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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------------------------
FORM 8-K
CURRENT REPORT
SEPTEMBER 6, 2001
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER: 0-4829-03
NABI
(Exact name of registrant as specified in its charter)
Delaware 59-1212264
------------------------------- -----------------------------------
(State or other jurisdiction of I.R.S. Employer Identification No.)
incorporation or organization)
5800 Park of Commerce Boulevard N.W., Boca Raton, FL 33487
(Address of principal executive offices, including zip code)
(561) 989-5800
(Registrant's telephone number, including area code)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On September 6, 2001, we sold the operating assets of a majority of our antibody
collection business and our testing laboratory (collectively the "Transferred
Antibody Collection Business") to CSL Limited ("CSL") for $152 million in cash,
subject to closing adjustments (as of September 6, 2001, these closing
adjustments resulted in the receipt of an additional $1 million in cash by us).
The assets sold were certain real estate, leasehold interests, fixtures,
furniture, tools, machinery and equipment, other fixed assets, plasma
inventories and related supplies, contracts, agreements, arrangements and/or
commitments, licenses and permits, business and financial records, intellectual
property and goodwill related to the operation of 47 of our current 56 antibody
collection centers and our testing laboratory. The purchase price we received
was the result of arm's-length bargaining between CSL and us. There is no
material relationship between CSL and us or, to our knowledge, between CSL and
any of our affiliates, any of our Directors or officers or any associate of any
such Director or officer.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro Forma Financial Information
Condensed Consolidated Pro Forma Financial Information Introduction.....................3
Condensed Consolidated Pro Forma Balance Sheet, June 30, 2001 (Unaudited)...............4
Condensed Consolidated Pro Forma Income Statement for the
Six Months Ended June 30, 2001 (Unaudited).....................................5
Condensed Consolidated Pro Forma Income Statement for the
Year Ended December 30, 2000 (Unaudited).......................................6
Notes to Condensed Consolidated Pro Forma Financial Statements (Unaudited)..............7
(c) Exhibits
Exhibit No. Description
----------- -----------
2.1 Agreement for Purchase and Sale of Assets by and
between Nabi and CSL Limited. We have requested
confidential treatment of the redacted portions of
this exhibit pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended, and have
separately filed a complete copy of this exhibit with
the Securities and Exchange Commission.
2.2 First Amendment to Agreement for Purchase and Sale
of Assets
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Nabi (Registrant)
Date: September 21, 2001 By: /s/ Mark L. Smith
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Mark L. Smith
Senior Vice President, Finance and
Chief Financial Officer
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ITEM 7(b) CONDENSED CONSOLIDATED PRO FORMA FINANCIAL INFORMATION INTRODUCTION
On September 6, 2001, we completed the sale of the operating assets of 47 of our
antibody collection centers and the majority of our testing laboratory
(collectively the "Transferred Antibody Collection Business") to CSL Limited
("CSL"). Total cash proceeds from the sale were $153 million, after closing
adjustments as of the time of sale pursuant to the Asset Purchase Agreement,
dated June 25, 2001, as amended. Further closing adjustments will be made as
provided for in the agreement.
We applied $18 million of the proceeds to pay back all of our short-term debt as
of the closing date which comprised a revolving credit facility and a term loan.
The remaining proceeds will be used for working capital and other corporate
purposes, and may be used to position us to accelerate the development of our
research and development pipeline and to acquire or in-license additional
biopharmaceutical products.
For purposes of this document, the unaudited condensed consolidated pro forma
balance sheet of Nabi set forth below is used to show the effects of the sale of
the Transferred Antibody Collection Business as if it occurred on June 30, 2001
based on certain estimates and assumptions. The unaudited condensed consolidated
pro forma balance sheet includes pro forma adjustments to give effect to the
disposition of assets and the use of proceeds as though they had occurred as of
June 30, 2001. We used June 30, 2001 because it marks the end of the latest
fiscal period for which financial information is publicly available.
The accompanying unaudited condensed consolidated pro forma income statements
for the six months ended June 30, 2001 and the year ended December 30, 2000
assume that the assets were disposed of as of January 1, 2000 and eliminates the
estimated historical results of operations of the Transferred Antibody
Collection Business from the historical results of operations of Nabi for the
six months ended June 30, 2001 and the year ended December 30, 2000, and the
interest expense related to the short-term debt that was repaid with the
proceeds.
The accompanying pro forma information should be read in conjunction with our
annual report on Form 10-K for the fiscal year ended December 30, 2000, the
quarterly report on Form 10-Q for the period ended June 30, 2001 and the current
report on Form 8-K filed on July 10, 2001. The pro forma information is not
necessarily indicative of the results that would actually have occurred had this
transaction been consummated on the dates or for the periods indicated or that
may occur in the future. For example, lower antibody product margins in 2000
reflect higher costs of production including higher donor fees and increased
cost of regulatory compliance as discussed in our 2000 Form 10-K. Further, had
the transaction occurred on January 1, 1999, the Pro Forma Sales less Costs of
Products Sold would have been $12 million for the year ended December 31, 1999
as compared to Pro Forma Sales less Pro Forma Costs of Products Sold of ($4)
million for the year ended December 30, 2000.
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Nabi
CONDENSED CONSOLIDATED PRO FORMA BALANCE SHEET
(unaudited, amounts in thousands)
Adjustments
June 30, Arising From
2001 Transaction Pro Forma
--------- ------------- ---------
Cash $ 1,954 $ 152,997 (A)
(24,478)(B) $ 130,473
Trade accounts receivable, net 34,435 -- 34,435
Inventories, net 30,261 (14,272)(C) 15,989
Prepaid expenses and other current assets 3,312 2,824 (D) 6,136
Property and equipment, net 124,243 (17,579)(E) 106,664
Other assets, net 25,576 (14,911)(F) 10,665
--------- -------- ---------
Total assets $ 219,781 $ 84,581 $ 304,362
========= ======== =========
Trade accounts payable and accrued expenses $ 36,226 $ 13,679 (G) $ 49,905
Notes payable 102,978 (24,478)(B) 78,500
Other liabilities 241 -- 241
Stockholders' equity 80,336 95,380 (H) 175,716
--------- -------- ---------
Total liabilities and stockholders' equity $ 219,781 $ 84,581 $ 304,362
========= ======== =========
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Nabi
CONDENSED CONSOLIDATED PRO FORMA INCOME STATEMENT
(unaudited, amounts in thousands, except per share data)
For the Six Months Ended June 30, 2001
----------------------------------------------------
Adjustments
Historical Arising from
as Reported Transaction Pro Forma
----------- ------------ ---------
Sales $ 125,466 $ 64,373 (1) $ 61,093
Costs and expenses:
Costs of products sold 88,941 62,190 (2) 26,751
Royalty expense 5,477 -- 5,477
Selling, general and administrative expense 20,015 3,135 (2) 16,880
Research and development expense 6,878 -- 6,878
Other operating expense 887 716 (2) 171
--------- --------- ---------
Operating income 3,268 (1,668) 4,936
Interest income 13 -- 13
Interest expense (944) (944)(4) --
Other expense, net (22) -- (22)
--------- --------- ---------
Income before provision for income taxes 2,315 (2,612) 4,927
Provision for income taxes (115) 1,609 (5) (1,724)
--------- --------- ---------
Income from continuing operations $ 2,200 $ (1,003) $ 3,203
========= ========= =========
Basic earnings per share $ 0.06 $ 0.08
========= =========
Diluted earnings per share $ 0.06 $ 0.08
========= =========
Basic weighted average shares outstanding 37,889 37,889
========= =========
Diluted weighted average shares outstanding 38,933 38,933
========= =========
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Nabi
CONDENSED CONSOLIDATED PRO FORMA INCOME STATEMENT
(unaudited, amounts in thousands, except per share data)
For the Year Ended December 30, 2000
----------------------------------------------------
Adjustments
Historical Arising from
as Reported Transaction Pro Forma
----------- ------------ ---------
Sales $ 228,783 $ 117,957 (1) $ 110,826
Costs and expenses:
Costs of products sold 160,766 124,394 (2) 36,372
Royalty expense 11,175 -- 11,175
Selling, general and administrative expense 37,168 6,551 (2) 30,617
Research and development expense 14,266 -- 14,266
Other operating expense 1,827 1,421 (2) 406
Non-recurring credit (3,875) (863)(3) (3,012)
--------- --------- ---------
Operating income 7,456 (13,546) 21,002
Interest income 33 -- 33
Interest expense (3,581) (3,330)(4) (251)
Other income, net 198 -- 198
--------- --------- ---------
Income before provision for income taxes 4,106 (16,876) 20,982
Provision for income taxes (87) 7,257 (5) (7,344)
--------- --------- ---------
Income from continuing operations $ 4,019 $ (9,619) $ 13,638
========= ========= =========
Basic earnings per share $ 0.11 $ 0.37
========= =========
Diluted earnings per share $ 0.11 $ 0.36
========= =========
Basic weighted average shares outstanding 36,604 36,604
========= =========
Diluted weighted average shares outstanding 37,739 37,739
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NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
PRO FORMA ADJUSTMENTS: The following adjustments have been made to the condensed
consolidated pro forma balance sheet of Nabi at June 30, 2001 and to the
condensed consolidated pro forma income statements for the six months ended June
30, 2001 and the year ended December 30, 2000:
A. Reflects total proceeds of $153 million received by Nabi from CSL.
B. Reflects repayment of short-term debt that comprised a revolving credit
facility and a term loan. For the purposes of this unaudited pro forma
condensed consolidated balance sheet, it has been assumed that all
short-term debt is repaid on June 30, 2001. At June 30, 2001, short-term
debt was $24,478 compared to $17,608 as of September 6, 2001, the date of
completing the transaction.
C. Reflects the values of plasma inventory sold associated with the
transaction.
D. Relates to estimated amounts receivable for reimbursement of transferred
assets including inventory.
E. Reflects the carrying value of fixed assets sold.
F. Reflects the disposition of goodwill and other intangibles related to the
antibody collection centers.
G. Relates to accrued transaction costs and an estimated tax liability
H. Reflects estimated gain resulting from the sale of the Transferred Antibody
Collection Business and other assets and liabilities incurred or relieved
as a result of the sale. The net estimated gain on sale as of June 30, 2001
is recorded as an increase to stockholder's equity. The final pre-tax gain
amount will be determined based on the excess of proceeds received over the
actual carrying value of the Transferred Antibody Collection Business's net
assets as of September 6, 2001 less direct costs associated with the sale.
The following represents a summary of the components of the estimated gain on
sale as of September 6, 2001:
(amounts in thousands)
Initial proceeds from sale $152,997
Net investment in sold operations (42,845)
Transaction costs (5,937)
---------
Estimated gain before tax 104,215
Provision for taxes (8,835)
---------
Net estimated gain before purchase price adjustments $ 95,380
=========
1. Reflects sales associated with the Transferred Antibody Collection Business
sold to CSL.
2. Reflects costs of products sold, amortization and freight associated with
the Transferred Antibody Collection Business and general and administrative
expense related to personnel transferred to CSL.
3. Reflects a non-recurring credit related to the Transferred Antibody
Collection Business sold to CSL.
4. To adjust interest expense for the six months ended June 30, 2001 and for
the year ended December 30, 2000 to reflect the repayment of the short-term
debt.
5. Estimated income tax provision at our statutory rate of 35%.
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PORTIONS OF THIS EXHIBIT HAVE BEEN
OMITTED AND FILED SEPARATELY WITH
THE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT
UNDER RULE 24(B)-2. THE LOCATION OF
THOSE OMITTED PORTIONS IS DENOTED
BY ASTERISKS.
EXHIBIT 2.1
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
BY AND BETWEEN
NABI
AND
CSL LIMITED
JUNE 25TH, 2001
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AGREEMENT FOR PURCHASE AND
SALE OF ASSETS
THIS AGREEMENT FOR PURCHASE AND SALE OF ASSETS (this "Agreement") is
made and entered into effective as of June 25th, 2001 by and between Nabi, a
Delaware corporation (the "Seller"), and CSL Limited, A.C.N. 051 588 348, an
Australian Capital Territory corporation (the "Buyer").
BACKGROUND
The Seller owns and operates 47 antibody collection centers at various
sites throughout the United States (the "Centers") and the testing laboratory
identified on Appendix A attached hereto (the "Laboratory") (collectively the
"Transferred Antibody Collection Business"). The Buyer desires to purchase from
the Seller the assets, properties and rights described herein and to assume from
the Seller the liabilities described herein, and the Seller desires to sell such
assets, properties and rights and to have such liabilities assumed, all on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants, agreements, representations and warranties contained herein,
the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1. ASSETS TO BE TRANSFERRED. Except as otherwise provided in Section
1.2 below and subject to the terms and conditions of this Agreement, at the
Closing (as hereinafter defined) the Seller shall sell, assign, transfer, convey
and deliver to the Buyer, and the Buyer shall purchase, acquire and accept from
the Seller, all of the Seller's right, title and interest in and to the
following assets, with such changes, deletions or additions thereto as may occur
from the date hereof to the Closing in the ordinary course of business and
consistent with the terms and conditions of this Agreement (collectively, the
"Assets"):
(a) those certain parcels of real property listed on Schedule
1.1(a) attached hereto (including all buildings, improvements and structures
located thereon and all appurtenances thereto) (collectively, the "Owned
Properties");
(b) all of the leasehold interests and rights of the Seller
(the "Leasehold Interests") under the tenant space leases, ground leases and
other leases of real property listed on Schedule 1.1(b) attached hereto
(collectively, the "Leases") (the Owned Properties and the Leasehold Interests
are hereinafter referred to collectively as the "Real Properties" and
individually as a "Real Property");
(c) except to the extent set forth on Schedule 1.1(c) attached
hereto (the parties agree that such list is not final and is subject to mutual
discussion and approval prior to
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Closing), all fixtures, furnishings, furniture, office supplies, tools,
machinery and equipment owned or leased by the Seller, located on the Real
Properties or at the Laboratory and used in the operation of the Centers and the
Laboratory (collectively, the "Equipment");
(d) all fixed assets, other than Equipment owned or leased by
the Seller, located on the Real Properties or at the Laboratory and used in the
operation of the Centers and the Laboratory (collectively, the "Fixed Assets");
(e) all the plasma inventories and related supplies identified
on Schedule 1.1(e) attached hereto (the "Plasma Inventory") and all inventories
of general production supplies located on the Real Properties and used in the
operation of the Centers and the Laboratory as they are currently being operated
(the "Supplies Inventory");
(f) those certain contracts, agreements, arrangements and/or
commitments listed on Schedule 1.1(f) attached hereto (the "Contracts");
(g) the licenses and permits identified on Schedule 1.1(g)
attached hereto (except for those relating to hepatitis B programs);
(h) all business and financial records and personnel and donor
records relating exclusively to the Assets or the Centers or the Laboratory (the
"Books and Records");
(i) the assets identified on Schedule 1.1(i) attached hereto
(the "Other Assets");
(j) the Seller's proprietary data bases, donor lists and
records, donor center technical guides, quality control and training manuals,
specialty guides and standard operating procedures with respect to the
operations of the Centers and the Laboratory (the "Transferred Intellectual
Property"); and
(k) good will related to the Transferred Antibody Collection
Business.
In addition, at the Closing, the Seller shall execute and deliver (i)
the Laboratory Subleases dated as of the Closing Date substantially in the form
attached hereto as Exhibit A (the "Laboratory Subleases"), (ii) the Testing
Contracts dated as of the Closing Date substantially in the form attached hereto
as Exhibits B-1 and B-2 (the "Testing Contracts") (the parties agree that the
form, terms and conditions of the Testing Contracts are not final and are
subject to mutual discussion and approval prior to Closing) and (iii) the DMS
Sublicense dated as of the Closing Date substantially in the form attached
hereto as Exhibit C (the "DMS Sublicense").
1.2. EXCLUDED ASSETS. The Seller is not selling, assigning,
transferring or conveying to the Buyer any assets, rights or properties of the
Seller not specifically referred to in Section 1.1. Without limiting the
foregoing, the following assets, rights and properties are excluded from the
transactions contemplated in this Agreement (the "Excluded Assets"):
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(a) the Seller's cash and bank accounts other than cash on
hand at the Centers which, though not included in the Assets, will be made
available to the Buyer and accounted for in the adjustments contemplated by
Section 3.2(b);
(b) the Seller's accounts receivable including, without
limitation, intra-company accounts receivable from other divisions of the Seller
and accounts receivable from subsidiaries and affiliates of the Seller and
amounts owed to the Seller by or claims by the Seller against third parties,
including any right or claim to refunds or deposits (other than those for which
the Seller is reimbursed by the Buyer pursuant to Section 3.2(b);
(c) subject to the provisions of Section 7.1, any right, title
and interest in and to the trade name "Nabi" and all related trademarks, service
marks and other registrations;
(d) subject to the provisions of Section 7.5, and except for
the Transferred Intellectual Property, all intellectual property, software,
patents, trade secrets, know-how and other information proprietary to the Seller
(the "Retained Intellectual Property"); and
(e) the Seller's rights and obligations arising out of or
related to that certain Plasma Purchase Agreement between the Seller and Bayer
Corporation dated as of 1 January 1995, as amended (the "Bayer Supply
Agreement").
1.3. ASSIGNMENT OF ASSETS.
(a) To the extent that any lease, contract, agreement, sales
or purchase order, commitment, property interest, qualification or other Asset
described in Section 1.1, and not otherwise excluded in Section 1.2, that is to
be sold, assigned, transferred or conveyed to, or assumed by, the Buyer hereby
cannot be sold, assigned, transferred, conveyed or assumed without the approval,
consent or waiver of any third person (including any government or governmental
unit), or if such sale, assignment, transfer, conveyance or assumption would
constitute a breach thereof or a violation of any law, decree, order, regulation
or other governmental edict, this Agreement shall not (unless and until such
consent, approval or waiver is obtained) constitute a sale, assignment,
transfer, conveyance or assumption thereof, or an attempted sale, assignment,
transfer, conveyance or assumption thereof; provided, however, that the Seller
shall make arrangements reasonably satisfactory to the Buyer to provide the
benefits of any such lease, contract, agreement, sales or purchase order,
commitment, property interest, qualification or other Asset described in Section
1.1 to the Buyer at no additional cost and on no less favorable terms than would
be the case if such sale, assignment, transfer or conveyance could be
accomplished as contemplated by this Agreement, so long as doing so shall not
require the Seller to make any financial concessions to any third party which
the Buyer has not agreed in writing to reimburse.
(b) The Seller shall not be obligated to sell, assign,
transfer or convey to the Buyer any of its rights and obligations in and to a
particular Asset without first obtaining all approvals, consents or waivers
necessary to effect such sale, assignment, transfer or conveyance with respect
to such particular Asset. The Seller shall use good faith efforts, and the Buyer
shall cooperate with the Seller, to obtain all necessary approvals, consents or
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waivers, and to resolve any impracticalities of transfer referred to in Section
1.3(a) necessary to sell, assign, transfer or convey the Assets to the Buyer as
soon as practicable; provided, however, that the Seller shall not be obligated
to make any financial concessions to any third party from whom such approval,
consent or waiver is requested; and provided further, that in obtaining such
consents, the Seller shall not, without the Buyer's prior written consent, agree
or enter into any material modification or amendment to any contract, lease or
other agreement relating to any of the Assets.
1.4. OBTAINING PERMITS AND LICENSES. The Buyer shall be responsible for
obtaining all permits and licenses required by any governmental agency with
respect to the Centers, the Laboratory or the Assets after the Closing. The
Seller will cooperate reasonably with the Buyer in obtaining such permits and
licenses. At the Closing, to the extent permitted by law, the Seller shall
transfer such permits and licenses to the Buyer. To the extent that any such
permits or licenses cannot be lawfully transferred to the Buyer, the Seller
shall have the right to cancel such non-transferable permits or licenses or any
bonds, guarantees or undertakings by the Seller now applicable to the Centers,
the Laboratory or the Assets; provided, however, that to the extent permitted by
law the Seller shall allow the Buyer to operate under such permits and licenses
for a term of one hundred eighty (180) days following the Closing, and the
Seller shall make no such cancellation during such time.
ARTICLE 2
LIABILITIES AND OBLIGATIONS ASSUMED
2.1. ASSUMED LIABILITIES AND OBLIGATIONS. At the Closing, the Buyer
shall assume and shall thereafter pay, discharge and perform in the ordinary
course all obligations arising after the Closing Date (as hereinafter defined)
(a) under the Leases, Contracts and the other items (the "Assumed Obligations")
listed in the Assumed Obligations Schedule attached as Schedule 2.1(a) hereto
(the "Assumed Obligations Schedule") and (b) liabilities to employees as
described on Schedule 2.1(b) attached hereto (the "Assumed Employee
Liabilities"). In addition, at the Closing the Buyer shall execute and deliver
the Laboratory Sublease, the Testing Contracts and the DMS Sublicense.
2.2. NO OTHER LIABILITIES OR OBLIGATIONS ASSUMED. The Buyer does not
assume and shall not be liable for any liabilities or obligations of the Seller
other than as set forth in Section 2.1. The Seller shall remain responsible for
all liabilities and obligations related to the Transferred Antibody Collection
Business arising prior to the Closing Date except for the Assumed Employee
Liabilities.
ARTICLE 3
THE CLOSING
3.1. CLOSING AND CLOSING DATE. The term "Closing" shall mean the
closing of the transactions contemplated by this Agreement. The Closing shall
take place at the offices of Nutter, McClennen & Fish, LLP, One International
Place, Boston, Massachusetts, at 10:00 A.M., local time, on Tuesday, August
28th, 2001, or on the fifth (5th) business day after the conditions set forth in
ARTICLE 8 have been satisfied or waived, whichever is earlier, or at
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such other date, place and time as may be agreed upon by the parties, it being
understood that the parties shall endeavor to close at the earliest practicable
date, time being of the essence of this Agreement. The term "Closing Date" shall
mean the date the Closing takes place and the transactions provided for herein
shall be effective as of the close of business on the Closing Date.
3.2. PURCHASE PRICE.
(a) In full consideration of the sale, transfer, assignment,
conveyance and delivery of the Assets, and subject to the terms and conditions
of this Agreement, the Buyer shall pay to the Seller at the Closing the amount
of One Hundred Fifty Two Million Dollars (US$152,000,000) (the "Purchase
Price"), subject to adjustment as hereinafter provided in this ARTICLE III, by
wire transfer of immediately available funds to the bank account or accounts
specified by the Seller for such purpose.
(b) The following items are to be adjusted between the Buyer
and the Seller as of 11:59 p.m. of the day immediately preceding the Closing
Date with respect to the Real Properties.
(i) real property taxes and assessments, on the basis
of the fiscal year for which assessed;
(ii) water rates and charges;
(iii) sewer taxes and rents;
(iv) common area maintenance costs, enclosed mail
charges, merchants' association dues and all other fees, charges, rents,
payments, costs or expenses due pursuant to any agreement affecting any Real
Property;
(v) electricity charges and all other utilities which
are supplied to the Real Properties;
(vi) personal property taxes, if any;
(vii) base, minimum, ground, additional and
percentage rents payable and receivable pursuant to the Leases;
(viii) fuel, if any, and all taxes thereon, on the
basis of readings taken as close as possible to the Closing Date;
(ix) deposits with utility companies and fees and
charges for transferable governmental permits and licenses;
(x) security deposits under all Leases;
(xi) cash on hand at the Centers; and
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(xii) except as may be otherwise provided herein, all
other expenses incurred in connection with the operation by the Seller of any of
the Real Properties shall be prorated as of 11:59 p.m. on the day preceding the
Closing Date, with the result that those expenses that are attributable to the
period prior to the Closing Date shall be the obligation of the Seller and those
attributable to the period from and after the Closing Date shall be the
obligation of the Buyer.
To the extent reasonably practicable, all such adjustments shall be reflected in
the Purchase Price paid at the Closing; otherwise, they shall be made through
payments by the Seller to the Buyer or by the Buyer to the Seller, as the case
may be, from time to time as items become ascertainable, in each case without
interest.
3.3. ALTERNATIVE ARRANGEMENTS. If the Seller is unable at Closing for
any reason whatsoever to assign and transfer a particular Center to the Buyer,
including without limitation due to the failure of any landlord to consent to
the transfer of a lease relating to a particular Center, then the transactions
contemplated by this Agreement shall nevertheless proceed and the Seller shall
assign and transfer the Assets relating to any such Center which can be assigned
and transferred, excluding the Assets which cannot be assigned or transferred,
without any reduction in the Purchase Price; provided that (i) the Seller shall
make arrangements regarding any or all such excluded Assets for the Buyer
pursuant to Section 1.3(a), pursuant to a management agreement or other
structure reasonably acceptable to the Buyer and the Seller, and (ii) if at any
time after the Closing Date the Seller can lawfully assign and transfer a
particular excluded Asset to the Buyer, then the Seller shall without additional
consideration promptly assign and transfer to the Buyer such excluded Asset.
3.4. [RESERVED.]
3.5. ADJUSTMENT OF PURCHASE PRICE BASED ON ASSUMED EMPLOYEE LIABILITIES
AND PLASMA INVENTORY.
(a)(i) Nine months after the Closing Date (or if such date is
not a business day, on the first business day following nine months after the
Closing Date), the Buyer shall deliver to the Seller a schedule setting forth in
reasonable detail (i) the amount of Assumed Employee Liabilities actually paid
by the Buyer during such nine-month period and (ii) the amount of Assumed
Employee Liabilities the Buyer reasonably believes in good faith it may yet have
to pay ("Employee Liabilities Reserves") (the total of such amounts is
hereinafter referred to as the "Total Actual and Proposed Payment"). If the
Total Actual and Proposed Payment is less than one million dollars ($1,000,000),
the Buyer shall pay to the Seller within five business days, without interest,
the difference between one million dollars ($1,000,000) and the Total Actual and
Proposed Payment, and if the Total and Actual Proposed Payment is more than one
million dollars ($1,000,000), the Seller shall pay to the Buyer, within five
business days, without interest, the difference between one million dollars
($1,000,000) and the Total and Proposed Payment. If the Total Actual and
Proposed Payment (A) is more than one million dollars ($1,000,000) and (B)
includes Employee Liabilities Reserves which prove to be in excess of the
amounts actually paid by the second anniversary of the Closing Date, then on
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such date (or if such date is not a business day, on the first business day
following such date) the Buyer shall pay to the Seller, with interest at the
prime rate from time to time published in The Wall Street Journal, from the date
of the Seller's earlier payment to the Buyer under this Section 3.5(a) until the
date payment is made, the difference between the amount of the Employee
Liabilities Reserves and the amount of the Employee Liabilities Reserves the
Buyer has actually paid. If the Total Actual and Proposed Payment (A) is more
than one million dollars ($1,000,000) and (B) includes Employee Liabilities
Reserves which prove to be less than the amounts actually paid, then the Seller
shall pay to the Buyer, on request, without interest, the difference between the
amount of the Assumed Employee Liabilities the Buyer has actually paid and the
aggregate amount the Seller has previously paid to the Buyer under this Section
3.5(a).
(ii) Upon the written request of the Seller, the
Buyer shall permit the Seller and its representatives to have access during
normal business hours to such records of the Buyer as may be reasonably
necessary to verify the accuracy of the schedule furnished to the Seller by the
Buyer pursuant to Section 3.5(a)(i) and other information relevant to determine
any payments which may be due under Section 3.5(a)(i). Such verification shall
be conducted at the Seller's expense and the Seller agrees that all information
obtained in connection therewith shall be held in confidence by it.
(b)(i) On the last Sunday prior to the Closing Date, a
physical inventory shall be taken of the Plasma Inventory under the joint
supervision of representatives of the Seller and the Buyer. Such inventory shall
then be corrected to the date of Closing and valued by the Seller at its cost in
accordance with accounting principles consistently applied by the Seller in
reflecting the cost of Plasma Inventory for purposes of its published financial
statements. If the value of the Plasma Inventory determined as provided in this
Section 3.5(b) exceeds ten million dollars ($10,000,000), on the thirtieth
business day following the Closing Date the Buyer shall pay to the Seller,
without interest, the amount of such excess, and if the value of the Plasma
Inventory determined as provided in this Section 3.5(b) is less than ten million
dollars ($10,000,000), the Seller shall pay on the thirtieth business day
following the Closing Date to the Buyer the amount of such deficiency, without
interest.
(ii) Upon the written request of the Buyer, the
Seller shall permit the Buyer and its representatives to have access during
normal business hours to such records of the Seller as may be reasonably
necessary to verify the accuracy of valuation contemplated by Section 3.5(b)(i).
Such verification shall be conducted at the Buyer's expense and the Buyer agrees
that all information obtained in connection therewith shall be held in
confidence by it.
3.6. INSTRUMENTS OF CONVEYANCE. The sale, transfer, assignment,
conveyance and delivery of the Assets by the Seller to the Buyer shall be
effected by the execution and delivery of:
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(a) a bill of sale and assumption of liabilities substantially
in the form attached hereto as Exhibit D; and
(b) such other documents and instruments of conveyance, sale,
transfer and assignment, in proper form for recording and in form and substance
reasonably satisfactory to counsel for the Buyer, as shall be necessary to sell,
transfer, assign and convey to, and to vest in, the Buyer, good and marketable
title to the Assets, free and clear of the security interests referred to in
Schedule 4.4(b).
3.7. ALLOCATION OF PURCHASE PRICE. Prior to the Closing Date the
Purchase Price shall be allocated among the Assets as mutually agreed by the
Buyer and the Seller. The parties shall report all taxes in a manner consistent
with such allocation, and no party shall take any inconsistent position upon any
examination of any tax return, in any refund claim, or in any litigation,
investigation or otherwise.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as follows:
4.1. ORGANIZATION, EXISTENCE AND AUTHORITY. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Seller has all requisite corporate power and authority to
execute, deliver and perform this Agreement and all other agreements entered
into or delivered in connection with the transactions contemplated hereby. The
Seller is qualified to do business as a foreign corporation in each jurisdiction
in which the failure to so qualify would have a Material Adverse Effect (as
hereinafter defined). The Seller has all authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental or regulatory
bodies necessary to own and/or lease the properties and assets employed by the
Seller in the conduct of the Transferred Antibody Collection Business and to
conduct the business and operations of the Transferred Antibody Collection
Business as currently conducted, except where the failure to do so would not
have a Material Adverse Effect. For purposes of this Agreement, a "Material
Adverse Effect" shall mean any matter with an adverse financial impact to the
Buyer of five hundred thousand dollars ($500,000) or more.
4.2. AUTHORIZATION; EXECUTION AND DELIVERY; NO VIOLATION. The
execution, delivery and performance of this Agreement and all other agreements
entered into in connection with the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of the
Seller. This Agreement has been duly executed and delivered by the Seller,
constitutes the valid and binding obligation of the Seller, and is enforceable
in accordance with its terms. All other agreements to be entered into at the
Closing by the Seller in connection with the transactions contemplated hereby
will be duly executed and delivered by the Seller, will constitute the valid and
binding obligations of the Seller, and will be enforceable in accordance with
their respective terms. The execution, delivery and performance of this
Agreement does not, and all other agreements entered into in connection with the
transactions contemplated hereby by the Seller will not, violate, conflict with,
result in a breach of or constitute a default under (or an event which with due
notice or lapse of time, or both, would constitute a breach of or default under)
or result in the creation of
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any lien, security interest or other encumbrance under (a) the Certificate of
Incorporation or By-laws of the Seller, as amended to date, (b) any note,
agreement, contract, license, instrument, lease or other obligation to which the
Seller is a party or by which it is bound, and which affects the Assets, (c) any
judgment, order, decree, ruling or injunction or (d) any statute, law,
regulation or rule of any governmental agency or authority.
4.3. REGULATORY APPROVALS AND CONSENTS. Except for compliance with the
provisions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act") and applicable comparable foreign laws, no consent,
authorization, or waiver by or filing with any governmental agency is required
in connection with the execution or performance of this Agreement by the Seller
or the consummation by the Seller of the transactions contemplated hereby,
except such that the absence of which will not have a Material Adverse Effect.
4.4. TITLE.
(a) Except as set forth in Schedule 4.4(a), the Seller has
good and marketable title to each parcel of Owned Property free and clear of all
liens, claims and encumbrances other than (i) imperfections of title, easements,
pledges, charges, restrictions and encumbrances, including without limitation,
survey matters and mechanics' liens, if any, that do not materially detract from
the value of the property subject thereto or materially interfere with the
manner in which it is currently being used in the Transferred Antibody
Collection Business or materially impair the operations of the Transferred
Antibody Collection Business, and (ii) taxes and general and special assessments
not in default and payable without penalty or interest.
(b) The Seller has good and marketable title to the Equipment,
Fixed Assets, Plasma Inventory and Supplies Inventory. Except to the extent set
forth in Schedule 4.4(b) attached hereto, the Equipment, Fixed Assets, Plasma
Inventory and Supplies Inventory are not subject to any mortgage, pledge, lien,
charge, security interest, encumbrance, restriction, lease, license, easement,
liability or adverse claim of any nature whatsoever, direct or indirect, whether
accrued, absolute, contingent or otherwise, except for those imperfections of
title and encumbrances, if any, that (a) are not substantial in character,
amount or extent and do not materially detract from the value of the properties
subject thereto; (b) do not materially and adversely interfere with either the
present or continued use of such property or materially and adversely affect the
conduct of normal operations of the Centers or the Laboratory; and (c) have
arisen only in the ordinary course of business.
(c) Notwithstanding the other provisions of this Section 4.4,
the Assets shall be conveyed by the Seller to the Buyer at the Closing free and
clear of all liens, claims and encumbrances of any nature whatsoever which are
security for the payment of money.
4.5. CONTRACTS AND LEASES. Except as set forth in Schedule 4.5 attached
hereto, neither the Seller nor, to the knowledge of the Seller, any other party
is in breach of or in default under any Contract or Lease, and there exists no
condition or event which after the
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lapse of time or notice (or both) would constitute any such breach or default,
except for such breaches or defaults (if any) which would not have a Material
Adverse Effect.
4.6. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 2000,
there has not been: (a) except for general business conditions, any material
adverse change in the Transferred Antibody Collection Business or any event or
condition which to the Seller's knowledge would have a Material Adverse Effect,
or (b) any damage, destruction or loss, whether covered by insurance or not,
suffered by the Transferred Antibody Collection Business which has had a
Material Adverse Effect.
4.7. LITIGATION; COMPLIANCE WITH LAWS. Except as set forth on Schedule
4.7 attached hereto, there is no action, lawsuit, proceeding, claim,
controversy, arbitration or investigation pending or, to the Seller's knowledge,
threatened against, or directly involving, the Transferred Antibody Collection
Business or the Assets. There is no unsatisfied or outstanding order, writ,
judgment, injunction or decree affecting the Transferred Antibody Collection
Business or the Assets. To the knowledge of the Seller, and except as set forth
on Schedule 4.7, the Transferred Antibody Collection Business or the Assets has
complied and is complying with all laws, ordinances, and governmental rules and
regulations applicable to it and its properties, assets and business, the
non-compliance with which would have a Material Adverse Effect, and has obtained
all material government licenses, permits and authorizations necessary for the
ownership of its properties and the conduct of its business as currently
conducted, the lack of which would have a Material Adverse Effect.
4.8. ENVIRONMENTAL MATTERS. With respect to the Transferred Antibody
Collection Business and the Assets, the Seller is in compliance with all
applicable existing federal, state and local laws and regulations relating to
protection of the environmental or imposing liability or standards of conduct
concerning any Hazardous Material (as hereinafter defined) ("Environmental
Laws"), except where such noncompliance would not have a Material Adverse
Effect. The term "Hazardous Material" means (a) any "hazardous substance" as
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (b) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (c) any petroleum or petroleum
product, (d) any polychlorinated biphenyl and (e) any pollutant or contaminant
or hazardous, dangerous, or toxic chemical, material, waste or substance
regulated under or within the meaning of any other law or regulation protecting
the environment. There is no alleged or, to the Seller's knowledge, potential
liability (including, without limitation, liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages, property
damages, personal injuries or penalties) of the Seller with respect to the
Transferred Antibody Collection Business or the Assets arising out of, based on
or resulting from (i) the presence or release into the environment of any
Hazardous Material at any site owned or leased by the Seller or (ii) any
violation or alleged violation of any Environmental Law, which alleged or
potential liability if adversely determined would have a Material Adverse
Effect.
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4.9. EMPLOYEES; EMPLOYEE RELATIONS.
(a) Attached hereto as Schedule 4.9 is a list of (i) all
current employees of Seller assigned exclusively to the Transferred Antibody
Collection Business, and (ii) a correct and complete list setting forth the
name, job title and current hourly or salaried rate of compensation of each such
employee with a salaried rate of $50,000 or more in 2000 from the Seller in
earnings subject to employment income tax.
(b) With respect to the Transferred Antibody Collection
Business, to the Seller's knowledge, the Seller is in material compliance with
all federal, state and municipal laws respecting employment, employment
practices, terms and conditions of employment and wages and hours, and is not
engaged in any unfair labor practice.
(c) The Seller is not a party to any collective bargaining
agreement with respect to the Transferred Antibody Collection Business. No labor
union or similar organization represents the employees of the Transferred
Antibody Collection Business and, to the knowledge of the Seller, no such
organization is attempting to organize such employees.
4.10. CERTAIN AGREEMENTS. The Seller with respect to the Transferred
Antibody Collection Business is not a party to, or liable in connection with,
and has not granted any written or oral, express or implied:
(a) material agreement or arrangement for the sale of any of
its assets, property or rights outside the ordinary course of business;
(b) agreement restricting the Transferred Antibody Collection
Business from conducting business anywhere in the world; or
(c) joint venture contract or similar arrangement or agreement
which is likely to involve a sharing of profits of the Transferred Antibody
Collection Business or future payments.
4.11. CONSENTS. Except as listed on Schedule 4.11 attached hereto, no
consent or approval of any third party or governmental body is required for the
consummation by the Seller of the transactions contemplated by this Agreement or
the sale, assignment, transfer, conveyance and delivery of the Assets to the
Buyer, except for such consents or approvals which the failure to obtain will
not have a Material Adverse Effect.
4.12. ERISA.
(a) Except as set forth on Schedule 4.12(a) attached hereto,
with respect to the Transferred Antibody Collection Business the Seller does not
now maintain or make contributions to any employee benefit plan which is subject
to the minimum funding standards of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"). Except as set forth on Schedule 4.12(a) attached
hereto, with respect to the Transferred Antibody Collection Business the Seller
does not now maintain or make contributions to and has not at
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any time in the past sixty (60) months maintained or made contributions to any
multi-employer plan subject to the terms of the Multi-Employer Pension Plan
Amendment Act of 1980.
(b) Schedule 4.12(b) attached hereto lists all employee
benefit plans of the Seller with respect to the Transferred Antibody Collection
Business which are not listed on Schedule 4.12(a) (the plans listed in Schedules
4.12(a) and (b) are referred to herein as the "Plans").
(c) To the Seller's knowledge, the Plans have been maintained
in all material respects in accordance with the applicable requirements of ERISA
and the Internal Revenue Code of 1986, as amended (the "Code").
4.13. PLASMA INVENTORY. Subject to the reserves reflected on Schedule
1.1(e), the Plasma Inventory is in all material respects in good, merchantable
and usable condition and of a quality and quantity salable in the ordinary
course of business.
4.14. FINDER. The Seller has not retained the services of any person,
firm or entity as a finder or broker, or incurred any liability for any
brokerage or finder's fees or commissions, in connection with the transactions
contemplated hereby, except for Stonebridge Associates, LLC, the fees for which
shall be borne solely by the Seller.
4.15. SELECTED FINANCIAL INFORMATION. The written direct cost
information provided to the Buyer has been prepared from the books and records
of the Seller and is presented in a manner that, when combined with the
corresponding costs for the Retained Centers (as hereafter defined), is
consistent with the antibody segment disclosure in the Seller's financial
reports on Form 10K for 1999 and 2000. All such information is fairly presented
in accordance with U.S. generally accepted accounting principles consistently
applied. Each Center's volume information for fiscal years 1999 and 2000 as set
forth in Schedule 4.15 attached hereto is true and correct.
4.16. SUFFICIENCY OF THE ASSETS. Except as would not have a Material
Adverse Effect, (i) all Real Property, Equipment, Fixed Assets, Plasma Inventory
(to the extent being transferred hereby), Supplies Inventory, Contracts, legally
transferable licenses and permits, Books and Records, Other Assets, and
Transferred Intellectual Property used in the Transferred Antibody Collection
Business are being transferred by the Seller to the Buyer hereunder, and (ii)
such Assets, together with the rights and services provided to the Buyer
pursuant to the provisions of this Agreement and the Exhibits hereto, shall
provide the Buyer with all necessary rights and assets to continue to operate
the Transferred Antibody Collection Business in the same manner as the Seller
operated the Transferred Antibody Collection Business prior to the date of this
Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as follows:
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5.1. ORGANIZATION, EXISTENCE AND AUTHORITY. The Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
Australian Capital Territory. The Buyer has all requisite power and authority to
execute, deliver and perform this Agreement and all other agreements entered
into or delivered in connection with the transactions contemplated hereby.
5.2. AUTHORIZATION; EXECUTION AND DELIVERY; NO VIOLATION. The
execution, delivery, and performance of this Agreement and all other agreements
entered into in connection with the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the party of
the Buyer. This Agreement has been duly executed and delivered by the Buyer,
constitutes the valid and binding obligation of the Buyer and is enforceable
against it in accordance with its terms. All other agreements to be entered into
at the Closing by the Buyer in connection with the transactions contemplated
hereby will be duly executed and delivered by the Buyer, will constitute the
valid and binding obligations of the Buyer, and will be enforceable in
accordance with their respective terms. The execution, delivery and performance
of this Agreement does not, and all other agreements to be entered into in
connection with the transactions contemplated hereby by the Buyer will not,
violate, conflict with, result in a breach of or constitute a default under (or
an event which with due notice or lapse of time or both, would constitute a
breach of or default under) or result in the creation of any lien, security
interest or other encumbrance under (a) its charter or By-laws, (b) any note,
agreement, contract, license, instrument, lease or other obligation to which the
Buyer is a party or by which it is bound, (c) any judgment, order, decree,
ruling or injunction or (d) any statute, law, regulation or rule of any
governmental agency or authority.
5.3. FINDER. The Buyer has not retained the services of any person,
firm or entities as a finder or broker, or incurred any liability for any
brokerage or finder's fee of commissions, in connection with the transactions
contemplated hereby, except for Merrill Lynch, the fees for which shall be borne
solely by the Buyer.
5.4. LITIGATION. There is no action, suit, proceeding or investigation
pending or threatened that affects or would affect the ability of Purchaser to
execute and deliver this Agreement or the other agreements or documents
contemplated hereby or to consummate the transactions contemplated hereby and
thereby.
ARTICLE 6
ACTIONS PRIOR TO THE CLOSING DATE
The parties covenant and agree to take the following actions between
the date hereof and the Closing Date:
6.1. ACCESS TO INFORMATION. The Seller shall afford to the officers,
employees and authorized representatives of the Buyer (including, without
limitation, independent public accountants, financial advisors and attorneys)
reasonable access during normal business hours, upon reasonable advance notice,
to the offices, properties, employees and business and financial records
(including computer files, retrieval programs and similar documentation) of the
Transferred Antibody Collection Business to the extent the Buyer shall
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reasonably deem necessary or desirable and shall furnish to the Buyer or its
authorized representatives such additional information concerning the
Transferred Antibody Collection Business and the Assets as shall be reasonably
requested; provided, however, that the Seller shall not be required to violate
any obligation of confidentiality to which the Seller is subject in discharging
its obligations pursuant to this Section 6.1. The Buyer agrees that such
investigation shall be conducted in such a manner as not to interfere
unreasonably with the operations of the Transferred Antibody Collection
Business. If in the course of any investigation pursuant to this Section 6.1,
the Buyer's officers, employees or authorized representatives discover any
breach of any representation or warranty contained in this Agreement, or any
circumstance or condition that upon Closing would constitute such a breach, the
Buyer covenants that it will promptly so inform the Seller.
6.2. NOTIFICATIONS. The Buyer, on the one hand, and the Seller, on the
other hand, shall promptly notify the other of any action, suit or proceeding
that shall be instituted or threatened against such party to restrain, prohibit
or otherwise challenge the legality of any transaction contemplated by this
Agreement. The Seller hereto shall promptly notify the Buyer of any lawsuit,
claim, proceeding or investigation that may be threatened, brought, asserted or
commenced against the Seller that would have been listed in Schedule 4.7 if such
lawsuit, claim, proceeding or investigation had arisen prior to the date hereof.
6.3. CONSENTS OF THIRD PARTIES; GOVERNMENTAL APPROVALS.
(a) The Seller and the Buyer will cooperate and act diligently
and reasonably to secure, before the Closing Date, the consents and approvals
listed on Schedule 4.11; provided, however, that such action shall not include
any requirement to commence or participate in any litigation or offer or grant
any accommodation (financial or otherwise) to any third party.
(b) During the period prior to the Closing Date, the Seller
and the Buyer shall act diligently and reasonably, and shall cooperate with each
other, to secure any consents and approvals of any governmental body required to
be obtained by them in order to permit the consummation of the transactions
contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement,
each party shall use its reasonable efforts to cause the Closing to occur.
6.4. OPERATIONS PRIOR TO THE CLOSING DATE.
(a) The Seller shall use reasonable efforts to cause the
Transferred Antibody Collection Business to operate substantially as operated
prior to the date of this Agreement. Consistent with the foregoing, the Seller
shall use its reasonable efforts consistent with good business practice to
preserve the goodwill of the suppliers, contractors, licensors, employees,
customers, distributors and others having business relations with the
Transferred Antibody Collection Business.
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(b) Notwithstanding Section 6.4(a) except as otherwise
contemplated by this Agreement or as consented to in writing by the Buyer (which
consent shall not be unreasonably withheld or delayed), the Seller shall not
with respect to the Transferred Antibody Collection Business:
(i) make any material change in the Transferred
Antibody Collection Business or its operations, except such
changes as may be required to comply with any applicable
requirements of law;
(ii) make any contract or commitment therefor in
excess of $100,000 in the aggregate, except in the ordinary
course of the Transferred Antibody Collection Business;
(iii) except to the extent set forth in Schedule
6.4(b)(iii) attached hereto (for which the consent of the
Buyer shall be required, such consent to not be unreasonably
withheld), enter into any contract for the purchase of real
property or enter into any new lease of real property or
exercise any option to extend a Lease;
(iv) sell, lease (as lessor), transfer or otherwise
dispose of, or mortgage or pledge, or impose or suffer to be
imposed any encumbrance on, any of the Assets, other than in
the ordinary course of business;
(v) institute any material increase in any
profit-sharing, bonus, incentive, deferred compensation,
insurance, pension, retirement, medical, hospital, disability,
welfare or other employee benefit plan with respect to the
employees of the Transferred Antibody Collection Business,
other than in the ordinary course or as required by any such
plan or requirements of law;
(vi) make any general change in the compensation of
the employees of the Transferred Antibody Collection Business,
other than changes made in accordance with normal compensation
practices; or
(vii) sell or otherwise transfer any Plasma Inventory
other than pursuant to (A) Contract (existing as of the date
of this Agreement without amendment subsequent to the date of
this Agreement), (B) the Bayer Supply Agreement, or (C) sales
to the Korean Green Cross in accordance with past practices.
6.5. ANTITRUST LAW COMPLIANCE.
(a) Within ten days after the date hereof, the Buyer and the
Seller shall file with the Federal Trade Commission and the Antitrust Division
of the Department of Justice the notifications and other information required to
be filed under the HSR Act, or any rules and regulations promulgated thereunder,
with respect to the transactions contemplated hereby. The Buyer and the Seller
shall also promptly file or cause the filing of any notices, applications and
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requests required under all foreign federal and state statutes, rules,
regulations, orders, decrees, administrative and judicial doctrines, and other
laws that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of trade. Each party
warrants that all such filings by it will be, as of the date filed, true and
accurate in all material respects and in material compliance with the
requirements of the HSR Act and any such rules and regulations. The Buyer and
the Seller agree to make available to the other party hereto such information as
each of them may reasonably request relative to its business, assets and
property as may be required of each of them to file any additional information
requested by such agencies under the HSR Act and any such rules and regulations
or as may be requested of each of them to submit pursuant to any such foreign
laws or regulations.
(b) In furtherance and not in limitation of the foregoing, the
Buyer shall use its good faith efforts to resolve such objections, if any, as
may be asserted with respect to the transactions contemplated by this Agreement
under any antitrust, competition or trade regulatory laws, rules or regulations.
(c) Each party hereto shall promptly inform the other of any
material communication from the Federal Trade Commission, the Department of
Justice or any other governmental body regarding any of the transactions
contemplated by this Agreement. If any party receives a request for additional
information or documentary material from the Federal Trade Commission, the
Department of Justice or any such other governmental body with respect to the
transactions contemplated by this Agreement, then such party will endeavor in
good faith to make, or cause to be made, as soon as reasonably practicable and
after consultation with the other party, an appropriate response in compliance
with such request. The Buyer will advise the Seller promptly in respect of any
understandings, undertaking or agreements (oral or written) which the Buyer
proposes to make or enter into with the Federal Trade Commission, the Department
of Justice or any other governmental bodies in connection with the transactions
contemplated by this Agreement.
6.6. TRANSITION AND SHARED SERVICES. Commencing within ten (10) days
after the date hereof, the parties shall cause their representatives to meet as
a committee (the "Joint Transition Team") as necessary to jointly plan and
manage the transition of the Transferred Antibody Collection Business from the
Seller to the Buyer. The Joint Transition Team shall discuss and agree upon
operational matters that should be addressed prior to Closing, and the parties
at their respective costs shall reasonably cooperate to address such operational
matters. The Joint Transition Team shall also discuss and make recommendations
with respect to (i) services that should be provided by the Seller to the Buyer
or by the Buyer to the Seller for a limited period of time following the
Closing, which shall at least include the types of services specified in
Schedule 6.6 attached hereto as "Transition" ("Transition Services"), and (ii)
services that should be provided by the Seller to the Buyer or by the Buyer to
the Seller for an indefinite or extended period of time following the Closing,
which shall at least include the types of services specified in Schedule 6.6
attached hereto as "Shared" ("Shared Services"). The parties shall negotiate and
mutually agree upon the terms and conditions of a "Transition Services
Agreement" for the Transition Services and a "Shared
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Services Agreement" for the Shared Services which shall be executed and
delivered by the parties at Closing. The Transition Services and the Shared
Services shall be provided by one party to the other party "at cost", which
shall be further clarified and defined in the Transition Services Agreement and
the Shared Services Agreement. The Joint Transition Team shall not have the
final authority to conclude the terms of the Transition Services Agreement or
the Shared Services Agreement; such authority is reserved to the parties. In the
event that the parties for whatever reason fail to negotiate and mutually agree
upon the terms of the Transition Services Agreement at the time of Closing, the
provisions of Schedule 6.6 shall apply and shall have the effect of a binding
legal commitment between the parties on the terms thereof with respect to the
Transition Services (and the Shared Services to the extent that the Shared
Services are also provided as Transition Services) until such time as a binding
Transition Services Agreement is executed and delivered between the parties.
ARTICLE 7
ADDITIONAL AGREEMENTS
7.1. USE OF NAME. The parties have agreed to certain matters related to
the trademark and trade name "NABI" as specified in Schedule 7.1 attached
hereto. Between the date of this Agreement and the Closing Date, the parties
shall negotiate and mutually agree upon the terms and form of a "Trademark
License Agreement" based upon the principal terms specified in such Schedule
7.1, which the parties shall execute and deliver at the Closing.
7.2. EMPLOYEES. Effective as of the Closing, the Buyer shall offer
employment to the employees of the Transferred Antibody Collection Business
listed on Schedule 4.9 hereto at the same salary or wage rates as are in effect
under such employees' employment with the Seller on the Closing Date and shall,
for a period of not less than six months, provide the employees who accept such
offers with the benefits described in Schedule 7.2 attached hereto. Such
employees shall receive full credit for years of service with the Seller or any
subsidiary of the Seller prior to the Closing Date for all purposes under the
Buyer's employee benefit plans and programs. The Buyer may contact and hold
discussions with such employees prior to the Closing with respect thereto. With
respect to such employees listed on Schedule 4.9, the Seller shall be
responsible for the payment of (i) salaries attributable to service with Seller
prior to the Closing, and (ii) severance benefits, if any, due and payable under
any severance benefit plan or contract maintained by the Seller and the Buyer
shall have no responsibility therefor. The Buyer shall offer enrollment in its
existing medical and dental plans, waive any enrollment period and pre-existing
conditions requirements imposed by the Buyer with respect to such plans, and
provide immediate medical and dental coverage to the extent presently provided
for in such medical and dental plans to all employees hired by the Buyer and to
such employees' dependents. Notwithstanding the foregoing, nothing in this
Agreement will (a) create any obligation on the part of the Buyer to continue
the employment of any employee for any definite period following the Closing
Date or (b) preclude Buyer from altering, amending or terminating any of its
employee benefit plans or the participation of any of its employees in these
plans at any time. It is expressly understood and agreed to by the parties that,
except for the Assumed Employee Liabilities, (x) the Buyer, as a result of the
transactions contemplated by this Agreement, shall not assume any
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liability or obligation of the Seller or any Affiliate (as defined below) of the
Seller relating to or arising under any employee benefit plan, program or
arrangement maintained or contributed to by the Seller or such Affiliate
(whether or not such plan, program or arrangement is an "employee benefit plan"
within the meaning of Section 3(3) of ERISA); (y) any such liability or
obligation shall remain as the responsibility of the Seller or such Affiliate,
as the case may be; and (z) the transactions contemplated by this Agreement do
not nor are they intended to meet the statutory requirements of ERISA Section
4203 concerning sales of assets. For purposes of this Section 7.2 "Affiliate"
shall mean any person or entity which, with respect to the Seller, must be
treated as a single employer under any provision of Section 414 of the Internal
Revenue Code of 1986, as amended, or Section 4001 of ERISA.
7.3. ACCESS TO RECORDS AND PERSONNEL.
(a) Following the Closing, the Buyer shall (i) upon request,
provide the Seller reasonable access to the Books and Records and to the Buyer's
employees in connection therewith, and such other assistance as the Seller shall
reasonably request with regard to any actual or potential liabilities of the
Seller relating to the Transferred Antibody Collection Business which is not
being assumed by the Buyer hereunder, and (ii) retain the Books and Records for
not less than three years from the Closing Date, or for such period of time as
is set forth in Section 6501(a) of the Code governing limitations on assessment
and collection of taxes, whichever is longer.
(b) Following the Closing, the Seller shall (i) upon request,
provide the Buyer reasonable access to the Seller's business and financial
records and personnel and donor records relevant to the Transferred Antibody
Collection Business and the Buyer shall have the right to use the information
contained in such records for any lawful purpose, and to the Seller's employees
in connection therewith, and (ii) retain such records for not less than three
years from the Closing Date (in the event that the Seller determines to discard
or destroy any such records, the Seller shall first provide notice to the Buyer
who shall have the right to require that such records be transferred to the
Buyer at the Buyer's cost). Any information obtained by the Buyer pursuant to
this Section 7.3(b) which is not related to the Transferred Antibody Collection
Business shall be maintained in confidence, and not used, by the Buyer.
7.4. INSURANCE; RISK OF LOSS. The Seller will keep insurance policies
currently maintained with respect to the Assets and the Transferred Antibody
Collection Business or suitable replacements therefor, in full force and effect
through the close of business on the Closing Date. The Buyer in its sole
discretion may maintain insurance coverage for risk of loss based on events
occurring after the Closing Date with respect to the Assets and the Transferred
Antibody Collection Business. To the extent that after the Closing any party
requires any information regarding claim data, payroll or other information in
order to make filing with insurance carriers or self insurance regulators from
another party hereto, the other party will promptly supply such information. For
a period of five (5) years after the Closing Date, each party at their cost
shall arrange for the other party to be added as an additional insured on its
insurance policies for general liability and products liability, with respect to
"claims made" relating to time periods prior to the Closing for the Seller's
insurance policies
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and with respect to "claims made" relating to time periods after the Closing for
the Buyer's insurance policies; each party shall arrange for certificates of
insurance to be provided to the other party at the other party's reasonable
request .
7.5. ACCESS TO INTELLECTUAL PROPERTY. The Buyer hereby grants to the
Seller a perpetual, non-exclusive, royalty-free license to use the Transferred
Intellectual Property for any lawful purpose (which may include the operation of
additional collection centers). The Seller hereby grants to the Buyer a
perpetual, non-exclusive, royalty-free license to use the Retained Intellectual
Property for any lawful purpose related to the Transferred Antibody Collection
Business (which may include the operation of additional collection centers).
7.6. PLASMA SUPPLY ARRANGEMENTS. The parties have agreed to certain
matters related to the purchase and sale of plasma as specified in Schedule 7.6
attached hereto. Between the date of this Agreement and the Closing Date, the
parties shall negotiate and mutually agree upon the terms and form of a "Plasma
Supply Agreement" based upon the principal terms specified in such Schedule 7.6,
which the parties shall execute and deliver at the Closing. In the event that
the parties for whatever reason fail to negotiate and mutually agree upon the
terms of the Plasma Supply Agreement at the time of Closing, the provisions of
Schedule 7.6 shall apply and shall have the effect of a binding legal commitment
between the parties on the terms thereof until such time as a binding Plasma
Supply Agreement is executed and delivered between the parties.
7.7. ACCESS TO CERTAIN DONORS. Nothing contained in this Agreement
shall preclude the Seller from soliciting and accepting collections from those
donors listed on Schedule 7.7 attached hereto. Alternatively, the Buyer shall
use commercially reasonable efforts to draw plasma and/or whole blood from such
donors for the Seller at the Seller's request assuming the participation of such
donors, which shall be supplied to the Seller pursuant to the terms of the
Plasma Supply Agreement.
7.8. RIGHT OF FIRST REFUSAL. In the event that within four (4) years
after the Closing Date the Seller proposes to sell, transfer or convey any
antibody collection center listed on Schedule 7.8 attached hereto ("Retained
Centers") to a party other than an affiliate of the Seller, the Seller shall
first offer such Retained Center(s) to the Buyer for purchase by the Buyer by
submitting to the Buyer an offer, setting forth the price at which the Seller
proposes to sell, transfer or convey the Retained Center(s) and the material
terms and conditions of such sale, transfer or conveyance (the "Offer Terms").
The Buyer shall have a period of thirty (30) days to notify the Seller in
writing that it elects to purchase all (but not less than all) of the Retained
Centers covered by the Offer Terms upon the Offer Terms. The Seller shall
promptly provide such due diligence information as is customary or reasonably
requested by the Buyer, subject to reasonable confidentiality limitations,
during such thirty (30) day period to enable the Buyer to evaluate the Offer
Terms. If the Buyer elects not to purchase all of the Retained Centers offered
to the Buyer on the Offer Terms or does not give notice of acceptance of the
Offer Terms to the Seller during such thirty (30) day period, the Seller shall
be free to sell, transfer and convey the Retained Centers covered by the Offer
Terms on the Offer Terms provided that a binding agreement with respect to such
sale, transfer or
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conveyance is entered into within one hundred twenty (120) days after the
expiration of such thirty (30) day period. For purposes of this Section 7.8, (i)
a sale of a controlling interest in the voting stock of the Seller or of all or
substantially all of the assets of the Seller, or (ii) a merger or consolidation
to which the Seller is a party in which the stockholders of the Seller
immediately prior to the merger or consolidation do not own a majority of the
voting stock of the surviving corporation immediately after the merger or
consolidation shall not constitute a sale, transfer or conveyance of the
Retained Centers.
7.9. BAXTER ARBITRATION.
(a) The Seller is a party to an arbitration proceeding in
Miami, Florida with Baxter Healthcare Corporation entitled Baxter Healthcare
Corporation, Claimant, v. Nabi, Respondent, American Arbitration Association No.
32 181 00370 00 (the "Arbitration Proceeding").
(b) From and after the date hereof until the Closing Date, the
Seller shall have, at its expense, the sole and absolute right to control,
negotiate, settle ****************** ************* and otherwise deal with the
Arbitration Proceeding. The Seller shall keep the Buyer reasonably informed of
all developments in the Arbitration Proceeding subject to any obligations of
confidentiality required by the Arbitration Proceeding and to the preservation
of the attorney-client privilege. During such period, the Buyer shall have the
option, at its expense, to participate with the Seller in the prosecution and
defense of the Arbitration Proceeding.
(c) From and after the Closing Date, the Buyer shall assume,
at its expense, the sole and absolute right to control, negotiate, settle
************************************* and otherwise deal with the Arbitration
Proceeding.*********************************************************************
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7.10. ADDITIONAL NECESSARY SERVICES. To the extent that the Assets,
together with the Transition Services, the Shared Services and the rights and
services provided to the Buyer pursuant to the provisions of the Exhibits hereto
are insufficient to continue the operation of the Transferred Antibody
Collection Business substantially as operated prior to the date of this
Agreement, the Seller shall provide services to the Buyer as necessary to so
continue the Transferred Antibody Collection Business at cost for a maximum
period of twelve (12) months from the Closing Date, provided that the Seller
performed such services for the Transferred Antibody Collection Business prior
to the Closing. Notwithstanding the foregoing, if the Seller notifies the Buyer
of its intent to implement organizational changes that may materially affect the
Seller's ability to provide such services, the Buyer shall have thirty (30) days
to (i) consent to such changes, (ii) decline such changes, whereupon the Seller
shall continue to provide such services pursuant to this Section 7.10, or (iii)
negotiate an alternative arrangement with the Seller.
7.11. FURTHER ASSURANCES. At any time and from time to time after the
Closing, at the Buyer's request and without further consideration, the Seller
shall execute and deliver such other instruments of sale, transfer, conveyance,
assignment and confirmation, and take such actions, as may be reasonably
necessary to transfer, convey, and assign to the Buyer, and to confirm the
Buyer's title to, the Assets and to put the Buyer in actual possession and
operating control of the Assets including those Assets leased by the Seller for
use in the business of the Antibody Collection Group.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
The obligations of the Buyer under this Agreement shall be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
8.1. NO MISREPRESENTATION OR BREACH OF COVENANTS AND WARRANTIES. There
shall have been no material breach by the Seller in the performance of any of
its respective covenants and agreements herein which shall not have been
remedied or cured; each of the representations and warranties of the Seller
contained in this Agreement shall be true and correct in all material respects
on the Closing Date as though made on the Closing Date (except to the extent
that they expressly relate to an earlier date), except for changes therein
specifically permitted by this Agreement or resulting from any transaction
expressly consented to in writing by the Buyer or any transaction permitted by
Section 6.4; and there shall have been delivered to the Buyer a certificate to
such effect, dated the Closing Date, signed on behalf of the Seller by a duly
authorized officer of the Seller.
8.2. NO RESTRAINT. The waiting period under the HSR Act and any
applicable foreign statute or regulation shall have expired or been terminated,
and no injunction or restraining order shall have been issued by any court of
competent jurisdiction and be in effect which restrains or prohibits any
material transaction contemplated hereby.
8.3. CONSENTS AND APPROVALS. The consents and approvals identified in
Schedule 8.3 shall have been obtained.
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For purposes of Section 8.1, a representation and warranty shall be
deemed to be true and correct in all material respects unless the breach of all
representations and warranties involves an aggregate adverse financial impact to
the Buyer of five million dollars ($5,000,000) or more. Notwithstanding the
failure of any one or more of the foregoing conditions, the Buyer may proceed
with the Closing without satisfaction, in whole or in part, of any one or more
of such conditions and without written waiver.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
The obligations of the Seller under this Agreement shall be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
9.1. NO MISREPRESENTATION OR BREACH OF COVENANTS AND WARRANTIES. There
shall have been no material breach by the Buyer in the performance of any of its
respective covenants and agreements herein which shall not have been remedied or
cured; each of the representations and warranties of the Buyer contained in this
Agreement shall be true and correct in all material respects on the Closing Date
as though made on the Closing Date (except to the extent that they expressly
relate to an earlier date), except for changes therein specifically permitted by
this Agreement or resulting from any transaction expressly consented to in
writing by the Seller or any transaction permitted by Section 6.4; and there
shall have been delivered to the Seller a certificate to such effect, dated the
Closing Date, signed on behalf of the Buyer by a duly authorized officer of the
Buyer.
9.2. NO RESTRAINT. The waiting period under the HSR Act and any
applicable foreign statute or regulation shall have expired or been terminated,
and no injunction or restraining order shall have been issued by any court of
competent jurisdiction and be in effect which restrains or prohibits any
material transaction contemplated hereby.
9.3. CONSENTS AND APPROVALS. The consents and approvals identified in
Schedule 9.3 shall have been obtained.
For purposes of Section 9.1, a representation and warranty shall be
deemed to be true and correct in all material respects unless the breach of all
representations and warranties involves an aggregate adverse financial impact to
the Seller of five million dollars ($5,000,000) or more. Notwithstanding the
failure of any one or more of the foregoing conditions, the Seller may proceed
with the Closing without satisfaction, in whole or in part, of any one or more
of such conditions and without written waiver.
ARTICLE 10
INDEMNIFICATION
10.1. INDEMNIFICATION BY THE SELLER.
(a) The Seller agrees to indemnify and hold harmless the Buyer
from and against any and all damages, losses, obligations, liabilities, claims,
actions or causes of actions
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("Losses") incurred by the Buyer in connection with or arising from (i) any
breach of any warranty or the inaccuracy of any representation of the Seller
contained or referred to in this Agreement or any certificate delivered by or on
behalf of the Seller pursuant hereto, (ii) any breach by the Seller of, or
failure by the Seller to perform, any of its covenants or obligations contained
in this Agreement or (iii) the operations of the Transferred Antibody Collection
Business prior to the Closing Date (except for the Assumed Employee
Liabilities); provided, however, that the Seller shall be required to indemnify
and hold harmless under clause (i) of this Section 10.1(a) with respect to
Losses incurred by the Buyer only to the extent that: (w) the amount of Loss
suffered by the Buyer related to each individual claim exceeds $50,000; (x) the
aggregate amount of Losses incurred by the Buyer for which the Seller is
required to indemnify and hold harmless the Buyer pursuant to Section 10.1(a)
exceeds $500,000; and (y) that the aggregate amount required to be paid by the
Seller pursuant to this Section 10.1(a) shall not exceed the Purchase Price; and
(z) that the aggregate amount required to be paid by the Seller pursuant to
clause 10.1(a)(i) with respect to Sections 4.4, 4.5, 4.6, 4.8, 4.9, 4.12, 4.13,
4.15 and 4.16 shall not exceed fifty percent (50%) of the Purchase Price.
(b) The indemnification provided for in Section 10.1(a)(i)
shall terminate eighteen (18) months after the Closing Date (and no claims shall
be made by the Buyer under Section 10.1(a)(i) thereafter), except that the
indemnification by the Seller shall continue as to any Losses of which the Buyer
has notified the Seller in accordance with the requirements of Section 10.3 on
or prior to the date such indemnification would otherwise terminate in
accordance with this Section 10.1, as to which the obligation of the Seller
shall continue until the liability of the Seller shall have been determined
pursuant to this ARTICLE 10, and the Seller shall have reimbursed the Buyer for
the full amount of such Losses in accordance with this ARTICLE 10.
10.2. INDEMNIFICATION BY THE BUYER.
(a) The Buyer agrees to indemnify and hold harmless the Seller
from and against any and all Losses incurred by the Seller in connection with or
arising from (i) any breach of any warranty or the inaccuracy of any
representation of the Buyer contained or referred to in this Agreement or in any
certificate delivered by or on behalf of the Buyer pursuant hereto, (ii) any
breach by the Buyer of, or failure by the Buyer to perform, any of its covenants
and obligations contained in this Agreement or (iii) the operations of the
Transferred Antibody Collection Business following the Closing Date including,
without limitation, the use of the Seller's permits and licenses as provided in
Section 1.4, the Buyer's failure to pay, discharge and perform the Assumed
Obligations as provided in Section 2.1, the use of names as provided in Section
7.1 and the proper performance by the Seller of the arrangements referred to in
Section 1.3(a).
(b) The indemnification provided for in Section 10.2(a)(i)
shall terminate eighteen (18) months after the Closing Date (and no claims shall
be made by the Seller under Section 10.2(a)(i) thereafter), except that the
indemnification by the Buyer shall continue as to any Losses of which the Seller
has notified the Buyer in accordance with the requirements of Section 10.3 on or
prior to the date such indemnification would otherwise terminate in
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accordance with this Section 10.2 as to which the obligation of the Buyer shall
continue until the liability of the Buyer shall have been determined pursuant to
this ARTICLE 10, and the Buyer shall have reimbursed the Seller for the full
amount of such Losses in accordance with this ARTICLE 10.
10.3. NOTICE OF CLAIMS.
(a) Any party (the "Indemnified Party") seeking
indemnification hereunder shall give promptly to the party obligated to provide
indemnification to such Indemnified Party (the "Indemnitor") a written notice (a
"Claim Notice") describing in reasonable detail the facts giving rise to the
claim for indemnification hereunder and shall include in such Claim Notice (if
then known) the amount or the method of computation of the amount of such claim,
and a reference to the provision of this Agreement or any other agreement,
document or instrument executed hereunder or in connection herewith upon which
such claim is based. The failure of any Indemnified Party to give the Claim
Notice promptly as required by this Section 10.3 shall not affect such
Indemnified Party's rights under this ARTICLE 10 except to the extent such
failure is actually prejudicial to the rights and obligations of the Indemnitor.
(b) In calculating any Loss, there shall be deducted any
insurance recovery in respect thereof (and no right of subrogation shall accrue
hereunder to any insurer). Any indemnity payment hereunder with respect to any
Loss shall be calculated on an "After-Tax Basis", which shall mean an amount
which is sufficient to compensate the Indemnified Party for the event giving
rise to such Loss (the "Indemnified Event"), determined after taking into
account (1) all increases in federal, state, local or other taxes (including
estimated taxes) payable by the Indemnified Party as a result of the receipt of
the indemnity payment (as a result of the indemnity payment being included in
income, resulting in a reduction of tax basis, or otherwise); provided, however,
that the Buyer and the Seller agree to report each payment made in respect of a
Loss as an adjustment to the Purchase Price for federal income tax purposes, (2)
all increases in federal, state, local and other taxes (including estimated
taxes) payable by the Indemnified Party for all affected taxable years as a
result of the Indemnified Event, and (3) all reductions in federal, state, local
and foreign taxes (including estimated taxes) payable by the Indemnified Party
as a result of the Indemnified Event. All calculations shall be made using
reasonable assumptions agreed upon by the Buyer and the Seller and, in the case
of any present value calculations, shall be made using the applicable federal
rate in effect at the time of the Indemnified Event (based on the Federal
mid-term rate) using semi-annual compounding plus two percentage points.
(c) After the giving of any Claim Notice pursuant hereto, the
amount of indemnification to which an Indemnified Party shall be entitled under
this ARTICLE 10 shall be determined: (i) by the written agreement between the
Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any
court of competent jurisdiction; or (iii) by any other means to which the
Indemnified Party and the Indemnitor shall agree. The judgment or decree of a
court shall be deemed final when the time for appeal, if any, shall have expired
and no appeal shall have been taken or when all appeals taken shall have been
finally determined.
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10.4. THIRD PERSON CLAIMS.
(a) In order for a party to be entitled to any indemnification
provided for under this Agreement in respect of, arising out of or involving a
claim or demand made by any third party against the Indemnified Party, such
Indemnified Party must promptly notify the Indemnitor in writing, and in
reasonable detail, of the third party claim after receipt by such Indemnified
Party of written notice of the third party claim, but the failure to so notify
the Indemnitor shall not relieve it of any liability it may have to the
Indemnified Party except to the extent such failure is actually prejudicial to
the rights and obligations of the Indemnitor. Thereafter, the Indemnified Party
shall deliver to the Indemnitor copies of all notices and documents (including
court papers) received by the Indemnified Party relating to the third party
claim. Notwithstanding the foregoing, should a party be physically served with a
complaint with regard to a third party claim, the Indemnified Party must notify
the Indemnitor with a copy of the complaint after receipt thereof and shall
deliver to the Indemnitor after the receipt of such complaint copies of notices
and documents (including court papers) received by the Indemnified Party
relating to the third party claim.
(b) In the event of the initiation of any legal proceeding
against the Indemnified Party by a third party, the Indemnitor shall have the
sole and absolute right after the receipt of notice, at its option and at its
own expense, to be represented by counsel of its choice and to control, defend
against, negotiate, settle or otherwise deal with any proceeding, claim, or
demand which relates to any loss, liability or damage indemnified against
hereunder; provided, however, that the Indemnified Party may participate in any
such proceeding with counsel of its choice and at its expense. The parties
hereto agree to cooperate fully with each other in connection with the defense,
negotiation or settlement of any such legal proceeding, claim or demand. To the
extent the Indemnitor elects not to defend such proceeding, claim or demand, and
the Indemnified Party defends against or otherwise deals with any such
proceeding, claim or demand, the Indemnified Party may retain counsel, at the
expense of the Indemnitor, and control the defense of such proceeding. Without
the consent of the other party, such consent not to be unreasonably withheld if
the settlement only requires the payment of money, neither the Indemnitor nor
the Indemnified Party may settle any such proceeding which settlement obligates
the other party to pay money, to perform obligations or to admit liability.
After any final judgment or award shall have been rendered by a court,
arbitration board or administrative agency of competent jurisdiction and the
time in which to appeal therefrom has expired, or a settlement shall have been
consummated, or the Indemnified Party and the Indemnitor shall arrive at a
mutually binding agreement with respect to each separate matter alleged to be
indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to
the Indemnitor notice of any sums due and owing by it with respect to such
matter and the Indemnitor shall pay all of the sums so owing to the Indemnified
Party by wire transfer, certified or bank cashier's check within 30 days after
the date of such notice.
10.5. LIMITATIONS.
(a) In any case where an Indemnified Party recovers from third
parties any amount in respect of a matter with respect to which an Indemnitor
has indemnified it pursuant
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to this ARTICLE 10, such Indemnified Party shall promptly pay over to the
Indemnitor the amount so recovered (after deducting therefrom the full amount of
the expenses incurred by it in procuring such recovery), but not in excess of
the sum of (i) any amount previously so paid by the Indemnitor to or on behalf
of the Indemnified Party in respect of such matter and (ii) any amount expended
by the Indemnitor in pursuing or defending any claim arising out of such matter.
(b) Except for remedies that cannot be waived as a matter of
law and injunctive and provisional relief, if the Closing occurs, this ARTICLE
10 shall be the exclusive remedy for breaches of this Agreement (including any
covenant, obligation, representation or warranty contained in this Agreement or
in any certificate delivered pursuant to this Agreement) or otherwise in respect
of the transactions contemplated hereby.
10.6. MITIGATION. Each of the parties agree to take all reasonable
steps to mitigate their respective Losses upon and after becoming aware of any
event or condition which could reasonably be expected to give rise to any Losses
that are indemnifiable hereunder.
ARTICLE 11
TERMINATION
11.1. TERMINATION. Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated at any time prior to the
Closing Date:
(a) by the mutual consent of the Buyer and the Seller;
(b) by the Buyer in the event of any material breach by the
Seller of any of the Seller's agreements, representations or warranties
contained herein and the failure of the Seller to cure such breach within 30
days after receipt of notice from the Buyer requesting such breach to be cured;
(c) by the Seller in the event of any material breach by the
Buyer of any of the Buyer's agreements, representations or warranties contained
herein and the failure of the Buyer to cure such breach within 30 days after
receipt of notice from the Seller requesting such breach to be cured;
(d) by the Buyer or the Seller if any court of competent
jurisdiction shall have issued a final and non-appealable order, decree or
ruling permanently restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby; or
(e) by the Buyer or the Seller, if the Closing shall not have
occurred on or before October 30th, 2001 (or such later date as may be agreed to
in writing by the Buyer and the Seller); provided, however, that if the Closing
shall not have occurred because the waiting period under the HSR Act shall not
have expired or been terminated, either party may extend the October 30th, 2001
date to up to November 30th, 2001; and provided, further, that if the
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cause of delay of the Closing is due in whole or in substantial part to the
default of a party, such party in default shall not have the right to terminate
this Agreement pursuant to this clause (e).
11.2. NOTICE OF TERMINATION. Any party desiring to terminate this
Agreement pursuant to Section 11.1 shall give written notice of such termination
to the other parties to this Agreement.
11.3. EFFECT OF TERMINATION. In the event that this Agreement shall be
terminated pursuant to this ARTICLE 11, all further obligations of the parties
under this Agreement (other than Sections 12.2 and 12.10) shall be terminated
without further liability of either party to the other; provided, that, nothing
herein shall relieve any party from liability for its willful breach of this
Agreement.
ARTICLE 12
GENERAL PROVISIONS
12.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained in this Agreement shall survive the consummation of the
transactions contemplated by this Agreement through the period during which
claims for indemnification in respect thereof may be made pursuant to ARTICLE 10
(at which time all representations and warranties shall terminate).
12.2. CONFIDENTIAL NATURE OF INFORMATION. Each party hereto agrees that
all documents, materials and other information which it shall have obtained
regarding the other parties during the course of the negotiations leading to the
consummation of the transactions contemplated hereby (whether obtained before or
after the date of this Agreement), the investigation provided for herein and the
preparations of this Agreement and other related documents shall be held in
confidence pursuant to the letter agreement between the parties dated April 4,
2001 (the "Confidentiality Agreement"), provided that from and after the Closing
the Buyer may use and disclose such documents, materials and other information
in its sole discretion (unless such documents, materials and other information
otherwise prohibit such use and disclosure).
12.3. NO PUBLIC ANNOUNCEMENT. Neither the Buyer, on the one hand, nor
the Seller, on the other hand, shall, without the approval of the other, make
any press release or other public announcement concerning the transactions
contemplated by this Agreement, except as and to the extent that any such party
shall be so obligated by law, in which case the other party shall be advised and
the parties shall use their best efforts to cause a mutually agreeable release
or announcement to be issued; provided, however, that the foregoing shall not
preclude communications or disclosures necessary to implement the provisions of
this Agreement or to comply with the accounting and disclosure obligations of
the Securities and Exchange Commission or the rules of any stock exchange or
Nasdaq or to enable the Buyer to obtain debt or equity financing.
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12.4. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
when delivered personally or when sent by registered or certified mail or by
private courier addressed as follows:
IF TO THE BUYER, TO:
CSL Limited
45 Poplar Road
Parkville, Victoria 3052
Australia
Attention: Brian McNamee
Managing Director
WITH A COPY TO:
CSL Limited
45 Poplar Road
Parkville, Victoria 3052
Australia
Attention: Peter Turvey, Esq.
General Counsel
IF TO THE SELLER, TO:
Nabi
5800 Park of Commerce Boulevard, N.W.
Boca Raton, FL 33487
Attention: Thomas H. McLain
Executive Vice President
and Chief Operating Officer
AND
Anna E. Mack, Esq.
Senior Director and General Counsel
WITH A COPY TO:
Nutter, McClennen & Fish, LLP
One International Place
Boston, MA 02110-2699
Attention: Constantine Alexander, Esq.
or to such other address as such party may indicate by a notice delivered to the
other parties hereto.
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12.5. SUCCESSORS AND ASSIGNS
(a) The rights of either party under this Agreement shall not
be assignable by such party hereto prior to the Closing without the written
consent of the other party, provided that the Buyer may assign this Agreement or
its rights hereunder to one or more subsidiaries of the Buyer without the
consent of the Seller. No such assignment shall relieve the Buyer from any
obligation or liability under this Agreement.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended or shall be
construed to confer upon any person, other than the parties and successors and
assigns permitted by this Section 12.5 any right, remedy or claim under or by
reason of this Agreement.
12.6. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Exhibits and
Schedules referred to herein and the documents delivered pursuant hereto and the
Confidentiality Agreement contain the entire understanding of the parties hereto
with regard to the subject matter contained herein or therein, and supersede all
other prior agreements, understandings or letters of intent between or among any
of the parties hereto. This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
12.7. INTERPRETATION.
(a) Articles, title and headings to sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement. The Schedules
referred to herein shall be construed with and as an integral part of this
Agreement to the same extent as if they were set forth verbatim herein.
Disclosure of any fact or item in any Schedule hereto referenced by a particular
section in this Agreement shall be deemed to have been disclosed with respect to
every other section in this Agreement. Neither the specification of any dollar
amount in any representation or warranty contained in this Agreement nor the
inclusion of any specific item in any Schedule hereto is intended to imply that
such amount, or higher or lower amounts, or the item so included or other items,
are or are not material, and no party shall use the fact of the setting forth of
any such amount or the inclusion of any such item in any dispute or controversy
between the parties as to whether any obligation, item or matter not described
herein or included in any Schedule is or is not material for purposes of this
Agreement. Unless this Agreement specifically provides otherwise, neither the
specification of any item or matter in any representation or warranty contained
in this Agreement nor the inclusion of any specific item in any Schedule hereto
is intended to imply that such item or matter, or other items or matters, are or
are not in the ordinary course of business, and no party shall use the fact of
the setting forth or the inclusion of any such item or matter in any dispute or
controversy between the parties as to whether any obligation, item or matter not
described herein or included in any Schedule is or is not in the ordinary course
of business for purposes of this Agreement.
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(b) The parties acknowledge and agree that: (i) each party and
its counsel reviewed and negotiated the terms and provisions of this Agreement
and has contributed to its revision; (ii) the rule of construction to the effect
that any ambiguities are resolved against the drafting party shall not be
employed in the interpretation of this Agreement; and (iii) the terms and
provisions of this Agreement shall be construed fairly as to all parties hereto
and not in favor of or against any party, regardless of which party was
generally responsible for the preparation of this Agreement.
12.8. "SELLER'S KNOWLEDGE" DEFINED. For purposes of this Agreement,
"Seller's knowledge" means, as to a particular matter, (a) the actual knowledge
of the following persons: Chief Executive Officer; Executive Vice President and
Chief Operating Officer; Chief Financial Officer; Senior Vice President,
Manufacturing Operations; and General Counsel and (b) that knowledge that would
be obtained or for which a reason to believe would ordinarily develop upon
customary (within the industry) and reasonably prudent inquiry into or analysis
of the matter at hand.
12.9. 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. Any such waiver shall be validly and
sufficiently authorized for the purposes of this Agreement if, as to any party,
it is authorized 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 hereto 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.
12.10. EXPENSES; TAXES.
(a) Each party hereto will pay all costs and expenses incident
to its negotiations and preparation of this Agreement and to the performance and
compliance with all agreements and conditions contained herein on its part to be
performed or complied with, including the fees, expenses and disbursements of
its counsel and independent public accountants.
(b) The Buyer shall pay all sales and other taxes imposed by
any governmental entity in connection with the transfer of the Assets, excluding
any taxes on or measured by the Seller's net income.
12.11. CURRENCY. All dollar amounts set forth in this Agreement are
expressed in currency of the United States of America, and all payments to be
made pursuant to this Agreement shall be made in United States of America
dollars.
12.12. PARTIAL INVALIDITY. Wherever possible, each provision hereof
shall 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 unenforceable in any respect, such
provision shall be ineffective to the extent, but
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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 provision hereof, unless such a construction would be
unreasonable.
12.13. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be considered an original instrument,
but all of which shall be considered one and the same agreement, and shall
become binding when one or more counterparts have been signed by each of the
parties hereto and delivered to the Seller and the Buyer.
12.14. 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 Delaware.
12.15. DISCLAIMER OF WARRANTIES. The Seller makes no representations or
warranties with respect to any projections, forecasts or forward-looking
information provided to the Buyer. There is no assurance that any projected or
forecasted results will be achieved. EXCEPT AS TO THOSE MATTERS EXPRESSLY
COVERED BY THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT AND THE
CERTIFICATE DELIVERED BY THE SELLER PURSUANT TO SECTION 8.1, THE SELLER IS
SELLING THE ASSETS ON AN "AS IS, WHERE IS" BASIS AND THE SELLER DISCLAIMS ALL
OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, WHETHER EXPRESS OR IMPLIED AND
THE SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE AND NO IMPLIED WARRANTIES WHATSOEVER. The Buyer
acknowledges that neither the Seller nor any of its representatives nor any
other person has made any representation or warranty, express or implied, as to
the accuracy or completeness of any memoranda, charts, summaries or schedules
heretofore made available by the Seller or its representatives to the Buyer or
any other information which is not included in this Agreement or the Schedules
hereto, and neither the Seller nor any of its representatives nor any other
person will have or be subject to any liability to the Buyer or any other person
resulting from the distribution of any such information to, or use of any such
information by, the Buyer or any of its agents, consultants, accountants,
counsel or other representatives.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
NABI
By
--------------------------------------
Name:
Title:
CSL LIMITED
By
--------------------------------------
Name:
Title:
By
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Name:
Title:
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EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This Amendment is entered into as of September 6, 2001 (the "Closing
Date") by Nabi, a Delaware corporation ("Seller"), and ZLB Bioplasma Inc., a
Delaware corporation ("Buyer").
BACKGROUND
A. Seller and CSL Limited, an Australian Capital Territory corporation ("CSL"),
are parties to an Agreement for Purchase and Sale of Assets dated June 25, 2001
(the "Purchase Agreement"). CSL has assigned its rights and obligations under
the Purchase Agreement to Buyer. Capitalized terms used in this Addendum without
definition shall have the meaning assigned in the Purchase Agreement. All
references to the Purchase Agreement in any document executed by the parties
shall mean the Purchase Agreement as amended by this Amendment.
B. The parties desire to amend the Purchase Agreement in the manner described in
this Amendment.
In consideration of the foregoing and the mutual promises and covenants
contained herein, the parties amend the Purchase Agreement as follows:
1. DMS SUBLICENSE. All references in the Purchase Agreement to the DMS
Sublicense are deleted.
2. REVISED SCHEDULES. The Schedules to the Purchase Agreement are hereby
amended as set forth in Exhibit A hereto.
3. LICENSES AND PERMITS. The licenses and permits listed on Exhibit B
hereto cannot lawfully be transferred by Seller to Buyer. As provided
in Section 1.4 of the Purchase Agreement, Seller shall allow Buyer to
operate under such licenses and permits for a period of 180 days
following the Closing Date and shall not cancel any such license or
permit or any bonds, guarantees or undertakings of Seller in connection
therewith until expiration of such 180 day period.
4. (Reserved)
5. LEASE ASSIGNMENTS. The consents of the respective lessors ("Landlords")
to the assignment of the Leases listed in Exhibit D have not been
obtained as of the Closing Date. Buyer and Seller shall execute a
mutually acceptable Management Agreement under which Buyer will be
engaged to manage the business conducted at the Plasma Centers
represented by those Leases until the required Landlord consents are
obtained.
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Upon receipt of the applicable Landlord consent to the assignment of
each such Lease, Seller and Buyer will terminate the Management
Agreement with respect to that Plasma Center and will execute an
Assignment and Assumption of Lease with respect to that Lease in the
form executed by the parties on the Closing Date. The effective date of
each such assignment shall be the date on which the applicable
Landlord's consent is obtained. With respect to each such Lease, (a)
Seller shall perform all financial obligations and retain all
liabilities under the Lease prior to receipt of the Landlord's consent,
but (b) in no event shall Seller be liable to Buyer with respect to any
claim for breach under any such Lease by virtue of the Management
Agreement or Buyer's operation of any Plasma Center pursuant thereto.
6. BILL OF SALE. The Bill of Sale contemplated in Section 3.6(a) of the
Purchase Agreement shall not include an assumption of liabilities.
7. PURCHASE PRICE ALLOCATION. The parties shall agree to an allocation of
the Purchase Price pursuant to Section 3.7 of the Purchase Agreement as
soon as possible following the Closing Date.
8. AGENT'S LETTER. Notwithstanding the provisions of Section 4.4 of the
Purchase Agreement and Schedules 4.4(a) and 4.4(b) thereto, the
mortgages encumbering the Owned Properties and held by Bank of America,
N.A. ("Bank of America") and the liens encumbering other Assets held by
Bank of America shall be released in accordance with Bank of America's
written undertaking to that effect dated August 28, 2001 ("Agent's
Letter"). Seller shall perform all covenants on its part recited in the
Agent's Letter.
9. NOTICE. For purposes of Section 12.4 of the Purchase Agreement, notice
to Buyer shall be given to:
ZLB Bioplasma Inc.
801 N. Brand Avenue
Suite 1150
Glendale, California 91203
Attn: Peter de Hart, President
with copies to the persons identified in the Purchase Agreement.
10. NONCOMPETE AGREEMENTS. To the extent any employees of Seller who become
employed by Buyer after the Closing Date are parties to a noncompete
agreement with Seller, Seller agrees that it will not enforce the
non-competition provision of any such agreement arising solely from the
employee's employment by Buyer or any of its affiliates.
11. SUBSTITUTE ATTACHMENTS. The Substitute Attachments to Appendix A to the
Purchase Agreement circulated between and initialed by the parties on
the date hereof are accepted by Seller and Buyer.
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