EXHIBIT 2.1
EXECUTION COPY
STOCK PURCHASE AGREEMENT
DATED AS OF DECEMBER 19, 2003,
BY AND AMONG
GRADIPORE LIMITED,
GRADIPORE, INC.,
SEROLOGICALS FINANCE COMPANY,
AND
SEROLOGICALS CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................................................2
ARTICLE II THE STOCK PURCHASE..........................................................................9
Section 2.1 Transfer of the Stock..................................................................9
Section 2.2 Consideration for the Stock............................................................9
Section 2.3 Closing................................................................................9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE HOLDERS..............................................10
Section 3.1 Ownership of the Stock; Authorization of Each Holder..................................10
Section 3.2 Organization and Capitalization.......................................................10
Section 3.3 Non-Contravention.....................................................................12
Section 3.4 Financial Statements..................................................................12
Section 3.5 No Undisclosed Liabilities............................................................12
Section 3.6 Operations Since Balance Sheet Date...................................................13
Section 3.7 Assets and Legality of Use............................................................14
Section 3.8 Accounts Receivable...................................................................14
Section 3.9 Material Assets.......................................................................14
Section 3.10 Inventories...........................................................................14
Section 3.11 Real Property.........................................................................14
Section 3.12 Real Property Leases..................................................................14
Section 3.13 Contracts.............................................................................15
Section 3.14 Status of Contracts...................................................................16
Section 3.15 Governmental Permits and Certification................................................17
Section 3.16 Tax Matters...........................................................................17
Section 3.17 Intellectual Property.................................................................19
Section 3.18 Employees.............................................................................20
Section 3.19 Employee Matters......................................................................20
Section 3.20 Employee Benefit Plans................................................................21
Section 3.21 Affiliate Transactions................................................................22
Section 3.22 No Violation, Litigation or Regulatory Action.........................................22
Section 3.23 Insurance.............................................................................22
Section 3.24 Environmental Protection..............................................................23
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Section 3.25 Customers and Suppliers...............................................................24
Section 3.26 No Brokers............................................................................24
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS...........................................24
Section 4.1 Organization..........................................................................24
Section 4.2 Authorization.........................................................................24
Section 4.3 No Brokers............................................................................25
Section 4.4 Non-Contravention.....................................................................25
Section 4.5 Financial Capacity....................................................................25
Section 4.6 Purchase for Own Account..............................................................25
ARTICLE V ADDITIONAL AGREEMENTS OF THE PARTIES.......................................................25
Section 5.1 Conduct of Business...................................................................25
Section 5.2 Access Prior to Closing...............................................................27
Section 5.3 Further Assurances....................................................................28
Section 5.4 Notices...............................................................................28
Section 5.5 Preserve Accuracy of Representations and Warranties...................................28
Section 5.6 Public Announcements..................................................................28
Section 5.7 Confidential Information..............................................................28
Section 5.8 Transfer of Employees.................................................................29
Section 5.9 Re-Alignment of Assets and Liabilities................................................29
Section 5.10 Insurance.............................................................................30
Section 5.11 Name Change...........................................................................30
Section 5.12 Cangene REA...........................................................................30
Section 5.13 Necessary Actions.....................................................................31
ARTICLE VI INCOME TAX MATTERS.........................................................................31
Section 6.1 Federal Income Taxes in General.......................................................31
Section 6.2 Other Income Taxes in General.........................................................32
Section 6.3 Cooperation...........................................................................32
Section 6.4 Termination of Tax-Sharing Agreements.................................................34
Section 6.5 Relationship of this Article to Article IX............................................34
Section 6.6 Section 338(h)(10) Election...........................................................34
ARTICLE VII CONDITIONS TO CLOSING......................................................................35
Section 7.1 The Holders' Conditions to Close......................................................35
Section 7.2 The Purchasers' Conditions to Close...................................................35
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ARTICLE VIII THE CLOSING................................................................................37
Section 8.1 Deliveries by Seller..................................................................37
Section 8.2 Deliveries by the Purchasers..........................................................38
ARTICLE IX SURVIVAL; INDEMNIFICATION..................................................................38
Section 9.1 Survival Matters......................................................................38
Section 9.2 Indemnification by the Holders........................................................38
Section 9.3 Limitations on Holders' Indemnification...............................................39
Section 9.4 Indemnification by the Purchasers.....................................................39
Section 9.5 Limitations on the Purchasers' Indemnification........................................40
Section 9.6 Procedures Relating to Indemnification................................................40
Section 9.7 Other Indemnification Limitations.....................................................41
ARTICLE X TERMINATION................................................................................41
Section 10.1 Termination...........................................................................41
Section 10.2 Effect of Termination.................................................................41
ARTICLE XI MISCELLANEOUS..............................................................................42
Section 11.1 Expenses..............................................................................42
Section 11.2 Notices...............................................................................42
Section 11.3 Assignment............................................................................43
Section 11.4 Interpretation........................................................................43
Section 11.5 Counterparts..........................................................................43
Section 11.6 Amendment.............................................................................43
Section 11.7 Entire Agreement......................................................................43
Section 11.8 Binding Effect........................................................................43
Section 11.9 Severability..........................................................................43
Section 11.10 Third Parties.........................................................................44
Section 11.11 Waivers...............................................................................44
Section 11.12 Governing Law.........................................................................44
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EXHIBITS
Exhibit A.................................Promissory Note
Exhibit B.................................Short Term Promissory Note
Exhibit C.................................Assignment and Assumption Agreement
Exhibit D.................................Legal Opinion of King & Spalding LLP
Exhibit E.................................Non-Competition Agreement
Exhibit F.................................Security Agreement
Exhibit G.................................Stock Pledge Agreement
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SCHEDULES
Schedule A ...................................................Donor Centers
Schedule 3.1(b) ..............................................Proceedings
Schedule 3.2(a)(i) ...........................................Foreign Qualifications
Schedule 3.2(a)(ii) ..........................................Exceptions to document delivery representations
Schedule 3.2(c)(i) ...........................................Intercompany Loans
Schedule 3.2(c)(ii) ..........................................Equity Securities of the Subsidiaries
Schedule 3.3 .................................................Conflicts
Schedule 3.4 .................................................Financial Statements
Schedule 3.5 .................................................Undisclosed Liabilities
Schedule 3.6(a) ..............................................Material Adverse Effects
Schedule 3.6(b) ..............................................Exceptions to Representation Regarding Ordinary Course Operations
Schedule 3.7(i) ..............................................Assets Used in the Business not Owned or Used by SSBI
or the Subsidiaries
Schedule 3.7(ii) .............................................Encumbrances, etc. on Assets Used in the Business
Schedule 3.9 .................................................Material Assets
Schedule 3.12(a) .............................................Real Estate Leases
Schedule 3.13 ................................................Contracts
Schedule 3.14(a) .............................................Contractual Violations
Schedule 3.14(b) .............................................Contractual Renegotiations
Schedule 3.14(c) .............................................Contractual Encumbrances
Schedule 3.14(d) .............................................Notice of Defaults
Schedule 3.15(b) .............................................Governmental Permits that will Lapse
Schedule 3.16(a) .............................................Tax Matters
Schedule 3.17 ................................................Intellectual Property
Schedule 3.18(i) .............................................Employee List
Schedule 3.18(ii) ............................................Unpaid Bonuses, Commissions
Schedule 3.19 ................................................Non-Compliance with Employment Laws
Schedule 3.20 ................................................Employee Benefit Plans
Schedule 3.21 ................................................Affiliate Transactions
Schedule 3.22 ................................................Violations, Litigation and Regulatory Action
Schedule 3.23 ................................................Insurance
Schedule 3.24 ................................................Environmental Matters
Schedule 3.25 ................................................Customers and Suppliers
Schedule 4.3 .................................................Buyers' Broker
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Schedule 5.8 .................................................Transferred Employees
Schedule 7.1(c) ..............................................Consents and Approvals
Schedule 7.1(e) ..............................................Description of Transition Services
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT dated as of December 19, 2003 (this
"Agreement") by and among Gradipore Limited, a corporation organized under the
laws of the Commonwealth of Australia ("Buyer Parent") and GRADIPORE, INC., a
Delaware corporation and a direct, wholly owned subsidiary of Buyer Parent
("Buyer" and together with Buyer Parent, each a "Purchaser" and collectively,
the "Purchasers"), Serologicals Finance Company, a Delaware corporation
("Seller"), and Serologicals Corporation, a Delaware corporation and parent of
Seller ("Seller Parent" and together with Seller, each a "Holder" and
collectively, the "Holders"), recites and provides as follows:
WITNESSETH:
WHEREAS, Seller owns all of the issued and outstanding shares of
capital stock, $0.01 par value per share (the "SSBI Common Stock"), of
Serologicals Specialty Biologics, Inc., a Delaware corporation ("SSBI");
WHEREAS, SSBI, directly or indirectly, owns all of the issued and
outstanding shares of capital stock or other equity interests of any nature, as
the case may be, in Serologicals Nevada, Inc., a Nevada corporation ("Nevada"),
Serologicals Business Trust, a Nevada business trust ("SBT"), Serologicals
Investments, LLC, a Georgia limited liability company ("LLC"), Serologicals
Management Partnership, LP, a Delaware limited partnership ("LP"), and
Allegheny Biologics, Inc., a Pennsylvania corporation ("Allegheny", and
together with Nevada, SBT, LLC, and LP, each a "Subsidiary" and collectively,
the "Subsidiaries");
WHEREAS, SSBI, directly or indirectly, owns all of the issued and
outstanding shares of capital stock or other equity interests of any nature, as
the case may be, Serologicals Ltd., a corporation incorporated under the laws
of Scotland ("Limited"), Bioscot, Ltd., a corporation incorporated under the
laws of Scotland ("Bioscot"), Serologicals Royalty Co., a Delaware corporation
("Royalty"), Bio-Lab, Inc., an Alabama corporation ("Bio-Lab"), and Med-Lab,
Inc., an Alabama corporation ("Med-Lab" and together with Limited, Bioscot,
Royalty and Bio-Lab, the "Retained Companies");
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, all of the SSBI Common Stock, subject to the terms and
conditions set forth in this Agreement (the "Stock Purchase"); and
WHEREAS, Buyer and Seller Parent wish to make a joint election under
Section 338(h)(10) of the Code (as defined below) (and any corresponding
elections under state, local, or foreign tax law) (collectively, a "Section
338(h)(10) Election") to cause the Stock Purchase to be treated, for U.S.
federal income tax purposes, as (i) a sale by SSBI of certain of its assets to
a newly formed purchasing corporation wholly owned by Buyer and (ii) a complete
liquidation of SSBI pursuant to which SSBI distributes to Seller the proceeds
from the sale of its assets, together with the Retained Assets (as defined
below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending
to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
In this Agreement, the following terms have the meanings specified or
referred to in this Article I and are equally applicable to both the singular
and plural forms.
"338(h)(10) Allocation" means the allocation of the Purchase Price
among the assets deemed purchased pursuant to the 338(h)(10) Election
determined in accordance with Section 6.6(b).
"Acquisition Proposal" has the meaning specified in Section 5.1(b)(1).
"Affiliate" means: any Person (a) that directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is under common
control with, the Person involved, including, without limitation, officers,
directors and individuals in like capacities, (b) that directly or beneficially
owns or holds 5% or more of any equity interest in the Person involved, or (c)
5% or more of whose voting securities (or in the case of a Person which is not
a corporation, 5% or more of any equity interest) is owned directly or
beneficially by the Person involved. As used herein, the term "control" shall
mean possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through ownership
of equity interests, by contract or otherwise.
"Agreement" has the meaning specified in the preamble to this
Agreement and shall include all Schedules and Exhibits attached hereto.
"Allegheny" has the meaning specified in the recitals to this
Agreement.
"Allocation Disputes" has the meaning specified in Section 6.6(b).
"Assets" has the meaning specified in Section 3.7.
"Assignment and Assumption Agreement" has the meaning specified in
Section 5.9(a).
"Balance Sheet" means the unaudited consolidated balance sheet of SSBI
and the Subsidiaries dated as of the Balance Sheet Date.
"Balance Sheet Date" means December 29, 2002.
"Bio-Lab" has the meaning specified in the recitals to this Agreement.
"Bioscot" has the meaning specified in the recitals to this Agreement.
"Books and Records" means all books, records, lists, ledgers, files,
reports, plans, drawings and operating records of every kind pertaining to each
of SSBI and the Subsidiaries thereof in connection with the Business and the
Assets.
"Business" means the business of (a) collecting, refining, processing,
testing, validating, labeling, packaging, marketing, advertising,
administering, selling and distributing the Inventory,
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(b) operating the Donor Centers and (c) conducting any other business engaged
in by SSBI and the Subsidiaries on the date of this Agreement.
"Buyer" has the meaning specified in the preamble to this Agreement.
"Buyer Parent" has the meaning specified in the preamble to this
Agreement.
"Cash Purchase Price" has the meaning specified in Section 2.2(a).
"Cangene" means Cangene Corporation.
"Charlotte Lease" means that certain Lease Agreement, dated October
30, 2002, by and between Granville at Belle Grove, LLC, as lessor, and SSBI, as
lessee, as the same shall have been modified, amended or restated.
"Class I Representations" has the meaning specified in Section 9.1.
"Closing" has the meaning specified in Section 2.3.
"Closing Date" has the meaning specified in Section 2.3.
"COBRA" means the Consolidated Omnibus Budget Reconciliation Act of
1985, relating to continuation of health benefits in certain circumstances.
"Code" means the Internal Revenue Code of 1986, as amended.
"Columbia Lease" means that certain Lease Agreement, dated December
10, 2001, by and between Palmetto Bay Associates, LLC, as lessor, and
Serologicals Corporation, as lessee, as the same shall have been modified,
amended, supplemented or assigned.
"Company" means any of SSBI, each Subsidiary and each Retained
Company, and "Companies" means, collectively, SSBI, each Subsidiary and each
Retained Company.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, medical waste, special waste, asbestos, petroleum
or petroleum-derived substance, radioactive material or waste, or any
constituent of any such substance or waste and including, without limitation,
any substance which any Governmental Body or lawful representative thereof
requires to be controlled, removed, monitored, encapsulated or remediated or
otherwise addressed for the purposes of protection of the environment or public
or worker health and safety.
"Contracts" means those oral or written contracts, agreements,
arrangements, blanket and other purchase orders, leases of personal property
(such as computers and copiers), sales orders, license agreements,
relationships and commitments and invoices related thereto, to which (i) any of
SSBI or the Subsidiaries are a party or by which any of them or their
properties or assets are bound or (ii) any Affiliates of SSBI or the
Subsidiaries are a party or by which any of such Affiliates are bound and that
relate primarily to the Business.
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"Donor Centers" means each of the source plasma donor collection
centers listed on Schedule A.
"Donor Records" means the information maintained (either in computer
files or in hard copy), in the ordinary course of business, by each of SSBI and
the Subsidiaries that are used in connection with the Business, concerning
donors and deferred source plasma donors who have attended or otherwise
transacted business with the Business at the Donor Centers, including, without
limitation, the donation of source plasma.
"Effective Date" means December 28, 2003.
"Employee Benefit Plans" has the meaning specified in Section 3.20.
"Encumbrance" means any claim, lien, pledge, option, charge, easement,
security interest, deed of trust, mortgage, right-of-way, encroachment,
building or use restriction, conditional sales agreement, restriction on
transfer, encumbrance or other similar right of third parties, whether
voluntarily incurred or arising by operation of law and whether relating to any
property or right to the income or profits therefrom, and includes, without
limitation, any agreement to give any of the foregoing in the future, and any
contingent sale or other title retention agreement or lease in the nature
thereof.
"Environmental Laws" means all applicable federal, state, district,
local and foreign Laws, and all orders, consent orders, judgments, notices,
permits or demand letters issued, promulgated or entered pursuant thereto, in
each case relating to pollution or protection of the environment (including,
without limitation, ambient air, surface water, ground water, land surface, or
subsurface strata), including, without limitation, (i) Laws relating to
Releases or threatened Releases of Hazardous Substances in the environment and
(ii) Laws relating to the identification, generation, manufacture, processing,
distribution, use, treatment, storage, disposal, recovery, transport or other
handling of Hazardous Substances. Environmental Laws shall include, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), the Toxic Substances Control Act,
as amended, the Safe Drinking Water Act, as amended, the Clean Air Act, as
amended, the Atomic Energy Act of 1954 or any successor statute, as amended,
and the Occupational Safety and Health Act, as amended.
"Equity Securities" has the meaning specified in Section 3.2(b).
"ERISA" means the federal Employment Retirement Income Security Act of
1974 or any successor statute, as amended.
"ERISA Affiliate" means the Holders and any trade or business (whether
or not incorporated) which is or has been under common control, or which is or
has ever been treated as a single employer, with any Holder under Section
414(b) or (c) of the Code.
"Estimated Note Amount" has the meaning specified in Section 2.2(b).
"Facility" means any real or personal property, plant, building,
facility, structure, underground storage tank, or equipment or unit, or other
asset owned, used, leased or operated
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by SSBI or the Subsidiaries in connection with the Business, including, but not
limited to the Donor Centers.
"Financial Statements" has the meaning specified in Section 3.4.
"Forms" has the meaning specified in Section 6.6.
"GAAP" has the meaning specified in Section 3.4.
"Governmental Body" means any federal, state, local or foreign court,
tribunal, arbitrator, government, department, commission, board, bureau,
agency, official or other regulatory, administrative, governmental,
quasi-governmental or self-regulatory authority.
"Governmental Permits" has the meaning specified in Section 3.15(a).
"Guaranty" has the meaning specified in Section 8.2(c).
"Hazardous Substances" means all pollutants, contaminants, chemicals,
industrial materials, wastes, and any other carcinogenic, ignitable, corrosive,
reactive, toxic or otherwise hazardous substances or materials (whether solids,
liquids or gases), in each case, subject to regulation, control or remediation
under Environmental Laws.
"Holder" has the meaning specified in the preamble to this Agreement.
"Holder Indemnified Parties" has the meaning specified in Section 9.4.
"Holder Loss" has the meaning specified in Section 9.4.
"Holder Losses" has the meaning specified in Section 9.4.
"Indemnified Party" has the meaning specified in Section 9.6(a).
"Indemnifying Party" has the meaning specified in Section 9.6(a).
"Intent Claims" has the meaning specified in Section 9.1.
"Interim Balance Sheet" has the meaning specified in Section 3.4.
"Interim Statements" has the meaning specified in Section 3.4.
"Inventory" means all inventories of raw materials, work-in-process,
finished goods, fluids, components, parts, packaging materials and other
materials related thereto which are held at, or are in transit from or to, the
locations at which the Business is conducted, or located at customers' premises
on consignment or elsewhere, in each case, which are used or useful by SSBI,
the Subsidiaries or any Affiliates thereof in the conduct of the Business,
including, but not limited to, all human polyclonal plasma containing blood
typing reagents, clinical diagnostic antibodies, and naturally occurring
disease associated antibodies, and all plasma containing Rh immune globulin
(Anti-D), anti-hepatitis B immune globulin (HBs), anti-rabies immune globulin
(Rabies), vaccinia immune globulin (VIG), intravenous immune globulin (IVIG),
BDP-I,
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BDP-II, BDP-III, Antisera and D-Slide, and any other source plasma, specialty
or non-specialty antibodies and specialty biologic components, as well as any
other therapeutic or diagnostic products. Notwithstanding anything to the
contrary set forth in this Agreement, the term "Inventory" shall not mean or
include Seller Parent's FFP or Seracon products.
"IQPP Certified" means that certain designation from the Plasma
Protein Therapeutics Association (formerly known as the American Blood
Resources Association) that the relevant Donor Center complies with such
association's most current requirements as to plasma collection safety and
quality.
"IRS" means the Internal Revenue Service.
"Knowledge of Seller" means the actual knowledge of the executive
officers of each of the Holders, the Companies and Affiliates thereof that work
in connection with the Business, after reasonable inquiry.
"Law" means any law, regulation, rule, order, pronouncement,
directive, judgment, decree, or writ of any Governmental Body.
"Limited" has the meaning specified in the recitals to this Agreement.
"LLC" has the meaning specified in the recitals to this Agreement.
"Losses" means any and all losses, costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, excise taxes,
damages, expenses, deficiencies or other charges, including, but not limited
to, a Holder Loss or a Purchaser Loss, as the case may be.
"LLP" has the meaning specified in the recitals to this Agreement.
"Material Adverse Effect" means any state of facts, change, event,
effect or occurrence (when taken together with all other states of fact,
changes, events, effects or occurrences) that, individually or in the
aggregate, has had or would reasonably be expected to have a material adverse
effect on the business, financial condition, results of operations, prospects,
properties, assets or liabilities of the Business, SSBI and the Subsidiaries,
in each case, taken as a whole. Notwithstanding anything herein to the
contrary, a "Material Adverse Effect" shall not include any state of facts,
change, event, effect or occurrence arising out of or relating to (i) the
execution, announcement, expected consummation or consummation of this
Agreement, or the transactions contemplated hereby (including the identity of
the Purchasers or any of their subsidiaries or affiliates), (ii) any action
taken by either of Seller, Seller Parent, SSBI or any Subsidiary required by
and effected in accordance with this Agreement, (iii) any action (or failure to
act) taken by either Purchaser in violation of the terms of this Agreement, or
(iv) the general state of the industry in which SSBI or the Subsidiaries
operate, except for such effects that disproportionately impact SSBI or the
Subsidiaries (in each case, taken as a whole).
"Material Contracts" has the meaning specified in Section 3.13(a).
"Med-Lab" has the meaning specified in the recitals to this Agreement.
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"Multiemployer Plans" has the meaning specified in Section 3.20.
"Nevada" has the meaning specified in the recitals to this Agreement.
"Non-Competition Agreement" has the meaning specified in Section
8.1(b).
"Organizational Documents" has the meaning specified in Section
3.2(a).
"Outside Date" has the meaning specified in Section 10.1(a).
"Promissory Note" has the meaning specified in Section 2.2(b).
"Pensacola Lease" means that certain Lease, dated October 16, 2002, by
and between Corporate Xxxxx Six, LLC, as lessor, and SSBI, as lessee, as the
same shall have been modified, amended or supplemented.
"Pension Plans" has the meaning specified in Section 3.20.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or other entity or Governmental Body.
"Promissory Note" has the meaning specified in Section 2.2(b).
"Purchase Price" has the meaning specified in Section 2.2(b).
"Purchaser" has the meaning specified in the preamble to this
Agreement.
"Purchaser Indemnified Parties" has the meaning specified in Section
9.2.
"Purchaser Loss" has the meaning specified in Section 9.2.
"Purchaser Losses" has the meaning specified in Section 9.2.
"Qualified Plan" has the meaning specified in Section 3.20.
"Real Property Lease" has the meaning specified in Section 3.12.
"Real Property Leases" has the meaning specified in Section 3.12.
"Release" means any release, spill, emission, leaking, pumping,
pouring, emitting, emptying, escaping, dumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor
environment or into or out of any Facility of any Contaminant, including the
movement of Contaminants through or in the air, soil, surface water,
groundwater or Facility.
"Retained Assets" means the assets that are to be distributed to
Seller pursuant to Section 5.9(a).
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"Retained Leases" means the leases of real property formerly used in
the operation of the Business, as follows: (i) that certain Lease Agreement
dated August 15, 1990, between Park North A85 Partners, Ltd. (predecessor in
interest to Weeks Realty, L.P.) and Serologicals, Inc. (to the extent the same
relates to the facility formerly known as the Clarkston Collection Center); and
(ii) that certain Office Lease by and between Highwoods/Forsyth Limited
Partnership, a North Carolina limited partnership and Serologicals, Inc., a
Delaware corporation relating the premises located at 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx.
"Retained Companies" has the meaning specified in the recitals to this
Agreement.
"Royalty" has the meaning specified in the recitals to this Agreement.
"Security Agreement" has the meaning specified in Section 8.1(b).
"SBT" has the meaning specified in the recitals to this Agreement.
"Section 338(h)(10) Election" has the meaning specified in the
recitals to this Agreement.
"Seller" has the meaning specified in the preamble to this Agreement.
"Seller Parent" has the meaning specified in the preamble to this
Agreement.
"Seller Parent Group" means, individually and collectively, (i) Seller
Parent, and (ii) any individual, trust corporation, partnership, limited
liability company or any other entity as to which SSBI or the Subsidiaries is
liable for any Tax incurred by such individual or entity either as transferee,
or pursuant to Treasury Regulations Section 1.1502-6, or pursuant to any other
provision of federal, territorial, state, local or foreign law or regulations.
"Short Term Promissory Note" has the meaning specified in Section
2.2(c).
"Software" has the meaning specified in Section 3.17(a)(iii).
"SSBI" has the meaning specified in the recitals to this Agreement.
"SSBI Common Stock" has the meaning specified in the recitals to this
Agreement.
"Subsidiary" or "Subsidiaries" has the meaning specified in the
recitals to this Agreement.
"Tax" means (a) any federal, state, local or foreign income, gross
receipts, property, production, sales, use, license, excise, franchise,
employment, payroll, withholding, alternative or add-on minimum, ad valorem,
transfer, value-added, stamp or environmental tax, or any other tax, custom,
duty, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, addition to tax or
additional amount imposed by any Governmental Body, and (b) any liability of
SSBI or any Subsidiary for the payment of any amount related to the foregoing
as a result of being a member of an affiliated, consolidated, combined or
unitary group, or as a result of any obligation of SSBI or any Subsidiary under
any Tax sharing arrangement or Tax indemnity arrangement.
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"Tax Arbiter" has the meaning specified in Section 6.6(b).
"Tax Arbiter Determination" has the meaning specified in Section
6.6(b).
"Tax Returns" means any return, report or similar statement required
to be filed with respect to any Taxes (including any attached schedules),
including, without limitation, any information return, claim for refund,
amended return or declaration of estimated Tax.
"Transition Services Agreement" has the meaning specified in Section
7.1(e).
"Welfare Plans" has the meaning specified in Section 3.20.
"Year End Statements" has the meaning specified in Section 3.4.
ARTICLE II
THE STOCK PURCHASE
SECTION 2.1 TRANSFER OF THE STOCK. Upon the terms and subject to the
conditions contained herein, on the Closing Date, Seller shall sell, convey,
transfer, assign and deliver to Buyer, and Buyer shall purchase and accept from
Seller, all of the SSBI Common Stock, free and clear of any and all
Encumbrances.
SECTION 2.2 CONSIDERATION FOR THE STOCK. Upon the terms and subject to
the conditions contained herein, as consideration for the purchase of the SSBI
Common Stock, on the Closing Date,:
(a) Buyer shall pay to Seller by wire transfer of
immediately available funds the aggregate amount of Three Million Five Hundred
Thousand United States Dollars (US $3,500,000) (the "Cash Purchase Price");
(b) Buyer shall deliver to the Seller a promissory note
(the "Promissory Note") in the form attached hereto as Exhibit A and in an
estimated amount (the "Estimated Note Amount") equal to the sum of (i) the book
value of the Inventory of the Business on the Effective Date or the Closing
Date, whichever is applicable pursuant to Section 2.3 and (ii) the accounts
receivable of the Business on the Effective Date or the Closing Date, whichever
is applicable pursuant to Section 2.3, as such amount may be adjusted pursuant
to the provisions of the Promissory Note; and
(c) Buyer and Buyer Parent shall deliver to the Seller a
promissory note (the "Short Term Promissory Note" and together with the Cash
Purchase Price and the Promissory Note the "Purchase Price") in the form
attached hereto as Exhibit B, in a principal amount of Xxx Xxxxxxx Xxxx Xxxxxxx
Xxxxxxxx Xxxxxx Xxxxxx Dollars (US $1,500,000) by the Buyer and Guaranteed by
the Buyer Parent.
SECTION 2.3 CLOSING. The closing of the transactions contemplated
herein (the "Closing") shall be held at 9:00 a.m. on the first business day
following the satisfaction or waiver of all the conditions to the Closing set
forth in Article VII (the "Closing Date") at the offices of King & Spalding
LLP, 000 Xxxxxxxxx Xx., Xxxxxxx, Xxxxxxx 00000, or on such other date or at
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such other location as mutually agreed in writing by the parties hereto.
Notwithstanding anything in this Agreement to the contrary, (i) if the Closing
occurs on or before January 15, 2004, the parties agree to account for the
transactions contemplated in this Agreement as if the Closing occurred at the
close of business on the Effective Date, in which event the principal amount of
the Note shall be computed based on the book value of the Inventory and the
accounts receivable of the Business on the Effective Date and all receipts of
cash from and after the Effective Date shall be for the benefit of Buyer and
(ii) if the Closing occurs after the close of business on January 15, 2004, the
parties shall account for the transactions contemplated in this Agreement as of
12:01 a.m. on the actual Closing Date; provided that in no event shall the
Closing occur earlier than 4:00 p.m. eastern time on December 31, 2003.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
The Holders jointly and severally represent and warrant to the
Purchasers the following:
SECTION 3.1 OWNERSHIP OF THE STOCK; AUTHORIZATION OF EACH HOLDER.
(a) Ownership. Seller owns of record and beneficially
all of the outstanding shares of SSBI Common Stock free and clear of any
Encumbrances, other than Encumbrances that will be released, discharged, and
terminated simultaneously with the Closing. Seller Parent owns of record and
beneficially all of the outstanding shares of capital stock of Seller.
(b) Authorization. Each Holder has all necessary right,
power, capacity and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to perform its obligations
hereunder, and, except as provided on Schedule 3.1(b), no other proceedings on
the part of any Holder or any other Person, as the case may be, are necessary
to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby by any Holder. This
Agreement has been duly executed and delivered by each Holder and, assuming due
execution and delivery by the other parties thereto, is a valid and binding
obligation of each Holder enforceable against each such Holder in accordance
with its terms (except to the extent that enforcement may be affected by
applicable bankruptcy, reorganization, insolvency and similar laws affecting
creditors' rights and remedies generally and by general principles of equity,
regardless of whether enforcement is sought at law or in equity).
SECTION 3.2 ORGANIZATION AND CAPITALIZATION.
(a) Organization. Each of SSBI, the Subsidiaries and the
Holders is duly organized, validly existing and in good standing (where such
jurisdiction recognizes such concept for each of SSBI and the Subsidiaries)
under the laws of its respective jurisdiction of incorporation, organization or
formation, as the case may be, and has full corporate, partnership, limited
liability company or other entity power and authority, as the case may be, to
conduct its business as it is presently being conducted and to own, operate and
lease its assets. SSBI and the Subsidiaries are duly qualified to do business
as a foreign corporation, limited partnership, limited liability company or
business trust, as the case may be, in each jurisdiction in which such
qualification is necessary under applicable law as a result of the conduct of
their business or the
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ownership of their properties, except where failure thereof would not have a
Material Adverse Effect. Each jurisdiction in which SSBI and each Subsidiary is
qualified to do business as a foreign corporation, limited partnership, limited
liability company or business trust, as the case may be, is listed on Schedule
3.2(a)(i). Except as set forth on Schedule 3.2(a)(ii), (i) the Holders have
delivered to a Purchaser true, correct and complete copies of the certificate
of incorporation, bylaws, partnership agreement, operating agreement or other
organizational and governing documents (the "Organizational Documents") of each
of SSBI, the Subsidiaries and the Holders (in each case, as amended to date),
(ii) the Holders have made available all minutes of the proceedings of the
board of directors, general partner, managers or other managing body, as the
case may be, of each of SSBI and the Subsidiaries and of the stockholders,
partners, members or other equity owners, as the case may be, of each of SSBI
and the Subsidiaries for the last five years and such minutes are true and
correct, and (iii) the Holders have made available all capital stock or other
equity interest transfer records or ledgers of SSBI and each Subsidiary and
such records and ledgers are true and correct. Neither SSBI nor any Subsidiary
is in default under or in violation of any provision of its Organizational
Documents.
(b) Capitalization of SSBI. SSBI's authorized capital
stock consists solely of 1000 shares of SSBI Common Stock, 100 of which are
issued and outstanding. All of the issued and outstanding shares of SSBI Common
Stock have been duly authorized and validly issued and are fully paid and
non-assessable, were issued and sold pursuant to, and in accordance with all
applicable Laws and were not issued in violation of any preemptive, first
refusal or other similar rights. There are no (i) outstanding shares of capital
stock or other equity securities or interests, subscriptions, calls, warrants,
options or commitments of any kind or character relating to, or entitling any
Person to purchase or otherwise to acquire, any capital stock or other equity
securities or interests or securities or interests convertible into or
exercisable or exchangeable for shares of capital stock or other equity
securities or interests (collective by "Equity Securities") of, in or relating
to SSBI or (ii) commitments or obligations of any kind or character for (A) the
issuance of any Equity Securities of SSBI or (B) the repurchase, redemption or
other acquisition of any Equity Securities of SSBI.
(c) Capitalization of the Subsidiaries. Except for the
Retained Companies, the Subsidiaries are the only subsidiaries of SSBI, either
directly or indirectly, and except as set forth on Schedule 3.2(c)(i) and
except for its investments in the Subsidiaries and the Retained Companies SSBI
has no investments or equity interests in, outstanding loans or advances to,
contractual rights to control, or other similar interests in, any other Person.
SSBI is, directly or indirectly, the beneficial owner of all of the outstanding
Equity Securities of each of the Subsidiaries, in each case, free and clear of
any and all Encumbrances, other than Encumbrances that will be released,
discharged and terminated simultaneously with the Closing. The authorized,
issued and outstanding capital stock or other equity interests, and the record
ownership of all such Equity Securities, of each Subsidiary are as set forth on
Schedule 3.2(c)(ii). All of the Equity Securities of each Subsidiary have been
duly authorized and validly issued and are fully paid and non-assessable, were
issued and sold pursuant to, and in accordance with all Laws, and were not
issued in violation of any rights of any Person, whether such rights were,
without limitation, preemptive, first-refusal or other similar rights. There
are no (i) outstanding Equity Securities of, in or relating to any Subsidiary
or (ii) commitments or obligations of any kind or character for (A) the
issuance of Equity Securities of any Subsidiary or (B) the repurchase,
redemption or other acquisition of any Equity Securities of any Subsidiary.
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(d) Voting Trusts; Proxies; Etc. There are no
shareholder agreements, voting trusts, proxies or other agreements,
arrangements or understandings with respect to or concerning the Equity
Securities of SSBI or any Subsidiary.
SECTION 3.3 NON-CONTRAVENTION. Except as set forth on Schedule 3.3,
neither the execution or delivery of this Agreement, the Transition Services
Agreement, the Non-Competition Agreement or any other document or instrument
contemplated herein to be signed by a Holder nor the consummation of the
transactions contemplated hereby or thereby by a Holder will (a) conflict with
or result in the breach of any term or provision of, or constitute a default
under, the Organizational Documents of any Holder, SSBI, or the Subsidiaries;
(b) result in a default, or give rise to any right of termination, cancellation
or acceleration, under any provisions of any Contract; (c) result in the
creation or imposition of any Encumbrance on any Asset; (d) violate any Laws
applicable to any Holder, SSBI, or the Subsidiaries; or (e) require on the part
of any Holder, SSBI, the Subsidiaries or any Affiliate thereof, as of the date
hereof, the approval, consent, waiver, authorization or act of, the making of
any declaration, filing or registration with, or notice to, any Person or
Governmental Body, except with respect to clauses (b), (c), (d) and (e) where
such default, termination, cancellation, acceleration of an Encumbrance or
violation or the absence of any such approval, consent, waiver, authorization
act, declaration, filing or registration either individually or taken as a
whole, would not, or would not reasonably be expected to have a Material
Adverse Effect.
SECTION 3.4 FINANCIAL STATEMENTS. Schedule 3.4 contains the unaudited
consolidated pro forma balance sheets of the Business as of the last day of
fiscal years 2000, 2001, and 2002 and the related unaudited consolidated
statements of income for the years then ended, (the "Year End Statements"), as
well as the unaudited consolidated pro forma balance sheet of the Business for
the nine months ended September 30, 2003 (the "Interim Balance Sheet") and the
related unaudited consolidated statement of income for the period then ended,
(collectively, the "Interim Statements," and together with the Year End
Statements, the "Financial Statements"). Except as set forth on Schedule 3.4,
the Financial Statements have been prepared in accordance with generally
accepted accounting principles in the United States applied on a consistent
basis ("GAAP") (except as may be noted therein and except for the absence of
footnotes) and present fairly, in all material respects, the consolidated pro
forma financial condition and the consolidated pro forma results of operations
and consolidated pro forma cash flows of the Business as of the dates and for
the periods indicated.
SECTION 3.5 NO UNDISCLOSED LIABILITIES. Except as set forth on
Schedule 3.5, SSBI and the Subsidiaries are not subject to any obligation or
liability of a kind required to be included as a liability on the Balance Sheet
or Interim Balance Sheet in accordance with GAAP (including, without
limitation, third-party claims), whether absolute, contingent, accrued or
otherwise, which is not reserved for on the Balance Sheet or the Interim
Balance Sheet, other than liabilities incurred in the ordinary course of
business after the Balance Sheet Date or the date of the Interim Balance Sheet,
as the case may be as would not have, or would not reasonably be expected to
have a Material Adverse Effect.
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SECTION 3.6 OPERATIONS SINCE BALANCE SHEET DATE.
(a) Except as set forth on Schedule 3.6(a), during the
period from the Interim Balance Sheet Date to the date hereof, inclusive, there
has been no Material Adverse Effect.
(b) Except as set forth on Schedule 3.6(b), since the
Interim Balance Sheet date through the date hereof, SSBI, the Subsidiaries and
each Affiliate thereof (if applicable) have conducted the Business only in the
ordinary course and in conformity with past practices and have not:
(i) undertaken or committed to undertake capital
expenditures related to the Business exceeding $10,000 for any single
project or related series of projects;
(ii) made charitable or political donations related to
the Business in excess of $2,000 in the aggregate;
(iii) sold, leased, transferred or otherwise disposed of
Assets, or mortgaged or pledged, or imposed or suffered to be imposed
any Encumbrance on any of the Assets, except for fair consideration in
the ordinary course of business consistent with past practices and
except for assets that SSBI or a Subsidiary determined in good faith
not to have any value in the operation of the Business;
(iv) created, incurred, guaranteed or assumed any
indebtedness for borrowed money or entered into any capitalized leases
related to the Business;
(v) extended credit in connection with the Business
other than in the ordinary course of business or permitted any change
in credit practices;
(vi) made any changes in the accounting methods or
practices of the Business or in the methods of maintaining any Books
and Records or Donor Records, except as required by or permitted by
GAAP;
(vii) agreed or committed to do or authorized any of the
foregoing;
(viii) delayed or postponed the payment of any accounts
payable or other liabilities outside of the ordinary course of
business consistent with past practices;
(ix) cancelled, waived or released any right or claim or
indebtedness (or series of related rights or claims);
(x) suffered any material damage, destruction or loss to
property not covered by insurance; or
(xi) entered into any loan or other transaction with any
director, officer or employee of SSBI, the Subsidiaries or the
Business outside of the ordinary course of business consistent with
past practices.
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SECTION 3.7 ASSETS AND LEGALITY OF USE. Except as set forth on
Schedule 3.7(i), the assets and properties owned or leased by SSBI or the
Subsidiaries, or which SSBI or the Subsidiaries are entitled to use under
license or other agreements, together with the Contracts set forth on Schedule
3.13, constitute all the assets, properties and Contracts that are used by the
Holders, SSBI, the Subsidiaries, the Companies or Affiliates thereof primarily
in connection with the conduct of the Business (the "Assets"). Except as set
forth on Schedule 3.7(ii), the Assets are owned or leased by SSBI and its
Subsidiaries and are free and clear of all Encumbrances. The tangible Assets
are in good condition (subject to normal wear and tear) and are suitable for
the uses for which they are intended.
SECTION 3.8 ACCOUNTS RECEIVABLE. All the accounts receivable of the
Business reflected on the Interim Balance Sheet are valid receivables, subject
to no setoffs or counterclaims. The allowance for doubtful accounts set forth
on the Interim Balance Sheet was calculated in accordance with past practice
and is adequate in light of all known facts and circumstances having a bearing
on the collectibility of the accounts receivable of the Business.
SECTION 3.9 MATERIAL ASSETS. Schedule 3.9 contains a detailed list (i)
of all personal property and other Assets (other than Contracts) owned by SSBI,
the Subsidiaries or any Affiliate thereof that are used primarily in connection
with the Business and have an original cost of $50,000 or more, (ii) of all
personal property leased by SSBI, the Subsidiaries or any Affiliate thereof
that are used primarily in connection with the Business and require rental
payments in excess of $50,000 in the aggregate during the term of the lease,
and (iii) all intangible property licensed by SSBI, the Subsidiaries or any
Affiliate thereof that are used primarily in connection with the Business and
require license fees in excess of $50,000 in the aggregate.
SECTION 3.10 INVENTORIES. The Inventories of SSBI and the Subsidiaries
are in good, merchantable and useable condition and are reflected in the
Balance Sheet and Interim Balance Sheet in accordance with GAAP. All Inventory
as of the applicable date, is reflected on the Balance Sheet and Interim
Balance Sheet. The inventory of soft goods and other supplies on hand at the
Donor Centers is sufficient for the operation of the Business in the ordinary
course. A Holder has heretofore delivered to Buyer a list of all places where
Inventories of SSBI, the Subsidiaries and Affiliates thereof are located.
SECTION 3.11 REAL PROPERTY. SSBI and the Subsidiaries do not currently
and have never owned any real property or option to acquire real property.
SECTION 3.12 REAL PROPERTY LEASES. (a) Schedule 3.12(a) sets forth a
list of leases (individually, a "Real Property Lease" and collectively, "Real
Property Leases") under which SSBI, the Subsidiaries, or any Affiliate thereof
is lessee of any real property owned by any third party and that is used in
connection with the Business. Except as set forth on Schedule 3.12(a), (i)
there are no subleases, tenancies or other rights of occupancy affecting all or
any part of such leases, (ii) SSBI or the Subsidiaries thereof, as the case may
be, has the right to quiet enjoyment of the premises described in any lease
identified on such Schedule for the full term of each such lease or similar
agreement relating thereto, and (iii) the leasehold or other interest of SSBI,
the Subsidiaries or any Affiliate thereof, as the case may be, therein is not
subject or subordinate to any Encumbrance held by Persons claiming by, through
or under SSBI or the Subsidiaries, as the
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case may be, except for immaterial Encumbrances that will not affect any such
SSBI's or such Subsidiary's rights under the applicable lease or Encumbrances
that are of public record.
(b) To the Knowledge of Seller, no event has occurred or
circumstances exist that (with or without notice or lapse of time) may give
SSBI or the Subsidiaries, or any other Person the right to declare a default or
exercise any remedy under, or to accelerate the maturity or performance of, or
payment under, or to cancel, terminate or modify, any Real Property Lease.
(c) Neither SSBI, the Subsidiaries nor any Affiliates
thereof has been given or received from any other Person any written notice
regarding any actual, alleged, possible or potential violation or breach of, or
default under any Real Property Lease.
(d) All facilities subject to the Real Property Leases
have received all approvals of Governmental Bodies (including licenses and
permits) required in connection with the operation thereof and have been
operated and maintained in accordance with applicable Law in all material
respects.
(e) All facilities subject to the Real Property Leases
are supplied with utilities and other services necessary for the operation of
said facilities.
(f) The Real Property Leases are legal, valid, binding,
enforceable and in full force and effect and will continue to be legal, valid,
binding, enforceable, and in full force and effect on identical terms following
the consummation of the transactions contemplated hereby.
SECTION 3.13 CONTRACTS.
(a) Except as set forth on Schedule 3.13, neither SSBI
nor any Subsidiary is party to or bound by:
(i) any Contract guaranteeing any indebtedness,
obligation or liability, or any Contract under which it grants (or may
grant) a security interest or lien on any Assets or any obligation to
incur any of the foregoing;
(ii) any joint venture, partnership or other Contract
involving a sharing of profits related to the Business;
(iii) any Contract which is material to the Business and
which includes provisions regarding minimum volumes or volume
discounts or any other Contract with customers or suppliers of the
Business that is not subject to cancellation by SSBI or the applicable
Subsidiary with not more than 90 day's prior notice and without the
payment of any penalty or premium and pursuant to which a Company
receives revenues in excess of $50,000 per annum or pursuant to which
a Company is obligated to make expenditures in excess of $50,000 per
annum;
(iv) any Contract which is material to the Business and
pursuant to which a rebate, discount, bonus, commission or other
payment with respect to the sale of any Inventory of any Company will
be payable in an amount in excess of $100,000 or required after the
Closing;
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(v) any consignment, distributor, dealer, manufacturer's
representative, sales agency, advertising representative or
advertising, consultant or public relations Contract which is material
to the Business and that is not subject to cancellation by SSBI or the
applicable Subsidiary or Affiliate with not more than 90 day's prior
notice without the payment of any penalty or premiums;
(vi) any Contract limiting the ability of SSBI or its
Subsidiaries to engage in any business, including, but not limited to,
the Business, anywhere in the world;
(vii) any Contract which provides for, or relates to, any
non-competition, non-solicitation or confidentiality arrangement with
any Person;
(viii) any Contract which could involve payments or
receipts by any Company of more than $100,000 in any one year;
(ix) any Contract with any employee or former employee,
officer, director or agent of SSBI or the Subsidiaries or any member
of such person's immediate family; or
(x) any Contract with any Governmental Body.
All such Contracts being hereinafter referred to as the "Material
Contracts."
(b) Holders have delivered to Purchasers, or made
available, a true, complete and correct copy of each written Material Contract
and a description of any and all material terms of each oral Material Contract
listed on Schedule 3.13.
SECTION 3.14 STATUS OF CONTRACTS.
(a) Except as set forth on Schedule 3.14(a):
(i) each of the Material Contracts constitutes a valid
and binding obligation of SSBI or the Subsidiaries thereof and, to the
Knowledge of Seller, the other parties thereto, and is in full force
and effect and each of the Material Contracts (except for those
Material Contracts which by their terms will expire prior to the
Closing Date) will continue in full force and effect after the Closing
Date, in each case without breaching the terms thereof or resulting in
the forfeiture or impairment of any rights thereunder and without the
consent, approval or act of, or the making of any filing with, any
Person;
(ii) except as set forth on Schedule 3.14(a), SSBI, its
Subsidiaries and the Affiliates thereof have fulfilled and performed
their material obligations under each of the Material Contracts, and
is not, or to the Knowledge of Seller, alleged to be, in breach or
default under, nor is there or, to the Knowledge of Seller, alleged to
be, any basis for termination of any Contract;
(iii) to the Knowledge of Seller, no other party to any of
the Contracts has breached or defaulted thereunder.
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(b) Except as set forth on Schedule 3.14(b), neither
SSBI nor any Subsidiary is engaged in any renegotiations of any Material
Contracts. Neither SSBI nor the Subsidiaries has received any written demand
respecting renegotiation from any party to any Material Contract.
(c) Except as set forth on Schedule 3.14(c), no event
has occurred or circumstance exists under or by virtue of any Material Contract
(with or without notice or lapse of time) that would cause the creation of an
Encumbrance on or affecting the Assets, SSBI or Subsidiaries.
(d) Except as set forth on Schedule 3.14(d), neither
SSBI nor the Subsidiaries has given or received from any other Person any
notice or other communication (whether oral or written) regarding any actual,
alleged, possible or potential violation or breach of, or default under, any
Material Contract.
SECTION 3.15 GOVERNMENTAL PERMITS AND CERTIFICATION.
(a) SSBI and the Subsidiaries own, hold or possess all
governmental licenses, registrations, certifications, franchises, permits,
privileges, variances, immunities, approvals and other authorizations which are
necessary to entitle them to own, lease, operate and use the Assets and to
carry on and conduct the Business substantially as currently conducted except
where the failure to have such licenses, registrations, certifications,
franchises, permits, privileges, variances, immunities, approvals and other
authorizations would not have or would not reasonably be expected to have
individually or taken as a whole a Material Adverse Effect (herein collectively
called "Governmental Permits").
(b) SSBI and the Subsidiaries have fulfilled and
performed their respective material obligations under each of such Governmental
Permits, and no event has occurred or condition or state of facts exists which
constitutes or, after notice or lapse of time or both, would constitute a
violation, breach or default under any such Governmental Permit, or after
notice or lapse of time or both, would permit debarment, suspension, revocation
or termination of any such Governmental Permit, or which might adversely affect
the right of SSBI or any Subsidiary, as applicable, under any such Governmental
Permit. No warning letter or notice of violation, of cancellation, of default,
of recall, or of any dispute concerning any Governmental Permit, or of any
event, condition or state of facts described in the preceding sentence, has
been received or, to the Knowledge of Seller, is contemplated or threatened.
Except as set forth on Schedule 3.15(b), each of the Governmental Permits is
valid, subsisting and in full force and effect.
SECTION 3.16 TAX MATTERS.
(a) Except as set forth on Schedule 3.16(a):
(i) each of SSBI and the Subsidiaries are members of the
affiliated group, within the meaning of Section 1504(a) of the Code,
of which Seller Parent is the common parent; such affiliated group
files a consolidated federal income Tax Return; and neither SSBI, the
Subsidiaries, nor any entity to whose liabilities any such Person has
succeeded, has ever filed a consolidated federal income Tax Return
with (or been included in a consolidated return of) a different
affiliated group;
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(ii) Seller Parent has filed or caused to be filed on a
timely basis all Tax Returns required to have been filed by members of
the Seller Parent Group, and all information set forth in such Tax
Returns is correct and complete in all material respects;
(iii) Seller Parent has paid or caused to be paid on a
timely basis all Taxes due and payable by Seller Parent Group on such
Tax Returns, and no other Taxes are payable by the Seller Parent Group
with respect to items or periods covered by such Tax Returns or with
respect to any period prior to the date of this Agreement except for
Taxes being contested in good faith and listed on Schedule 3.16(a);
(iv) each member of the Seller Parent Group is in l
compliance with, and the records of each of them contain all
information and documents (including, without limitation, properly
completed IRS Forms W-9) necessary to comply with, all Tax information
reporting and Tax withholding requirements;
(v) each member of the Seller Parent Group has collected
or withheld all amounts required to be collected or withheld by it for
any Taxes, and all such amounts have been paid to the appropriate
governmental agencies or set aside in appropriate accounts for future
payment when due;
(vi) none of SSBI or any Subsidiary has granted (nor is
any of them subject to) any waiver currently in effect of the period
of limitations for the assessment of Tax, no member of the Seller
Parent Group has granted (nor is any of them subject to) any waiver
currently in effect of the period of limitations for the assessment of
any federal, state, local or foreign income Tax, no unpaid Tax
deficiency has been asserted against or with respect to any of SSBI or
the Subsidiaries by any taxing authority, no unpaid federal, state,
local or foreign income Tax deficiency has been asserted against or
with respect to any member of the Seller Parent Group by any taxing
authority, there is no pending examination, administrative or judicial
proceeding, or deficiency or refund litigation with respect to any
Taxes of SSBI or any Subsidiary, and there is no pending examination,
administrative or judicial proceeding, or deficiency or refund
litigation with respect to any federal, state, local or foreign income
Taxes of any member of the Seller Parent Group;
(vii) no member of the Seller Parent Group has made or
entered into, or holds any asset subject to, a consent filed pursuant
to Section 341(f) of the Code and the regulations thereunder or a
"safe harbor lease" subject to former Section 168(f)(8) of the
Internal Revenue Code of 1954, as amended before the Tax Reform Act of
1984, and the regulations thereunder;
(viii) no member of the Seller Parent Group is required to
include in income any amount from an adjustment pursuant to Section
481 of the Code or the regulations thereunder or any similar provision
of state Law;
(ix) no member of the Seller Parent Group is a party to,
or obligated under, any agreement or other arrangement providing for
the payment of any amount that would be an "excess parachute payment"
under Section 280G of the Code;
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(x) there are no excess loss accounts or deferred
intercompany gains with respect to any of SSBI or any Subsidiary;
(xi) no member of the Seller Parent Group has distributed
to its equity holders any stock or securities of a controlled
corporation in a transaction to which Section 355(a) of the Code
applies;
(xii) there is no lien on any asset of SSBI or any
Subsidiary with respect to Taxes, other than liens for Taxes not yet
due and payable or for Taxes that a member of Seller Parent Group is
contesting in good faith through appropriate proceedings and for which
appropriate reserves have been established;
(xiii) the amount of liability of SSBI and its Subsidiaries
for unpaid Taxes for all periods ending on or before the date of this
Agreement do not, in the aggregate, exceed the amount of the current
liability accruals for Taxes (excluding reserves for Taxes) solely
with respect to SSBI and its Subsidiaries as of the date of this
Agreement, and the amount of SSBI's and its Subsidiaries" liability
for unpaid Taxes for all periods ending on or before the Closing Date
shall not, in the aggregate, exceed the amount of the current
liability accruals for Taxes (excluding reserves for Taxes) as such
accruals are reflected in the balance sheet of SSBI and its
Subsidiaries as of the Closing Date;
(xiv) No claim has ever been made by any taxing authority
in any jurisdiction in which SSBI or any Subsidiary does not file Tax
Returns that it is or may be subject to taxation by that jurisdiction;
(xv) Seller Parent has disclosed on its federal income
Tax Returns all positions taken therein that could give rise to a
substantial understatement penalty within the meaning of Section 6662
of the Code; and
(xvi) the Seller Parent Group has not participated or
cooperated with an international boycott within the meaning of Section
999 of the Code.
SECTION 3.17 INTELLECTUAL PROPERTY. (a) Schedule 3.17 contains a list
and brief description of:
(i) all United States and foreign patents and patent
applications and patent disclosures owned or controlled by SSBI, any
Subsidiary, or Affiliates thereof and which is used primarily in
connection with the Business;
(ii) all United States and foreign copyrights, registered
or unregistered, copyrighted works and copyright registration
applications owned or controlled by SSBI, any Subsidiary or Affiliates
thereof and which is used primarily in connection with the Business;
(iii) all computer software programs and software and
software validation systems (including, without limitation, all data,
databases, compilations, tool sets, related documentation and
materials, whether in source code, object code or human readable
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form and regardless of media), developed by or for SSBI, any
Subsidiary or Affiliates thereof and which is used primarily in
connection with the Business ("Software");
(iv) all United States, state and foreign trademarks,
service marks and trade names for which registrations have been issued
or applied for by SSBI, any Subsidiary or by Affiliates thereof and
which are used primarily in connection with the Business; and
(v) all agreements, commitments, contracts,
understandings, licenses, sublicenses, assignments and indemnities
which relate or pertain to any asset, property or right of the
character described in the preceding clauses to which SSBI, any
Subsidiary or any Affiliate thereof is a party.
(b) To the Knowledge of Seller, neither SSBI, the
Subsidiaries nor any Affiliate thereof have infringed upon or misappropriated
any other Person's intellectual property right, of any kind or nature, in
connection with the Business.
(c) To the Knowledge of Seller, no third party has
interfered with, infringed upon or misappropriated the intellectual property
rights of SSBI, any Subsidiary or Affiliates thereof.
(d) SSBI or the Subsidiaries own or have the right to
use pursuant to license, sublicense, agreement or permission all intellectual
property rights (including, without limitation, all computer software programs,
other software, firmware, software validation systems, data, databases,
compilations, tool sets and related documentation) necessary for the operation
of the Business as presently conducted. All of the employees of SSBI and the
Subsidiaries that have participated in the development of products or services
of the Business have entered into employee agreements assigning all rights,
title and interest in the intellectual property therein to SSBI or the
Subsidiaries as the case may be.
SECTION 3.18 EMPLOYEES. Schedule 3.18(i) contains (a) a list of the
employees of SSBI and the Subsidiaries as of the most recent practicable date
and any employees of Affiliates thereof that work primarily in connection with
the Business and (b) the wages and salary paid to each such employee for the
current calendar year. Except as set forth on Schedule 3.18(ii), all bonuses,
commissions and other compensation due and payable to such employees for
services performed on or prior to the date hereof have been paid in full and
there are no outstanding agreements, understandings or commitments of SSBI, any
Subsidiary or any such Affiliate thereof with respect to any bonuses or
increases in compensation.
SECTION 3.19 EMPLOYEE MATTERS. Except as set forth on Schedule 3.19,
SSBI and the Subsidiaries have, since January 1, 1998, complied in all material
respects with all Laws related to the Business, which relate to wages, hours,
discrimination in employment and collective bargaining and are not liable for
any arrears of wages or any taxes or penalties for failure to comply with any
of the foregoing. To the Knowledge of Seller, SSBI and the Subsidiaries have
good relations with the employees that work in connection with the Business.
SSBI, the Subsidiaries and the Affiliates thereof are not a party to any
collective bargaining agreement, and are not party to, nor adversely affected
by or, to the Knowledge of Seller, threatened with, any dispute or controversy
with a union or with respect to unionization or collective bargaining involving
the above-referenced employees. SSBI and the Subsidiaries are not adversely
affected
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by any dispute or controversy with a union or with respect to unionization or
collective bargaining involving any supplier or customer of the Business.
SECTION 3.20 EMPLOYEE BENEFIT PLANS.
(a) Attached hereto as Schedule 3.20 is a true and
complete list of all "employee benefit plans" (as defined in Section 3(3) of
ERISA) and all other employee benefit arrangements or significant payroll
practices, including each severance pay, bonus, deferred compensation,
incentive compensation, stock purchase, stock option, hospitalization or other
medical, life, disability or other health insurance, pension, profit-sharing or
retirement program covering present and former employees of SSBI and the
Subsidiaries pursuant to which SSBI and the Subsidiaries have continuing
obligations (the "Employee Benefit Plans"). Schedule 3.20 identifies (i) each
"pension plan" (as defined in Section 3(2) of ERISA) (the "Pension Plans"), and
denotes those Pension Plans intended to be qualified under Section 401(a) of
the Code (the "Qualified Plans"), (ii) each Employee Benefit Plan which is a
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) (a
"Multiemployer Plan") and (iii) each "welfare plan" (as defined in Section 3(1)
of ERISA) (the "Welfare Plans"), maintained for the benefit of employees of
SSBI and the Subsidiaries or to which SSBI and the Subsidiaries contribute on
behalf of their employees. True, correct and complete copies of the following
documents, with respect to each of the Employee Benefit Plans, have been made
available or delivered to a Purchaser by a Holder: (i) any plans and related
trust documents, and all amendments thereto; (ii) the most recent Forms 5500
and all schedules thereto; (iii) the last IRS determination letter; and (iv)
summary plan descriptions. To the Knowledge of Seller, each Employee Benefit
Plan is enforceable in accordance with its terms.
(b) To the Knowledge of Seller, each Qualified Plan
complies in all material respects with all Laws, and the IRS has issued
favorable determination letters to the effect that the forms of Qualified Plans
(or predecessor plans) satisfy the requirements of Section 401(a) and related
sections of the Code. To the Knowledge of Seller, there are no facts or
circumstances that exist that would reasonably be expected to jeopardize or
adversely affect in any material respect the qualification under Code Section
401(a) of any Qualified Plan.
(c) As of the Closing Date, full payment will be made to
each Employee Benefit Plan of all contributions (including all employer
contributions and employee salary reduction contributions) that are required
under the terms thereof and under ERISA or the Code to be made on or prior to
that date. No "accumulated funding deficiency" (as defined in ERISA Section 302
or Code Section 412), whether or not waived, exists with respect to any Pension
Plan. None of the Holders, the Companies, any ERISA Affiliate or any
organization to which any Holder is a successor or parent corporation, within
the meaning of Section 4069(b) of ERISA, has engaged in any transaction to
evade liability, within the meaning of Section 4069 of ERISA.
(d) To the Knowledge of Seller, each Employee Benefit
Plan has been administered substantially in accordance with its terms. In
addition, to the Knowledge of Seller, each Employee Benefit Plan complies
substantially with and has been administered substantially in accordance with,
any applicable provisions of ERISA and the rulings and regulations promulgated
thereunder (including the continuation coverage requirements of group health
plans under COBRA), and all other applicable Laws, and all reports, returns and
other documentation
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that are required to have been filed with the IRS, the Department of Labor, the
Pension Benefit Guaranty Corporation or any other governmental agency (federal,
state or local) have been filed on a timely basis, in each instance in which
the failure to file such reports, returns and other documents would result in
any material liability or obligation to any Holder, SSBI or the Subsidiaries.
No unresolved lawsuits or formal legal complaints have been filed or, to the
Knowledge of Seller, are contemplated or threatened, with respect to any
Employee Benefit Plan.
(e) Except as described on Schedule 3.20 attached
hereto, no Holder, Company nor any ERISA Affiliate has received a notice of, or
incurred, any withdrawal liability with respect to a "multiemployer plan" (as
defined in ERISA Section 4001(a)(3)).
(f) Neither SSBI nor any Subsidiary has incurred any
material liability with respect to any Welfare Plan that was not reflected in
the Interim Balance Sheet. Except as set forth in Schedule 3.20, or as required
under COBRA or the terms of any Pension Plan, neither SSBI nor any Subsidiary
is obligated to provide or to pay any benefits to former employees or to their
dependents or beneficiaries.
SECTION 3.21 AFFILIATE TRANSACTIONS. Schedule 3.21 contains an
accurate and complete list of all Contracts or transactions relating to the
Business, whether or not entered into in the ordinary course of business, to or
by which an Affiliate of SSBI and its Subsidiaries is a party or otherwise
bound or affected at any time currently or during the past three (3) years. All
contracts listed on Schedule 3.21 are in writing, copies of which have been
provided to Purchaser. All contracts listed on Schedule 3.21 may be cancelled
by SSBI without penalty on notice of 30 days, except as noted on Schedule 3.21.
SECTION 3.22 NO VIOLATION, LITIGATION OR REGULATORY ACTION. Except as
set forth on Schedule 3.22:
(a) SSBI and the Subsidiaries have complied with all
Laws which are applicable to such Persons and the Business and each Affiliate
of SSBI and the Subsidiaries have also complied with all Laws related to the
Business, except, in each case, where the failure to comply would not have, or
would not reasonably be expected to have, a Material Adverse Effect;
(b) There are no (i) lawsuits, claims, suits or
proceedings pending or, to the Knowledge of Seller, threatened against SSBI and
the Subsidiaries related to the Business, or (ii) investigations pending
regarding the same nor, to the Knowledge of Seller, is there any basis for any
of the same, and there are no lawsuits, suits or proceedings pending or
contemplated in which SSBI or any Subsidiary relating to the Business is the
plaintiff or claimant;
(c) There is no action, suit or proceeding pending or,
to the Knowledge of Seller, threatened which questions the legality or
propriety of the transactions contemplated by this Agreement; and
(d) The Donor Centers are and have continuously been
IQPP Certified.
SECTION 3.23 INSURANCE. Schedule 3.23 contains a complete and accurate
list of all policies or binders for business interruption, fire and casualty,
liability (general, products and other liability), worker's compensation,
title, errors and omissions and other forms of insurance
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maintained by SSBI, the Subsidiaries and Affiliates thereof that relate to the
Business, which list includes the (a) type of insurance, (b) named insurer, (c)
named insured, (d) nature of coverage, (e) premium, (f) policy limits, (g)
deductibles and (h) expiration date, maintained, owned or held by such Person
during the period from January 1, 2003 up to and including the date hereof.
Such insurance provides, and during its term has provided, coverage to the
extent and in the manner (i) adequate for the conduct of the Business in the
ordinary course, (ii) as may be required by any Laws and (iii) to the Knowledge
of Sellers, as typically maintained by companies engaged in the same or a
similar business as the Business. The aforementioned Persons have complied, in
all material respects, with the applicable insurance policies or binders, and
are not in material default under any such policies or binders, and have not
failed to give any notice or to present any material claim under any such
policy or binder in a due and timely fashion. The insurers have not refused,
denied or disputed coverage of any material claim made thereunder. To the
Knowledge of Seller, no insurer intends to reduce coverage, increase premiums
in any material respect or not renew any existing policy or binder. A Holder
has provided or made available to a Purchaser correct and complete copies of
the policies and binders, and, if any, the most recent inspection reports
received from insurance underwriters as to the condition of the Assets.
SECTION 3.24 ENVIRONMENTAL PROTECTION. (a) Except as set forth in
Schedule 3.24, each Company is currently in compliance in all respects with all
Environmental Laws, except, in each case, where the failure to comply would not
have, or would not reasonably be expected to have, a Material Adverse Effect.
Except as set forth in Schedule 3.24, no Company or Holder has received any
notice to the effect that, or otherwise has knowledge that, (i) SSBI or any
Subsidiary is not currently in compliance with, or is in violation of, any
Environmental Laws or Permits required thereunder or (ii) any currently
existing circumstances are likely to result in a failure of SSBI or any
Subsidiary to comply with, or a violation by any Company of, any Environmental
Laws or Permits required thereunder. Except as set forth in Schedule 3.24, each
Company or any Affiliate of any Company related to the Business at all times
during the previous three (3) years has been in compliance in all material
respects with all Environmental Laws, except, in each case, where the failure
to comply would not have, or would not reasonably be expected to have, a
Material Adverse Effect.
(b) Except as set forth in Schedule 3.24, there are no
existing or, to the Knowledge of Seller, potential Environmental Claims against
SSBI or any Subsidiary, nor has any of them received any notification or
knowledge of any allegation of any actual, or potential responsibility for, or
any inquiry or investigation regarding, any disposal, release or threatened
release at any location of any Hazardous Substance generated or transported by
SSBI or any Subsidiary.
(c) To the Knowledge of the Seller, no underground tank
or other underground storage receptacle for Hazardous Substances is currently
located on the properties of the SSBI or any of the Subsidiaries and there have
been no Releases of any Hazardous Substances from any such underground tank or
related piping. Neither SSBI nor any of the Subsidiaries has Released, in the
last five years, Hazardous Substances in quantities exceeding the reportable
quantities as defined under any Law on, upon or into the properties of SSBI or
any of the Subsidiaries other than those authorized by Environmental Laws
including, without limitation, the Governmental Permits required thereunder.
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(d) Except as set forth in Schedule 3.24, to the
Knowledge of the Seller there are no PCBs or asbestos located at or on the
properties of SSBI or the Subsidiaries.
(e) Except as set forth in Schedule 3.24, there are no
consent decrees, consent orders, judgments, judicial or administrative orders,
agreements with (other than Permits) or liens by, any Governmental Body
relating to any Environmental Law which regulate, obligate or bind SSBI or the
Subsidiaries.
(f) Except as set forth in Schedule 3.24, true and
correct copies of the Environmental Reports, as well as all other written
environmental reports, audits or assessments which have been conducted, either
by any Holder, SSBI or any Subsidiary related to the Business or any person
engaged by any Holder, SSBI or any Subsidiary for such purpose, at any facility
owned or formerly owned by SSBI or any Subsidiary have been delivered to Buyer
and a list of all such reports, audits and assessments is set forth on Schedule
3.24.
(g) Neither SSBI nor any Subsidiary is subject to the
environmental liabilities of any third party, whether by contractual agreement
or operation of law.
SECTION 3.25 CUSTOMERS AND SUPPLIERS. Set forth on Schedule 3.25
hereto is (i) a list of the twenty (20) largest customers and the twenty (20)
largest suppliers (measured by dollar volume of purchases or sales in each
case) of the Business for the nine (9) months ended September 30, 2003. Except
as set forth on Schedule 3.25, as of the date hereof there exists no actual or
threatened termination, cancellation or limitation of, or any modification or
change in, the business relationship of SSBI and its Subsidiaries with any
customer or group of customers or supplier or group of suppliers listed on
Schedule 3.25, or whose purchases or sales individually or in the aggregate are
material to the operations of the Business.
SECTION 3.26 NO BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of any Holder, SSBI or the Subsidiaries or any of their
respective officers, directors, employees, equity holders or Affiliates.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
The Purchasers represent and warrant to the Holders as follows:
SECTION 4.1 ORGANIZATION. Each Purchaser is duly organized, validly
existing and in good standing (where such jurisdiction recognizes such concept)
under the laws of its jurisdiction of organization, and has full corporate
power and authority to conduct its business as it is presently conducted and to
own, operate and lease its assets. Buyer is classified as a corporation for
U.S. federal income tax purposes and is eligible to make a Section 338(h)(10)
Election as contemplated herein.
SECTION 4.2 AUTHORIZATION. Each Purchaser has all necessary right,
power, capacity and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to perform its obligations
hereunder, and no other proceedings on the part of the Purchasers are necessary
to authorize the execution, delivery and performance of this Agreement
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and the consummation of the transactions contemplated hereby by such
Purchasers. This Agreement has been duly executed and delivered by each
Purchaser and is a valid and binding obligation of each Purchaser enforceable
against it in accordance with its terms (except to the extent that enforcement
may be affected by applicable bankruptcy, reorganization, insolvency and
similar laws affecting creditors' rights and remedies generally and by general
principles of equity, regardless of whether enforcement is sought at law or in
equity).
SECTION 4.3 NO BROKERS. Except as set forth on Schedule 4.3, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of the Purchasers
or any of their respective officers, directors, employees, equity holders or
any of their respective Affiliates.
SECTION 4.4 NON-CONTRAVENTION. Neither the execution or delivery of
this Agreement, the Transition Services Agreement, the Non-Competition
Agreement or any other document or instrument contemplated herein to be signed
by a Purchaser nor the consummation of the transactions contemplated hereby or
thereby by a Purchaser will (a) conflict with or result in the breach of any
term or provision of, or constitute a default under, the Organizational
Documents of either Purchaser, (b) result in a default, or give rise to any
right of termination, cancellation or acceleration, under any provisions of any
material agreement of a Purchaser, (c) result in the creation or imposition of
any Encumbrance on any material asset of a Purchaser, (d) violate any Laws
applicable to any Purchaser, or (e) require on the part of any Purchaser, as of
the date hereof, the approval, consent, waiver, authorization or act of, the
making of any declaration, filing or registration with, or notice to, any
Person, except with respect to clauses (b), (c), (d) and (e) where such
default, termination, cancellation, acceleration of an Encumbrance or violation
or the absence of any such approval, consent, waiver, authorization act,
declaration, filing or registration either individually or taken as a whole,
would not, or would not reasonably be expected to have an adverse effect on
Purchasers' ability to consummate the transactions contemplated herein or to
perform Purchasers' obligations hereunder.
SECTION 4.5 FINANCIAL CAPACITY. Buyer Parent has, and Buyer will have
as of the Closing Date, the funds necessary to pay the Cash Purchase Price.
SECTION 4.6 PURCHASE FOR OWN ACCOUNT. The Purchasers are acquiring the
SSBI Common Stock solely for their own account, and not with the view to, or
for resale in connection with, any distribution thereof in violation of the
Securities Act of 1933, as amended, or any other securities Law. The Purchasers
acknowledge that none of the SSBI Common Stock is registered under the
Securities Act of 1933, as amended, and may not be transferred or sold except
pursuant to an applicable exemption therefrom.
ARTICLE V
ADDITIONAL AGREEMENTS OF THE PARTIES
SECTION 5.1 CONDUCT OF BUSINESS. The Holders, jointly and severally,
covenant that during the period from the date of this Agreement to the earlier
of the Closing or the termination of this Agreement in accordance with Article
X, without Buyer Parent's prior written consent:
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(a) Affirmative Covenant Pending Closing. With respect
to the Business, the Holders shall and shall cause SSBI, each Subsidiary and
each Affiliate thereof relating to the Business to:
(i) use commercially reasonable efforts to preserve
intact its business organization and keep available the services of
the present employees, agents, consultants and independent
contractors, in each case consistent with the past practices of the
Business;
(ii) use commercially reasonable efforts to keep in
effect the insurance covering the Assets and the Business in effect on
the date of this Agreement; and
(iii) use commercially reasonable efforts to preserve the
Business and to operate the Business only in the ordinary course
consistent with past practices, and consistent with past practices,
advertise, promote and market its services, keep its properties
intact, preserve the goodwill of the Business, and maintain its
physical properties in good operating condition.
(b) Negative Covenant Pending Closing. With respect to
the Business, the Holders shall not and shall cause SSBI, each Subsidiary and
each Affiliate thereof relating to the Business not to:
(i) directly or indirectly (including by any Affiliate)
(A) solicit, initiate or encourage submission of proposals or offers
from any Person relating to any acquisition or purchase of assets
(other than in the ordinary course of business and consistent with the
past practices of the Business) of, or any Equity Securities in, or
any merger, consolidation or business combination with, SSBI, any
Subsidiary or otherwise related to the Business (an "Acquisition
Proposal"), (B) participate in any discussions or negotiations
regarding, or furnish to any other Person any information with respect
to, or otherwise cooperate in any way with or assist, facilitate or
encourage any Acquisition Proposal by any Person, (C) enter into any
agreement, arrangement or understanding with respect to an Acquisition
Proposal or (D) sell, transfer, or otherwise dispose of, or enter into
any agreement, arrangement or understanding with respect to, any
interest in the assets (other than in the ordinary course of business
and consistent with the past practices of the Business) or Equity
Securities of SSBI, or any Subsidiary or otherwise related to the
Business provided that nothing in this Section 5.1(b)(i) shall
prohibit or restrict Seller or Seller Parent from engaging in,
facilitating, encouraging, negotiating or providing information with
respect to, directly or indirectly, any sale, merger consolidation or
business combination involving Seller Parent as a whole or involving
any Subsidiary or Affiliate of Seller Parent or Seller other than SSBI
or the Subsidiaries. Seller Parent shall and shall cause its
Affiliates to provide Buyer Parent with notification as soon as
practicable (but in no event later than 48 hours) of any Acquisition
Proposal that it or any Affiliate thereof receives during the period
after the date of this Agreement and the earlier of the Closing and
the termination of this Agreement (including details of the
Acquisition Proposal and copies of any written correspondence,
including electronic mail) and shall inform any such Person that it
will not engage in any discussions with, or entertain any offers from,
such Persons during the period set forth above;
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(ii) make any acquisition of property other than in the
ordinary course of the Business and consistent with the past practices
of the Business;
(iii) enter into, modify, change, alter, terminate or
allow to lapse any Material Contract with any Person other than such
Material Contracts that expire in accordance with their terms, absent
default, breach or non-performance;
(iv) prepare or file any Tax Return, or amendment to a
Tax Return, inconsistent with past practices or, on any such Tax
Return, or amendment to a Tax Return, take any position, make any
election, or adopt any method that is inconsistent with positions
taken, elections made or methods used in preparing or filing similar
Tax Returns in prior periods (including, without limitation,
positions, elections or methods which would have the effect of
deferring income to periods ending after the Closing Date or
accelerating deductions to periods ending on or prior to the Closing
Date);
(v) take any action to change any accounting method or
practice or any method of reporting income, deductions or other items
for income tax purposes, except as required by a change in GAAP or
applicable law occurring after the date of this Agreement;
(vi) change or modify the current corporate form of SSBI
or any Subsidiary or amend the Organizational Documents of SSBI or any
Subsidiary;
(vii) alter, modify, change or cause the loss of or
reduction in the Business or business relationships with customers,
suppliers, distributors or others having dealings with the Business;
(viii) change the compensation, fringe benefits or payment
arrangement of any officer, director, employee, agent, consultant or
independent contractor or enter into or modify any Employee Benefit
Plan or employment agreement of SSBI or the Subsidiaries, except in
the ordinary course of business or as required by Law; or
(ix) agree or commit to do or authorize any of the
foregoing.
SECTION 5.2 ACCESS PRIOR TO CLOSING.
(a) Except as may be otherwise prohibited by applicable
Law, upon reasonable notice, the Holders shall cause each of the Companies and
Affiliates thereof related to the Business and each of their directors,
officers, partners, members, agents and employees to afford Buyer Parent and
its representatives (including, without limitation, its independent public
accountants, banks or other lenders' representatives and attorneys) reasonable
access during regular business hours from the date hereof through the Closing
to any and all of the premises, properties, Contracts, Books and Records, Donor
Records, data and personnel of each of the Companies and Affiliates thereof as
such relates to the Business. The Holders shall and will cause each of the
Companies and Affiliates thereof related to the Business and each of their
directors, officers, partners, members, agents and employees to cooperate fully
in connection with the foregoing and to use their respective commercially
reasonable efforts to provide to
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Buyer Parent such information and documents concerning the Companies and the
Affiliates of any Company relating to the Business as reasonably may be
requested.
(b) The Holders shall and cause each of SSBI, the
Subsidiaries and Affiliates thereof related to the Business to permit Buyer
Parent or any of its designated representatives to contact and/or conduct
direct visits with any and all customers and suppliers of the Business in order
to discuss, among other things, the potential operation of the Business
following the consummation of the transactions contemplated by this Agreement.
SECTION 5.3 FURTHER ASSURANCES. At any time and from time to time at
or after the Closing, the parties agree to cooperate with each other, to
execute and deliver such other documents, instruments of transfer or
assignment, files, Books and Records, Donor Records and do all such further
acts and things as may be reasonably required to carry out the transactions
contemplated hereby.
SECTION 5.4 NOTICES. If any Holder discovers any fact, event,
condition or circumstance that causes any representation or warranty made by
the Holders to the Purchasers in this Agreement to become untrue or inaccurate
at any time after the date of this Agreement, the Holders shall promptly (but
in no event later than one business day) notify Purchasers in writing of such
fact, event, condition or circumstance. If any Holder discovers any
development, event, circumstance or condition occurring after the date hereof
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect on the Business, the Holders shall promptly (but in no
event later than one business day) notify Purchasers in writing of such
development, event or circumstance or condition. If any Purchaser discovers any
fact, event, condition or circumstance that causes any representation or
warranty made by a Purchaser to the Holders in this Agreement to become untrue
or inaccurate at any time after the date of this Agreement, the Purchasers
shall promptly (but in no event later than one business day) notify Holders in
writing of such fact, event, condition or circumstance. No supplement or
amendment to a disclosure schedule shall be deemed to supplement or amend such
disclosure schedule for purposes of determining the accuracy of any of the
representations and warranties made by any party in this Agreement unless such
supplement or amendment relates to or arises from any event, condition, or
circumstance first occurring after the date hereof.
SECTION 5.5 PRESERVE ACCURACY OF REPRESENTATIONS AND WARRANTIES.
Between the date hereof and the Closing Date each of the parties hereto shall
refrain from taking any action which would render any of its respective
representations or warranties contained in Articles III and IV of this
Agreement inaccurate as of the Closing Date.
SECTION 5.6 PUBLIC ANNOUNCEMENTS. No party to this Agreement may issue
any press release or make any other public announcement relating to the
transactions contemplated by this Agreement without the prior written consent
of the other parties, except that either party may make any disclosure required
to be made under applicable Law or the rules and regulations of the New York
Stock Exchange, the Nasdaq Stock Market or any other stock exchange applicable
to such party if such party determines in good faith that it is necessary to do
so.
SECTION 5.7 CONFIDENTIAL INFORMATION. The parties acknowledge that the
transactions contemplated by this Agreement are of a confidential nature and
shall not be disclosed except to
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consultants, advisors, lenders or other financial sources and Affiliates with a
need to know, or as required by law. In connection with the negotiation of this
Agreement, the preparation for the consummation of the transactions
contemplated hereby, and the performance of obligations under this Agreement,
each party acknowledges that it will have access to confidential information
relating to the other party. Each party shall treat such information as
confidential, preserve the confidentiality of such information and not disclose
such information, except to consultants, advisors, lenders or other financial
sources and Affiliates, or as required by law. In the event a party is required
to disclose such confidential information, it shall promptly notify the other
party of such requirement and shall reasonably cooperate with the other party
in protecting such information to the extent possible under applicable law.
Following the Closing, the Holders shall and shall cause their Affiliates to
treat all proprietary information related to the Business as confidential.
Notwithstanding anything herein to the contrary, any party to this Agreement
(or any employee, representative, or other agent of any party to this
Agreement) may disclose to any and all Persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure. However, any such information relating to the tax treatment or tax
structure is required to be kept confidential to the extent necessary to comply
with any applicable federal or state securities laws.
SECTION 5.8 TRANSFER OF EMPLOYEES. On the Closing Date, Seller Parent
shall terminate the employees of Seller Parent listed on Schedule 5.8 and Buyer
Parent shall cause SSBI to offer employment, on an at-will basis, to such
employees at the same or greater base salary as identified on Schedule 5.8.
Seller Parent shall be responsible for paying any claims of any kind or
description whatsoever arising under relating to the employment, prior to the
Closing Date, of such employees of Seller Parent.
SECTION 5.9 RE-ALIGNMENT OF ASSETS AND LIABILITIES.
(a) On the Closing Date, but immediately prior to the
transfer of the SSBI Common Stock pursuant to Section 2.1, pursuant to an
assignment and assumption agreement in form and substance substantially as set
forth as Exhibit C (the "Assignment and Assumption Agreement"), the following
transactions shall occur: (i) Seller shall assume all obligations of SSBI with
respect to the Retained Leases in existence immediately prior to the Closing
and agree to pay, perform and discharge the same as and when due; (ii) Seller
Parent shall sell, convey, transfer and assign, free of all Encumbrances, all
of its right, title and interest in and to the assets described on Schedule
3.7(i) to SSBI; (iii) SSBI and each of the Subsidiaries shall distribute,
assign, transfer and convey to Seller (including by merger with or into any
Affiliate of Seller) any and all of their right, title and interest in and to
the issued and outstanding shares of capital stock or other equity interests of
any nature, as the case may be, in each of the Retained Companies (except for
any such stock or other equity interests that are held by another Retained
Company, which shall be retained by such Retained Company); and (iv) SSBI shall
distribute, assign, transfer and convey to Seller any and all of its right,
title and interest to receive any payment or other compensation from Cangene
related to the performance by SSBI prior to the Closing Date pursuant to that
certain Plasma Supply Agreement, dated as of June 18, 2002, between SSBI and
Cangene.
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(b) Seller Parent shall use commercially reasonable
efforts to effect the following transactions as promptly as practicable
following the date of this Agreement: (i) the release of SSBI from any and all
obligations to and liability for the Retained Leases; and (ii) the termination
of the Seller Parent's guarantee of the performance by SSBI of its obligations
pursuant to the Pensacola Lease and the Charlotte Lease. Buyer Parent shall,
and shall cause SSBI and the Subsidiaries to, use commercially reasonable
efforts to assist Seller Parent to effect the foregoing transactions. Without
limiting the generality of the foregoing undertaking, Buyer Parent agrees to
supply to the lessors of the Columbia Lease, the Pensacola Lease and the
Charlotte Lease such information regarding its financial condition as such
lessors shall reasonably request.
SECTION 5.10 INSURANCE. Effective as of the Closing, Buyer Parent
shall obtain such insurance coverage with respect to the Business and the
Assets as it shall determine to be necessary and prudent in its sole
discretion. Effective as of the Closing, Seller shall be permitted to terminate
any and all policies of insurance maintained by it with respect to the Business
and the Assets. With respect to any loss, liability or damage relating to,
resulting from or arising out of the conduct of the Business prior to the
Closing Date for which SSBI, the Subsidiaries or any Purchaser may be liable
and for which Seller would be entitled to assert, or cause any other person or
entity to assert, a claim for recovery under any policy of insurance maintained
by or for the benefit of Seller, at the request of Buyer Parent, Seller will
use reasonable efforts to assert, or to assist Buyer Parent to assert, one or
more claims under such insurance covering such loss, liability or damage,
provided that all of Seller's or any of its Affiliates' out-of-pocket costs and
expenses incurred in connection with the foregoing are promptly reimbursed by
Buyer Parent. Seller will be deemed, solely for the purpose of asserting claims
pursuant to the immediately preceding sentence, to have retained liability for
such loss, liability or damage to the extent of the policy limits of the
applicable policy of insurance.
SECTION 5.11 NAME CHANGE. On or before the sixtieth (60th) day
following the Closing, Buyer Parent shall cause the Subsidiaries (other than
Allegheny) to change their names to a name that does not include the word
"Serologicals" or any form thereof. SSBI shall, as soon as practicable
following the Closing, and in any event within sixty (60) days thereof, file
with the United States Food and Drug Administration, the German Health
Authority, and any other applicable Governmental Body applications to change
the name of SSBI to a name that does not include the word "Serologicals" or any
form thereof. SSBI shall use commercially reasonable efforts to cause such
applications to be approved as soon as reasonably practicable. SSBI shall
change its name to such other name promptly following its receipt of approval
of all such name change applications.
SECTION 5.12 CANGENE REA. Following the Closing Date, Buyer and Buyer
Parent shall cause SSBI to continue to assert against Cangene Corporation the
Request for Equitable Adjustment relating to that certain Plasma Supply
Agreement, dated June 18, 2002, by and between SSBI and Cangene Corporation,
that is pending on the date hereof. Furthermore, Purchasers shall cause SSBI to
assert and to pursue diligently any claim in litigation or arbitration that
Seller Parent shall direct SSBI to assert against Cangene Corporation following
the Closing Date to the extent that the same is related to the Request for
Equitable Adjustment. Without limiting the generality of the foregoing,
Purchasers shall (i) cause duly authorized officers of SSBI to provide
reasonable assistance to Seller Parent in its preparation, on behalf of
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SSBI, of any such claim following the Closing Date and to execute on behalf of
SSBI any and all pleadings and other documents and instruments as shall be
necessary or desirable in connection with the assertion of such claim; (ii)
cause personnel of SSBI and the Subsidiaries with knowledge relevant to the
Request for Equitable Adjustment or other claims related thereto to provide
testimony at such times and places as Seller Parent shall reasonably request;
and (iii) cause SSBI to provide reasonable access to the books, records and
facilities of SSBI to the extent necessary or desirable in connection with the
Request for Equitable Adjustment or other claims. Seller Parent shall, promptly
following demand, reimburse SSBI, Buyer and Buyer Parent for all expenses
incurred by them in connection with providing the assistance and cooperation
required by this Section 5.12, which expenses shall include, without
limitation, a reasonable hourly charge for the time of the SSBI, Buyer and
Buyer Parent personnel whose assistance is required by Seller Parent.
SECTION 5.13 NECESSARY ACTIONS. The parties hereto shall use all
commercially reasonable efforts to effect the Closing as promptly as possible
after the date hereof.
ARTICLE VI
INCOME TAX MATTERS
SECTION 6.1 FEDERAL INCOME TAXES IN GENERAL.
(a) The income and other Tax items of SSBI and the
Subsidiaries for all periods ending on or before the Closing Date shall be
included in the consolidated federal income Tax Return of the affiliated group
of which Seller Parent is the common parent. Seller Parent shall be responsible
for any federal income Taxes of SSBI and the Subsidiaries and the other members
of the Seller Parent Group related to such periods and of any other member of
such affiliated group not paid. Neither the Purchasers nor SSBI nor the
Subsidiaries shall be required to reimburse the Holders or any other Person for
any such Taxes; and the Holders shall indemnify and hold the Purchasers, SSBI
and the Subsidiaries harmless from all liabilities for any such Taxes. Seller
Parent shall be entitled to any refunds (except any reflected on the Balance
Sheet or resulting from carrybacks from taxable periods ending after the
Closing Date) not heretofore received for taxable periods of SSBI and the
Subsidiaries ending on or before the Closing Date; provided, however, that any
amount payable by the Purchasers, or SSBI or the Subsidiaries to Seller Parent
in respect of any such refund shall be reduced by the amount of any Taxes
incurred, and the present value (based on a discount rate of 4.75 percent) of
any Taxes to be incurred, by the Purchasers, or SSBI or the Subsidiaries as a
result of the accrual or receipt of the refund.
(b) The Purchasers, SSBI and the Subsidiaries shall be
responsible for and shall indemnify and hold Seller Parent harmless from all
federal income Taxes (except Taxes resulting from any adjustments to or changes
in Tax items relating to any Taxable period ending on or before the Closing
Date) of SSBI and the Subsidiaries for any taxable period beginning after the
Closing Date and during which the Purchasers own (directly or indirectly) the
capital stock of SSBI and the Subsidiaries. The Purchasers, SSBI and the
Subsidiaries shall be entitled to all refunds of such Taxes.
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SECTION 6.2 OTHER INCOME TAXES IN GENERAL.
(a) For purposes of this Agreement, the term "state,
local, or foreign income Tax" means any Tax, however denominated, that is based
on or measured by net or gross income and imposed by any Governmental Body
other than the United States of America.
(b) With respect to taxable periods of SSBI and the
Subsidiaries ending on or before the Closing Date, Seller Parent shall prepare
and file Tax Returns for and shall be responsible for the payment of any state,
local, or foreign income Taxes of SSBI and the Subsidiaries and the other
members of the Seller Parent Group not heretofore paid. Neither the Purchasers
nor SSBI nor the Subsidiaries shall be required to reimburse Seller Parent or
any other Person for any such Taxes. Seller Parent shall indemnify and hold the
Purchasers and SSBI and the Subsidiaries harmless from all liabilities for any
such Taxes of SSBI and the Subsidiaries, and any entity with which SSBI and the
Subsidiaries files or has filed a unitary, consolidated, or combined return.
Seller Parent shall be entitled to refunds (except for any resulting from
carrybacks from taxable periods ending after the Closing Date) not heretofore
received for taxable periods of SSBI and the Subsidiaries ending on or before
the Closing Date; provided, however, that any amount payable by the Purchasers
or SSBI or the Subsidiaries to Seller Parent in respect of any such refund
shall be reduced by the amount of any Taxes incurred, and the present value
(based on a discount rate of 4.75 percent) of any Taxes to be incurred, by the
Purchasers or SSBI or the Subsidiaries as a result of the accrual or receipt of
the refund.
(c) The Purchasers, SSBI and the Subsidiaries shall be
responsible for and shall indemnify and hold Seller Parent harmless from all
state, local, or foreign income Taxes (except Taxes resulting from any
adjustments to or changes in Tax items relating to a taxable period ending on
or before the Closing Date) of SSBI and the Subsidiaries for any taxable period
beginning after the Closing Date and during which the Purchasers own (directly
or indirectly) the capital stock of SSBI and the Subsidiaries. The Purchasers,
SSBI and the Subsidiaries shall be entitled to all refunds of such Taxes.
(d) If SSBI and the Subsidiaries are required to file a
state, local, or foreign income Tax Return for a taxable period covering days
before and after the Closing Date, Buyer Parent shall cause such return to be
filed, but Seller Parent shall pay to Buyer Parent (as an adjustment to the
Purchase Price) the amount by which (i) the Tax attributable to the period
through the Closing Date exceeds (ii) the amount of such Tax not yet paid by a
Holder or by SSBI or any Subsidiary prior to the Closing. The Tax attributable
to the period through the Closing Date shall be determined as if that period
were a separate taxable year. If the Tax attributable to such period is not
paid in full by a Holder, Buyer Parent shall notify Seller Parent in writing of
such fact and Seller Parent shall immediately pay the same.
SECTION 6.3 COOPERATION.
(a) The Purchasers agree to cooperate and to cause SSBI
and the Subsidiaries to cooperate with Seller Parent to the extent reasonably
required after the Closing Date in connection with (i) the filing, amendment,
preparation, and execution of all income Tax Returns, the Section 338(h)(10)
Elections, and other income Tax documents with respect to any taxable period of
SSBI and the Subsidiaries ending on or before the Closing Date, (ii) contests
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concerning the application of any income Tax or the Tax due for any such
period, and (iii) audits and other proceedings conducted by taxing authorities
with respect to any such period. Within a reasonable time after the Purchasers,
or any of SSBI and the Subsidiaries receive official notice of any such
contest, audit, or other proceeding, the Purchasers shall notify or cause the
applicable Person to notify Seller Parent of such contest, audit, or other
proceeding. In any case where SSBI and the Subsidiaries are responsible under
applicable law for the defense of such contest, audit, or other proceeding,
Seller Parent shall have the right to conduct the defense at Seller Parent's
expense and in cooperation with the Purchasers, SSBI and the Subsidiaries.
(b) Seller Parent shall hold the Purchasers, SSBI and
the Subsidiaries harmless from any increase in income Tax (for any taxable
period) and any other liability resulting from adjustments to or changes in Tax
items relating to SSBI and the Subsidiaries and/or Seller Parent Group for any
taxable period ending on or before the Closing Date, whether such adjustments
or changes are voluntarily made or are required by a taxing authority. Except
as may be required by a Law or as provided in Section 6.3(d), no amended income
Tax Return shall be filed, and no change in any income Tax accounting method
and no income Tax election shall be made by, on behalf of, or with respect to
SSBI and the Subsidiaries, for any taxable period ending on or before the
Closing Date without the express written consents of Seller Parent and Buyer
Parent, which consents shall not be unreasonably withheld.
(c) Seller Parent agrees to make available to the
Purchasers, SSBI and the Subsidiaries, records in the custody of either of
Seller Parent or any Affiliate thereof, to furnish other information
(including, without limitation, all adjustments to and changes in Tax items of
SSBI and the Subsidiaries for taxable periods ending on or before the Closing
Date), and otherwise to cooperate to the extent reasonably required for the
preparation or filing of (i) Tax Returns, the Section 338(h)(10) Elections, and
other income Tax documents relating to SSBI and the Subsidiaries for Taxable
periods beginning on or ending after the Closing Date or (ii) any required
information return or report relating to Buyer's acquisition of the SSBI Common
Stock.
(d) The Holders acknowledge that the Purchasers, SSBI
and the Subsidiaries shall be entitled to the income Tax benefit of any loss,
credit, or other item of SSBI and the Subsidiaries that (i) has arisen or
arises before the Closing Date but is reportable in or carried forward to a
Taxable period ending after the Closing Date or (ii) arises after the Closing
Date, although such loss, credit, or other item may be carried back to a
Taxable period ending on or before the Closing Date. The Holders agree to
cooperate with the Purchasers, SSBI and the Subsidiaries in taking such action
as may be necessary (including, without limitation, amending any return or
report and filing any claim for refund) for the Purchasers, SSBI and the
Subsidiaries to realize the Tax benefit of carrying such a loss, credit, or
other item back (if possible) to a taxable period ending on or before the
Closing Date. Seller Parent promptly shall pay or cause to be paid to Buyer (i)
any amount received as a refund and (ii) if not realized as a refund, the
amount of any reduction in Tax liability (of SSBI and the Subsidiaries, the
Holders, or any other member of the affiliated group of which Seller Parent is
a member) resulting from the use of such a loss, credit, or other item;
provided, however, that the amount so payable by Seller Parent shall be reduced
by the amount of any Taxes incurred, and the present value (based on a discount
rate of 4.75 percent) of any Taxes to be incurred, by Seller Parent or any such
other member of its affiliated group as a result of the accrual or receipt of
any such refund.
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SECTION 6.4 TERMINATION OF TAX-SHARING AGREEMENTS. This Article VI
supersedes any and all Tax-sharing or similar agreements to which (i) SSBI and
the Subsidiaries and (ii) any Holder or any Affiliate of any Holder are
parties. Neither (i) SSBI and the Subsidiaries nor (ii) the Holders (or any
affiliate of the Holders) shall have any obligation or right with respect to
each other under any such agreement after the Closing Date.
SECTION 6.5 RELATIONSHIP OF THIS ARTICLE TO ARTICLE IX. The
indemnities provided in this Article VI are in addition to, but not in
duplication of, the indemnities provided in Article IX. Sections 9.3 and 9.5
shall not apply to any claim or liability to which this Article VI applies or
for breach of any covenant under this Article VI. Section 9.6(b) shall apply to
third-party claims subject to indemnification under this Article VI, except
that the provisions of this Article VI (rather than the provisions of Section
9.6(b)) shall apply in the event and to the extent of any inconsistency between
Section 9.6(b) and this Article VI. Sections 9.2 and 9.4 shall apply to Tax
claims and liabilities to which this Article VI does not apply.
SECTION 6.6 SECTION 338(H)(10) ELECTION.
(a) Following the Closing, Seller Parent and Buyer shall
make a Section 338(h)(10) Election, shall cooperate with each other fully with
respect to such election, shall file all Tax Returns in a manner consistent
with such election, and shall take no action, nor omit to take any action, that
would adversely affect the validity of such election. Seller Parent and Buyer
each shall execute an IRS Form 8023 and an IRS Form 8883, together with any
corresponding or similar forms required under state, local or foreign tax law
to effectuate a valid Section 338(h)(10) Election (collectively, the "Forms").
Buyer shall provide Seller Parent with the "deemed sales prices" of each of the
assets of SSBI and the Subsidiaries covered by the Section 338(h)(10) Election,
which shall be consistent with the 338(h)(10) Allocation. Buyer shall retain
custody of the Forms prior to filing, and Buyer shall file or cause to be filed
such Forms with the appropriate office(s) of the IRS (as well as any state,
local or foreign taxing authorities, if required) as necessary to complete a
valid and timely Section 338(h)(10) Election.
(b) Buyer shall determine and provide to Holders, within
thirty (30) days following the Closing Date, the allocation of the purchase
price, as determined for United States income tax purposes, among the assets
deemed acquired for United States federal income tax purposes assuming a
338(h)(10) Election were made. Such allocation shall be made in accordance with
the Code and any applicable treasury regulations. Holders shall notify Buyer in
writing within fifteen (15) days following such allocation if Holders disagree
with such allocation, identifying with reasonable specificity the items with
which Holders disagree. If Holders and Buyer cannot reach written agreement
within seven (7) days thereafter, their disagreements, limited to only those
issues still in dispute ("Allocation Disputes"), shall be promptly submitted to
a nationally recognized firm of independent certified public accountants as to
which the parties mutually agree (the "Tax Arbiter"), which firm shall conduct
such additional review as is necessary to resolve the specific Allocation
Disputes referred to it. Buyer and Holders will cooperate fully with the Tax
Arbiter to facilitate its resolution of the Allocation Disputes, including by
providing the information, data and work papers used by each party to calculate
the Allocation Disputes, and making its personnel and accountants available to
explain any such information, data or work papers. Based upon such review and
other information, the Tax Arbiter shall determine the amount of the 338(h)(10)
Allocation strictly in accordance with
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the terms of this Section 6.6(b) (the "Tax Arbiter Determination"). Such
determination shall be completed as promptly as practicable but in no event
later than thirty (30) days following the submission of the Allocation Disputes
to the Tax Arbiter and shall be explained in reasonable detail and confirmed by
the Tax Arbiter in writing to, and shall be final and binding on, Buyer and
Holders for purposes of this Section 6.6(b).
(c) In connection with the Section 338(h)(10) Election,
the parties shall treat SSBI's distribution of the Retained Assets to Seller
pursuant to Section 5.9 as occurring pursuant to a plan of complete liquidation
of SSBI, in accordance with U.S. Treasury Regulation Section 1.338(h)(10)-1(e),
Example (2).
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.1 THE HOLDERS' CONDITIONS TO CLOSE. The obligations of the
Holders under this Agreement are subject to the satisfaction at or prior to the
Closing of each of the following conditions, but compliance with any or all of
such conditions may be waived, in writing, by either Holder:
(a) Representations and Warranties. The representations
and warranties of the Purchasers contained in this Agreement shall be true and
correct in all material respects on the Closing Date (except to the extent that
they expressly relate to an earlier date) as if such representations and
warranties were made as of the Closing Date;
(b) Covenants. The Purchasers shall have performed and
complied with all of the covenants and agreements contained in this Agreement
in all material respects and satisfied in all material respects all of the
conditions required by this Agreement to be performed or complied with or
satisfied by the Purchasers at or prior to the Closing;
(c) Consents and Approvals. The Holders shall have
received such approvals, consents, permits and waivers set forth on Schedule
7.1(c);
(d) No Proceedings or Litigation. No action, suit or
proceeding by any Person or any Governmental Body has been instituted or
threatened for the purpose of enjoining or preventing, or which questions the
validity or legality of the transactions contemplated hereby;
(e) Transition Services. The Purchasers and Holders
shall have entered into a transition services agreement (i) for the provision
by Holders to SSBI of those transition services outlined on Schedule 7.1(e) for
six months following the Closing Date at a cost to SSBI equal to the direct
allocated actual cost of Holders to provide such services plus an allocation of
overhead associated with providing such services; (ii) providing for
appropriate indemnification for Holders and (iii) otherwise on terms and
conditions reasonably acceptable to Holders; and
(f) Closing Deliveries. The Purchasers shall have
delivered all documents described in Section 8.2.
SECTION 7.2 THE PURCHASERS' CONDITIONS TO CLOSE. The obligations of
the Purchasers under this Agreement are subject to the satisfaction at or prior
to the Closing of each of the
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following conditions, but compliance with any or all of any such conditions may
be waived, in writing, by either of the Purchasers:
(a) Representations and Warranties. The representations
and warranties of the Holders contained in this Agreement shall be true and
correct in all respects on the Closing Date (except to the extent that they
expressly relate to an earlier date) as if such representations and warranties
were made as of the Closing Date, except where the failure to be true and
correct would not have, or would not reasonably be expected to have, in the
aggregate a Material Adverse Effect;
(b) Covenants. The Holders shall have performed and
complied with all the covenants and agreements contained in this Agreement in
all material respects and satisfied all the conditions required by this
Agreement to be performed or complied with or satisfied by the Holders at or
prior to the Closing;
(c) Reserved;
(d) No Proceedings or Litigation. No action, suit or
proceeding by any Person or any Governmental Body has been instituted or
threatened for the purpose of enjoining or preventing, or which questions the
validity or legality of, the transactions contemplated hereby;
(e) Distribution of Retained Companies. On the Closing
Date, but prior to the transfer of the SSBI Common Stock pursuant to Section
2.1, SSBI and the Subsidiaries shall have distributed, assigned, transferred
and conveyed to Seller all of the issued and outstanding shares of capital
stock or other equity interests of any nature in each of the Retained
Companies;
(f) Intercompany Debt Forgiveness. Seller Parent shall
have delivered to the Purchasers documentation reasonably satisfactory to the
Purchaser, that reflects that any and all amounts for indebtedness owed by SSBI
and the Subsidiaries to any of their Affiliates or to SSBI or the Subsidiaries
by any of their Affiliates have been extinguished;
(g) Termination of Obligations Pursuant to Credit
Agreement. Seller Parent shall have delivered to the Purchaser documentation
reasonably satisfactory to the Purchasers that reflects that SSBI and each
Subsidiary have been released from any and all obligations it may have pursuant
to that certain Credit Agreement, dated as of August 29, 2003, among Seller
Parent, as the Borrower; the subsidiaries of the Seller Parent identified
therein, as the Guarantors; Bank of America, N.A., as Administrative Agent and
L/C Issuer, and X.X. Xxxxxx Xxxxx Bank, as Syndication Agent and the other
credit parties thereto;
(h) Legal Opinion. The executed legal opinion of King &
Spalding LLP shall be delivered in the form and substance as set forth on
Exhibit D;
(i) Closing Deliveries. Seller and Seller Parent shall
have delivered all documents described in Section 8.1;
(j) Sublicense Agreement. That certain Sublicense
Agreement, dated as of July 3, 1996, by and between Serologicals License
Company, a Delaware corporation, and SSBI shall
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have been terminated in writing by the parties thereto, which termination
document shall include a release by the parties of any liability of one to the
other pursuant thereto;
(k) Columbia Sublease. Seller Parent shall have duly and
validly assigned all of its right, title and interest in and to the Columbia
Lease to SSBI; and
(l) Completion of Realignment. Seller and Seller Parent
shall have delivered evidence reasonably satisfactory to Purchasers that the
transactions described in Section 5.9(b) have been completed;
(m) Transition Services. The Purchasers and Holders
shall have entered into a transition services agreement (i) for the provision
by Holders to SSBI of those transition services outlined on Schedule 7.1(e) for
six months following the Closing Date at a cost to SSBI equal to the direct
allocated actual cost of Holders to provide such services plus an allocation of
overhead associated with providing such services; (ii) providing for
appropriate indemnification for Holders and (iii) otherwise on terms and
conditions reasonably acceptable to Purchasers;
(n) No Material Adverse Effect. No event shall have
occurred that could reasonably be expected to have a Material Adverse Effect
attributable to an actual or threatened termination, cancellation or limitation
of, or any modification or change in, the business relationship of SSBI or its
Subsidiaries with any its or their respective current customers or current
group of customers; and
(o) Estimated Note Amount. Holders shall provide
Purchasers with a determination of the Estimated Note Amount not less than two
(2) days before the Closing Date.
ARTICLE VIII
THE CLOSING
SECTION 8.1 DELIVERIES BY SELLER. At the Closing, the Holders shall
deliver, or shall cause the delivery of, the following to the Purchasers:
(a) the duly executed Non-Competition Agreement, dated
as of the Closing Date and in the form attached as Exhibit E (the
"Non-Competition Agreement")
(b) The duly executed Security Agreement, dated as of
the Closing Date and in the form attached as Exhibit F (the "Security
Agreement");
(c) the duly executed Assignment and Assumption
Agreement;
(d) the duly executed Forms;
(e) the certificates representing of all of the shares
of capital stock, together with required instruments of conveyance, including a
duly executed stock power endorsed in blank for each certificate for SSBI; and
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(f) a resignation for each member of the board of
directors (or applicable governing body) and each officer of each of the
Companies resigning from his, her or its position effective as of the Closing.
SECTION 8.2 DELIVERIES BY THE PURCHASERS. At the Closing, the
Purchasers shall deliver the following to the Holders:
(a) the duly executed Non-Competition Agreement;
(b) the duly executed Security Agreement;
(c) the Promissory Note;
(d) the Short Term Promissory Note;
(e) a Stock Pledge Agreement dated the Closing Date by
the Buyer in the form attached hereto as Exhibit G; and
(f) the Cash Purchase Price by wire transfer of
immediately available funds to an account designated in writing by Seller to
Purchasers at least two (2) business days prior to the Closing Date.
ARTICLE IX
SURVIVAL; INDEMNIFICATION
SECTION 9.1 SURVIVAL MATTERS. Except for the representations and
warranties contained in Sections 3.1, 3.2, 3.3, 3.16, 3.26, 4.1, 4.2, 4.3, and
4.6 (collectively, the "Class I Representations"), the representations and
warranties contained herein shall survive the Closing Date for a period of two
(2) years. Notwithstanding anything herein to the contrary, any Party's
indemnification obligations hereunder with respect to (a) any breach of any
Class I Representations and (b) any claim by any Party against another Party
based upon fraud, intentional misrepresentation, intentional breach or gross
negligence ("Intent Claims") shall survive the Closing Date until the later of
the expiration of the applicable statute of limitations period or two years
from the Closing Date. The covenants and agreements contained in this Agreement
shall survive the Closing Date for the applicable period provided for in such
covenants and agreements and if such period of survival is not provided for,
the covenant and agreement shall survive the Closing Date indefinitely or for
the applicable statute of limitations.
SECTION 9.2 INDEMNIFICATION BY THE HOLDERS. The Holders, jointly and
severally, agree to defend, indemnify and hold harmless the Purchasers, SSBI,
the Subsidiaries, and their directors, officers, partners, managers, employees,
agents, representatives, successors, assigns and Affiliates (collectively, the
"Purchaser Indemnified Parties"), from and against any and all demands, claims,
disputes, suits, actions, causes of action, investigations, inquiries, losses,
liabilities, damages, deficiencies, assessments, judgments, costs, expenses and
fees, including reasonable attorneys' fees (both those incurred in connection
with the defense or prosecution of the indemnifiable claim and those incurred
in connection with the enforcement of this Article IX) (individually, a
"Purchaser Loss" or collectively, "Purchaser Losses"), directly or indirectly
caused by, resulting from or arising out of:
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(a) any inaccuracy in or misrepresentation or breach of
any representations or warranties under this Agreement;
(b) any breach or failure of any Holder to perform or
otherwise fulfill any covenant, undertaking, agreement or obligation hereunder;
(c) any Intent Claim;
(d) the Retained Leases; and
(e) the performance by any Purchaser Indemnified Party
of its obligations pursuant to Section 5.12 of this Agreement.
SECTION 9.3 LIMITATIONS ON HOLDERS' INDEMNIFICATION.
(a) Except as provided below in Section 9.3(c), the
Holders shall have no obligation to indemnify the Purchaser Indemnified Parties
pursuant to Article IX until, and only to the extent that, the aggregate amount
of the Purchaser Losses subject thereto exceeds Fifty Thousand Dollars
($50,000).
(b) Except as provided below in Section 9.3(c), the
aggregate liability of the Holders to indemnify the Purchaser Indemnified
Parties for Purchaser Losses pursuant to this Article IX shall not exceed Two
Million Dollars ($2,000,000).
(c) The limitations on Holders' indemnification obligations
set forth in Section 9.3(a) and Section 9.3(b) shall not apply to any Purchaser
Loss of the type described in Section 9.2(e).
SECTION 9.4 INDEMNIFICATION BY THE PURCHASERS. The Purchasers, jointly
and severally, agree to defend, indemnify and hold harmless the Holders and
their directors, partners, managers, officers, employees, agents,
representatives, successors, assigns and Affiliates (collectively, the "Holder
Indemnified Parties") from and against any and all demands, claims, disputes,
suits, actions, causes of action, investigations, inquiries, losses,
liabilities, damages, deficiencies, assessments, judgments, costs, expenses and
fees, including reasonable attorneys' fees (both those incurred in connection
with the defense or prosecution of the indemnifiable claim and those incurred
in connection with the enforcement of this Article IX) (individually, a "Holder
Loss" or collectively, "Holder Losses"), directly or indirectly caused by,
resulting from or arising out of:
(a) any inaccuracy in or misrepresentation or breach of
any representations or warranties under this Agreement;
(b) any breach or failure of any Purchaser to perform or
otherwise fulfill any covenant, undertaking, agreement or obligation hereunder;
(c) any Intent Claim;
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(d) the operation of the Business following the Closing
and/or the use by the Purchasers of the name "Serologicals" following the
Closing;
(e) the Columbia Lease; and
(f) the guarantee by the Seller Parent of SSBI's
obligations pursuant to the Charlotte Lease or the Pensacola Lease.
SECTION 9.5 LIMITATIONS ON THE PURCHASERS' INDEMNIFICATION.
(a) The Purchasers shall have no obligation to indemnify
the Holder Indemnified Parties pursuant to this Article IX until, and only to
the extent that, the aggregate amount of the Holder Losses subject thereto
exceeds Fifty Thousand Dollars ($50,000).
(b) The aggregate liability of the Purchasers to
indemnify the Holder Indemnified Parties pursuant to this Article IX shall not
exceed Two Million Dollars ($2,000,000).
SECTION 9.6 PROCEDURES RELATING TO INDEMNIFICATION.
(a) An indemnified Person under Section 9.2 or 9.4 (the
"Indemnified Party") shall give prompt written notice to the indemnifying party
(the "Indemnifying Party") of any Loss in respect of which such Indemnified
Party is seeking indemnification under Section 9.2 or 9.4, specifying in
reasonable detail the nature of such Loss, the section or sections of this
Agreement to which the Loss relates, and the amount of such Loss (or if not
then determinable, its best estimate of the amount of such Loss), except that
any delay or failure to so notify the Indemnifying Party shall only relieve the
Indemnifying Party of its obligations hereunder to the extent, if at all, and
only to the extent that it is actually prejudiced by reason of such delay or
failure. Any such notice given by any Indemnified Party under this Section 9.6
shall be given as provided in Section 11.2.
(b) If a Loss is suffered or incurred for or on account
of or arises from or in connection with a Third Party Claim, the Indemnifying
Party shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to the Indemnified Party and the payment of all
expenses. The Indemnified Party shall have the right to employ separate counsel
in such Third Party Claim and participate in such defense thereof at its own
expense; provided, however, if in the reasonable operation of the Indemnified
Party's counsel, a conflict with the Indemnifying Party's legal position arises
that warrants the Indemnified Party obtaining its own counsel, the Indemnifying
Party shall pay the expenses of the Indemnified Party's counsel. The
Indemnifying Party shall not, without the Indemnified Party's prior written
consent, settle or compromise any Third Party Claim or consent to the entry of
any judgment with respect to any Third Party Claim. If the Indemnifying Party
fails to assume the defense of any Third Party Claim within twenty (20)
business days after notice thereof, the Indemnified Party shall have the right
to undertake the defense, compromise or settlement of such Third Party Claim
for the account of the Indemnifying Party.
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SECTION 9.7 OTHER INDEMNIFICATION LIMITATIONS.
(a) In calculating amounts payable to an Indemnified
Party, the amount of the Losses (i) shall not be duplicative of any other Loss
for which an indemnification claim has been made; (ii) shall be computed net of
any amounts actually recovered by such Indemnified Party under any insurance
policy with respect to such Loss; and (iii) shall be reduced to take account of
any net Tax benefit realized by such Indemnified Party arising from the
incurrence or payment of any indemnity payments hereunder. In computing the
amount of any such Tax benefit, the Indemnified Party shall be deemed to
recognize all other items of income, gain, loss, deduction or credit after the
incurrence or payment of any indemnified Loss. Each Indemnified Party shall be
obligated to use its reasonable best efforts to mitigate to the fullest extent
practicable the amount of any Loss for which it is entitled to seek
indemnification hereunder, and, notwithstanding anything to the contrary
contained herein, the Indemnifying Party shall not be required to make any
payment to an Indemnified Party in respect of such Loss to the extent such
Indemnified Party has failed to comply with such obligation to mitigate.
(b) Notwithstanding anything to the contrary set forth
herein, there shall be no indemnification pursuant to this Agreement by any
party for any special, incidental, punitive, consequential, or similar damages
(including damages for lost profits), or damages based upon any multiplier
valuation, such as, for example, a multiple based on reduced past, current or
future earnings or profitability or other financial indicia or an implied
multiple based upon the Purchase Price or other amount.
ARTICLE X
TERMINATION
SECTION 10.1 TERMINATION. This Agreement may be terminated at any time
prior to the Closing Date as follows:
(a) by the Holders or the Purchasers if, without fault
of the terminating party, the Closing Date shall not have occurred on or before
January 31, 2004 (the "Outside Date");
(b) by the Holders or the Purchasers if any court of
competent jurisdiction or Governmental Body shall have issued an order, decree
or ruling or taken any other action restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement;
(c) at any time with the mutual written consent of the
Holders and the Purchasers and Seller.
SECTION 10.2 EFFECT OF TERMINATION. If this Agreement is terminated as
provided in Section 10.1, this Agreement shall forthwith become void and have
no effect, without liability on the part of any party other than liability for
breach of the terms hereof prior to such termination. Sections 5.7
(Confidential Information) and 11.1 (Expenses) shall survive any such
termination.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 EXPENSES.
(a) The Purchasers shall bear all costs and expenses
(including, but not limited to, all compensation and expenses of counsel,
consultants and accountants and fees for investment bankers and brokers and all
finder's fees) incurred by the Purchasers in connection with the preparation,
negotiation and execution of this Agreement and the other agreements and
instruments contemplated by this Agreement and the consummation of the
transactions contemplated by this Agreement.
(b) The Holders shall bear all costs and expenses
(including, but not limited to, all compensation and expenses of counsel,
consultants and accountants and fees for investment bankers and brokers and all
finder's fees) incurred by the Companies and the Holders in connection with the
preparation, negotiation and execution of this Agreement and the other
agreements and instruments contemplated by this Agreement and the consummation
of the transactions contemplated by this Agreement.
SECTION 11.2 NOTICES. Any notices or other communications required
under this Agreement shall be in writing, signed by the applicable party hereto
and shall be deemed to have been given when delivered in person, by telex or
telecopier, when delivered to a recognized next business day courier, or, if
mailed (but not electronic mail), when deposited in the United States mail,
first class, registered or certified, return receipt requested, with proper
postage prepaid, addressed as follows or to such other address as notice shall
have been given pursuant hereto:
(a) if to a Purchaser, to:
Gradipore Limited
X.X. Xxx 0000, Xxxxxxx Xxxxxx
00 Xxxxxxxxxx Xxxx
XXX 0000, Xxxxxxxxx
Attention: Xxxx Xxxxxx & Xxxxx Xxxx
Telecopy: 61 2 9436 2907
and with a copy to:
Xxxxxxxx Ingersoll PC
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
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(b) if to any Holder, to:
Serologicals Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Vice President and Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: X. Xxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
SECTION 11.3 ASSIGNMENT. This Agreement may not be assigned, by
operation of law or otherwise, without the prior written consent of each party
hereto; provided that Buyer may assign its rights and obligations under and
pursuant to this Agreement to an Affiliate of Buyer that is a corporation,
partnership, limited liability company or other entity that is incorporated or
otherwise organized under and pursuant to the laws of any state of the United
States or the District of Columbia. Any assignment in violation of this
provision shall be null and void.
SECTION 11.4 INTERPRETATION. The article and section headings
contained in this Agreement are for reference purposes only and shall not in
any way affect the meaning or interpretation of this Agreement.
SECTION 11.5 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument; and shall become
binding when two or more counterparts have been signed by each of the parties
hereto.
SECTION 11.6 AMENDMENT. This Agreement may not be amended, modified or
supplemented except by a writing signed by each of the parties hereto.
SECTION 11.7 ENTIRE AGREEMENT. This Agreement (including the Schedules
and Exhibits attached hereto) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
SECTION 11.8 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns.
SECTION 11.9 SEVERABILITY. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or
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unenforceable in any respect, such provision shall be ineffective in the
jurisdiction involved to the extent, but only to the extent, of such
invalidity, illegality or unenforceability without invalidating the remainder
of such invalid, illegal or unenforceable provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable.
SECTION 11.10 THIRD PARTIES. Nothing contained in this Agreement or in
any instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be deemed to
have been executed for the benefit of, any Person that is not a party hereto or
a successor or permitted assign of such a party.
SECTION 11.11 WAIVERS. Any term or provision of this Agreement may be
waived, or the time for its performance may be extended, by the party or
parties entitled to the benefit thereof, however, any such waiver shall be
validly and sufficiently authorized for the purposes of this Agreement if and
only if, as to any party, it is executed in writing by an authorized
representative of such party. The failure of any party hereto to enforce at any
time any provision of this Agreement shall not be construed to be a waiver of
such provision, nor in any way to affect the validity of this Agreement or any
part hereof or the right of any party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach.
SECTION 11.12 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (as opposed to the conflicts of
law provisions) of the State of Georgia. Any legal action in a proceeding
brought in accordance with the terms of Section 11.13 (including for
enforcement of any arbitration award) shall be brought in Xxxxxx County,
Georgia, in the courts of the State of Georgia or of the United States District
Court for the Northern District of Georgia, and, by execution and delivery of
this Agreement, the parties hereby accept for themselves and in respect of
their property, and consent to, generally and unconditionally, the exclusive
jurisdiction of the aforesaid courts. The parties irrevocably consent to the
service of process out of any of the aforementioned courts in any such action
or proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the parties at their addresses referenced in Section 11.2.
The parties hereby irrevocably waive any objection which they may now or
hereafter have to laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement, the Transition
Services Agreement, the Assignment and Assumption Agreement and the
Non-Competition Agreement, brought in the courts referred to above and hereby
further irrevocably waive and agree, to the extent permitted by the laws of the
State of Georgia, not to plead or claim in any such court that such action or
proceeding brought in any such court has been brought in an inconvenient form.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
BUYER:
GRADIPORE, INC.
By: /s/ Xx. X. X. Xxxx.
-----------------------------------
Name: Xx. X. X. Xxxx
Title: Director
BUYER PARENT:
GRADIPORE LIMITED
By: /s/ Xx. X. X. Xxxx.
-----------------------------------
Name: Xx. X. X. Xxxx
Title: Managing Director/CEO
SELLER:
SEROLOGICALS FINANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and CFO
SELLER PARENT:
SEROLOGICALS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and CFO
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