . . . . . . . . . . . . 1
1.1.1 Personal Property. . . . . . . . . . . . . . . . . . . . 2
1.1.2 Leasehold Interests. . . . . . . . . . . . . . . . . . . 2
1.1.3 Prepayments. . . . . . . . . . . . . . . . . . . . . . . 2
1.1.4 Intellectual Property. . . . . . . . . . . . . . . . . . 2
1.1.5 Donor Base . . . . . . . . . . . . . . . . . . . . . . . 2
1.1.6 Books and Records. . . . . . . . . . . . . . . . . . . . 2
1.1.7 Assigned Contracts . . . . . . . . . . . . . . . . . . . 2
1.1.8 Permits. . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Assets Not Transferred. . . . . . . . . . . . . . . . . . . . . . 2
1.2.1 Refund Claims. . . . . . . . . . . . . . . . . . . . . . 3
1.2.2 Certain Third Party Claims . . . . . . . . . . . . . . . 3
1.2.3 Unrelated and Corporate Assets . . . . . . . . . . . . . 3
1.2.4 Accounts Receivable. . . . . . . . . . . . . . . . . . . 3
1.2.5 Cash and Cash Equivalents. . . . . . . . . . . . . . . . 3
1.2.6 Inventory. . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Transfer of APS Assets. . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2
CLOSING/PURCHASE PRICE/
ASSUMPTION OF LIABILITIES. . . . . . . . . 3
2.1 The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Purchase Price and Adjustment . . . . . . . . . . . . . . . . . . 4
2.2.1 Purchase Price and Noncompetition
Payment. . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2.2 Post-Closing Adjustment to Purchase
Price. . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Payment to Silver State on Closing Date . . . . . . . . . . . . . 4
2.4 Instruments of Conveyance and Transfer. . . . . . . . . . . . . . 4
2.5 Assumption of Certain Liabilities . . . . . . . . . . . . . . . . 5
2.6 Non-Assumption of Liabilities . . . . . . . . . . . . . . . . . . 5
2.7 Tax Allocation. . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.8 Sales and Use Tax . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SILVER STATE . . . . 6
3.1 Organization, Corporate Power and Authority . . . . . . . . . . . 6
3.2 Authorization of Agreements . . . . . . . . . . . . . . . . . . . 6
3.3 Effect of Agreement . . . . . . . . . . . . . . . . . . . . . . . 6
i
3.4 Governmental Approvals. . . . . . . . . . . . . . . . . . . . . . 6
3.5 Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 Financial Statements; Changes . . . . . . . . . . . . . . . . . . 7
3.7 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.8 Assigned Contracts. . . . . . . . . . . . . . . . . . . . . . . . 8
3.9 Condition of Property . . . . . . . . . . . . . . . . . . . . . . 8
3.10 Use of Real Property. . . . . . . . . . . . . . . . . . . . . . . 8
3.11 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 8
3.12 Dividends and Other Distributions . . . . . . . . . . . . . . . . 8
3.13 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.14 Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . 9
3.15 Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . 9
3.16 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . 9
3.17 No Brokers or Finders . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SERACARE . . . . . 10
4.1 Organization, Corporate Power and Authority . . . . . . . . . . . 10
4.2 Authorization of Agreement. . . . . . . . . . . . . . . . . . . . 10
4.3 Effect of Agreement . . . . . . . . . . . . . . . . . . . . . . . 10
4.4 Governmental Approvals. . . . . . . . . . . . . . . . . . . . . . 11
4.6 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 5
ADDITIONAL CONTINUING COVENANTS. . . . . . . . 11
5.1 Nondisclosure of Proprietary Data . . . . . . . . . . . . . . . . 11
5.2 Tax Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.3 Silver State's Covenant Not to Compete. . . . . . . . . . . . . . 12
5.3.1 Restrictions . . . . . . . . . . . . . . . . . . . . . . 12
5.3.2 Special Remedies and Enforcement . . . . . . . . . . . . 12
5.3.3 Severability . . . . . . . . . . . . . . . . . . . . . . 12
5.3.4 Responsible Head to FDA. . . . . . . . . . . . . . . . . 13
ARTICLE 6
INDEMNIFICATION. . . . . . . . . . . . 13
6.1 Obligations of Silver State . . . . . . . . . . . . . . . . . . . 13
6.2 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.3 Notice by Silver State. . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 7
GENERAL. . . . . . . . . . . . . . 15
7.1 Amendments; Waivers . . . . . . . . . . . . . . . . . . . . . . . 15
7.2 Schedules; Exhibits; Integration. . . . . . . . . . . . . . . . . 15
7.3 Best Efforts; Further Assurances. . . . . . . . . . . . . . . . . 15
7.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.5 No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.6 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.7 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.8 Publicity and Reports . . . . . . . . . . . . . . . . . . . . . . 16
ii
7.9 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . 16
7.10 Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . 16
7.11 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.12 Expenses and Attorneys Fees . . . . . . . . . . . . . . . . . . . 17
7.13 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.14 Specific Performance. . . . . . . . . . . . . . . . . . . . . . . 17
7.15 Bulk Transfer Laws. . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 8
DEFINITIONS. . . . . . . . . . . . . 18
iii
Exhibits
EXHIBIT A Form of Promissory Note
EXHIBIT B Assignment and Assumption Agreement
EXHIBIT C Silver State Xxxx of Sale
EXHIBIT D SeraCare Xxxx of Sale
Schedules
iv
ASSET EXCHANGE AGREEMENT
This Asset Exchange Agreement is entered into as of July 2, 1996,
between SeraCare, Inc., a Delaware corporation ("SeraCare"), and Silver State
Plasma Products, Inc., a Nevada corporation ("Silver State"). Capitalized terms
used herein without definition are defined in Article 11.
R E C I T A L S
WHEREAS, Silver State owns certain assets more particularly described
in this Agreement, including a real property lease and personal property, used
by it in the Business; and
WHEREAS, SeraCare recently purchased certain assets (the "APS ASSETS")
from America Plasma Services, L.P., a Texas limited partnership ("AMERICA
PLASMA"), pursuant to that certain Asset Purchase Agreement; and
WHEREAS, Silver State desires to transfer the Nevada Assets in
exchange for, and SeraCare desires to acquire the Nevada Assets in exchange for,
the APS Assets, and SeraCare is willing to assume certain liabilities relating
to the Nevada Assets, and Silver State is willing to assume the liabilities of
the APS Assets, all on the terms and conditions described herein.
A G R E E M E N T
In consideration of the mutual promises contained herein and intending
to be legally bound, the parties agree as follows:
ARTICLE 1
EXCHANGE OF ASSETS
1.1 TRANSFER OF NEVADA ASSETS. Subject to the terms and conditions of
this Agreement, on the Closing Date, Silver State will transfer, assign and
deliver to SeraCare, and SeraCare will acquire from Silver State, all of Silver
State's right, title and interest in and to all of Silver State's assets, rights
and properties, of every kind or nature, which are used in or are related to the
Business or are necessary for the operation of the Business as presently
conducted, except the Excluded Assets (the "NEVADA ASSETS"). The Nevada Assets
include, but are not limited to, the following:
1.1.1 PERSONAL PROPERTY. All tangible personal
property, including, but not limited to, fixtures, vehicles,
machinery and equipment, furniture, tools, supplies, signs, spare
parts and inventory, a list of which as of the date hereof is set
forth in Schedule 1.1.1;
1.1.2 LEASEHOLD INTERESTS. The leasehold interest
in the real property located at 000 Xxxxx Xxx Xxxxx Xxxx., Xxx
Xxxxx, Xxxxxx, including all leasehold improvements to the leased
premises (the "LEASEHOLD INTERESTS");
1.1.3 PREPAYMENTS. All prepaid items, deferred
charges, credits, reserves and deposits paid by Silver State,
including lease deposits, rent, telephone and utilities, a list of
which as of the date hereof is set forth on the Financial
Statements referenced in Section 3.6(a) hereof;
1.1.4 INTELLECTUAL PROPERTY. All trademarks and
trade names, service marks and all unregistered intellectual
property, all trade secrets, confidential information and
know-how, together with the goodwill and the business appurtenant
thereto (collectively, the "INTELLECTUAL PROPERTY");
1.1.5 DONOR BASE. All of Silver State's data
relating to its donor base;
1.1.6 BOOKS AND RECORDS. All books and records and
all files, documents, papers and agreements (including, but not
limited to, those contained in computerized storage media)
pertaining to the Nevada Assets, the Assumed Liabilities or
otherwise to the Business;
1.1.7 ASSIGNED CONTRACTS. All rights of Silver
State under that certain Contract of Lease, dated as of November
10, 1995, by and between Silver State and Alexander & Xxxxxx
Xxxxxxxx Trust, and the Plasma Contract, dated as of July 11,
1995, by and between Silver State and Alpha Therapeutic
Corporation (the "ASSIGNED CONTRACTS"); and
1.1.8 PERMITS. All transferable Permits and
equivalent documents, including Silver State's FDA license, QPP
certification and local business licenses relating to the Business.
1.2 ASSETS NOT TRANSFERRED. The following assets, rights and properties
of Silver State are specifically
excluded from the Nevada Assets and shall be retained by Silver State (the
"EXCLUDED ASSETS"):
1.2.1 REFUND CLAIMS. Rights to or claims for
refunds of taxes and other governmental charges for periods ending
on or prior to the Closing Date and the benefit of net operating
loss carry-forwards or other tax credits of Silver State;
1.2.2 CERTAIN THIRD PARTY CLAIMS. Any rights of
indemnification, contribution or reimbursement that may exist
under the Assigned Contracts in respect of liabilities or
obligations retained by Silver State;
1.2.3 UNRELATED AND CORPORATE ASSETS. Assets used
by Silver State or its Affiliates exclusively in other businesses
of Silver State or its Affiliates, all nontransferable Permits and
assets relating to Silver State's corporate functions (including,
but not limited to, the corporate charter, taxpayer and other
identification numbers, income tax records, seals, minute books
and stock transfer books);
1.2.4 ACCOUNTS RECEIVABLE. All accounts receivable
of the Business as of the Closing Date;
1.2.5 CASH AND CASH EQUIVALENTS. All cash on hand
and cash equivalents; and
1.2.6 INVENTORY. All plasma inventory.
1.3 TRANSFER OF APS ASSETS. Subject to the terms and conditions of this
Agreement, on the Closing Date, SeraCare will transfer, assign and deliver to
Silver State, and Silver State will acquire from SeraCare, all of SeraCare's
right, title and interest in and to the APS Assets, including, without
limitation, that certain Asset Purchase Agreement of even date herewith by and
between SeraCare and American Plasma.
ARTICLE 2
CLOSING/PURCHASE PRICE/
ASSUMPTION OF LIABILITIES
2.1 THE CLOSING.
The Closing will take place at American Plasma Services, L.P., 000
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 at 1:00 p.m. on July 2, 1996.
2.2 PURCHASE PRICE AND ADJUSTMENT.
2.2.1 PURCHASE PRICE AND NONCOMPETITION PAYMENT. Subject to the
terms and conditions of this Agreement, SeraCare agrees to acquire the Nevada
Assets from Silver State, to assume the Assumed Liabilities and to deliver at
the Closing (i) the APS Assets; (ii) $110,000 in cash (the "CASH AMOUNT"); and
(iii) a promissory note in the principal amount of $300,000 in the form attached
hereto as Exhibit A. Such note will be secured by the collateral transferred
herein by the Security Agreement attached hereto as Exhibit E. The Cash Amount
shall be subject to adjustment under Section 2.2.2. SeraCare and Silver State
agree that $50,000 of the cash consideration shall be attributable to Silver
State's covenant not to compete set forth in Section 5.7 (the "NONCOMPETITION
PAYMENT").
2.2.2 POST-CLOSING ADJUSTMENT TO PURCHASE PRICE. The Purchase
Price shall be subject to adjustment after the Closing in order to prorate as of
the Closing Date as follows: (i) the Purchase Price shall be reduced by the
amount of accrued salaries and wages (including taxes, vacation and sick pay),
base and percentage rents and telephone and utility charges attributable to the
Business as of the Closing Date; and (ii) the Purchase Price shall be increased
by the amount of prepaid items such as rent, telephone and utilities included in
the Nevada Assets and attributable the operation of the Business prior to the
Closing. Within 60 days of the Closing, SeraCare shall provide to Silver State
an accounting of the foregoing prorations. In the event of a net increase in
the Purchase Price, SeraCare shall pay Silver State such increase within 30 days
after delivery of the accounting. In the event of a net decrease in the
Purchase Price, SeraCare shall be entitled to offset the next monthly payment(s)
under the Promissory Note in the amount of such decrease.
2.3 PAYMENT TO SILVER STATE ON CLOSING DATE. On the Closing Date,
SeraCare shall pay the Cash Amount to Silver State by check.
2.4 INSTRUMENTS OF CONVEYANCE AND TRANSFER.
2.4.1 On the Closing Date, Silver State shall execute and deliver
or cause to be delivered to SeraCare (a) the Silver State Xxxx of Sale (the form
of which is attached hereto as Exhibit C), (b) the Assignment and Assumption
Agreement, (c) assignments and estoppel agreements in form and substance
reasonably satisfactory to SeraCare with respect to the Leasehold Interests, and
(d) such other documents as may be reasonably requested by SeraCare in order to
carry out the Transactions.
2.4.2 On the Closing Date, SeraCare shall execute and deliver such
documents as may be reasonably requested by Silver State in order to carry out
the assignment of the APS Assets as provided in Section 1.3., including the
SeraCare Xxxx of Sale (the form of which is attached hereto as Exhibit D).
2.5 ASSUMPTION OF CERTAIN LIABILITIES. On the Closing Date, SeraCare
shall execute and deliver to Silver State the Assignment and Assumption
Agreement, pursuant to which, subject to Section 2.6, SeraCare shall assume and
agree to pay, perform and discharge when due, (i) all obligations of Silver
State arising after the Closing Date under the terms of the Assigned Contracts,
except any liability or obligation arising thereunder as a result of a breach of
any such Assigned Contract prior to the Closing Date, and (ii) accrued salaries
and wages (including taxes, vacation and sick pay), base and percentage rents
and telephone and utility charges attributable to the Business as of the Closing
Date (collectively, the "ASSUMED LIABILITIES").
2.6 NON-ASSUMPTION OF LIABILITIES. SeraCare is not assuming, and shall
not be deemed to have assumed any liability or obligation of Silver State or any
Affiliate of Silver State, of any kind or nature, whether absolute, contingent,
accrued or otherwise, known or unknown, and whether arising before or after the
Closing Date which is not set forth in Section 2.5, including, but not limited
to: (i) liabilities for Taxes with respect to any period or portion thereof
ending on or prior to the Closing Date; or (ii) liabilities (including but not
limited to any liabilities resulting from unfunded contributions under any
employee benefit plan subject to ERISA) for any pension, profit-sharing or
welfare benefit plans or arrangement, oral or written, maintained by Silver
State or its Affiliates.
2.7 TAX ALLOCATION. SeraCare and Silver State shall allocate the Purchase
Price to broad categories constituting components of the Assets in accordance
with the basis of allocation set forth in Schedule 2.7. Each party will report
the Transactions in accordance with the agreed upon allocation, except to the
extent that modifications are necessary to reflect changes in the Nevada Assets
and Assumed Liabilities between the date hereof and the Closing Date, for all
federal, state, local and other tax purposes, but such allocation shall not
constrain reporting for other purposes.
2.8 SALES AND USE TAX. SeraCare and Silver State shall cooperate in
preparing and filing use and sales tax returns relating to, and SeraCare shall
pay any and all sales, transfer or use tax due with regard to, the Transactions.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SILVER STATE
Except as otherwise indicated on the schedules attached hereto, Silver
State represents, warrants and agrees:
3.1 ORGANIZATION, CORPORATE POWER AND AUTHORITY. Silver State is a
corporation duly organized, validly existing and in good standing under the laws
of the state in which it is incorporated and is duly qualified to do business as
a foreign corporation in the jurisdictions in which Silver State conducts the
Business, except where the failure so to qualify will not have a material
adverse effect on the Nevada Assets or the Business. Silver State has all
requisite corporate power and authority to own, operate and lease the Nevada
Assets, to conduct the Business, to execute and deliver the Transaction
Documents and to perform its obligations thereunder.
3.2 AUTHORIZATION OF AGREEMENTS. The execution, delivery and performance
by Silver State of the Transaction Documents, and the consummation by it of the
Transactions, have been duly authorized by all necessary corporate action by
Silver State. This Agreement has been, and each other Transaction Document will
be at the Closing, duly executed and delivered by Silver State and constitutes,
or will, when delivered, constitute, the legal, valid and binding obligations of
Silver State, enforceable against Silver State in accordance with their
respective 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.
3.3 EFFECT OF AGREEMENT. The execution, delivery and performance by
Silver State of the Transaction Documents, and the consummation by it of the
Transactions, will not violate the charter documents or bylaws of Silver State
or any Law to which Silver State is subject, or any judgment, award or decree or
any material indenture, material agreement or other material instrument to which
Silver State is a party, or by which Silver State or the Nevada Assets are
bound, or conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under, any such indenture, agreement or other
instrument, or result in the creation or imposition of any Encumbrance of any
nature whatsoever upon any of the Nevada Assets, except consents that may be
required for assignment of certain of the Assigned Contracts.
3.4 GOVERNMENTAL APPROVALS. Except as set forth in Schedule 3.4, no
Approval or Order or action of or filing
with any Governmental Entity is required to be obtained by Silver State for the
execution and delivery by Silver State of the Transaction Documents or the
consummation by it of the Transactions.
3.5 PERMITS. Schedule 3.5 sets forth each Permit (and applications
therefore) obtained by Silver State in connection with the conduct of the
Business together with the name of the Governmental Entity issuing such Permit.
Such Permits are valid and in full force and effect. Except as set forth in
Schedule 3.5, all such Permits are freely transferable by Silver State, and upon
Closing SeraCare will have all right, title and interest of the holder thereof.
All Permits necessary in connection with the operation of the Business as
presently conducted have been obtained. No suspension, cancellation or
termination of any Permits required by any Governmental Entity to permit the
Business to be conducted is threatened or imminent.
3.6 FINANCIAL STATEMENTS; CHANGES.
(a) UNAUDITED FINANCIAL STATEMENTS. Silver State has delivered
to SeraCare balance sheets for Silver State at March 31, 1995 and 1996, and
the related statements of operations and cash flows and changes in
stockholder's equity for the periods then ended. All such interim financial
statements have been prepared in conformity with GAAP applied on a consistent
basis except for changes, if any, required by GAAP and disclosed therein
(except for the absence of notes and normal recurring year-end adjustments).
The statements of operations and cash flows present fairly the results of
operations and cash flows of Silver State for the respective periods covered,
and the balance sheets present fairly the financial condition of Silver State
as of their respective dates.
(b) NO MATERIAL ADVERSE CHANGES. Since March 31, 1996, whether
or not in the ordinary course of business, there has not been, occurred or
arisen any change in or event affecting Silver State or the Business that has
had or may reasonably be expected to have a material adverse effect on Silver
State or the Business.
3.7 TAX MATTERS. Silver State has timely filed (or, where permitted or
required, its direct or indirect parents have timely filed) all Tax Returns
required of it and has paid all Taxes, including personal property Taxes, due
for all periods or portions of periods ending on or before the Closing Date
(except as provided in the following sentence). Adequate provision has been made
in the books and records of Silver State, and to the extent required by GAAP in
the Financial Statements for all Taxes whether or not due and payable and
whether or not disputed to the extent not paid.
The information set forth in the Tax Returns provided to SeraCare, including for
the year ended December 31, 1995, is true and correct in all material respects.
3.8 ASSIGNED CONTRACTS. Each Assigned Contract is valid and subsisting;
Silver State has duly performed all its obligations thereunder to the extent
that such obligations to perform have accrued; and no breach or default, alleged
breach or default, or event which would (with the passage of time, notice or
both) constitute a breach or default thereunder by Silver State, or, to the best
knowledge of Silver State, any other party or obligor with respect thereto, has
occurred or as a result of the Transactions will occur.
3.9 CONDITION OF PROPERTY. Silver State has good and marketable title to
or other right to use, free of Encumbrances, all of the Nevada Assets, except
for (a) liens for Taxes not yet due, and (b) imperfections in title, if any, not
material in amount, and which, individually or in the aggregate, do not
interfere with the conduct of the Business or the use of the Nevada Assets.
3.10 USE OF REAL PROPERTY. All Leasehold Interests are used and operated
in compliance and conformity with all applicable leases, except to the extent
that the failure so to conform would not materially adversely affect the
Business. Silver State has not received notice of any violation of any
applicable zoning or building regulation or ordinance relating to the Leasehold
Interests and, to the knowledge of Silver State, there is no such violation.
3.11 LEGAL PROCEEDINGS. There is no Order or Action pending, or, to the
best knowledge of Silver State, threatened, against or affecting Silver State or
the Nevada Assets that individually or when aggregated with one or more other
Orders or Actions has or would reasonably be expected to have a material adverse
effect on the Business or on Silver State's ability to perform its obligations
under the Transaction Documents.
3.12 DIVIDENDS AND OTHER DISTRIBUTIONS. There has been no dividend or
other distribution of assets or securities whether consisting of money, property
or any other thing of value, declared, issued or paid by Silver State subsequent
to March 31, 1996.
3.13 INSURANCE. Silver State is, and at all times during the past two
years has been, insured with reputable insurers against all risks normally
insured against by companies engaged in similar businesses. All insurance
policies and bonds are in full force and effect. Schedule 3.13 lists all
insurance policies and bonds that
are material to the Business. Silver State is not in default under any such
policy or bond and has received no notice of cancellation of any such policy or
bond.
3.14 COMPLIANCE WITH LAW. Silver State is organized and has conducted the
Business in accordance with applicable Laws in all material respects. The
forms, procedures and practices of Silver State are in compliance with all such
Laws, to the extent applicable, in all material respects.
3.15 EMPLOYEE BENEFITS.
(a) Silver State and its ERISA affiliates are in full compliance
with the applicable provisions of ERISA and all other Laws applicable with
respect to all employee benefit plans, agreements and arrangements and to all
group health plans of any ERISA affiliate.
(b) Silver State has (i) no stock bonus, pension or
profit-sharing plan within the meaning of Section 401(a) of the Code, (ii) no
plans subject to Title IV of ERISA and (iii) has never contributed to or had
an obligation to contribute to any multiemployer plan (within the meaning of
Section 3(37) of ERISA).
3.16 ENVIRONMENTAL MATTERS. Schedule 3.16 sets forth (i) a description of
all investigations, inquiries or other proceedings now pending or, to Silver
State's knowledge, threatened by any Governmental Entity with respect to the
Real Property, or otherwise to the Business, or against Silver State in
connection with the actual or alleged failure to comply with any requirement of
any Law relating to air or water quality, waste management, Hazardous
Substances, or the protection of health or the environment; (ii) a list of all
waste disposal, treatment and storage sites used in the Business, including the
address of each such site, a description of the waste disposed of, treated or
stored at each such site; (iii) a list containing the name and address of each
Person engaged in the handling, transportation or disposal of waste materials in
connection with the Business, a description of such waste. Silver State has
maintained all documents and records and made all filings required by applicable
Law, relating to air or water quality, waste management, Hazardous Substances,
or the protection of health or the environment. The air and water emission,
discharge and waste disposal practices used by Silver State fully comply with,
and have at all times fully complied with, all applicable Laws in all material
respects. None of the Nevada Assets is contaminated with any Hazardous
Substance.
3.17 NO BROKERS OR FINDERS.
No agent, broker, finder, or investment or commercial banker, or
other Person or firm engaged by or acting on behalf of Silver State or any of
its Affiliates in connection with the negotiation, execution or performance of
the Transaction Documents, is or will be entitled to any brokerage or finder's
or similar fee or other commission as a result of this Agreement or the
Transactions.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SERACARE
SeraCare represents, warrants and agrees as follows:
4.1 ORGANIZATION, CORPORATE POWER AND AUTHORITY. SeraCare is a corporation
duly organized, validly existing and in good standing under the laws of the
state in which it is incorporated and is duly qualified to do business as a
foreign corporation in the jurisdictions in which SeraCare conducts its
business, except where the failure so to qualify will not have a material
adverse effect on SeraCare's ability to perform its obligations under the
Transaction Documents. SeraCare has all requisite corporate power and authority
to acquire, own, lease and operate the Nevada Assets, to conduct the Business
after the Closing, to execute and deliver the Transaction Documents to which it
is a party and to perform its obligations thereunder.
4.2 AUTHORIZATION OF AGREEMENT. The execution, delivery and performance
by SeraCare of the Transaction Documents to which it is a party, and the
consummation by it of the Transactions, have been duly authorized by all
necessary corporate action by SeraCare. This Agreement has been, and each other
Transaction Document to which SeraCare is a party will be at the Closing, duly
executed and delivered by SeraCare and constitute, or will, when delivered,
constitute, the legal, valid and binding obligations of SeraCare, enforceable
against SeraCare in accordance with their respective 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.
4.3 EFFECT OF AGREEMENT. The execution, delivery and performance by
SeraCare of the Transaction Documents to which it is a party, and the
consummation by it of the Transactions, will not violate the charter documents
or bylaws of SeraCare or any Law to which SeraCare is subject, or any judgment,
award or decree or any material indenture, material agreement or other material
instrument to which
SeraCare is a party, or by which SeraCare or its properties or assets are bound,
or conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under, any such indenture, agreement or other
instrument, or result in the creation or imposition of any Encumbrance of any
nature whatsoever upon any of the properties or assets of SeraCare, except to
the extent the effect thereof will not be materially adverse to SeraCare's
ability to fulfill its obligations under the Transaction Documents to which it
is a party.
4.4 GOVERNMENTAL APPROVALS. No Approval or Order or action of or filing
with any Governmental Entity is required to be obtained by SeraCare for the
execution and delivery by SeraCare of the Transaction Documents to which it is a
party or the consummation by it of the Transactions.
4.5 NO BROKERS OR FINDERS. No agent, broker, finder or investment or
commercial banker, or other Person or firm engaged by or acting on behalf of
SeraCare or its Affiliates in connection with the negotiation, execution or
performance of the Transaction Documents, is or will be entitled to any broker's
or finder's or similar fees or other commissions as a result of this Agreement
or such transactions.
4.6 LEGAL PROCEEDINGS. There is no Order or Action pending or to the best
knowledge of SeraCare, threatened against or affecting SeraCare that
individually or when aggregated with one or more other Orders or Actions has or
might reasonably be expected to have a material adverse effect on 's ability to
perform its obligations under the Transaction Documents.
ARTICLE 5
ADDITIONAL CONTINUING COVENANTS
5.1 NONDISCLOSURE OF PROPRIETARY DATA. After the Closing, neither Silver
State nor any of its representatives or Affiliates shall, at any time, make use
of, divulge or otherwise disclose, directly or indirectly, any trade secret or
other proprietary data (including, but not limited to, any customer list, record
or financial information concerning the Business. In addition, neither Silver
State nor any of its representatives or Affiliates shall make use of, divulge or
otherwise disclose, directly or indirectly, to Persons other than SeraCare, any
confidential information concerning the Business.
5.2 TAX COOPERATION. After the Closing, Silver State and SeraCare shall,
and shall cause their respective Affiliates to, cooperate fully in the
preparation of all Tax Returns and shall provide, or cause to be provided to
each
other any records and other information requested by such parties in connection
therewith as well as access to, and the cooperation of, their respective
accountants. Silver State and SeraCare shall, and shall cause their respective
Affiliates to, cooperate fully in connection with any Tax investigation, audit
or other proceeding.
5.3 SILVER STATE'S COVENANT NOT TO COMPETE.
5.3.1 RESTRICTIONS. In consideration of the Noncompetition
Payment, Silver State agrees for a period of five years after the Closing
Date, Silver State shall not, directly or indirectly, within a 50 mile
radius of Las Vegas, Nevada, compete with, assist any Person in competing
with or acquire an interest in any Person competing with, any product
presently manufactured and distributed by Silver State, whether as an
owner, shareholder, joint venturer, partner, officer, employee, consultant,
agent or otherwise. Nothing contained in this Section 5.3 shall prohibit
Silver State or its Affiliates from holding and making investments in
securities of any corporation or limited partnership whose securities are
traded in a generally recognized market, provided, Silver State's or such
Affiliate's equity interest therein does not exceed five percent (5%) of
the outstanding shares or interests in such corporation or partnership.
5.3.2 SPECIAL REMEDIES AND ENFORCEMENT. Silver State and SeraCare
agree that a breach by Silver State of any of the covenants set forth in
this Section 5.3 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 Silver State, in addition to any other rights
and remedies that are available to . In connection with any such action or
proceeding for injunctive relief, Silver State 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 5.3
specifically enforced against Silver State and consents to the entry of
injunctive relief against Silver State enforcing or restraining any breach
or threatened breach of this Section 5.3.
5.3.3 SEVERABILITY. If this Section 5.3 is more restrictive than
permitted by the Laws of any jurisdiction in which SeraCare seeks
enforcement hereof, this Section 5.3 shall be limited to the extent
required to permit enforcement under such Laws. In particular, the parties
intend that the covenants
contained in Section 5.3.1 shall be construed as a series of separate
covenants, one for each county and city in which the Business has been
carried on and in which SeraCare conducts a similar business after the
Closing Date. Except for geographic coverage, each such separate covenant
shall be deemed identical in terms. If, in any proceeding, a court or
arbitrator shall refuse to enforce any of the separate covenants, then such
unenforceable covenant shall be deemed eliminated from this Section 5.3 for
the purpose of those proceedings to the extent necessary to permit the
remaining separate covenants to be enforced. If the provisions of this
Section 5.3 shall ever be deemed to exceed the duration or geographic
limitations or scope permitted by applicable law, then such
provisions shall be reformed to the maximum time or geographic limitations
in scope, as the case may be, permitted by applicable Law.
5.3.4 RESPONSIBLE HEAD TO FDA. Silver State shall provide without
charge to SeraCare the services of the acting "responsible head" to the FDA
for a maximum of 90 days or until a new "responsible head" is designated
for the Business. SeraCare agrees to indemnify Silver State for the
services of the "responsible head" according to the provisions of Article 6
below.
ARTICLE 6
INDEMNIFICATION
6.1 OBLIGATIONS OF SILVER STATE.
Silver State agrees to indemnify and hold harmless SeraCare and its
directors, officers, employees, affiliates, agents and assigns from and against
any and all Losses, directly or indirectly, as a result of, or based upon or
arising from:
(a) any breach of any representation, warranty or covenant of
Silver State made in this Agreement; or
(b) any liability or obligation of, or claims against, Silver
State or the Business other than the Assumed Liabilities.
6.2 PROCEDURE.
(a) NOTICE. Any party seeking indemnification with respect to
any Loss shall give notice to the party required to provide indemnity
hereunder (the "Indemnifying Party").
(b) DEFENSE. If any claim, demand or liability is asserted by any
third party against any Indemnified Party, the Indemnifying Party shall, upon
the written request of the Indemnified Party, defend any actions or
proceedings brought against the Indemnified Party in respect of matters
embraced by the indemnity with counsel satisfactory to the Indemnified Party.
If, after a request to defend any action or proceeding, the Indemnifying
Party neglects to defend the Indemnified Party, a recovery against the latter
suffered by it in good faith, is conclusive in its favor against the
Indemnifying Party, provided however that, if the Indemnifying Party has not
received reasonable notice of the action or proceeding against the
Indemnified Party, or is not allowed to control its defense, judgment against
the Indemnified Party is only presumptive evidence against the Indemnifying
Party. Each party hereto, to the extent that it is or becomes an
Indemnifying Party, hereby stipulates that a judgment against the Indemnified
Party shall be conclusive upon the Indemnifying Party. The parties shall
cooperate in the defense of all third party claims which may give rise to
Indemnifiable Claims hereunder. In connection with the defense of any claim,
each party shall make available to the party controlling such defense, any
books, records or other documents within its control that are necessary or
appropriate for such defense.
(c) ADJUSTMENTS FOR INSURANCE PROCEEDS. The amount of any Loss
entitling a party to indemnification under this Article 6 shall be reduced by
the amount of any insurance proceeds recovered by the Indemnified Party for
such Loss, net of all costs and expenses incurred in collecting such
insurance proceeds (including, without limitation, reasonable attorneys'
fees). Nothing in this Section 6.2 shall be deemed to obligate any person to
maintain any insurance or to pursue any claim against any insurer or third
party.
6.3 NOTICE BY SILVER STATE. Silver State agrees to notify SeraCare of any
liabilities, claims or misrepresentations, breaches or other matters covered by
this Article 6 upon discovery or receipt of notice thereof (other than from ),
whether before or after Closing.
6.4 OFFSET. The principal amount of the Promissory Note shall be reduced
in the amount of any expenses, liabilities or obligations relating to the pre-
Closing operations of the Business that are paid by SeraCare after the Closing
only by agreement of Silver State or by the amount of any indemnification
payment required by Silver State under Section 6.2(b).
ARTICLE 7
GENERAL
7.1 AMENDMENTS; WAIVERS. This Agreement and any schedule or exhibit
attached hereto may be amended only by agreement in writing of all parties. No
waiver of any provision nor consent to any exception to the terms of this
Agreement shall be effective unless in writing and signed by the party to be
bound and then only to the specific purpose, extent and instance so provided.
7.2 SCHEDULES; EXHIBITS; INTEGRATION. Each schedule and exhibit delivered
pursuant to the terms of this Agreement shall be in writing and shall constitute
a part of this Agreement, although schedules need not be attached to each copy
of this Agreement. This Agreement, together with such schedules and exhibits,
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements and understandings of the
parties in connection therewith, including, but not limited to, the letter of
intent dated April 3, 1996, between SeraCare and Silver State.
7.3 BEST EFFORTS; FURTHER ASSURANCES. Each party shall execute and
deliver both before and after the Closing such further certificates, agreements
and other documents and take such other actions as the other party may
reasonably request to consummate or implement the transactions contemplated
hereby or to evidence such events or matters.
7.4 GOVERNING LAW. This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of California without regard to conflicts of law doctrines except to the
extent that certain matters are preempted by federal law or are governed by the
law of the jurisdiction of incorporation of the respective parties.
7.5 NO ASSIGNMENT. Neither this Agreement nor any rights or obligations
under it are assignable except that SeraCare may assign its rights hereunder to
any post-Closing purchaser of a substantial part of the Nevada Assets.
7.6 HEADINGS. The descriptive headings of the Articles, Sections and
subsections of this Agreement are for convenience only and do not constitute a
part of this Agreement.
7.7 COUNTERPARTS. This Agreement and any amendment hereto or any other
agreement (or document) delivered pursuant hereto may be executed in one or more
counterparts and by different parties in separate counterparts. All of
such counterparts shall constitute one and the same agreement (or other
document) and shall become effective (unless otherwise provided therein) when
one or more counterparts have been signed by each party and delivered to the
other party.
7.8 PUBLICITY AND REPORTS. Silver State and SeraCare shall coordinate all
publicity relating to the transactions contemplated by this Agreement and no
party shall issue any press release, publicity statement or other public notice
relating to this Agreement, or the transactions contemplated by this Agreement,
without obtaining the prior consent of the other party except to the extent that
a particular action is required by applicable Law.
7.9 REMEDIES CUMULATIVE. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available. In addition, Article 6 shall not be deemed to preclude or
otherwise limit in any way the exercise of any other rights or pursuit of other
remedies for the breach of this Agreement or with respect to any
misrepresentation.
7.10 PARTIES IN INTEREST. This Agreement shall be binding upon and inure
to the benefit of each party, and nothing in this Agreement, express or implied,
is intended to confer upon any other Person any rights or remedies of any nature
whatsoever under or by reason of this Agreement. Nothing in this Agreement is
intended to relieve or discharge the obligation of any third Person to (or to
confer any right of subrogation or action over against) any party to this
Agreement.
7.11 NOTICES.
Any notice or other communication hereunder must be given in
writing and (a) delivered in person, (b) transmitted by telex, telefax or
telecommunications mechanism or (c) mailed by certified or registered mail,
postage prepaid, receipt requested as follows:
IF TO SERACARE, ADDRESSED TO:
SeraCare, Inc.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx Xxxxx
WITH A COPY TO:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
IF TO SILVER STATE, ADDRESSED TO:
Silver State Plasma Products, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxx
WITH A COPY TO:
Xxxxx X. Xxxxxx
000 Xxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
or to such other address or to such other person as either party shall have last
designated by such notice to the other party. Each such notice or other
communication shall be effective (i) if given by telecommunication, when
transmitted to the applicable number so specified in (or pursuant to) this
Section 7.11 and an appropriate answerback is received, (ii) if given by mail,
three days after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when actually delivered at such address.
7.12 EXPENSES AND ATTORNEYS FEES. Silver State and SeraCare shall each pay
their own expenses incident to the negotiation, preparation and performance of
this Agreement and the transactions contemplated hereby, including but not
limited to the fees, expenses and disbursements of their respective accountants
and counsel. In the event of any Action for the breach of this Agreement or
misrepresentation by any party, the prevailing party shall be entitled to
reasonable attorney's fees, costs and expenses incurred such Action.
7.13 SURVIVAL. The representations and warranties and agreements contained
in or made pursuant to this Agreement shall survive the Closing.
7.14 SPECIFIC PERFORMANCE. Silver State and SeraCare each acknowledge
that, in view of the uniqueness of the Business and the transactions
contemplated by this
Agreement, each party would not have an adequate remedy at law for money damages
in the event that this Agreement has not been performed in accordance with its
terms, and therefore agrees that the other party shall be entitled to specific
enforcement of the terms hereof in addition to any other remedy to which it may
be entitled, at law or in equity.
7.15 BULK TRANSFER LAWS. Silver State and SeraCare hereby waive compliance
with any applicable bulk transfer laws, including, but not limited to, the bulk
transfer provisions of the Uniform Commercial Code of any state, or any similar
statute, with respect to the transactions contemplated hereby. Silver State
agrees to indemnify, defend and hold harmless SeraCare from any and all Losses
resulting from the assertion of claims made against the Nevada Assets sold
hereunder or against SeraCare by creditors of Silver State under any bulk sales
law with respect to liabilities and obligations of Silver State not assumed by
SeraCare hereunder, such indemnity to be in accordance with Article 6 hereof.
ARTICLE 8
DEFINITIONS
As used in this Agreement and the Exhibits and Schedules delivered
pursuant to this Agreement, the following definitions shall apply.
"Action" means any action, complaint, petition, investigation, suit or
other proceeding, whether civil or criminal, in law or in equity, or before any
arbitrator or Governmental Entity.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, a specified Person.
"Approval" means any approval, authorization, consent, qualification
or registration, or any waiver of any of the foregoing, required to be obtained
from, or any notice, statement or other communication required to be filed with
or delivered to, any Governmental Entity or any other Person.
"Assignment and Assumption Agreement" means an Assumption Agreement
substantially in the form of Exhibit B hereto.
"Business" means the Silver State's plasma collection business
conducted at 000 Xxxxx Xxx Xxxxx Xxxx.,
Xxx Xxxxx, Xxxxxx, and shall be deemed to include any of the following
incidents of such business: income, cash flow, operations, condition (financial
or other), assets/properties, anticipated revenues/income, prospects,
liabilities, personnel/management.
"Cash Amount" has the meaning set forth in Section 2.2.1.
"Closing" means the consummation of the Transactions.
"Closing Date" means the date of the Closing.
"Code" means the Internal Revenue Code of 1986, as amended.
"Encumbrance" means any claim, charge, easement, encumbrance, lease,
covenant, security interest, lien, option, pledge, rights of others, or
restriction (whether on voting, sale, transfer, disposition or otherwise),
whether imposed by agreement, understanding, law, equity or otherwise.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and the related regulations and published interpretations.
"Financial Statements" means the financial statements referred to in
Section 3.6(a).
"GAAP" means generally accepted accounting principles in the United
States, as in effect from time to time.
"Governmental Entity" means any government or any agency, district,
bureau, board, commission, court, department, official, political subdivision,
tribunal or other instrumentality of any government, whether federal, state or
local, domestic or foreign.
"Hazardous Substance" means (but shall not be limited to) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Laws as "hazardous substances," "hazardous materials," "hazardous
wastes" or "toxic substances," or any other formulation intended to define, list
or classify substances by reason of deleterious properties such as ignitibility,
corrosivity, reactivity, radioactivity, carcinogenicity, reproductive toxicity
or "EP toxicity," and petroleum and drilling fluids, produced waters and other
wastes associated with the exploration, development, or production of crude oil,
natural gas or geothermal energy.
"Indemnifiable Claim" means any Loss for or against which any party
is entitled to indemnification under this Agreement; "INDEMNIFIED PARTY"
means the party entitled to indemnity hereunder; and "INDEMNIFYING PARTY"
means the party obligated to provide indemnification hereunder.
"Law" means any constitutional provision, statute or other law,
rule, regulation, or interpretation of any Governmental Entity and any Order.
"Loss" means any action, cost, damage, disbursement, expense,
liability, loss, deficiency, diminution in value, obligation, penalty or
settlement of any kind or nature, whether foreseeable or unforeseeable,
including but not limited to, interest or other carrying costs, penalties,
legal, accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid
in settlement, that may be imposed on or otherwise incurred or suffered by
the specified person.
"Order" means any decree, injunction, judgment, order, ruling,
assessment or writ.
"Permit" means any license, permit, franchise, certificate of
authority, or order, or any waiver of the foregoing, required to be issued by
any Governmental Entity.
"Person" means an association, a corporation, an individual, a
partnership, a trust or any other entity or organization, including a
Governmental Entity.
"Tax" means any foreign, federal, state, county or local income,
sales, use, excise, franchise, ad valorem, real and personal property,
transfer, gross receipt, stamp, premium, profits, customs, duties, windfall
profits, capital stock, production, business and occupation, disability,
employment, payroll, severance or withholding taxes, fees, assessments or
charges of any kind whatever imposed by any Governmental Entity, any interest
and penalties (civil or criminal), additions to tax, payments in lieu of
taxes or additional amounts related thereto or to the nonpayment thereof, and
any Loss in connection with the determination, settlement or litigation of
any Tax liability.
"Tax Return" means a declaration, statement, report, return or
other document or information required to be filed or supplied with respect
to Taxes.
"Transaction Documents" means this Agreement, the Assignment and
Assumption Agreement and the Xxxx of Sale.
"Transactions" means the transactions contemplated by the Transaction
Documents.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and
year first above written.
SERACARE, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name:
Title:
SILVER STATE PLASMA PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name:
Title:
EXHIBIT A
PROMISSORY NOTE
July, 1996 $300,000.00
For value received, the undersigned promises to pay to the order of
SILVER STATE PLASMA PRODUCTS, INC. c/o Nations Biologics, 000 Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxx, 00000, the principal sum of THREE HUNDRED THOUSAND AND
NO/100 ($300,000.00) DOLLARS, with interest at the rate of eight (8%) percent
per annum from July 2, 1996, payable in thirty-six (36) equal consecutive
monthly installments of $9,400.91 each; the first payment date being August 2,
1996 and thereafter on the 2nd day of each month.
Should it become necessary at maturity or on default, to place this
note in the hands of an attorney at law for collection, adjustment, compromise
or suit, the maker binds and obligates itself to pay all costs of collection,
including reasonable attorneys' fees.
Should any installment payment due on this note not be paid when due
and, if notwithstanding written notice to the maker of such default, more than
ten (10) days pass after such written notice without the maker having remedied
such default by making the installment payment(s) due, then the holder or
holders of this note shall have the option to accelerate all payments and to
demand payment in full of the balance due on this promissory note.
SERACARE
By: _________________________________
A-1
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and pursuant to the Asset Purchase Agreement
dated as of July 2, 1996 (the "Agreement") between SeraCare, Inc., a Delaware
corporation ("SeraCare"), and Silver State Plasma Products, Inc., a Nevada
corporation ("Silver State"), and intending to be legally bound hereby,
Silver State hereby assigns and SeraCare hereby assumes and agrees to perform
the obligations of Silver State (i) arising after the date hereof under that
certain Contract of Lease, dated as of November 10, 1995, by and between
Silver State and Alexander & Xxxxxx Xxxxxxxx Trust and the Plasma Contract,
dated as of July 11, 1995, by and between Silver State and Alpha Therapeutic
Corporation, and (ii) accrued salaries and wages (including taxes, vacation
and sick pay), base and percentage rents and telephone and utility charges
attributable to the Business as of the Closing Date (collectively, the
"Assumed Liabilities").
The Assumed Liabilities do not include, and SeraCare does not
hereby assume, agree to pay or otherwise perform any other liabilities or
obligations of Silver State.
This Assignment and Assumption Agreement shall be binding upon and
inure to the benefit of SeraCare and Silver State and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Assumption Agreement to be executed as of this 2nd day of July, 1996.
SILVER STATE PLASMA PRODUCTS, INC.
By:___________________________________
Name:
Title:
SERACARE, INC.
By:___________________________________
Name:
Title:
B-1
EXHIBIT C
SILVER STATE XXXX OF SALE
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and pursuant to the Asset Exchange Agreement, dated
as of July 2, 1996 (the ("Agreement"), between SeraCare, Inc., a Delaware
corporation ("SeraCare"), and Silver State Plasma Products, Inc., a Nevada
corporation ("Silver State"), and intending to be legally bound hereby,
Silver State hereby unconditionally and irrevocably sells, conveys, grants,
assigns and transfers to SeraCare and its successors and assigns all of
Silver State's legal, beneficial, and other right, title, and interest in and
to the business and assets, properties, rights, interests, privileges, claims
and contracts of every kind and nature, tangible and intangible, listed or
described as "Nevada Assets" in Section 1.1 of the Agreement, which is
incorporated herein by this reference.
The Nevada Assets do not include, and Silver State does not hereby sell,
convey, grant, assign or transfer to SeraCare any of Silver State's legal,
beneficial, and other right, title or interest in or to, the assets,
properties, rights, interests, privileges, claims and contracts of any kind
and nature, tangible or intangible listed or described as "Excluded Assets"
in Section 1.2 of the Agreement, which is incorporated herein by this
reference.
Silver State, for itself and its respective successors and assigns, hereby
covenants and agrees that, without further consideration, at any time and from
time to time after the date hereof, it will execute and deliver to SeraCare such
further instruments of sale, conveyance, assignment, and transfer, and take such
other action, all upon the reasonable request of SeraCare, in order to more
effectively sell, convey, grant, assign, transfer, and deliver all or any
portion of the Nevada Assets to SeraCare, and to assure and confirm to any other
person the ownership of the Nevada Assets by SeraCare, and to permit SeraCare to
exercise any of the franchises, rights, licenses, or privileges intended to be
sold conveyed, assigned, transferred, and delivered by Silver State to SeraCare
by this Silver State Xxxx of Sale.
This Silver State Xxxx of Sale shall be binding upon and inure to the
benefit of SeraCare and Silver State and their respective successors and
assigns.
C-1
IN WITNESS WHEREOF, Silver State has caused this Silver State Xxxx
of Sale to be executed as of this 2nd day of July, 1996.
SILVER STATE PLASMA PRODUCTS, INC.
By:___________________________________
Name:
Title:
C-2
EXHIBIT D
SERACARE XXXX OF SALE
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and pursuant to the Asset Exchange Agreement,
dated as of July 2, 1996 (the ("Agreement"), between SeraCare, Inc., a Delaware
corporation ("SeraCare"), and Silver State Plasma Products, Inc., a Nevada
corporation ("Silver State"), and intending to be legally bound hereby, SeraCare
hereby unconditionally and irrevocably sells, conveys, grants, assigns and
transfers to Silver State and its successors and assigns all of SeraCare's
legal, beneficial, and other right, title, and interest in and to the business
and assets, properties, rights, interests, privileges, claims and contracts of
every kind and nature, tangible and intangible, described as "APS Assets" in
Section 1.3 of the Agreement, which is incorporated herein by this reference.
This SeraCare Xxxx of Sale shall be binding upon and inure to the
benefit of SeraCare and Silver State and their respective successors and
assigns.
IN WITNESS WHEREOF, SeraCare has caused this SeraCare Xxxx of Sale to
be executed as of this 2nd day of July, 1996.
SERACARE, INC.
By:___________________________________
Name:
Title:
D-1
