EXHIBIT 6.9
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
SERACARE, INC.
AND
XX. XXXX XXXX
This Asset Purchase Agreement ("Agreement") is made and entered into this
3rd day of September, 1996 by and between SeraCare, Inc., a Delaware Corporation
with its principal place of business at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx
Xxxxxxx, XX. 00000 ("Purchaser") and Xx. Xxxx Xxxx, an individual ("Seller").
RECITALS:
WHEREAS, Purchaser wishes to acquire from Seller and the Seller wishes to
sell to Purchaser, upon the terms and subject to the conditions set forth
herein, the Transferred Assets (defined below) including the seller's startup
blood plasma donor centers located in (i) Clearfield, Utah (the "Clearfield
Center") and (ii) Raleigh, North Carolina (the "Raleigh Center"); and
WHEREAS, Purchaser and Seller have made and entered into that certain
Employment Agreement dated September 3, 1996, a copy of which is attached as
Exhibit A.
AGREEMENTS
Seller agrees to sell to Purchaser all rights and interests in leases,
leasehold improvements, fixed assets and/or any other personal property
attributable of both the Clearfield Center and the Raleigh Center currently
under lease to Seller
ASSETS TO BE ACQUIRED. On the Closing Date, as defined herein, Seller shall
assign, transfer, convey and deliver to Purchaser an assignment of the leases,
leasehold improvements, plus ownership in any and all other rights or assets
attributable to those locations, including the rights to any FDA or QPP licenses
and/or certifications which attach or may attach to those locations, including
the right to file for such licenses and/or certifications if they have not
already been applied for (herein referred to as "Transferred Assets").
Seller also agrees to complete the process of establishing both startup
locations as operational plasma collection centers by opening the doors as a
plasma collection center in both locations within a reasonable period of time
not to exceed 120 days from the Closing Date.
In the event that Seller (aka Xxxx) voluntarily ceases to be an employee of
Purchaser during the first twelve months after the Closing Date, Seller as a
part of this Agreement agrees to be in charge of the management and operation of
both the Raleigh Center and the Clearfield Center until the last day of the
twelfth month after the Closing Date.
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ASSUMPTION OF CERTAIN LIABILITIES. Purchaser hereby assumes and agrees to
perform and discharge all liabilities and continuing obligations of the Seller
specific to the Clearfield Center and Raleigh Center and disclosed herein as
follows:
a. the real estate leases specific to the Clearfield Center and the Raleigh
Center as listed on Schedule 2 attached hereto under the heading Leases; and
b. all other contracts, agreements policies, licenses, permits and
certifications in effect on the Closing Date and which are listed on
Schedule 2 attached hereto under the heading "Other Contracts and
Obligations".
c. Other than those liabilities and obligations listed on Schedule 2, Purchaser
assumes no responsibility for any other obligation.
CONSIDERATION
BASE CONSIDERATION. As consideration to Seller, Purchaser agrees to deliver
175,000 shares of common stock of the Purchaser within fifteen days of the "Open
For Business Date" (herein defined as the date that both the Raleigh Center and
Clearfield Center have processed their first donor). Both parties agree that the
175,000 shares of common stock are predicated upon a calculated Base Value of
$262,500 ($1.50 X 175,000) and an estimated investment by the purchaser of
$135,000 in total for both centers to render them ready to open for business.
Both parties further hereby agree that to the extent that the amount of
investment by the Purchaser exceeds $135,000, a corresponding reduction will be
made in the number of shares to be issued to Seller and to the extent that the
investment required of Purchaser is less than $135,000, a corresponding increase
will be made in the number of shares to be issued to Seller. By way of example,
if the actual investment by Purchaser totals $157,500, the Base Value would be
adjusted to $240,000 and the total number of shares of common stock to be issued
to Seller on the "Open For Business Date" would be 160,000. If the actual
investment by Purchaser totals 112,500, the Base Value would be adjusted to
$285,000 and the total number of shares to be issued would be 190,000.
ADDITIONAL CONSIDERATION. In addition to the Base Consideration, Seller and
Purchaser hereby agree on certain performance criteria which will serve as the
basis for Additional Consideration of a maximum of 125,000 shares of common
stock of Purchaser if all performance criteria as hereinafter defined are met.
Accordingly, if Clearfield Center and Raleigh Center in total generate a net
profit before taxes of $310,000 for the measurement period of twelve months
ending on the last day of eighteenth month following the Closing Date, Seller
shall receive as additional consideration 62,500 shares of common stock of
Purchaser. Further, if Clearfield Center and Raleigh Center in total generate a
net profit before taxes of $310,000 for the measurement period of twelve months
ending on the last day of thirtieth month following the Closing Date, Seller
shall receive as additional consideration another
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62,500 shares of common stock of Purchaser. The maximum Additional
Consideration to be delivered by Purchaser to Seller under this Agreement is
125,000 shares of common stock of Purchaser if the Clearfield Center and the
Raleigh Center generate a net profit before taxes of $310,000 or more for
each of the two twelve month periods.
In the event that the Employment Agreement between Seller (referred to as
Xxxx in the Employment Agreement attached herewith as Exhibit A) and
Purchaser (referred to as the Corporation in the Employment Agreement
attached herewith as Exhibit A) is terminated for cause and the performance
criteria referred to above are met, Seller shall be entitled to receive the
Additional Consideration referred to above.
CONDITIONS PRECEDENT TO CLOSING
BY SELLER. Seller shall fulfill all of the following before Purchaser is
obligated to close:
a. have provided Purchaser with copies of all documents listed on
Schedule 2.
b. have provided Purchaser with Lease Assignments signed by the appropriate
landlord for all leases listed on Schedule 2 in a form reasonably
satisfactory to Purchaser.
c. have delivered all consents, approvals and assignments required in
connection with the completion of the transaction contemplated by this
Agreement in form and content reasonably satisfactory to the Purchaser.
BY PURCHASER. Purchaser shall fulfill all of the following before Seller is
obligated to close:
a. have provided Seller with a copy of a Board of Directors resolution
authorizing the transaction contemplated by this agreement.
b. have provided Seller with a Draft letter instructing the Purchaser's
transfer agent to issue Common Stock of SeraCare, Inc. to the Seller in
satisfaction of the Base Consideration.
c. have delivered all consents, approvals and assignments required in
connection with the completion of the transaction contemplated by this
Agreement in form and content reasonably satisfactory to the Seller.
d. Seller shall have been provided an opportunity to review Purchasers
Books and Records.
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REPRESENTATIONS AND WARRANTIES
Seller hereby represents and warrants to the Purchaser as follows (with the
understanding that the Purchaser is relying materially on each such
representation and warranty in entering into and executing this Agreement):
A. OWNERSHIP IN THE LEASES, RIGHTS AND INTERESTS BEING ACQUIRED BY THE
PURCHASER FREE AND CLEAR OF ALL ENCUMBRANCES. Seller hereby represents
and warrants that he has good title, valid rights and ownership free and
clear of all encumbrances to the Transferred Assets with every authority
to transfer, assign and sell such interest, right or ownership to the
Purchaser as contemplated by this Agreement.
B. DUE AUTHORIZATION. The Seller has full power and authority as an
individual to enter into and perform his obligations under this
Agreement and each agreement, instrument and document to be executed by
the Seller in accordance herewith.
C. ALL LIABILITIES AND OBLIGATIONS HAVE BEEN LISTED ON SCHEDULE 2.
Seller hereby represents and warrants that all leases, contracts or
other obligations to be assumed by the Purchaser have been listed on
Schedule 2 and that Seller knows of no other leases, contracts or other
obligations relating to the Centers. Seller understands that any leases,
finders fees, commissions, contracts or other obligations not listed on
Schedule 2 will not be assumed by Purchaser.
D. COMPLIANCE WITH LAWS: ENVIRONMENTAL MATTERS. Seller hereby represents
and warrants that conduct of Seller has not violated any laws, the
non-compliance with which could have a material adverse effect on the
Purchaser or the operation of the Clearfield Center and/or Raleigh
Center (collectively referred to herein as the "Centers") as plasma
collection centers. The Seller has complied in all material respects
with all judicial and governmental requirements relating to any federal,
state or local environmental laws, regulations or ordinances, the
non-compliance with which would have a material adverse effect on the
Purchaser or the operation of the Centers.
E. LEGAL PROCEEDINGS. Seller hereby represents and warrants that there
is no Order or Action pending, or, to the best knowledge of the Seller,
threatened, against or affecting Seller or the Transferred Assets that
individually or when aggregated with one or more other Orders or Actions
has or could reasonably be expected to have a material adverse effect on
the Centers or on the Seller's ability to perform its obligations under
the terms of this Agreement.
F. NO BROKERS OR FINDERS. Seller hereby represents and warrants that no
agent, broker, finder, or investment or commercial banker, or other
Person or firm engaged by or acting on behalf of Seller or any of
Sellers relatives or affiliates in connection with the negotiation,
execution or performance of the transaction contemplated by this
Agreement, is or will be entitled to any brokerage or finder's or
similar fee or
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other commission as a result of this Agreement or the transaction
contemplated hereby.
G. INDEMNIFICATION OF PURCHASER. Seller hereby agrees to indemnify and
hold harmless the Purchaser, affiliates of the Purchaser, and any
officer, director, employee and consultant of the Purchaser
(collectively, the "Indemnified Parties") from and against any and all
damages, losses, claims, liabilities, demands, charges, suits,
penalties, costs and expenses which any of the Indemnified Parties may
sustain, or to which any of the Indemnified Parties may be subjected,
arising out of any breach or default by the Seller, excluding actions or
omissions of the Purchaser, of or under any of the representations,
warranties, covenants, agreements or other provisions of this Agreement
or any agreement or document executed in connection herewith.
H. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Regardless of any
investigation at any time made by or on behalf of any party hereto or of
any information any party may have in respect thereof, all covenants,
agreements, indemnities, representations and warranties made hereunder
or pursuant hereto or in connection with the transactions contemplated
hereby shall survive the execution of this Agreement for a period of
thirty six months following the date hereof.
I. NO MATERIAL ADVERSE CHANGE. Between the date of the signing of this
Agreement and September 1, 1996, Seller has no knowledge of any
circumstance, change in business conditions, or other event which may
occur or continue to occur which could reasonably expected to have a
material adverse effect on the Centers. During that period, Seller will
continue to direct the activities of the Centers in a prudent business
manner.
OTHER
CLOSING DATE. The closing date of the transactions contemplated by this
Agreement shall take place at a time, date and place agreed upon by the
parties on or before September 3, 1996 (the "Closing" or "Closing Date").
CONFIDENTIALITY. The parties agree the material terms of this Agreement shall
remain absolutely confidential. In the event any party or any officer,
director, shareholder or representative of either party to this agreement is
required to disclose the existence or terms of this Agreement by subpoena,
discovery or legal process, then such party shall utilize its best efforts to
notify the opposing parties prior to any disclosure so as to provide the
opposing parties with an opportunity to intervene for the purpose of
protecting its interests in non-disclosure.
JOINT DRAFTING. Both Seller and Purchaser have jointly participated in the
negotiations and drafting of this Agreement. In the event of a question of
intent or interpretation arises, this Agreement shall be construed as having
been drafted by both parties.
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ATTORNEY'S FEES. In the event of any dispute arising out of or related to
this Agreement, the prevailing party shall be entitled to recover, in
addition to any other damages afforded by law, all reasonable attorney's fees
incurred in the prosecution and defense of such and action.
APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
ENTIRE AGREEMENT. This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties hereto with respect to the
transaction contemplated by this Agreement. Each party to this Agreement
acknowledges that no representation, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf
of any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or
binding on either party.
MODIFICATIONS. Any modification of this Agreement shall be effective only if
it is in writing and signed by both parties to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first written above.
SELLER: PURCHASER:
By: /s/ Xxxx Xxxx By: /s/ Xxxxx X. Xxxxx
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Xxxx Xxxx, an Individual Xxxxx X. Xxxxx
President and CEO
SeraCare, Inc.
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