Exhibit 10.40
ASSET TRANSFER AGREEMENT
by and among
XXXXXX HEALTHCARE CORPORATION,
NEXELL THERAPEUTICS INC.,
and
NEXELL OF CALIFORNIA, INC.
ASSET TRANSFER AGREEMENT
------------------------
ASSET TRANSFER AGREEMENT ("Agreement"), made this 30th day of June, 1999,
by and among XXXXXX HEALTHCARE CORPORATION, a Delaware corporation with offices
at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("Baxter"), NEXELL
THERAPEUTICS INC., a Delaware corporation f/k/a VIMRx Pharmaceuticals Inc.
("Nexell"), and NEXELL OF CALIFORNIA, INC., a Delaware corporation f/k/a Nexell
Therapeutics, Inc. ("Nexell California"). Nexell and Nexell California, which
are collectively referred to from time to time herein as the "Nexell Group",
have offices located at Nine Parker, Xxxxxx, Xxxxxxxxxx 00000. Nexell has
executed this Agreement, intending to be bound hereby, solely with respect to
Sections 1, 3, 5, 8, 9, 15, 18, 19, 20, 21 and 23 of this Agreement.
RECITALS
WHEREAS, Baxter and the Nexell Group have entered into a strategic alliance
in the ex vivo cell therapies business;
WHEREAS, pursuant to that certain Asset Purchase Agreement by and among
Baxter, Nexell and Nexell California, dated as of October 10, 1997 (as amended,
the "Asset Purchase Agreement"), on December 17, 1997, Baxter sold to Nexell
California certain Assets relating to its Division (as that capitalized term is
defined in the Asset Purchase Agreement) and Business (as that capitalized term
is defined in the Asset Purchase Agreement);
WHEREAS, any capitalized terms used but not defined in this Agreement shall
bear the meaning ascribed to such terms in the Asset Purchase Agreement;
WHEREAS, pursuant to Section 6.2(J) of the Asset Purchase Agreement, Baxter
and Nexell California agreed to reconcile the Net Book Value of certain Assets
against a stated value for such Assets as set forth in Section 6.2(J) of the
Asset Purchase Agreement (the "Asset Reconciliation");
WHEREAS, contemporaneously with the Closing of the transactions
contemplated by the Asset Purchase Agreement, Baxter and Nexell California
entered into a number of other agreements, including the Distribution Agreement
and the Services Agreement;
WHEREAS, Baxter and the Nexell Group have entered into that certain Letter
of Intent, dated as of May 6, 1999 ("LOI"), wherein Baxter and the Nexell Group
have indicated their desire and intent that among other things (subject to the
terms and conditions contained in the LOI, including the parties' execution and
delivery of this Agreement and the other Definitive Agreements, as that
capitalized term is defined in the LOI): (a) Baxter shall provide a line of
credit not to exceed $20,000,000.00 to Nexell; (b) the Distribution Agreement
and the Services Agreement shall be terminated; (c) Baxter shall transfer
certain assets (including certain leased hardware and related assets) to Nexell
California and Nexell California will make offers of employment to certain
employees of Baxter relating to the sales and marketing of Nexell California
products previously distributed by Baxter; (d) contemporaneously with the
termination of the Distribution Agreement
and the Services Agreement described in item (b) above, the other Operating
Agreements (as that capitalized term is defined below) will be amended; and (e)
Baxter and the Nexell Group will resolve the Asset Reconciliation;
WHEREAS, in consideration of, as a condition precedent to, and
contemporaneously with the execution and delivery of this Agreement: (a) Baxter
and Nexell have executed and delivered that certain Credit Agreement, of even
date herewith; (b) Nexell has executed and delivered to Baxter that certain
Promissory Note in the principal amount of up to $20,000,000 of even date
herewith; (c) Baxter and Nexell California have executed and delivered that
certain United States and Canada Instrument Services Agreement of even date
herewith; (d) Xxxxxx X.X. and Nexell S.A. have executed and delivered that
certain Management Services Agreement of even date herewith (the "Management
Agreement"); (e) Baxter, Nexell and Nexell California have executed and
delivered that certain Royalty Agreement of even date herewith (the "Royalty
Agreement"); and (f) Baxter and Nexell California have executed and delivered
that certain Ceprate(R) Sub-Distributorship Agreement of even date herewith (the
agreements and instruments listed in items (a) through (f) of this paragraph,
inclusive, are hereinafter referred to collectively as the "Related Documents");
and
WHEREAS, Baxter, Nexell and Nexell California desire to provide for (a) the
termination of the Distribution Agreement and the Services Agreement; (b) the
transfer of certain assets (including certain leased hardware and related
assets) to Nexell California utilized in or relating to the sales and marketing
of Nexell California products previously distributed by Baxter under the
Distribution Agreement; (c) Nexell California's employment of certain employees
of Baxter relating to the sales and marketing of Nexell California products
previously distributed by Baxter under the Distribution Agreement; (d) the
resolution of the Asset Reconciliation; and (e) the assumption by Nexell of
Xxxxxx'x Adjusted P&L pending the ROW Asset Transfer Closing, as those
capitalized terms are hereinafter defined; all upon and subject to the terms and
conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and promises herein
contained, the parties agree as follows:
TERMS
1. Definitions and Interpretation.
------------------------------
1.1 Definitions. The following capitalized terms used herein shall have
-----------
the following meanings:
"Adjusted P&L" shall mean the worldwide (excluding the United States and
Canada) net income or losses of Xxxxxx'x and its Affiliates' cell therapy
business related to the Distributed Products (as that capitalized term is
defined in the Royalty Agreement), as shown on an adjusted unaudited
consolidated statement of income and losses for the period beginning and
including July 1, 1999, through and including the ROW Asset Transfer
Closing Date, and delivered by Baxter to Nexell California prior to the ROW
Asset Transfer Settlement Date pursuant to Section 3.4 of this Agreement.
The Adjusted P&L shall present fairly (although
2
not necessarily in accordance with GAAP) the consolidated results of
operations of Xxxxxx'x and its Affiliates' worldwide cell therapy business
relating to the Distributed Products, excluding the United States and
Canada, for such period and will be prepared on a basis consistent with the
pro-forma adjusted unaudited consolidated statement of income for Xxxxxx'x
and its Affiliates' European cell therapy business related to the
Distributed Products attached hereto as Schedule 1.1(a) (the "Pro-Forma").
"Asset Transfer Closing" shall mean the US Asset Transfer Closing and the
ROW Asset Transfer Closing, individually or collectively, as the context
requires.
"Asset Transfer Closing Date" shall mean the US Asset Transfer Closing Date
and the ROW Asset Transfer Closing Date, individually or collectively, as
the context requires.
"Asset Transfer Settlement" shall mean shall mean the US Asset Transfer
Settlement and the ROW Asset Transfer Settlement, individually or
collectively, as the context requires.
"Asset Transfer Settlement Date" shall mean the US Asset Transfer
Settlement Date and the ROW Asset Transfer Settlement Date, individually or
collectively, as the context requires.
"Assigned Agreements" shall mean the US Assigned Agreements and the ROW
Assigned Agreements.
"Assumed Liabilities" shall mean any liabilities and obligations of Baxter
under any Assigned Agreements of Baxter which (a) are validly and
effectively assigned to Nexell California pursuant to this Agreement and
(b) conform to the representations and warranties with respect thereto
contained in this Agreement, subject to the following: (i) in the case of
rental or other payments, only to the extent that such rental or other
payments relate to periods after the applicable Asset Transfer Closing
Date, and (ii) in the case of all other obligations under the Assigned
Agreements, only to the extent that the obligation (including payment) is
by its terms first to be performed after the applicable Asset Transfer
Closing Date, all of which are set forth in Schedule 1.1(e) attached hereto
---------------
or will be scheduled pursuant to Section 2.4 hereof.
"Leased Transferred Assets" shall bear the meaning set forth in Section
2.1(D).
"Leased Transferred Assets Purchase Price" shall mean the book value of all
Leased Transferred Assets transferred to Nexell California appearing on the
financial statements of Baxter, as initially determined as of the
applicable Asset Transfer Closing and subsequently adjusted and agreed to
by Baxter and Nexell California as of the applicable Asset Transfer
Settlement pursuant to Section 2.2 of this Agreement.
3
"Management P&L" shall mean a monthly adjusted unaudited consolidated
statement of net income and losses of Xxxxxx'x and its Affiliates'
worldwide (excluding the United States and Canada) cell therapy business
related to the Distributed Products.
"Nexell European Affiliate" shall mean European Affiliate(s) of Nexell
California reasonable acceptable to Baxter.
"Operating Agreements" shall mean the Antibody Manufacturing and Storage
Agreement (the "Antibody Agreement"), Hardware and Disposables
Manufacturing Agreement (the "Manufacturing Agreement"), and Hardware and
Disposables Supply Agreement (the "Supply Agreement").
"ROW Asset Transfer Closing" shall mean the consummation of the sale and
transfer of the ROW Transferred Assets by Baxter (or its Affiliates) to
Nexell California (or a Nexell European Affiliate), and the consummation of
the other transactions contemplated by this Agreement relating to the
transfer of the ROW Transferred Assets by Baxter (or its Affiliates) to
Nexell California (or a Nexell European Affiliate).
"ROW Asset Transfer Closing Date" shall mean any date prior to December 1,
1999, upon which, pursuant to a written notice delivered by Nexell
California to Baxter at least thirty (30) days prior to such date, Nexell
California elects to hold the ROW Asset Transfer Closing. Notwithstanding
any term or condition of this Agreement to the contrary, in the event that
the ROW Asset Transfer Closing shall not have occurred on or before the
close of business on November 29, 1999, the ROW Asset Transfer Closing Date
shall be November 30, 1999.
"ROW Asset Transfer Settlement" shall bear the meaning set forth in Section
2.2(A) of this Agreement.
"ROW Asset Transfer Settlement Date" shall mean the first business day that
is thirty (30) days after the ROW Asset Transfer Closing. Notwithstanding
any term or condition of this Agreement to the contrary, the ROW Asset
Transfer Settlement Date shall not be later than December 30, 1999.
"ROW Assigned Agreements" shall mean any leases of personal property
relating to the ROW Transferred Assets to which Baxter or any Baxter
Affiliate is a party as of the ROW Asset Transfer Closing and which are
identified in a written notice to be delivered by Baxter to Nexell
California prior to the ROW Asset Transfer Closing pursuant to Section 2.4
hereof, which notice shall include true and correct copies of such leases.
"ROW Assumed Liabilities" shall mean all Assumed Liabilities as of the ROW
Asset Transfer Closing Date, other than US Assumed Liabilities, identified
by Baxter in a written notice to Nexell California prior to the ROW Asset
Transfer Closing pursuant to Section 2.4 of this Agreement.
4
"ROW Service Contracts" shall mean all service contracts relating to
Isolex(R) and Maxsep(R) Products as of the ROW Asset Transfer Closing,
other than US Service Contracts, identified by Baxter in a written notice
to Nexell California prior to the ROW Asset Transfer Closing pursuant to
Section 2.4 of this Agreement (which notice shall also identify any
outstanding balances due on any prepaid amounts under the ROW Service
Contracts as of the ROW Asset Transfer Closing).
"ROW Transferred Assets" shall mean (a) the finished goods inventory
(including CEPRATE(R) Cell Selection Kits, if any, but excluding spare
parts and obsolete, short dated or outdated materials) of Baxter (or its
Affiliates) which were previously sold by Baxter (or its Affiliates) as a
distributor pursuant to and under the Distribution Agreement outside of the
United States and Canada and identified by Baxter in a written notice to
Nexell California prior to the ROW Asset Transfer Closing pursuant to
Section 2.4 of this Agreement; (b) copies of all customer lists, accounting
books and records, sales history, and accounts receivable statements and
agings which were used by Baxter with respect to Xxxxxx'x or its
Affiliate's prior obligations with respect to marketing and sales in all
jurisdictions outside of the United States and Canada under the
Distribution Agreement and which do not include additional proprietary
information of Baxter (or its Affiliates) which is unrelated to Xxxxxx'x
activities under the Distribution Agreement; (c) the hardware and related
assets leased or owned by Baxter (or its Affiliates) relating to its prior
obligations for marketing and sales under the Distribution Agreement
outside of the United States and Canada and identified by Baxter in a
written notice to Nexell California prior to the ROW Asset Transfer Closing
pursuant to Section 2.4 of this Agreement, (d) all ROW Assigned Agreements,
and (e) all ROW Service Contracts (including all payments due under the ROW
Service Contracts and the aggregate pro rata share of any outstanding
balance due on any prepaid amounts under any ROW Service Contract). For
the purposes of this Agreement, the term "pro rata share of any outstanding
balance due on any prepaid amount under any ROW Service Contract" shall
mean, with respect to each such ROW Service Contract, an amount computed
according to the following formula: The amount, if any, prepaid by a
customer under a ROW Service Contract, divided by the number of days of the
original term of such ROW Service Contract, and multiplied by the unexpired
number of days of the original term of such ROW Service Contract following
the ROW Asset Transfer Closing Date.
"ROW Transferred Assets Purchase Price" shall mean the aggregate US dollar
value of (a) the price at which Baxter (or its Affiliates) purchased from
Nexell California the finished goods inventory (but excluding Leased
Transferred Assets, spare parts and obsolete, short dated or outdated
materials) of Baxter (or its Affiliates) which forms part of the ROW
Transferred Assets, plus (b) the book value of all other ROW Transferred
----
Assets (excluding Leased Transferred Assets) appearing on the financial
statements of Baxter (or its Affiliates), all as initially determined as of
the ROW Asset Transfer Closing and subsequently adjusted and agreed to by
Baxter and Nexell California as of the ROW Asset Transfer Settlement
pursuant to Section 2.2(B) of this Agreement.
"Service Contracts" shall mean all US Service Contracts and all ROW Service
Contracts.
5
"Transferred Assets" shall mean US Transferred Assets and ROW Transferred
Assets.
"Transferred Assets Purchase Price" shall mean US Transferred Assets
Purchase Price, ROW Transferred Assets Purchase Price, and Leased
Transferred Assets Purchase Price.
"US Asset Transfer Closing" shall mean the consummation of the sale and
transfer of the US Transferred Assets by Baxter to Nexell California, and
the consummation of the related transactions contemplated by this Agreement
relating to the transfer of the US Transferred Assets by Baxter to Nexell
California.
"US Asset Transfer Closing Date" shall mean June 30, 1999.
"US Asset Transfer Settlement" shall bear the meaning set forth in Section
2.2(A) of this Agreement.
"US Asset Transfer Settlement Date" shall mean July 9, 1999.
"US Assigned Agreements" shall mean any leases of personal property
relating to the US Transferred Assets to which Baxter or any Baxter
Affiliate is a party and identified on Schedules 1.1(b) or 1.1(c) attached
---------------- ------
hereto, true and correct copies of which shall be delivered by Baxter to
Nexell California prior to the US Asset Transfer Settlement Date.
"US Assumed Liabilities" shall mean those Assumed Liabilities identified on
Schedule 1.1(e) attached hereto.
---------------
"US Service Contracts" shall mean all service contracts relating to
Isolex(R) and Maxsep(R) Products, as identified on Schedule 1.1(d) attached
---------------
hereto (Schedule 1.1(d) also identifies any outstanding balances due on any
---------------
prepaid amounts under the Service Contracts as of the date set forth
therein).
"US Transferred Assets" shall mean (a) the finished goods inventory
(including CEPRATE(R) Cell Selection Kits, but excluding spare parts and
obsolete, short dated or outdated materials) of Baxter as identified on
Schedule 1.1(b) attached hereto; (b) copies of all customer lists,
---------------
accounting books and records, sales history, and accounts receivable
statements and agings which were used by Baxter with respect to Xxxxxx'x
prior obligations for marketing and sales in the United States and Canada
under the Distribution Agreement and which do not include additional Baxter
proprietary information unrelated to Xxxxxx'x activities under the
Distribution Agreement; (c) the hardware and related assets leased or owned
by Baxter relating to its prior obligations for marketing and sales in the
United States and Canada under the Distribution Agreement and identified on
Schedule 1.1(c) attached hereto, (d) all US Assigned Agreements, and (e)
---------------
all US Service Contracts (including all payments due under the US Service
Contracts and the aggregate pro rata share of any outstanding balance due
on any prepaid amounts under any US Service Contract). For the
6
purposes of this Agreement, the term "pro rata share of any outstanding
balance due on any prepaid amount under any US Service Contract" shall
mean, with respect to each such US Service Contract, an amount computed
according to the following formula: The amount, if any, prepaid by a
customer under a US Service Contract, divided by the number of days of the
original term of such US Service Contract, and multiplied by the unexpired
number of days of the original term of such US Service Contract following
the US Asset Transfer Closing Date.
"US Transferred Assets Purchase Price" shall mean the aggregate US dollar
value of (a) the price at which Baxter purchased from Nexell California the
finished goods inventory (but excluding Leased Transferred Assets, spare
parts and obsolete, short dated or outdated materials) of Baxter as
identified on Schedule 1.1(b) attached hereto, plus (b) the price at which
--------------- ----
Baxter purchased from CellPro, Inc., the CEPRATE(R) Cell Selection Kits
(but excluding Leased Transferred Assets, spare parts and obsolete, short
dated or outdated materials) identified on Schedule 1.1(b) attached hereto,
---------------
plus (c) the book value of all other US Transferred Assets (excluding
----
Leased Transferred Assets) appearing on the financial statements of Baxter,
all as initially determined as of the US Asset Transfer Closing and
subsequently adjusted and agreed to by Baxter and Nexell California as of
the US Asset Transfer Settlement pursuant to Section 2.2(A) of this
Agreement.
1.2 Interpretation.
--------------
(A) In respect of any of Baxter or the Nexell Group, the terms "to the
knowledge of" such Person and "awareness of" such party, and variations thereof,
shall be deemed to refer to the actual knowledge and/or awareness (without any
requirement of inquiry) of the Relevant Persons of such Party. In respect of
Baxter, the term "Relevant Persons" shall be deemed to refer to Xxxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxxx and Xxxxxxxx Xxxxxxx. In respect of
the Nexell Group, the term "Relevant Persons" shall be deemed to refer to
Xxxxxxx X. Xxxxxxx and L. Xxxxxxx XxXxxxxx.
(B) Whenever in this Agreement the phrase "in the ordinary course of
business" is used, it shall be construed as meaning "in the ordinary course of
business and substantially consistent with prior practice."
(C) Whenever in this Agreement the term "including" is used, it shall
be construed as meaning "including but not limited to."
(D) All accounting terms not specifically defined herein shall be
construed in accordance with GAAP in effect at the Asset Transfer Closing Date.
(E) Whenever in this Agreement the term "agreement" is used, it shall
be deemed to refer to commitments, leases, licenses, contracts and agreements.
7
(F) Whenever in this Agreement the term "party to" is used in regard
to an agreement, it shall be construed as meaning "party to or bound by".
(G) Whenever in this Agreement the singular is used, it shall include
the plural if the context so requires, and whenever the masculine gender is used
in this Agreement, it shall be construed as if the masculine, feminine or neuter
gender, respectively, has been used where the context so dictates, with the rest
of the sentence being construed as if the grammatical and terminological changes
thereby rendered necessary have been made.
1.3 Definitions from Asset Purchase Agreement. Any other capitalized
-----------------------------------------
terms used but not defined in this Agreement shall bear the meaning ascribed to
such terms in the Asset Purchase Agreement.
2. Purchase, Sale and Delivery of the Transferred Assets.
-----------------------------------------------------
2.1 Purchase, Sale and Delivery.
----------------------------
(A) In reliance on the representations and warranties contained herein and
subject to all of the terms and conditions hereof, Baxter hereby agrees to
sell, assign, transfer and deliver (or cause to be sold, assigned,
transferred and delivered) to Nexell California, and Nexell California
agrees to purchase from Baxter:
(i) At the US Asset Transfer Closing, all of Xxxxxx'x right, title
and interest in and to the US Transferred Assets; and
(ii) At the ROW Asset Transfer Closing, all of Xxxxxx'x (or its
Affiliates') right, title and interest in and to the ROW Transferred
Assets.
(B) With respect to the US Asset Transfer Closing, Baxter has delivered all
of the US Transferred Assets to Nexell California, except for the US
Transferred Assets identified on Schedule 2.1(B) attached hereto, which
---------------
assets shall be delivered to Nexell California prior to the US Asset
Transfer Settlement Date. All US Transferred Assets will be delivered by
Baxter to Nexell California pursuant to this Section 2.1 FOB each such
Baxter facility where such US Transferred Assets are located per Nexell
California's notice of delivery.
(C) With respect to the ROW Asset Transfer Closing, Baxter (or its
Affiliates) will deliver all of the ROW Transferred Assets which are in the
possession of Baxter (or its Affiliates) at the ROW Asset Transfer Closing
to Nexell California (or a Nexell European Affiliate) at least ten (10)
days prior to the ROW Asset Transfer Settlement Date provided that Nexell
California (or a Nexell European Affiliate) provides a written notice to
Baxter on or before the ROW Asset Transfer Closing specifying the method of
delivery and destination of such ROW Transferred Assets. All ROW
Transferred Assets which are in the possession of Baxter (or its
Affiliates) at the ROW Asset Transfer Closing will be delivered by Baxter
(or its Affiliates) to Nexell California (or a Nexell European Affiliate)
pursuant
8
to this Section 2.1 FOB each such Baxter (or its Affiliates') facility
where such ROW Transferred Assets are located per Nexell California's
notice of delivery.
(D) Baxter and Nexell California acknowledge that certain of the US
Transferred Assets which are leased to Baxter customers pursuant to US
Assigned Agreements and identified on Schedules 1.1(b) or 1.1(c) are, and
---------------- ------
that ROW Transferred Assets which are or will be leased to customers of
Baxter (or its Affiliates) pursuant to ROW Assigned Agreements (which
Baxter will identify to Nexell California in schedules to be delivered by
Baxter to Nexell California on or before the ROW Asset Transfer Closing
pursuant to Section 2.4 of this Agreement) will be, on the applicable Asset
Transfer Closing, in the possession of customers of Baxter (or its
Affiliates) and that possession of such US Transferred Assets and ROW
Transferred Assets will remain in the possession of such customers after
the applicable Asset Transfer Closing (collectively, the "Leased
Transferred Assets") until such time as Nexell California directs
otherwise, subject to applicable contractual obligations and law. Upon and
after the applicable Asset Transfer Closing Date Nexell California (or a
Nexell European Affiliate) shall be solely responsible for so obtaining
delivery and possession of such Leased Transferred Assets from such
customers.
(E) Except for Leased Transferred Assets, Baxter (or its Affiliates) shall
bear the costs for de-installing and packing the US Transferred Assets and
ROW Transferred Assets for shipment.
2.2 Purchase Consideration.
----------------------
(A) Except with respect to Leased Transferred Assets, on or before the US
Asset Transfer Settlement Date, Nexell California, at its sole cost and
expense, shall conduct a physical inventory of US Transferred Assets
delivered to Nexell California pursuant to Section 2.1 above and the
parties agree to negotiate in good faith any adjustment to the US
Transferred Asset Purchase Price resulting from such physical inventory
(the "US Asset Transfer Settlement"). Except with respect to Leased
Transferred Assets, in consideration of the sale, assignment and transfer
of the US Transferred Assets pursuant to Section 2.1 hereof, Nexell
California agrees to pay to Baxter the US Transferred Asset Purchase Price
in United States funds by wire transfer or by certified or bank cashier's
check within six (6) months of the US Asset Transfer Settlement Date. In
the event that the Nexell Financing Event occurs on or before December 31,
1999, and the amount of the Nexell Financing Event is increased from
$60,000,000 to $63,000,000, the total payment owing to Baxter pursuant to
the immediately preceding sentence will automatically be due and payable in
full not later than December 31, 1999.
(B) Except with respect to Leased Transferred Assets, on or before the ROW
Asset Transfer Settlement Date, Nexell California (or a Nexell European
Affiliate), at its sole cost and expense, shall conduct a physical
inventory of ROW Transferred Assets delivered to Nexell California (or a
Nexell European Affiliate) pursuant to Section 2.1 above and the parties
agree to negotiate in good faith any adjustment to the ROW Transferred
Asset
9
Purchase Price resulting from such physical inventory (the "ROW Asset
Transfer Settlement"). Except with respect to Leased Transferred Assets, in
consideration of the sale, assignment and transfer of the ROW Transferred
Assets pursuant to Section 2.1 hereof, Nexell California agrees to pay or
cause a Nexell European Affiliate to pay to Baxter (or its Affiliates) the
ROW Transferred Asset Purchase Price in United States funds by wire
transfer or by certified or bank cashier's check within six months of the
ROW Asset Transfer Settlement Date. In the event that the Nexell Financing
Event occurs on or before December 31, 1999, and the amount of the Nexell
Financing Event is increased from $60,000,000 to $63,000,000, the total
payment owing to Baxter pursuant to the immediately preceding sentence will
automatically be due and payable in full not later than December 31, 1999.
(C) With respect to any Leased Transferred Assets for which title is
transferred to Nexell California (or a Nexell European Affiliate) at any
Asset Transfer Closing, Nexell California shall review the schedules of
Leased Transferred Assets and the Assigned Agreements and the parties agree
to negotiate in good faith any adjustment to the applicable Leased
Transferred Assets Purchase Price resulting from any discrepancies
contained in such schedules, on or before the applicable Asset Transfer
Settlement Date. Nexell California or cause a Nexell European Affiliate to
pay to Baxter (or its Affiliates) the Leased Transferred Asset Purchase
Price with respect to such Leased Transferred Assets over a period of three
(3) years, in twelve (12) equal consecutive quarterly installments, payable
as follows: The first quarterly installment shall be payable by Nexell
California not later than the last business day of the first full three (3)
month period following the applicable Asset Transfer Settlement Date, and
each of the remaining quarterly installments shall be payable not later
than the last business day of each successive three (3) month period until
the Leased Transferred Asset Purchase Price is fully paid. All such
quarterly installments shall be payable by Nexell California to Baxter in
United States funds by wire transfer or by certified or bank cashier's
check. In the event that the Nexell Financing Event occurs on or before
December 31, 1999, and the amount of the Nexell Financing Event is
increased from $60,000,000 to $63,000,000, the total payment owing to
Baxter pursuant to the immediately preceding sentence will automatically be
accelerated and shall be due and payable in full not later than December
31, 1999.
(D) Xxxxxx shall deliver to Nexell California such federal funds wire
transfer instructions and/or an address for the delivery of payment of
funds by Nexell California pursuant to this Section 2.2 not later than the
US Asset Transfer Settlement Date and may change such wire transfer
instructions or address at any time thereafter pursuant to Section 19
hereof.
2.3 Liabilities.
-----------
(A) Liabilities Not Assumed. Except as specifically provided in
-----------------------
Section 2.3(B) and except with respect to the Adjusted P&L, Nexell California
neither assumes nor shall be obligated to pay, perform or discharge, and Xxxxxx
hereby agrees to pay, perform, discharge or otherwise satisfy in due course and
to hold the Nexell Group harmless from, any and all debts, liabilities and
obligations of Xxxxxx, whether known or unknown, fixed, contingent or otherwise,
10
including, without limitation, all Taxes and liabilities under Environmental
Laws relating to, any of (i) the US Transferred Assets and arising prior to or
on the US Asset Transfer Closing Date, or (ii) the ROW Transferred Assets and
arising prior to or on the ROW Asset Transfer Closing Date (all such non-assumed
liabilities being hereinafter collectively referred to as the "Non-Assumed
Liabilities").
(B) Assumed Liabilities. In addition to the consideration payable
-------------------
pursuant to Section 2.2 hereof, and subject to the terms and conditions set
forth in this Agreement, effective as of the applicable Asset Transfer Closing
Date, Nexell California hereby assumes only (i) the US Assumed Liabilities as of
the US Asset Transfer Closing Date and (ii) the ROW Assumed Liabilities as of
the ROW Asset Transfer Closing Date.
(C) Nexell Group Liabilities. Xxxxxx shall have no liability for any
------------------------
obligations of the Nexell Group that are incurred or arise after the applicable
Asset Transfer Closing Date with respect to the US Transferred Assets or the ROW
Transferred Assets except to the extent (i) otherwise provided in this Agreement
or (ii) that any such liability arises from a wrongful act or omission on the
part of Xxxxxx, any Affiliate of Xxxxxx, or any Representative of any of the
foregoing.
(D) Nexell Financing. Xxxxxx will provide support to Nexell for the
----------------
completion of a Financing Event (as defined in the LOI) substantially similar to
the transaction described in the document entitled "Nexell Therapeutics Inc.
Sale of Units", dated April 23, 1999, and attached to the LOI as Exhibit A (such
an event, a "Nexell Financing Event"), as follows: In connection with the
issuance by Nexell of Series B Preferred Stock (a Nexell Financing Event),
Xxxxxx has agreed to accept a "Put Right" (as that term is defined in the
Exhibit A to the LOI) and shall take all steps reasonably required to complete
its obligations thereunder as and when appropriate.
2.4 Delivery of Schedules by Xxxxxx With Respect to the ROW Asset Transfer
----------------------------------------------------------------------
Closing. Xxxxxx shall deliver to Nexell, at least thirty (30) days prior to the
-------
ROW Asset Transfer Closing, the following schedules: Schedule of ROW Service
Contracts (identifying any outstanding balances due on any prepaid amounts under
the ROW Service Contracts as of the ROW Asset Transfer Closing); Schedule of
finished goods inventory forming part of the ROW Transferred Assets; Schedule of
hardware and related assets forming part of the ROW Transferred Assets; Schedule
of ROW Assigned Agreements forming part of the ROW Transferred Assets; Schedule
of ROW Service Contracts forming part of the ROW Transferred Assets (including
all payments due under the ROW Service Contracts and the aggregate pro rata
share of any outstanding balance due on any prepaid amounts under any ROW
Service Contract); Schedule of ROW Assumed Liabilities; and a Schedule of ROW
Leased Transferred Assets.
3. Termination of Distribution Agreement and Adjusted P&L.
------------------------------------------------------
11
3.1 Termination of Distribution Agreement For US and Canada. The
-------------------------------------------------------
Distribution Agreement is hereby terminated effective as of the US Asset
Transfer Closing Date, and all obligations of both Xxxxxx and Nexell California
thereunder are terminated, null and void as of the US Asset Transfer Closing
Date (including the provisions of Section 2.3 of the Distribution Agreement),
only with respect to the United States and Canada, provided that each of Xxxxxx
-------------
and Nexell California agree that notwithstanding the termination of the
Distribution Agreement with respect to the United States and Canada:
(A) Xxxxxx will fulfill any obligations with respect to any Products
in transit to customers in the United States and Canada on the date hereof
pursuant to the terms and conditions of the Distribution Agreement;
(B) Subject to Section 3.1(C) below, each of Xxxxxx and/or Nexell
California shall pay any amounts to the other party to the Distribution
Agreement which have accrued but not yet been paid as of the date of this
Agreement, or which will accrue and will be payable for services performed or
Products sold as of the date of this Agreement, with respect to the United
States and Canada pursuant to the terms and conditions of the Distribution
Agreement; and
(C) Xxxxxx will collect and retain for its own account any accounts
receivable arising in the ordinary course of business from its sales of Products
under the Distribution Agreement prior to the date of this Agreement with
respect to the United States and Canada.
3.2 Distribution in the Rest of the World.
--------------------------------------
(A) Xxxxxx (or its designated Affiliates) shall remain as the
exclusive distributor of Products under the terms and conditions of the
Distribution Agreement in the Xxxxxx Region (as that capitalized term is defined
in the Distribution Agreement), excluding the United States and Canada (the
"ROW"), pursuant to the terms and conditions of the Distribution Agreement
through and including the ROW Asset Transfer Closing Date (the "ROW Distribution
Obligations"). Xxxxxx (or its designated Affiliates) will collect and retain
for its own account any accounts receivable arising in from its sales of
Products in the ROW through and including the ROW Asset Transfer Closing Date.
(B) The Non-Competition and Confidentiality Agreement dated as of
December 17, 1997, by and among Xxxxxx, Nexell and Nexell California, as
amended, shall remain in full force and effect according to its terms as if the
Distribution Agreement were not terminated at any Asset Transfer Closing Date,
provided that this Section 3.2(B) shall not otherwise extend the term of the
Non-Competition and Confidentiality Agreement.
(C) From the US Asset Transfer Closing Date until the termination of
Xxxxxx'x ROW Distribution Obligations, and subject to the terms and conditions
of this Agreement, Xxxxxx (or its designated Affiliates) shall continue to act
in the ordinary course of business with respect to Xxxxxx'x ROW Distribution
Obligations and its obligations under the Distribution Agreement and the
Operating Agreements.
12
3.3 Termination of Distribution Agreement For ROW. Subject to the early
----------------------------------------------
termination of the provisions of the Distribution Agreement with respect to the
United States and Canada pursuant to Section 3.1 hereof, the Distribution
Agreement shall automatically terminate effective as of the ROW Asset Transfer
Closing Date, and all obligations of both Xxxxxx (or its Affiliates) and Nexell
California thereunder shall be terminated, null and void as of the ROW Asset
Transfer Closing Date (including the provisions of Section 2.3 of the
Distribution Agreement) with respect to the ROW, provided that each of Xxxxxx
-------------
and Nexell California agree that notwithstanding the termination of the
Distribution Agreement with respect to the ROW:
(A) Xxxxxx (or its Affiliates) will fulfill any obligations with
respect to any Products in transit to customers in the ROW on the ROW Asset
Transfer Closing Date pursuant to the terms and conditions of the Distribution
Agreement;
(B) Subject to Section 3.3(C) below, each of Xxxxxx (or its
Affiliates) and/or Nexell California shall pay any amounts to the other party to
the Distribution Agreement which have accrued but not yet been paid as of the
ROW Asset Transfer Closing Date, or which will accrue and will be payable for
services performed or Products sold as of the ROW Asset Transfer Closing Date,
with respect to the ROW pursuant to the terms and conditions of the Distribution
Agreement; and
(C) Xxxxxx (or its Affiliates) will collect and retain for its own
account any accounts receivable arising in the ordinary course of business from
its sales of Products under the Distribution Agreement prior to the ROW Asset
Transfer Closing Date with respect to the ROW.
3.4 Adjusted P&L. Xxxxxx shall deliver the Adjusted P&L to Nexell
------------
California at least ten (10) days prior to the ROW Asset Transfer Settlement
Date. Both Nexell California and Xxxxxx will review the Adjusted P&L and, in
the event that Nexell California disputes any part of the Adjusted P&L, Xxxxxx
and Nexell will negotiate in good faith the Adjusted P&L to the end that the
parties shall agree to the Adjusted P&L not later than the ROW Asset Transfer
Settlement Date. In consideration of Xxxxxx'x agreement to continue to act as
the distributor for Nexell California in the ROW pursuant to Section 3.2 above,
Xxxxxx and Nexell agree as follows:
(A) In the event that the Adjusted P&L indicates a loss, Nexell shall
indemnify and hold Xxxxxx (and its Affiliates) harmless in respect of the
aggregate of all losses of Xxxxxx as indicated in the Adjusted P&L and shall pay
the aggregate amount of such losses to Xxxxxx in immediately available United
States funds by wire transfer or by certified or bank cashier's check within six
(6) months of the ROW Asset Transfer Settlement Date.
(B) In the event that the Adjusted P&L indicates a profit, Xxxxxx
shall pay the profit as indicated in the Adjusted P&L to Nexell California in
immediately available United States funds by wire transfer or by certified or
bank cashier's check within six (6) months of the ROW Asset Transfer Settlement
Date. Nexell California shall provide to Xxxxxx federal funds wire transfer
instructions at the ROW Asset Transfer Settlement Date.
13
3.5 Management P&L. Xxxxxx shall deliver the Management P&L to Nexell
--------------
California from the US Asset Transfer Closing Date until the ROW Asset Transfer
Closing Date on a monthly basis for each month during such period in the
ordinary course of Xxxxxx'x business.
4. Services Agreements and LOI.
----------------------------
4.1 Termination of Services Agreement. The Services Agreement is hereby
---------------------------------
terminated effective as of the US Asset Transfer Closing Date, provided that
-------------
each of Xxxxxx and Nexell California agree that notwithstanding the termination
of the Services Agreement, each of Xxxxxx and/or Nexell California shall pay any
amounts due to the other party pursuant to the terms and conditions of the
Services Agreement, if any, which have accrued but have not yet been paid as of
the date of this Agreement. Following the US Asset Transfer Closing Date, all
warehousing and distribution, customer service, service contracts and billing
and collection previously performed by Xxxxxx under the Distribution Agreement
and the Services Agreement shall be performed with respect to the United States
and Canada by or at the direction of Nexell California.
4.2 New Services Agreement. Nexell and Xxxxxx hereby agree to continue
----------------------
to negotiate in good faith between the US Asset Transfer Closing Date and the
ROW Asset Transfer Closing Date a services agreement relating to Nexell's
European operations on terms and conditions mutually satisfactory to each of
Nexell and Xxxxxx in their sole discretion.
4.3 Termination of LOI. The LOI is hereby terminated effective as of the
------------------
date of this Agreement.
4.4 Waiver of Interest. Xxxxxx hereby agrees to waive any prepayment
------------------
penalty due and payable to Xxxxxx pursuant to the terms of Nexell's outstanding
convertible debentures held by Xxxxxx as of the date of this Agreement only if
such prepayment penalty becomes due and payable as a result of Nexell's
redemption of such debentures using proceeds from the Nexell Financing Event.
5. Operating Agreements. Subject to the remaining terms of the Operating
--------------------
Agreements, Nexell California and Xxxxxx acknowledge and agree that
notwithstanding the termination of the Distribution Agreement pursuant to
Section 3 above, Xxxxxx'x obligations with respect to the delivery of Products
to Nexell California pursuant to Section 19 of the Antibody Agreement, Section
19 of the Manufacturing Agreement, and Section 18 of the Supply Agreement,
during the period between the US Asset Transfer Closing and the ROW Asset
Transfer Closing, and as of and following the ROW Asset Transfer Closing, are as
set forth in Schedule 5 to this Agreement and that the Operating Agreements
----------
shall remain in full force and effect.
6. Representations and Warranties of Xxxxxx. Xxxxxx represents and warrants
-----------------------------------------
to Nexell California as of the US Asset Transfer Closing and the ROW Asset
Transfer Closing, as applicable, that:
14
6.1 Good Standing. Xxxxxx is a corporation organized, validly existing and
-------------
in good standing under the laws of the State of Delaware, and with respect to
the Transferred Assets and the transactions contemplated by this Agreement, has
all necessary corporate power and authority to own, lease and operate its
properties and to carry on its business as the same is now being conducted.
6.2 Authority. Xxxxxx possesses full right, corporate power and legal
---------
authority to execute and deliver this Agreement and the Related Documents to be
executed by Xxxxxx and to perform each of the agreements and make each of the
representations and warranties on its part to be performed and made hereunder
and thereunder. The execution and delivery of this Agreement and the Related
Documents to be executed by Xxxxxx and the consummation by it of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action on the part of Xxxxxx. This
Agreement and the Related Documents to be executed by Xxxxxx have been duly and
validly executed by Xxxxxx and constitute the legal, valid and binding
obligations of Xxxxxx enforceable against it in accordance with their terms
subject to the qualification that the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws, now or hereafter in effect, affecting creditors' rights and except
that the availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for the
enforcement thereof may be brought. The execution and delivery of this Agreement
by Xxxxxx and the Related Documents to be executed by Xxxxxx and the performance
by it of all of the transactions contemplated herein and therein do not and
shall not (with or without the giving of notice or the passage of time or both)
(A) violate or conflict with the Certificate of Incorporation or By-laws of
Xxxxxx, or (B) (1) violate or conflict with any law, rule, ruling,
determination, ordinance or regulation of any Authority or any condition or
provision of, (2) result in the creation or imposition of any Encumbrance upon
any of the Transferred Assets of Xxxxxx pursuant to, (3) accelerate or create,
or permit the acceleration or creation of, any liability or obligation of Xxxxxx
under, or (4) cause a termination under or give rise to a right of termination
under the terms of, any mortgage, lien, agreement, indenture, trust, instrument,
order, judgment or decree to which Xxxxxx is a party or which is binding upon
Xxxxxx (it being agreed that this subsection (B) shall be deemed to refer only
to the Transferred Assets and those liabilities, obligations, mortgages, liens,
agreements, indentures, trusts, instruments, orders, judgments and decrees which
relate to or affect the Transferred Assets and/or the Assumed Liabilities and
which are being transferred to or assumed by Nexell California).
6.3 Title to Transferred Assets. Xxxxxx (or its Affiliates) is the sole
---------------------------
and exclusive owner of and has good and valid title to all of the Transferred
Assets, free and clear of all Encumbrances, except for Permitted Encumbrances
and for the rights of any third party lessee arising under applicable leases
relating to the Leased Transferred Assets, and, except as otherwise provided in
any agreement between Xxxxxx, Nexell or Nexell California or by applicable law,
rule or regulation there exists no restriction on the use, ownership or transfer
of the any Transferred Assets by Xxxxxx to Nexell California. All Transferred
Assets consisting of finished goods inventory (excluding spare parts) shall be
transferred by Xxxxxx to Nexell California subject to the representations,
warranties and indemnification obligations of the parties contained in Section
22 of the Antibody Agreement, Section 22 of the Manufacturing Agreement, and
Sections 20 and 23 of the Supply Agreement.
15
6.4 Assigned Agreements.
-------------------
(A) To Xxxxxx'x knowledge, there is no existing material breach of any
of the Assigned Agreements by Xxxxxx, no event has occurred which, with the
lapse of time or the giving of notice or both, is reasonably likely to
constitute a material breach of any such agreement by Xxxxxx or give rise to a
right on the part of any of the other parties thereto to terminate such
agreement or to deprive Xxxxxx of any material right, or accelerate any of its
material obligations, thereunder.
(B) To Xxxxxx'x knowledge, there is no existing material breach of any
of the Assigned Agreements by any party (other than Xxxxxx) thereto and no event
has occurred which, with the lapse of time or the giving of notice or both, is
reasonably likely to constitute a material breach thereof by such other party or
give rise to a right on the part of Xxxxxx to terminate such agreement or to
deprive the other party of any right, or accelerate any obligation of such
party, thereunder.
6.5 Schedules of Transferred Assets. Schedules 1.1(b) and 1.1(c) set
------------------------------- ---------------- ------
forth the book value and accumulated depreciation of the US Transferred Assets
as of the dates set forth therein on the books and records of Xxxxxx, the
location and original cost to Xxxxxx of the US Transferred Assets as of the
dates set forth therein, the names and addresses of persons with custody of any
US Transferred Assets not in the possession of Xxxxxx and the related serial
number and version of such instruments, and all US Assigned Agreements related
thereto, and prior to the US Asset Transfer Settlement Date Xxxxxx shall deliver
to Nexell California true and correct copies of all US Assigned Agreements
described therein. As of the ROW Asset Transfer Closing, the schedules to be
delivered by Xxxxxx to Nexell California pursuant to Section 2.4 of this
Agreement shall set forth the book value and accumulated depreciation of the ROW
Transferred Assets as of the dates set forth therein on the books and records of
Xxxxxx, to Xxxxxx'x knowledge the location and original cost to Xxxxxx of the
Leased Transferred Assets forming part of the ROW Transferred Assets as of the
dates set forth therein, the location and original cost to Xxxxxx of the other
ROW Transferred Assets as of the dates set forth therein, to Xxxxxx'x knowledge
the names and addresses of persons with custody of any of the Leased Transferred
Assets forming part of the ROW Transferred Assets not in the possession of
Xxxxxx and the related serial number and version of such instruments, the names
and addresses of persons with custody of any other ROW Transferred Assets not in
the possession of Xxxxxx and the related serial number and version of such
instruments, and all ROW Assigned Agreements related thereto, and true and
correct copies of all ROW Assigned Agreements will be attached thereto. In the
event that the schedules so supplied by Xxxxxx (a) setting forth the location
and original cost to Xxxxxx of the Leased Transferred Assets forming part of the
ROW Transferred Assets and/or (b) setting forth the names and addresses of
persons with custody of any of the Leased Transferred Assets forming part of the
ROW Transferred Assets not in the possession of Xxxxxx and the related serial
number and version of such instruments, are inaccurate to the detriment of
Nexell and disputed by Nexell prior to the ROW Asset Transfer Settlement Date,
the parties shall meet to resolve such dispute pursuant to Section 23.6 of this
Agreement.
7. Representations and Warranties of Nexell California. Nexell California
----------------------------------------------------
represents and warrants to Xxxxxx as of the US Asset Transfer Closing and the
ROW Asset Transfer Closing, as applicable, that:
16
7.1 Good Standing. Nexell California is a corporation organized, validly
-------------
existing and in good standing under the laws of the State of Delaware and has
all necessary corporate power and authority to own, lease and operate its
properties and to carry on its business as the same is now being conducted.
7.2 Authority. Nexell California possesses full right, corporate power and
---------
legal authority to execute and deliver this Agreement and the Related Documents
to be executed by Nexell California and to perform each of the agreements and
make each of the representations and warranties on its part to be performed and
made hereunder and thereunder. The execution and delivery of this Agreement by
Nexell California and the Related Documents to be executed by Nexell California
and the consummation by it of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on the
part of Nexell California. This Agreement and the Related Documents to be
executed by Nexell California have been duly and validly executed by Nexell
California and constitute the legal, valid and binding obligations of Nexell
California enforceable against it in accordance with their terms subject to the
qualification that the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws,
now or hereafter in effect, affecting creditors' rights and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding for the enforcement
thereof may be brought. The execution and delivery of this Agreement by Nexell
California and the Related Documents to be executed by Nexell California and the
performance by it of all of the transactions contemplated herein and therein do
not and shall not (with or without the giving of notice or the passage of time
or both) (A) violate or conflict with the Certificate of Incorporation or By-
laws of Nexell California, or (B) (1) violate or conflict with any law, rule,
ruling, determination, ordinance or regulation of any Authority or any condition
or provision of, (2) result in the creation or imposition of any Encumbrance
upon any of the assets of Nexell California pursuant to, (3) accelerate or
create, or permit the acceleration or creation of, any liability or obligation
of Nexell California under, or (4) cause a termination under or give rise to a
right of termination under the terms of, any mortgage, lien, agreement,
indenture, trust, instrument, order, judgment or decree to which Nexell
California is a party or which is binding upon Nexell California.
8. Representations and Warranties of Nexell. Nexell represents and warrants
-----------------------------------------
to Xxxxxx as of the US Asset Transfer Closing and the ROW Asset Transfer
Closing, as applicable, that:
8.1 Good Standing. Nexell is a corporation organized, validly existing and
-------------
in good standing under the laws of the State of Delaware and has all necessary
corporate power and authority to own, lease and operate its properties and to
carry on its business as the same is now being conducted.
17
8.2 Authority. Nexell possesses full right, corporate power and legal
---------
authority to execute and deliver this Agreement and the Related Documents to be
executed by Nexell and to perform each of the agreements and make each of the
representations and warranties on its part to be performed and made hereunder
and thereunder. The execution and delivery of this Agreement by Nexell and the
Related Documents to be executed by Nexell and the consummation by it of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action on the part of Nexell. This
Agreement and the Related Documents to be executed by Nexell have been duly and
validly executed by Nexell and constitute the legal, valid and binding
obligations of Nexell enforceable against it in accordance with their terms
subject to the qualification that the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws, now or hereafter in effect, affecting creditors' rights and except
that the availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for the
enforcement thereof may be brought. The execution and delivery of this Agreement
by Nexell and the Related Documents to be executed by Nexell and the performance
by it of all of the transactions contemplated herein and therein do not and
shall not (with or without the giving of notice or the passage of time or both)
(A) violate or conflict with the Certificate of Incorporation or By-laws of
Nexell, or (B) (1) violate or conflict with any law, rule, ruling,
determination, ordinance or regulation of any Authority or any condition or
provision of, (2) result in the creation or imposition of any Encumbrance upon
any of the assets of Nexell pursuant to, (3) accelerate or create, or permit the
acceleration or creation of, any liability or obligation of Nexell under, or (4)
cause a termination under or give rise to a right of termination under the terms
of, any mortgage, lien, agreement, indenture, trust, instrument, order, judgment
or decree to which Nexell is a party or which is binding upon Nexell.
9. Asset Reconciliation. Xxxxxx, Nexell and Nexell California hereby (a)
--------------------
agree that Section 6.2(J) of the Asset Purchase Agreement is hereby terminated,
null and void, ab initio, and (b) waive, release and forgive any and all claims,
rights, contractual remedies and causes of action of any kind whatsoever with
respect to the Asset Reconciliation, ab initio.
10. Assignment of Assigned Agreements. To the extent that any Assigned
---------------------------------
Agreement is not capable of being assigned, transferred or conveyed without the
approval, consent, novation or waiver of the issuer thereof or the other party
or parties thereto, or any other third person (including an Authority), or would
be breached in the event of a sale, assignment, transfer, or conveyance without
such approval, consent or waiver, this Agreement shall not, in the event any
such issuer or third party shall object to such assignment, constitute a sale,
assignment, transfer or conveyance thereof, or an attempted sale, assignment,
transfer or conveyance thereof absent such approval, consent or waiver. At the
request of Nexell California, Xxxxxx shall use its commercially reasonable best
efforts, both prior and subsequent to the applicable Asset Transfer Closing
Date, to obtain all necessary approvals, consents or waivers necessary to convey
to Nexell California each such Assigned Agreement as soon as reasonably
practicable; provided, however, that Xxxxxx shall not be required to pay any
-------- -------
additional consideration in order to obtain such approvals, consents or waivers.
Schedules 1.1(b) and 1.1(c) identify those US Assigned Agreements for which
---------------- ------
Xxxxxx has not received the necessary approvals, consents or waivers as of the
date of this Agreement. As of the ROW Asset Transfer Closing, the schedules to
be delivered by Xxxxxx to Nexell California pursuant to Section 2.4 of this
Agreement
18
shall identify those ROW Assigned Agreements for which Xxxxxx has not received
the necessary approvals, consents or waivers as of the date of such schedules.
To the extent any of the approvals, consents or waivers referred to in this
Section 10 have not been obtained as of the applicable Asset Transfer Closing
Date, Xxxxxx shall, during the remaining term of the applicable Assigned
Agreement (and without limiting Nexell California's right to have Xxxxxx
persist, following the applicable Asset Transfer Closing Date, in attempting to
obtain any such approval, consent or waiver), exercise commercially reasonable
best efforts to cooperate with Nexell California in any reasonable and lawful
arrangements designed to provide the benefits of such Assigned Agreement to
Nexell California.
11. Facilitation of Possession. Subject to Section 2.1(D), subsequent to the
--------------------------
applicable Asset Transfer Closing Date, Xxxxxx, at the request of Nexell
California, shall write letters to, and otherwise communicate with third
parties, and do such other reasonable acts and things as may be necessary or
appropriate, to facilitate the gaining of possession by Nexell California of the
applicable Transferred Assets.
12. Employment of Key North American Employees.
------------------------------------------
(A) Nexell California represents and warrants to Xxxxxx that Nexell
California has extended written offers of employment ("Nexell California's
Offer") to all Xxxxxx North America employees set forth on Schedule 12(A) who
have previously provided marketing, sales or other related services under the
Distribution Agreement (the "Key Employees"), including descriptions of the
compensation and benefits being offered (which were, in the aggregate, at least
as favorable as the compensation and benefits previously provided by Xxxxxx to
such Key Employees) and descriptions of any material change in the terms or
conditions of the Key Employees employment with Xxxxxx, and conditioning such
offers on Nexell California's receipt of the offeree's written acceptance of the
offer not later than June 15, 1999. In addition, Nexell California shall provide
severance benefits in accordance with Xxxxxx'x xxxxxxxxx pay policies in effect
immediately prior to the Closing as set forth on the Xxxxxx Disclosure Schedule
(the "Severance Pay Policies") in the event that his or her employment is
terminated by Nexell California within one year of the Closing.
(B) Except as set forth in Schedule 12(B), no Key Employee has any
--------------
agreement as to length of notice required to terminate his or her employment,
other than such as results by law from the employment of an employee without
agreement as to such notice or as to length of employment.
(C) Nexell California represents and warrants to Xxxxxx that as of the
date of this Agreement the Key Employees identified on Schedule 12(B) have
--------------
delivered their written acceptance of Nexell California's Offer pursuant to
Section 12(A) above ("New Nexell California Employees").
(D) Effective as of July 1, 1999, all New Nexell California Employees
shall be terminated from employment with Xxxxxx and shall begin working for
Nexell California; provided, however, that Xxxxxx shall remain responsible for
the payment of each such employee's salary, wages, vacation, sick pay, bonus or
similar compensation or benefits accrued up to and including the date of
termination of such employee's employment with Xxxxxx.
19
(E) Nexell California and Xxxxxx acknowledge, agree and stipulate that no
assets shall be directly transferred from any Xxxxxx employee benefit plan to
any Nexell Group employee benefit plan in conjunction with the transactions
contemplated by this Agreement.
(F) Except as otherwise provided in this paragraph, Nexell California
agrees that for a period of one (1) year following the date of this Agreement,
Nexell California will replicate all material terms of the Xxxxxx Xxxxxxxxx Pay
Plan and shall assume, and be solely responsible for, the past service liability
of Xxxxxx under the Severance Pay Policies for one year following the date of
this Agreement and as otherwise imposed by law in respect of all New Nexell
California Employees. Although Nexell California shall be solely responsible for
payment of any benefits under the Severance Pay Policies pursuant to this
paragraph, Xxxxxx and Nexell California shall each bear one half of the
financial cost of any liabilities under the Severance Pay Policies incurred
during the one year period following the US Asset Transfer Closing Date in
respect of all New Nexell California Employees.
(G) With respect to Key Employees who are not New Nexell California
Employees ("Rejecting Employees"), Xxxxxx represents and warrants to Nexell
California that Xxxxxx did not make any competing employment offer, offer any
other inducement or incentives, or otherwise attempt to discourage or prevent
the Rejecting Employees from accepting Nexell California's Offer.
(H) Xxxxxx agrees with Nexell California that Xxxxxx shall indemnify and
hold harmless Nexell California for compensation and benefits, if any, due any
Rejecting Employees following any termination of such Rejecting Employees by
Xxxxxx.
(I) Xxxxxx does not contribute, and is not obligated to contribute, to any
multiemployer plan (within the meaning of section 4001 of ERISA) with respect to
the Key Employees.
(J) Benefit Plans and Pension Plans. Except to the extent otherwise
provided herein, Nexell California shall not assume any obligations arising
under any "employee benefit plan" (as such term is defined in Section 3(3) of
ERISA) which Xxxxxx maintains relating to any New Nexell California Employees
(collectively the "Plans"). The active participation of the New Nexell
California Employees in the Plans shall terminate as of the US Asset Transfer
Closing Date, in each case except to the extent that any rights under the Plans
shall have vested, or may vest upon fulfillment of certain conditions, in
accordance with the terms contained therein; provided, however, that New Nexell
California Employees shall be 100% vested in their account balances under the
Xxxxxx'x Savings Plan and in their accrued benefits under the Xxxxxx
International Inc. and Subsidiaries Pension Plan.
(K) Nexell California shall provide for the participation, commencing on
the US Asset Transfer Closing Date, by such of the New Nexell California
Employees who participated in the Plans prior to the US Asset Transfer Closing
Date, in Nexell California's employee benefits plans, provided that for purposes
of eligibility to participate and vesting under Nexell California's plans,
including but not limited to Nexell California's sick and disability pay
plan(s), (but not for purposes of benefit accruals), Nexell California shall
take any and all action necessary (including amendment
20
of Nexell California's plans) to recognize each New Nexell California Employee's
service with Xxxxxx. No New Nexell California Employee's participation in any of
Nexell California's employee benefit plans shall be limited or restricted due to
a preexisting condition limitation in such plan. Nexell California shall credit
New Nexell California Employees with any amounts paid under Xxxxxx'x Plans prior
to the US Asset Transfer Closing Date toward satisfaction of the applicable
deductible amounts and copayment minimums under the corresponding welfare plans
of Nexell California.
(L) Xxxxxx shall retain liability for employees (and their qualified
beneficiaries) receiving continuation coverage as of the US Asset Transfer
Closing Date under Xxxxxx'x group health plans. With respect to group health
plans established by Nexell California or its Affiliates on or after the US
Asset Transfer Closing Date and for the benefit of New Nexell California
Employees shall comply with all obligations under Part 6 of Title I of ERISA and
Section 4980B of the Code applicable to those plans.
(M) Nexell California shall comply with all notice and other requirements
under the Workers Adjustment and Retraining Notification Act ("WARN") and any
similar state, local, or foreign country statute with respect to all Key
Employees who accept employment with Nexell California and all other employees
of Nexell California. Xxxxxx shall comply with all notice and any other
requirements under WARN and any similar state, local, or foreign country statute
with respect to all employees who either are not offered employment with Nexell
California or who decline offers of employment with Nexell California as well as
all other employees of Xxxxxx.
13. Key European Employees.
----------------------
(A) Nexell California agrees that, prior to the ROW Asset Transfer Closing
Date, Nexell California will cause a Nexell European Affiliate to extend offers
of employment to all employees predominantly connected with the Nexell business
in Europe, and as identified on Schedule 13 ("European Key Employees"), with
-----------
terms and conditions at least as favorable in the aggregate, as the European Key
Employees' terms of employment while employed by Xxxxxx. Nexell California
agrees to cause such Nexell European Affiliate to assume all liabilities for all
European Key Employees whose employment with Xxxxxx is terminated as a result of
the Nexell European Affiliate's offer of employment in connection with this
transaction, effective as of the ROW Asset Transfer Closing Date, as required
under applicable law.
(B) Nexell California and Xxxxxx agree to negotiate in good faith to the
end that within sixty (60) days of the US Asset Transfer Closing Date Nexell
California and Xxxxxx shall agree on the specific European country issues
relating to the employment of the European Key Employees by the Nexell European
Affiliate, including the parties' intention that:
(i) subject to applicable law, for a period of one (1) year following
the ROW Asset Transfer Closing Date, with respect to European Key
Employees hired by Nexell European Affiliate, the Nexell European
Affiliate will replicate all material terms of any severance pay
benefits available to such European Key Employees while they
21
were employed by Xxxxxx ("Xxxxxxxxx Pay Benefits") and shall assume,
and be solely responsible for, the past service liability of Xxxxxx
with respect to such Severance Pay Benefits for one (1) year following
the ROW Asset Transfer Closing Date and as otherwise imposed by law;
and
(ii) subject to applicable law, that although the Nexell European
Affiliate shall be solely responsible for payment of any such
Severance Pay Benefits, Xxxxxx and Nexell California shall each bear
one half of the financial cost of any liabilities under the Severance
Pay Policies incurred during the one year period following the US
Asset Transfer Closing Date in respect of all European Key Employees
hired by the Nexell European Affiliate.
14. Xxxxxx'x Deliveries. At each Asset Transfer Closing Date, Xxxxxx shall
-------------------
deliver, or cause to be delivered, the following:
(A) a xxxx of sale from Xxxxxx and from each other entity, if any,
which shall then own any applicable Transferred Asset(s), conveying the
applicable Transferred Assets to Nexell California, each to be in a form
reasonably satisfactory to the Nexell Group;
(B) individual or general contract assignments of the applicable
Assigned Agreements and Service Contracts to Nexell California; and
(C) such other executed assignments, bills of sale, endorsements,
notices, consents, novations, assurances and such other instruments of
conveyance and transfer as counsel for Nexell California has reasonably
requested and as shall be effective to vest in Nexell California Xxxxxx'x
rights, title and interest in the applicable Transferred Assets.
15. Survival of Representations. All representations and warranties contained
---------------------------
in, or in any certificate delivered pursuant to or in connection with, this
Agreement shall survive the applicable Asset Transfer Closing Date of the
transactions contemplated under this Agreement until one (1) year from the
applicable Asset Transfer Closing Date. All covenants and agreements contained
in this Agreement shall survive in accordance with their terms.
16. Transactional Taxes. Each of Nexell California and Xxxxxx shall bear and
-------------------
pay one half (50%) of any and all applicable Transactional Taxes with respect to
the sale, transfer, or assignment of the Transferred Assets or otherwise on
account of this Agreement or the transactions contemplated herein.
17. Personal Property Taxes. All personal property taxes relating to any and
-----------------------
all personal property conveyed pursuant to this Agreement shall be pro-rated
between Nexell California and Xxxxxx in accordance with the relationship of the
applicable Asset Transfer Closing Date to the entire relevant tax year.
22
18. Further Assurances and Cooperation. Following the date hereof, and subject
----------------------------------
to the terms and conditions hereof, each of Xxxxxx and the Nexell Group agrees
to execute and deliver such documents and take such other action as shall be
reasonably requested by the other party to carry out and effectuate the
transactions contemplated by this Agreement. On and subsequent to each
applicable Asset Transfer Closing Date, each party covenants and warrants that
it shall, whenever and as often as it shall be reasonably requested to do so by
another party to this Agreement, execute, acknowledge and deliver or cause to be
executed, acknowledged and delivered, any and all such further documents and
instruments as may be reasonably necessary, expedient or proper in order to
complete any and all of the conveyances, transfers, sales and assignments herein
provided for.
19. Notices. All notices, requests, demands, and other communications
-------
permitted or required under this Agreement shall be in writing and shall be
either personally delivered (including couriers such as Federal Express) or sent
by pre-paid certified mail, return receipt requested, or facsimile transmission,
with a confirmation copy personally delivered or sent by pre-paid certified
mail, addressed or transmitted to the address set forth above of the party or
the facsimile number stated below of the party to which notice is given, or to
such other address or facsimile number as such party may have fixed by notice
given in accordance with the terms hereof:
To any member of the Nexell Group, to:
President
Nexell Therapeutics Inc.
Facsimile Number: (000) 000-0000
President
Nexell of California, Inc.
Facsimile Number: (000) 000-0000
With a copy to:
Xxxxx Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx, Esq.
Facsimile Number: (000) 000-0000
To Xxxxxx:
President - Venture Management
Facsimile Number: (000) 000-0000
Xxx Xxxxxxxx, Esq. - Assistant General Counsel
23
Facsimile Number: (000) 000-0000
With a copy to:
Seyfarth, Shaw, Xxxxxxxxxxx & Xxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxxxxxx X. Xxxxx, Esq.
Facsimile Number: (000) 000-0000
Any notice, sent as provided above, shall be deemed given if personally
delivered or, if sent by certified mail, upon delivery at the address provided
for above (or, in the event delivery is refused, the first date on which
delivery was tendered) or, if sent by facsimile transmission, upon receipt by
the sender of confirmation of delivery.
20. Expenses. Subject to the terms of Sections 2.1, 12, 16 and 17 hereof, each
--------
party hereto shall bear its own expenses (including all attorneys',
accountants', investment bankers', brokers', representatives' and consultants'
fees) incurred in connection with the negotiation, preparation, consummation and
performance of this Agreement and the other Related Documents and the
transactions contemplated hereby and thereby.
21. Disclaimer. Xxxxxx shall not be deemed to have made to the Nexell Group
----------
any representation or warranty other than as expressly made by Xxxxxx in Section
6 hereof. Without limiting the generality of the foregoing, XXXXXX MAKES NO
REPRESENTATION OR WARRANTY TO THE ANY MEMBER OF THE NEXELL GROUP WITH RESPECT
TO:
(A) EXCEPT FOR THE ADJUSTED P&L, ANY FINANCIAL INFORMATION OR ANY
PROJECTIONS, ESTIMATES OR BUDGETS HERETOFORE DELIVERED TO OR MADE AVAILABLE TO
ANY MEMBER OF THE NEXELL GROUP OF FUTURE REVENUES, EXPENSES OR EXPENDITURES OR
FUTURE RESULTS OF OPERATIONS; OR
(B) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6 HEREOF OR AS OTHERWISE
PROVIDED IN ANY EXPRESS WRITTEN WARRANTIES THAT ACCOMPANY INDIVIDUAL TRANSFERRED
ASSETS MANUFACTURED BY XXXXXX, ANY OF THE TRANSFERRED ASSETS AND EXPRESSLY
DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE (ALL SUCH TRANSFERRED ASSETS BEING SOLD TO NEXELL
CALIFORNIA ON AN "AS IS, WHERE IS" BASIS).
22. Allocation of Consideration. The parties shall exercise their good faith
---------------------------
efforts to agree upon how the consideration paid or given for the Transferred
Assets (including the Transferred Asset Purchase Price) shall be allocated. In
the event that any such agreement is executed and delivered by the parties, such
consideration shall be deemed, for all purposes (including those relating to
Taxes
24
of any kind whatsoever), to be allocated to the Transferred Assets in accordance
therewith and, without limiting the foregoing, any IRS Forms 8594 shall be
prepared consistent therewith.
23. Miscellaneous.
-------------
23.1 Entire Agreement: No Modification. This Agreement, including the
---------------------------------
Schedules, documents and instruments delivered pursuant hereto, sets forth the
entire agreement and understanding between the parties hereto as to the specific
subject matter hereof and thereof, and merges and supersedes all prior
discussions, agreements and understandings of every kind and nature between them
with respect to the specific subject matter hereof and thereof, and no party
hereto shall be bound by any condition, definition, warranty or representation
other than as expressly provided for in this Agreement. This Agreement shall
not be changed or amended except by a writing signed by the Nexell Group and
Xxxxxx.
23.2 Waiver of Breach. The waiver by a party of a breach or violation by
----------------
any other party of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach or violation by any party of the
same or any other provision of this Agreement. No such waiver shall be
effective unless in writing signed by the party claimed to have made the waiver.
23.3 Benefit of Parties; Assignment. This Agreement shall be binding upon
------------------------------
and shall inure to the benefit of the parties hereto and their respective heirs,
executors, legal representatives, successors and permitted assigns. No party
shall have the right to assign or delegate any of its rights or obligations
arising hereunder, except with the prior written consent of each other party
hereto; provided, however, that any party may assign any or all of its rights,
-------- -------
and delegate any or all of its obligations, hereunder to any person or entity
who shall, by merger, consolidation, transfer of assets or otherwise, have
acquired all or substantially all of the assets (not counting cash and cash
equivalents) of such party; provided, further, that no such delegation shall
-------- -------
relieve the delegating party of the obligation to satisfy and discharge the
obligation(s) so delegated. Notwithstanding the foregoing, Xxxxxx shall have
the right to assign this Agreement, and any rights and obligations arising
hereunder, to an Affiliate of Xxxxxx without the prior written consent of any
other party hereto; provided, that no such assignment shall relieve Xxxxxx of
any of its obligations hereunder. Any purported assignment or delegation in
violation of this Section 23.3 shall be null and void ab initio.
-- ------
23.4 Headings. The headings of the sections and paragraphs of this
--------
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof.
23.5 Governing Law; Jurisdiction. This Agreement shall be governed by and
---------------------------
construed in accordance with the internal laws of the State of Delaware, without
application of conflicts of law principles, and, subject to Section 23.6 below,
each party hereby submits to the jurisdiction and venue of any state or federal
court in the State of Delaware. To the extent permissible by law, each of the
parties hereby waives, releases and agrees not to assert, and agrees to cause
its Affiliates to waive, release and not assert, any rights such party or its
Affiliates may have under any foreign law or regulation that would be
inconsistent with the terms of this Agreement as governed by Delaware law.
25
23.6 Dispute Resolution.
------------------
A. Provisional Remedies: The procedures specified in this Section 23.6
shall be the sole and exclusive procedures for the resolution of
disputes between the parties arising out of or relating to this
Agreement; provided, however, that a party, without prejudice to
-------- -------
these procedures, may seek a preliminary injunction or other
provisional relief if, in its sole judgment, such action is deemed
necessary to avoid irreparable damage or to preserve the status quo.
During such action, the parties will continue to participate in good
faith in the procedures specified in this Section 23.6.
B. Negotiations Between Executives: The parties will attempt in good
faith to resolve promptly any claim or controversy arising out of or
relating to the execution, interpretation or performance of this
Agreement (including the validity, scope and enforceability of the
provisions contained in this Section 23.6), promptly by negotiation
between their designated executives.
C. Arbitration: In the event that any dispute arising out of or relating
to this Agreement or its breach, termination or validity has not been
resolved after good faith negotiation pursuant to the procedures of
Section 23.6(B), such dispute shall, upon written notice by either
party to the other, be finally settled by arbitration administered by
the Center for Public Resources in accordance with the provisions of
its Commercial Arbitration Rules and the United States Federal
Arbitration Act, as modified below:
i. The arbitration shall be heard by a panel of three (3)
independent and impartial arbitrators all of whom shall be selected
from a list of neutral arbitrators supplied by the Center for Public
Resources. From such list, each of Xxxxxx and Nexell shall select one
(1) arbitrator, and the arbitrators so selected shall select a third.
The panel shall designate one (1) among them to serve as chair.
ii. The arbitration proceedings shall be conducted in Los Angeles
County or Orange County in the State of California.
iii. Any party may seek interim or provisional remedies under the
Federal Rules of Civil Procedure and the United States Federal
Arbitration Act as necessary to protect the rights or property of the
party pending the decision of the arbitrators.
iv. The parties shall allow and participate in limited discovery
for the production of documents and taking of depositions, which
shall be conducted in accordance with the Commercial Arbitration
Rules of the Center for Public Resources. All discovery shall be
completed within sixty (60) days following the filing of the answer
or other responsive pleading. Unresolved discovery disputes shall be
brought to the attention of the chair of the arbitration panel and
may be disposed of by the chair.
26
v. Each party shall have up to fifty (50) hours to present
evidence and argument in a hearing before the panel of arbitrators,
provided that the chair of the panel of arbitrators may establish
such longer times for presentations as the chair deems appropriate.
vi. The arbitration award shall be rendered by the arbitrators
within fifteen (15) business days after conclusion of the hearing of
the matter, shall be in writing and shall specify the factual and
legal basis for the award. Judgment thereon may be entered in any
court having jurisdiction thereof.
vii. The arbitrators are empowered to order money damages in
compensation for a party's actual damages, specific performance or
other appropriate relief to cure a breach; provided, however, that
-------- -------
the arbitrators will have no authority to award special, punitive or
exemplary damages, or other money damages that are not measured by
the prevailing party's actual damages.
D. Performance During Dispute: Each party is required to continue to
perform its obligations under this Agreement pending final
resolution of any dispute arising out of or relating to this
Agreement, unless to do so would be commercially impossible or
impractical under the circumstances.
23.7 Multiple Counterparts; Execution by Fax. This Agreement may be
---------------------------------------
signed in any number of counterparts which taken together shall constitute one
and the same instrument. This Agreement may be executed and delivered by
exchange of facsimile copies showing the signatures of the parties hereto, and
those signatures need not be affixed to the same copy. The facsimile copies
showing the signatures of the parties will constitute originally signed copies
of the same agreement requiring no further execution.
23.8 Exhibits and Schedules. All exhibits and schedules referred to in
----------------------
this Agreement are attached hereto and are incorporated herein by reference as
if fully set forth herein.
23.9 Construction. The language in all parts of this Agreement shall in
------------
all cases be construed as a whole according to its fair meaning, strictly
neither for nor against any party hereto, and without implying a presumption
that the terms thereof shall be more strictly construed against one party by
reason of the rule of construction that a document is to be construed more
strictly against the person who himself or through his agent prepared the same,
it being agreed that representatives of both parties have participated in the
preparation hereof.
23.10 Publicity. No party to this Agreement shall issue or cause the
---------
publication of any press release or other public announcement with respect to
this Agreement or the transactions contemplated hereby without first providing a
draft of such press release or announcement to the other parties and obtaining
the consent of the other parties hereto, which consent shall not be unreasonably
withheld; provided, however, that nothing herein shall prevent any party from
-------- -------
making
27
any disclosure required by law, including, without limitation, the requirements
of the SEC, the Securities Act and the rules promulgated thereunder, or any
applicable stock exchange or the Nasdaq Stock Market.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK]
28
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
as of the date first above written.
XXXXXX HEALTHCARE CORPORATION
By:_________________________________________________________
Title:______________________________________________________
NEXELL THERAPEUTICS INC.
By:_________________________________________________________
Title:______________________________________________________
NEXELL OF CALIFORNIA, INC.
By:_________________________________________________________
Title:______________________________________________________
29
SCHEDULE 1.1(a)
PRO-FORMA
SCHEDULE 1.1(b)
XXXXXX FINISHED GOODS INVENTORY (US)
SCHEDULE 1.1(c)
XXXXXX HARDWARE AND RELATED ASSETS (US)
SCHEDULE 1.1(d)
US SERVICE CONTRACTS AND PREPAID AMOUNTS
NONE
SCHEDULE 1.1(e)
US ASSUMED LIABILITIES
SCHEDULE 2.1(B)
US TRANSFERRED ASSETS NOT DELIVERED AT US ASSET TRANSFER CLOSING
SCHEDULE 5
CHAIN OF DELIVERY OF PRODUCTS BY XXXXXX TO NEXELL CALIFORNIA
UNDER THE OPERATING AGREEMENTS
Figure 1: Xxxxxx US and Canada Delivery of Products as of July 1, 1999, through
ROW Asset Transfer Closing (Non-Antibody / Non-Ceprate).
Figure 2: Xxxxxx ROW Delivery of Products as of July 1, 1999, through ROW Asset
Transfer Closing (Non-Antibody / Non-Ceprate).
Figure 3: Xxxxxx Delivery of Antibody Products as of July 1, 1999, ROW Asset
Transfer Closing.
Figure 4: Xxxxxx US and Canada Delivery of Products Post ROW Asset Transfer
Closing (Non-Antibody / Non-Ceprate).
Figure 5: Xxxxxx ROW Delivery of Products Post ROW Asset Transfer Closing (Non-
Antibody / Non-Ceprate).
Figure 6: Xxxxxx Delivery of Antibody Products Post ROW Asset Transfer Closing.
Schedule 12 (A)
Xxxxxx North American Employees to Whom
Nexell of California Extended Offers
Xxxxxxx Xxxxxx
Xxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxx Xxxxxxx
SCHEDULE 12(B)
NEW NEXELL CALIFORNIA EMPLOYEES
Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxx*
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx
_______________
* Pending based on obtaining proper work visa from Canada
SCHEDULE 13
KEY EUROPEAN EMPLOYEES
