EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of the 2nd day of May 1996, by and among
HEMABIOLOGICS, INC., a California corporation ("Seller"), HEMACARE
CORPORATION, a California corporation of which Seller is a wholly
owned subsidiary ("Parent"), and ATOPIX PHARMACEUTICALS
CORPORATION, a California corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of United States Food and Drug
Administration ("FDA") establishment license number 0641-004
bearing the FDA registration number 2077790 (the "San Diego
Establishment License"), under which Seller conducts operations at
3538 30th Street, San Diego, California 92104 (the "San Diego
Center");
WHEREAS, Seller is also the owner of a number of FDA product
licenses associated with the San Diego Establishment License, as
set forth on Schedule A-1 attached to this Agreement (the "San
Diego Product Licenses" and collectively with the San Diego
Establishment License, the "San Diego Licenses");
WHEREAS, Seller is the owner of FDA establishment license
number 0641-007 bearing the FDA registration number 2050075 (the
"Sherman Oaks Establishment License"), under which Seller conducts
operations at its headquarters facilities at 4954 Van Nuys
Boulevard, Sherman Oaks, California 91403 (the "Sherman Oaks
Center");
WHEREAS, Seller is also the owner of a number of FDA product
licenses associated with the Sherman Oaks Establishment License, as
set forth on Schedule A-2 attached to this Agreement (the "Sherman
Oaks Product Licenses" and collectively with the Sherman Oaks
Establishment License, the "Sherman Oaks Licenses") (the San Diego
Licenses and the Sherman Oaks Licenses are sometimes collectively
referred to herein as the "Licenses");
WHEREAS, Seller owns a partially completed biopharmaceutical
manufacturing facility in Valencia, California, at which it has
certain items of equipment; and
WHEREAS, Seller desires to sell to Buyer the Licenses, certain
assets of the San Diego Center and certain of the equipment at its
Valencia, California facility, and Buyer desires to purchase such
assets from Seller and to assume certain liabilities of Seller in
connection therewith, on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
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1. PURCHASE AND SALE OF PURCHASED ASSETS. Seller hereby agrees to
sell, transfer, assign and convey to Buyer at the Closing (as
defined below), and Buyer hereby agrees to purchase from Seller at
the Closing, all of Seller's right, title and interest in and to:
(a) the Licenses;
(b) the rights of Seller and/or Parent as lessee to use
and obtain title to the seven (7) Haemonetics PCS
Ultralite plasma collection machines (serial numbers
92M162, 92M168, 92M151, 92M150, 92M170, 93L172 and
93L164) located at the San Diego Center (the
"Haemonetics Equipment");
(c) the rights of Seller under that certain Office Lease
dated as of November 17, 1993, between Harold D. and
Anne M. West as landlord (who have assigned their
rights thereunder to Logan Heights Family Health
Center) and Seller as tenant, for the premises in which
the San Diego Center currently operates and which
expires January 31, 1999 (the "Lease"), which include
the rights of Seller to any and all deposits held by
the landlord under the Lease;
(d) the furniture, fixtures, leasehold improvements and
equipment at the San Diego Center described on
Schedule B attached hereto (the "Other San Diego
Equipment");
(e) those items of materials inventory of the type
described on Schedule C attached hereto as shall be on
hand at the San Diego Center on the Closing Date (as
defined below), with no assurance or guaranty of any
minimum inventory to be on hand on the Closing Date;
(f) originals or copies of business and regulatory
records maintained by Seller with respect to the assets
being purchased hereunder and Seller's operations under
the Licenses (including donor lists and records,
inspection records and FDA-approved Standard Operating
Procedures) that are necessary for Buyer to continue
the operation of the San Diego Center;
(g) the equipment (the "Valencia Equipment") located at
Seller's Valencia, California facility, located at
24963 Tibbits Avenue (the "Valencia Premises"),
described on Schedules D-1 and D-2 attached hereto;
provided, however, that the equipment described on
Schedule D-1 (the "Clean Room Equipment") shall be
subject to purchase and sale under this Agreement only
if (i) it can be removed without damage to the Valencia
Premises and without impairing the ability of Seller to
sublet the Valencia Premises or (ii) Buyer pays for the
costs of restoring the Valencia Premises;
(h) all of Seller's rights under the equipment leases,
purchase obligations, equipment maintenance and service
contracts (unless such maintenance and service
contracts are cancellable by Seller without penalty
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upon thirty (30) days' notice or less) described on
Schedule E-1 attached hereto, and all open contracts
and purchase orders for disposable or consumable
supplies for the San Diego Center as of the Closing
Date (collectively, the "Assumed Contracts"); and
(i) all claims and rights against third parties relating
to the assets being purchased hereunder, including
without limitation manufacturers' and vendors'
warranties (to the extent that such warranties are
transferable by Seller to Buyer), but excluding claims
under any insurance policies maintained by or for the
benefit of Seller.
The foregoing assets are referred to in this Agreement as the
"Purchased Assets." The current equipment lease between Seller or
Parent and Haemonetics (the "Haemonetics Lease") provides for the
lease of equipment in addition to the Haemonetics Equipment, with
respect to which neither the rights nor the obligations of Seller
or Parent are being transferred to or assumed by Buyer. The
Haemonetics Lease provides for Parent and/or Seller to purchase at
specified prices certain minimum quantities of Haemonetics
consumable kits (Haemonetics list number 525) in lieu of lease
payments, which obligations are stated on an aggregate basis rather
than on a per machine basis. As of the date of this Agreement,
Seller and Parent have not satisfied these minimum purchase
obligations.
2. EXECLUDED ASSETS. The Purchased Assets shall include only
those assets described in Section 1 and shall not include any other
assets of Seller or Parent (all of which excluded assets are herein
referred to as the "Excluded Assets"). Without limiting the
description of the Excluded Assets, it is hereby agreed that all of
the following shall be Excluded Assets:
(a) all cash, accounts receivable, bank accounts and
other cash assets;
(b) all plasma inventories;
(c) the Clean Room Equipment to the extent that it is
not subject to purchase and sale under this Agreement
as provided in Section 1(g);
(d) Seller's rights under the lease for the Valencia
Premises;
(e) any tangible or intangible assets of Seller or
Parent located or held for use at the Sherman Oaks
Center other than the Sherman Oaks Licenses;
(f) Seller's rights under any insurance policies with
respect to any of the Purchased Assets, including
without limitation rights to any premiums paid in
respect of any period following the Closing Date; and
(g) Seller's rights under the contracts related to the
operations of the San Diego Center described on
Schedule E-2 attached to this Agreement (the
"Terminable Contracts"), which will be terminated by
Seller on or about the Closing Date.
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Buyer acknowledges its awareness and understanding that
some of the Terminable Contracts, as designated on
Schedule E-2 (the "Essential Contracts"), are essential to
the operations and/or regulatory compliance of the San
Diego Center.
3. ASSUMED LIABILITIES. Buyer shall assume as of the Closing and
perform when due:
(a) Seller's obligations to be performed after the
Closing Date under or in connection with the Lease, the
Assumed Contracts and the Licenses;
(b) Seller's obligations under the Haemonetics Lease
with respect to the Haemonetics Equipment, as it shall
be amended by the Haemonetics Amendment as contemplated
by Section 10(a)(v); and
(c) all trade payables of or relating to the San Diego
Center in respect of the period following the Closing
Date.
The foregoing obligations and liabilities are referred to in this
Agreement as the "Assumed Liabilities." Buyer shall not assume or
be bound by any duties, obligations or liabilities of Seller in
existence on the Closing Date of any kind or nature, known,
unknown, contingent or otherwise, other than the Assumed
Liabilities.
4. PURCHASE PRICES AND TERMS OF PAYMENT; PAYMENT OF OUTSTANDING
OBLIGATION BY BUYER TO SELLER.
(a) Purchase Prices. The purchase price for the
Purchased Assets other than the Valencia Equipment and the Sherman
Oaks Licenses (the "San Diego Assets") shall be One Hundred Sixteen
Thousand Dollars ($116,000) (the "San Diego Purchase Price"), of
which Twenty-One Thousand Dollars ($21,000) is allocated to the San
Diego Assets described in Sections 1(d) and 1(e) and Ninety-Five
Thousand Dollars ($95,000) is allocated to the other San Diego
Assets. The purchase price for the Sherman Oaks Licenses (the
"Sherman Oaks Purchase Price") shall be Twenty-Five Thousand
Dollars ($25,000). The purchase price for the Valencia Equipment
(the "Valencia Purchase Price") shall be Two Hundred Thousand
Dollars ($200,000), and there shall be no deduction from the
Valencia Purchase Price if the Clean Room Equipment becomes part of
the Excluded Assets. The San Diego Purchase Price, the Sherman
Oaks Purchase Price and the Valencia Purchase Prices are
collectively referred to in this Agreement as the "Purchase Price."
Each party agrees to report the purchase and sale of the Purchased
Assets for federal and state tax purposes in accordance with the
allocation of the Purchase Price set forth herein.
(b) Payment of San Diego and Sherman Oaks Purchase
Prices. Each of the San Diego Purchase Price and the Sherman Oaks
Purchase Price shall be payable by certified or bank cashier's
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check at the Closing (or at the Additional Closing (as defined
below) in the case of the Sherman Oaks Purchase Price as provided
in Section 13(c) if on or before the Closing Date the FDA has not
amended the Sherman Oaks Licenses to give effect to their transfer
from Seller to Buyer).
(c) Payment of Valencia Purchase Price and Security
Agreement. The Valencia Purchase Price shall be evidenced by a
negotiable promissory note (the "Note") delivered at Closing
substantially in the form attached hereto as Exhibit 1 and
otherwise satisfactory in form and substance to Seller. The Note
and the other obligations of Buyer to Seller under this Agreement
with respect to the Valencia Equipment will be secured by a first
in priority security interest in the Valencia Assets, which shall
be granted by Buyer to Seller pursuant to a Security Agreement (the
"Security Agreement") entered into at the Closing substantially in
the form attached hereto as Exhibit 2 and otherwise satisfactory in
form and substance to Seller. Prior to the Closing, Buyer and
Seller shall execute a financing statement on Form UCC-1 in form
and substance satisfactory to Buyer (the "Financing Statement"),
which Financing Statement shall be recorded in the Office of the
Secretary of State of California prior to the Closing Date.
(d) Payment of Outstanding Balance. Buyer remains
indebted to Seller in the amount of Fourteen Thousand
Dollars ($14,000) for prior plasma collection and storage services.
This balance shall be paid in cash on the earlier of the Closing
Date and June 30, 1996. If paid at the Closing, this payment shall
be made by certified or bank cashier's check. Upon the payment in
full of this balance, Seller shall deliver possession to Buyer of
the plasma so collected and stored by Seller. Any payments made by
Buyer to Seller for prior plasma collection and storage services,
including a $40,000 payment made in March 1996 and the $14,000
balance referenced above shall not be refundable in the event of
the termination of this Agreement for any reason.
5. DELIVERY OF VALENCIA EQUIPMENT. At the Closing, Seller shall
deliver possession of the Valencia Equipment to Buyer at the
Valencia Premises. Buyer agrees immediately thereafter to accept
delivery of the Equipment and to remove it, at Buyer's sole risk
and expense, from such location. Notwithstanding any other
provision of this Agreement or the Security Agreement to the
contrary, all risk of loss of the Valencia Equipment shall pass to
and shall be assumed by Buyer as of the Closing. If the Valencia
Equipment is not removed by Buyer from the Valencia Premises within
fifteen (15) days after the Closing Date, Buyer shall pay to Seller
One Hundred and 00/100 Dollars ($100.00) per day for each day
thereafter until the date of removal of all of the Valencia
Equipment from the Valencia Premises. Seller may withhold delivery
of possession of the Valencia Equipment pending the satisfaction of
any amounts due from Buyer under this Section.
6. EQUIPMENT SOLD "AS IS". Seller is selling the Haemonetics
Equipment, the Other San Diego Equipment and the Valencia Equipment
(collectively, the "Equipment") and Buyer agrees to accept the
Equipment, "As Is." Buyer represents and warrants that it has had
sufficient opportunity to inspect the Equipment to its
satisfaction. WITH RESPECT TO THE EQUIPMENT, SELLER HEREBY
DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
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FOR A PARTICULAR PURPOSE. SELLER FURTHER HEREBY DISCLAIMS ANY AND
ALL LIABILITY FOR CONSEQUENTIAL AND INCIDENTAL DAMAGES ARISING OUT
OF OR IN CONNECTION WITH ANY CLAIM WITH RESPECT TO THE EQUIPMENT,
INCLUDING BUT NOT LIMITED TO CLAIMS OF NEGLIGENCE, STRICT LIABILITY
IN TORT OR BREACH OF CONTRACT.
7. TRANSFER OF LICENSES; ADDITIONAL AUTHORIZATIONS.
(a) Transfer of Licenses. Promptly following the
execution of this Agreement, Seller shall prepare and submit one or
more applications to the FDA seeking amendments to the Licenses for
the assignment and transfer of the Licenses to Buyer. Seller shall
request the FDA to register the assignment and transfer of the San
Diego Licenses and the Sherman Oaks Licenses as of the same
effective date. Buyer shall cooperate with Seller in the
preparation and submission of these applications as requested by
Seller. Seller agrees to use commercially reasonable efforts to
seek the transfer and assignment of the Licenses to Buyer as soon
as possible. If the FDA amends the Licenses to give effect to the
transfer of the Licenses from Seller to Buyer and this Agreement is
subsequently terminated prior to Closing for any reason, Buyer and
Seller shall use their best efforts to cause the FDA to amend the
Licenses to transfer them back to Seller from Buyer. From the date
of any amendment of the Licenses giving effect to their transfer
from Seller to Buyer until the Closing, Buyer shall conduct no
operations under any of the Licenses.
(b) Buyer's Responsibilities for Additional
Authorizations. Buyer acknowledges and agrees that it shall have
the sole responsibility to seek, obtain or make any and all
licenses, permits, qualifications, registrations or other
authorizations (other than the Licenses) from, or filings with,
governmental, regulatory or accreditation authorities necessary for
it to conduct operations under the Licenses or otherwise, including
without limitation applications to the FDA for the relocation of
the Sherman Oaks Licenses to a location of Buyer upon or after the
Closing ("Additional Authorizations"). The purchase and sale of
the Purchased Assets is not and shall not be conditioned in any way
upon the receipt by Buyer of any Additional Authorizations, and
Seller hereby makes no representation or warranty concerning the
need for any Additional Authorizations or the ability of Buyer to
obtain any Additional Authorizations. Notwithstanding any other
provision hereof to the contrary, Buyer shall have no right to
conduct any operations under the Sherman Oaks License in any
facility of Seller or Parent, including without limitation the
Sherman Oaks Center. Buyer hereby acknowledges that Seller has
disclosed to it that Seller has permitted its State of California
Biologics License and CLIA certificate for the Sherman Oaks Center
to expire.
8. REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT. Seller and
Parent hereby jointly and severally represent and warrant to Buyer
that:
(a) Each of Seller and Parent is a corporation duly
organized and validly existing in good standing under the laws of
California and, in the case of Seller, with the power to own the
Purchased Assets.
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(b) Each of Seller and Parent has the power and
authority to execute, deliver and perform this Agreement. Such
execution, delivery and performance have been duly authorized by
all necessary action on the part of each of Seller and Parent, do
not and will not require any approvals on behalf of either Seller
or Parent not heretofore obtained and do not and will not
contravene the organizational or charter documents of either Seller
or Parent or conflict with, result in a breach of, or entitle any
party (with due notice or lapse of time or both) to terminate,
accelerate or call a default with respect to, or result in the
creation or imposition of any lien, charge, encumbrance or claim of
any nature whatsoever upon any of the Purchased Assets pursuant to,
any agreement or instrument to which either Seller or Parent is a
party or by which either Seller or Parent or any of their
respective properties or assets is bound, subject to the
procurement of any consents otherwise contemplated hereby. Neither
Seller nor Parent is a party to, or subject to or bound by, any
judgment, injunction or decree of any court or governmental
authority which may restrict or interfere with the performance by
it of this Agreement or the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by Seller and
Parent will not result in any violation by either Seller or Parent
of any law, rule or regulation applicable to it or the Purchased
Assets. This Agreement is, and each of the other instruments and
documents to be executed by either Seller or Parent hereunder will
be, a valid and binding obligation of such party enforceable in
accordance with its terms.
(c) Seller has and will convey to Buyer, good and
marketable title to all the Purchased Assets, subject to no
mortgage, security interest, pledge, lien, conditional sales
agreement, claim, restriction, reservation, covenant, encumbrance,
charge, restraint on transfer, or any other title defect of any
nature whatsoever, except for the Assumed Liabilities and, as of
the date of this Agreement but not as of the Closing Date, defaults
under the Haemonetics Lease. There are no liabilities of Seller
with respect to any of the Purchased Assets other than the Assumed
Liabilities for which Buyer will be responsible or to which the
Purchased Assets will be subject upon their sale, assignment,
transfer and conveyance by Seller to Buyer.
(d) Except for the amendment of the Licenses by the FDA
to give effect to the transfer of the Licenses from Seller to
Buyer, no consent, approval, authorization or order of, or
registration, qualification or filing with, any court, regulatory
authority or other governmental body is required for the execution,
delivery and performance by Seller of this Agreement, and the other
instruments and documents required or contemplated hereby. No
consent of any party is required for the execution, delivery and
performance by Seller of this Agreement or such other instruments
and documents, except for the consents of the landlord under the
Lease and the consent of Haemonetics to the Haemonetics Amendment
(as contemplated by Section 10(a)(v).
(e) No material investigation or review by any
governmental entity with respect to any of the Purchased Assets is
pending or, to the best knowledge of Seller's and Parent's
respective senior officers, threatened, nor has any governmental
entity indicated to either Seller or Parent an intention to conduct
such an investigation or review; and there is no action, suit or
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proceeding pending or, to the best knowledge of Seller's and
Parent's respective senior officers, threatened against or
affecting any of the Purchased Assets at law or in equity, or
before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
which either singly or in the aggregate would, if adversely
determined, have a material adverse effect on the ownership,
possession or use of the Purchased Assets by Buyer after the
Closing, or which would impair Seller's ability to perform this
Agreement or the transactions contemplated hereby. To the best
knowledge of the respective senior officers of Seller and Parent,
the operations of neither the San Diego Center nor the Sherman Oaks
Center is being conducted in violation of any applicable law,
ordinance, regulation, decree or order or any court or governmental
entity.
(f) To the best knowledge of Seller's and Parent's
respective senior officers, the Lease and each of the Assumed
Contracts is valid and binding upon each party thereto and is in
full force and effect, there is no material default or claim of
default under any provision thereof and no event has occurred
which, with the passage of time or the giving of notice (or both),
would constitute a material default by Seller (or, to the best
knowledge of Seller's and Parent's respective senior officers, any
other party thereto) under any provision thereof (other than the
Haemonetics Lease with respect to which Seller and/or Parent is
currently in default), or would permit modification, acceleration
or termination of the Lease or any Assumed Contract by any other
party thereto or by Seller (except for the Haemonetics Lease).
(g) Seller is not a "foreign person" as that term is
defined for purposes of the Internal Revenue Code of 1986, as
amended.
9. REPRESENTAITONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants to Seller and Parent that:
(a) Buyer is a corporation duly organized and validly
existing in good standing under the laws of California with the
power to acquire and own the Purchased Assets.
(b) Buyer has the power and authority to execute,
deliver and perform this Agreement. Such execution, delivery and
performance have been duly authorized by all necessary action on
the part of Buyer, do not and will not require any approvals on
behalf of Buyer not heretofore obtained and do not and will not
contravene the organizational or charter documents of Buyer or
conflict with, result in a breach of, or entitle any party (with
due notice or lapse of time or both) to terminate, accelerate or
call a default with respect to any agreement or instrument to which
Buyer is a party or by which Buyer or any of its properties or
assets is bound. Buyer is not a party to, or subject to or bound
by, any judgment, injunction or decree of any court or governmental
authority which may restrict or interfere with the performance by
it of this Agreement or the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by Buyer will
not result in any violation by Buyer of any law, rule or regulation
applicable to Buyer. This Agreement is, and each of the other
instruments and documents to be executed by Buyer hereunder will
be, a valid and binding obligation of Buyer enforceable in
accordance with its terms.
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(c) All information furnished or to be furnished by
Buyer to Seller or the FDA in connection with seeking the
amendments of the Licenses as contemplated by this Agreement is or
will be true, correct and complete in all material respects.
10. COVENANTS OF THE PARTIES.
(a) Seller's Covenants. Seller (and/or Parent to the
extent provided below) covenants and agrees with Buyer that between
the date of this Agreement and the Closing Date:
(i) Seller will conduct the business of the San Diego
Center in the ordinary course and substantially in the same
manner as heretofore conducted, will perform all acts to be
performed by it pursuant to this Agreement and will refrain
from taking or omitting to take any action that would violate
Seller's and Parent's representations and warranties hereunder
or render them inaccurate as of the date hereof or the Closing
Date or that in any way would prevent the consummation of the
transactions contemplated hereby. Notwithstanding the
foregoing, if the FDA has amended the Licenses giving effect
to the transfer of the Licenses from Seller to Buyer prior to
the Closing, Seller shall cease all operations at the San
Diego Center and the Sherman Oaks Center that are dependent
upon the Licenses.
(ii) Seller will give prompt notice to Buyer of any
breach or default (or notice thereof) of the Lease or any
Assumed Contract or any other event that may have a material
adverse effect on the Purchased Assets following the Closing
Date.
(iii) Seller will permit Buyer and its authorized
representatives at reasonable times to have access to and to
examine the tangible Purchased Assets.
(iv) Seller will use its best efforts to obtain the
consents of other parties required for the consummation of the
transactions contemplated by this Agreement and to cause the
FDA to transfer the Licenses from Seller to Buyer.
(v) Seller and/or Parent will use their best efforts to
enter into a modification of the Haemonetics Lease (the
"Haemonetics Amendment") providing for the waiver and release
of all prior defaults under the Haemonetics Lease with respect
to the Haemonetics Equipment and severable future rights and
obligations with respect to the Haemonetics Equipment on terms
either (A) no more onerous than those applicable to the other
equipment leased thereunder or (B) otherwise reasonably
acceptable to Buyer.
(vi) Seller and Parent will promptly furnish Buyer with
the information necessary to prepare the notice contemplated
by Section 10(b)(v), including all names and businesses
addresses used by Seller within the last three years and the
location of all assets to be transferred under this Agreement.
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(b) Buyer's Covenants. Buyer covenants and agrees with
Seller that between the date of this Agreement and the Closing Date
(or in the case of clause (ii) below, the date of payment in full
of the Note):
(i) Buyer will perform all acts to be performed by it
pursuant to this Agreement and will refrain from taking or
omitting to take any action that would violate its
representations and warranties hereunder or render them
inaccurate as of the date hereof or the Closing Date or that
in any way would prevent the consummation of the transactions
contemplated hereby.
(ii) Buyer will use its best efforts to complete the
Private Placement as soon as practicable.
(iii) Buyer will use its best efforts to cause the
FDA to amend the Licenses to give effect to the transfer of
the Licenses from Seller to Buyer.
(iv) Buyer will arrange to contract with vendors, as of
the Closing Date, for the provision of all goods and services
of the types provided to Seller under the Essential Contracts.
(v) Buyer will promptly give notice, in compliance with
Division 6 of the California Commercial Code, of the transfer
contemplated by this Agreement.
Notwithstanding the compliance by the parties with the requirements
of Division 6 of the California Commercial Code, none of the
parties shall be estopped or prevented from asserting as a bar or
defense to any action or proceeding brought under such law that
such law does not apply to the sale contemplated by this Agreement.
(c) Additional Covenant of Buyer to Maintain Records.
Buyer covenants and agrees with Seller to maintain all records
described in Section 1(f) without alteration for such periods of
time as shall be necessary to satisfy any federal, state or local
legal or regulatory requirements applicable to Seller or Buyer, and
to permit Seller to have access to any and all such transferred
records at reasonable times for the purpose of demonstrating
compliance by Seller with such requirements.
11. CONDITIONS TO OBLIGATIONS OF BUYER. The obligation
of Buyer to purchase the Purchased Assets at the Closing is subject
to the satisfaction of the following conditions on or before the
Closing Date:
(a) Each representation and warranty of Seller and
Parent made in or pursuant to this Agreement shall be true and
correct in all material respects as of the date made and at and as
of the Closing Date, with the same force and effect as though made
at and as of the Closing Date, and Buyer shall have received from
appropriate officers of each of Seller and Parent a certificate or
certificates to such effect, in form and substance reasonably
satisfactory to Buyer.
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(b) Each of Seller and Parent shall have performed and
complied with all the obligations, agreements and conditions
required by this Agreement to be performed or complied with by it
at or prior to the Closing, and Buyer shall have received from
appropriate officers of each of Seller and Parent a certificate or
certificates to such effect, in form and substance reasonably
satisfactory to Buyer.
(c) There shall be no suit, action or other proceeding
pending or threatened before any court or before or by any
governmental agency in which it is sought to restrain, prohibit,
invalidate or set aside in whole or in part the consummation of
this Agreement or the transactions contemplated hereby or to obtain
substantial damages in connection therewith.
(d) Seller and/or Parent shall have obtained the
contractual consents referred to in Section 8(d) or otherwise
required for the sale and assignment to Buyer of the Purchased
Assets or for the consummation of the transactions contemplated
hereby.
(e) The Haemonetics Amendment shall have been entered
into and shall be in full force and effect.
(f) The FDA shall have amended the San Diego Licenses to
give effect to their transfer from Seller to Buyer.
(g) The notice contemplated by Section 10(b)(v) shall
have been in the manner and within the time periods required by
Division 6 of the California Commercial Code.
12. CONDITIONS TO OBLIGATIONS OF SELLER. The obligation
of Seller to sell the Purchased Assets at the Closing is subject to
the satisfaction of the following conditions on or before the
Closing Date:
(a) Each representation and warranty of Buyer made in or
pursuant to this Agreement shall be true and correct in all
material respects as of the date made and at and as of the Closing
Date, with the same force and effect as though made at and as of
the Closing Date, and Seller and Parent shall have received from
appropriate officers of Buyer a certificate or certificates to such
effect, in form and substance reasonably satisfactory to Seller.
(b) Buyer shall have performed and complied with all the
obligations, agreements and conditions required by this Agreement
to be performed or complied with by it at or prior to the Closing,
and Seller and Parent shall have received from appropriate officers
of Buyer a certificate or certificates to such effect, in form and
substance reasonably satisfactory to Seller and Parent.
(c) There shall be no suit, action or other proceeding
pending or threatened before any court or before or by any
governmental agency in which it is sought to restrain, prohibit,
invalidate or set aside in whole or in part the consummation of
this Agreement or the transactions contemplated hereby or to obtain
substantial damages in connection therewith.
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(d) Seller and/or Parent shall have obtained the
contractual consents referred to in Section 8(d) or otherwise
required for the sale and assignment to Buyer of the Purchased
Assets or for the consummation of the transactions contemplated
hereby.
(e) The Haemonetics Amendment shall have been entered
into and shall be in full force and effect.
(f) The FDA shall have amended the San Diego Licenses to
give effect to their transfer from Seller to Buyer.
(g) The Financing Statement shall have been duly and
properly recorded by the Office of the Secretary of State of
California sufficient to perfect the security interest to be
granted under the Security Agreement as a first in priority
security interest in the Valencia Equipment, and Seller shall have
received a copy of the recorded Financing Statement, which in form
and substance shall be satisfactory to Seller and its counsel.
(h) The notice contemplated by Section 10(b)(v) shall
have been given in the manner and within the time periods required
by Division 6 of the California Commercial Code.
13. CLOSING. Except as provided in Section 13(c)
below, the transfers and deliveries to be made pursuant to this
Agreement (the "Closing") shall take place at the offices of
Sanders, Barnet, Goldman, Simons & Mosk, A Professional
Corporation, at 4:00 p.m. on such date designated by Seller within
five (5) days after the last to occur of (i) the date of the
consent of the landlord for the assignment of the Lease to Buyer,
(ii) the date of the last contractual consent referred to in
Section 8(d) or otherwise required for the sale and assignment to
Buyer of the Purchased Assets or for the consummation of the
transactions contemplated hereby, (iii) the date on which the
parties receive notice of the amendment of the San Diego Licenses
by the FDA giving effect to the transfer of the San Diego Licenses
from Seller to Buyer and (iv) the effective date of the Haemonetics
Amendment, or such other place, time or date as the parties shall
agree upon in writing. The date on which the Closing is to occur
is herein referred to as the "Closing Date". At the Closing, the
parties shall deliver the following documents or such documents in
substitution therefor as are satisfactory to the recipient:
(a) Deliveries by Seller. Seller (and/or Parent, as the
case may be) shall deliver to Buyer:
(i) Bills of sale, instruments of transfer, assignment
and conveyance, and other instruments in form and substance
satisfactory to Buyer and sufficient to convey, transfer, and
assign to Buyer and effectively vest in Buyer all right, title
and interest in and to the Purchased Assets and good and
marketable title to the Purchased Assets subject only to
exceptions referred to on the Schedules hereto;
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(ii) All required consents to assignments of the Lease
and the Assumed Contracts, including the Haemonetics
Amendment;
(iii) The amendment of the Licenses giving effect to
the transfer of the Licenses from Seller to Buyer;
(iv) The Security Agreement;
(v) Certified copies of the resolutions, duly adopted by
the Board of Directors of Seller, that shall be in full force
and effect at the time of delivery, authorizing the execution,
delivery and performance of this Agreement;
(vi) The certificates executed by officers of Seller and
Parent provided for in Sections 11(a) and 11(b);
(vii) Possession of the Purchased Assets; and
(viii) Such other instruments and documents as may be
reasonably requested by, and in form and substance
satisfactory to, Buyer.
(b) Deliveries by Buyer. Buyer shall deliver to
Seller (and/or Parent, as the case may be):
(i) Certified or bank cashier's checks in the aggregate
amount required by Sections 1(g)(ii), 4(a), 4(d) and 16;
(ii) The Note and the Security Agreement;
(iii) Certified copies of resolutions, duly adopted
by the Board of Directors of Buyer that shall be in full force
and effect at the time of delivery, authorizing the execution,
delivery and performance of this Agreement, the Note and the
Security Agreement;
(iv) The certificates executed by officers of Buyer
provided for in Sections 12(a) and 12(b); and
(v) Such other instruments and documents as may be
reasonably requested by, and in form and substance
satisfactory to, Seller.
(c) Delayed Closing or Termination of Agreement with
Respect to Sherman Oaks Licenses. Notwithstanding any other
provision of this Agreement to the contrary, if the FDA has not
amended the Sherman Oaks Licenses to give effect to their transfer
from Seller to Buyer on or before the Closing Date, the sale,
purchase and transfer of the Sherman Oaks Licenses shall be
excluded from the Closing; provided, however, that the application
to the FDA for the amendment of the Sherman Oaks Licenses to effect
their transfer shall remain pending and the obligations of the
parties hereunder with respect to the sale, purchase and transfer
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of the Sherman Oaks Licenses hereunder shall survive the Closing.
Within five (5) days following the FDA's amendment of the Sherman
Oaks Licenses to give effect to their transfer from Seller to
Buyer, the parties shall conduct an additional closing (the
"Additional Closing") at which Seller shall deliver the items
described in clauses (iii), (v), (vi), (vii) and (viii) of
Section 13(a) with respect to the Sherman Oaks Licenses and Buyer
shall deliver the items described in clauses (i), (iii), (iv) and
(v) of Section 13(b) with respect to the Sherman Oaks Licenses.
Subject to the foregoing, the date, time and place of the
Additional Closing shall be mutually agreed upon by Seller and
Buyer. If the FDA has not amended the Sherman Oaks Licenses to
give effect to their transfer from Seller to Buyer within
ninety (90) days following the Closing, either Seller or Buyer may
terminate its obligations hereunder with respect to the sale,
purchase and transfer of the Sherman Oaks Licenses (except for the
provisions of Sections 15, 16, 19 and 20, which shall continue in
effect) by written notice given to the other party. In the event
of any termination permitted by the preceding sentence, no party
hereto shall have any liability or obligation pursuant to this
Agreement to any other party hereto, except for liabilities or
obligations arising under Sections 15, 16, 19 and 20. Without
prejudice to any other rights or remedies which it may have, either
Seller or Buyer may, prior to the Additional Closing, forthwith
abandon the transactions contemplated hereby to be consummated at
the Additional Closing by written notice to the other party if
there shall have been a failure of condition or a breach of any
representation or warranty contained herein by the other party
(including Parent in the case of Seller) which failure or breach is
not cured or cannot reasonably be cured prior to the Additional
Closing, or if a default shall be made by any other party in the
timely performance of any of that party's agreements or obligations
contained herein.
14. TERMINATION. This Agreement (except for the
provisions of Sections 4(d), 7(a), 15, 16, 19, 20 and 22, which
shall continue in effect) and the transactions contemplated hereby
may be terminated and abandoned at any time prior to the Closing
Date (i) by mutual written agreement of Buyer and Seller, (ii) by
Buyer or Seller upon written notice given to the other party after
entry of a restraining order or injunction restraining or
prohibiting the sale or purchase of the Purchased Assets, or
(iii) by Buyer or Seller upon written notice to the other party if
the Closing shall not have taken place by August 15, 1996, other
than by reason of a matter within the control of the party
asserting such termination. In the event of any termination
permitted by the preceding sentence, no party hereto shall have any
liability or obligation pursuant to this Agreement to any other
party hereto, except for liabilities or obligations arising under
Sections 4(d), 7(a) 15, 16, 19, 20 and 22. Without prejudice to
any other rights or remedies which it may have, either Seller or
Buyer may, prior to the Closing, forthwith abandon the transactions
contemplated hereby to be consummated at the Closing by written
notice to the other party if there shall have been a failure of
condition or a breach of any representation or warranty contained
herein by the other party (including Parent in the case of Seller)
which failure or breach is not cured or cannot reasonably be cured
prior to the Closing, or if a default shall be made by any other
party in the timely performance of any of that party's agreements
or obligations contained herein.
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15. SURVIVAL AND INDEMNIFICATION.
(a) All representations, warranties, covenants,
indemnities and agreements contained in or made pursuant to this
Agreement or in any exhibit, certificate, document or statement
delivered pursuant hereto shall survive the transfer of the
Purchased Assets, subject only to applicable statutes of
limitations.
(b) Buyer hereby agrees to protect, defend, indemnify
and hold harmless Seller, Parent and the respective directors,
officers, employees and agents of Seller and Parent from, and to
reimburse such parties for, any loss, cost, expense, damage,
liability or claim (including, without limitation, any and all
fees, costs and expenses whatsoever, which fees, costs and expenses
shall be paid as incurred, reasonably incurred by any and all such
parties and its or their counsel in investigating, preparing for,
defending against, or providing evidence, producing documents or
taking any other action in respect of any threatened or asserted
claim) arising out of, based upon or resulting from (i) the
inaccuracy as of the date hereof or as of the Closing Date of any
representation or warranty of Buyer which is contained in or made
pursuant to this Agreement; (ii) Buyer's breach of or failure to
perform any of its covenants or agreements contained in or made
pursuant to this Agreement; or (iii) any Assumed Liability.
(c) Seller and Parent jointly and severally hereby agree
to protect, defend, indemnify and hold harmless Buyer and its
directors, officers, employees and agents from, and to reimburse
such parties for, any loss, cost, expense, damage, liability or
claim (including, without limitation, any and all fees, costs and
expenses whatsoever, which fees, costs and expenses shall be paid
as incurred, reasonably incurred by any and all such parties and
its or their counsel in investigating, preparing for, defending
against, or providing evidence, producing documents or taking any
other action in respect of any threatened or asserted claim)
arising out of, based upon, or resulting from (i) the inaccuracy as
of the date hereof or as of the Closing Date of any representation
or warranty of either Seller or Parent which is contained in or
made pursuant to this Agreement; (ii) the breach of or failure to
perform any of the covenants or agreements of either Seller or
Parent contained in or made pursuant to this Agreement; or
(iii) any liability or obligation of Seller that is not expressly
assumed by Buyer under or pursuant to this Agreement asserted after
the Closing and attributable to the period prior to the Closing.
(d) If at any time an indemnified party hereunder learns
of any claim or basis of any claim which could result in liability
of any indemnifying party under its indemnification obligations
hereunder, the indemnified party shall give to the indemnifying
party written notice within such time as is reasonable under the
circumstances, describing such claim in reasonable detail. If such
claim is a third party claim, the indemnifying party shall have
sole control over, and shall assume all expense with respect to,
the defense or settlement of such claim; provided, however, that:
(i) the indemnified party or parties (represented by Buyer or
Seller, as the case may be) shall have the right to approve of
legal counsel selected by the indemnifying party, which approval
shall not be unreasonably withheld; (ii) the indemnified party or
parties shall be entitled to participate in the defense of such
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claim and to employ counsel at its or their own expense to assist
in the handling of such claim; and (iii) the indemnifying party
shall obtain the prior written approval of the indemnified party or
parties, which shall not be unreasonably withheld, before entering
into any settlement, adjustment or compromise of such claim or
ceasing to defend against such claim, if pursuant thereto or as a
result thereof there would be imposed injunctive or other equitable
relief against the indemnified party or parties. If the
indemnifying party does not assume control over the defense or
settlement of such claim as provided above, the indemnified party
or parties shall have the right to defend and settle the claim in
such manner as it or they may deem appropriate at the cost and
expense of the indemnifying party, and the indemnifying party will
promptly reimburse the indemnified party or parties therefor.
16. SALES TAXES; EXPENSES OF TRANSFER AND LEGAL FEES. All
sales or use taxes payable in connection with the transactions
contemplated hereby shall be paid by Buyer, and Buyer shall pay to
Seller together with its payment of the Purchase Price any and all
amounts required to be collected or remitted by Seller in respect
of such taxes. The reasonable fees and expenses of Seller's
counsel in preparing this Agreement and the Terms Sheet leading to
the execution of this Agreement and consummating the transactions
contemplated hereby, and the reasonable fees and expenses of
Buyer's counsel in reviewing this Agreement and consummating the
transactions contemplated by this Agreement, shall be borne equally
by the parties, and each party shall promptly remit to the other
its portion of such fees and expenses upon presentation of an
invoice to the obligated party. Except as set forth above, each
party shall pay all costs and expenses, including without
limitation the fees of counsel and all brokers' or finders' fees,
incurred by or on behalf of such party in connection with this
Agreement and the transactions contemplated hereby. Without
limiting the foregoing, neither Seller nor Parent shall have any
liability or obligation to Buttonwood Financial Corporation, which
has acted as an adviser to Buyer in connection with this Agreement
and the transactions contemplated hereby. If any litigation or
other proceeding between the parties is commenced in connection
with or related to this Agreement, the losing party shall pay the
reasonable attorneys' fees and costs and expenses of the prevailing
party incurred in connection therewith.
17. ENTIRE AGREEMENT. This Agreement, the schedules and
exhibits hereto and the other agreements, documents and instruments
delivered or to be delivered pursuant hereto or contemplated hereby
set forth the entire understanding of the parties with respect to
the subject matter hereof, supersede any and all prior agreements,
arrangements and understandings, and any and all contemporaneous
oral agreements, arrangements and understandings, with respect to
the subject matter hereof. This Agreement may be modified only by
a written instrument duly executed by each party affected by any
such modification. No breach of any covenant, agreement, warranty
or representation made herein or in any such schedules, exhibits,
agreements, documents or instruments shall be deemed waived unless
expressly waived in writing by the party who might assert such
breach.
18. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the
same agreement and each of which shall be deemed to constitute an
original.
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19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA
WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS RULES AND LAWS.
20. NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be
mailed by registered or certified mail, postage prepaid, return
receipt requested, or delivered in person or by commercial courier
against receipt or by facsimile copy with confirmed receipt, as
follows:
If to Seller or Parent:
HemaBiologics, Inc.
or
HemaCare Corporation (as the case may be)
4954 Van Nuys Boulevard
Sherman Oaks, California 91403
Attention: Hal I. Lieberman, President and
Chief Executive Officer
Telecopier: (818) 386-6522
Telephone: (818) 986-3833
with a copy to:
Sanders, Barnet, Goldman, Simons & Mosk
A Professional Corporation
1901 Avenue of the Stars, Suite 850
Los Angeles, California 90067-6078
Attention: Gordon R. Kanofsky, Esq.
Telecopier: (310) 553-2435
Telephone: (310) 551-8407
If to Buyer:
Atopix Pharmaceuticals Corporation
5 Park Plaza, Suite 600
Irvine, California 92714
Attention: William Pollack, President
Telecopier: (714) 851-1845
Telephone: (714) 622-1845
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with a copy to:
Boldra & Klueger
15760 Ventura Boulevard, Suite 1900
Attention: Robert Klueger, Esq.
Telecopier: (818) 784-9747
Telephone: (818) 784-9601
or to such other address as either party shall have furnished in
writing in accordance with the provisions of this Section. Any
notice or other communication mailed by registered or certified
mail shall be deemed given at the earlier of the time of its
receipt by the addressee or three days after the time of mailing
thereof. Any notice or other communications given by any other
means shall be deemed given at the time of its receipt by the
addressee.
21. ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective
successors, legal representatives and assigns, but this Agreement
may not be assigned by either Buyer or Seller without the written
consent of the other, except that Seller may assign any of its
rights and may delegate any of its duties hereunder to Parent.
22. DISCLOSURES. Without the prior written consent of Seller,
Buyer shall not prior to the Closing make any public disclosure of
or relating to this Agreement or the transactions contemplated
hereby, which consent shall not be unreasonably withheld with
respect to disclosures proposed to be made in securities offerings
documents in connection with the Private Placement.
Notwithstanding the foregoing, neither Seller nor Parent nor their
respective officers, directors, employees and agents shall have any
responsibility for any alleged or proven misstatements, omissions
or misleading statements contained in such offering documents,
which shall be the sole responsibility of Buyer.
23. HEADINGS. The headings of the 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.
24. SEVERABILITY. If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining
provisions of this Agreement will not be affected thereby and the
parties will use all reasonable efforts to substitute one or more
valid, legal and enforceable provisions which, insofar as
practicable, implement the purpose and intent hereof. To the
extent permitted by applicable law, each party waives any provision
of law which renders any provision of this Agreement invalid,
illegal or unenforceable in any respect.
25. FURTHER ASSURANCES. After the Closing, for no further
consideration but without incurring any material expense, each of
Seller and Parent shall perform all such other action (including,
without limitation, the use of Seller's best efforts to achieve
transfer of registrations, permits, approvals and the like as
contemplated by this Agreement) and shall execute, acknowledge and
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deliver all such assignments, transfers, consents and other
documents as Buyer or its counsel may reasonably request to vest in
Buyer, and protect Buyer's right, title and interest in, and
enjoyment of, the Purchased Assets. Buyer shall similarly perform
all such other action and shall execute, acknowledge and deliver
all such other documents as Seller, Parent or their counsel may
reasonably request to perfect and protect Seller's and/or Parent's
rights under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
SELLER:
HEMABIOLOGICS, INC.
By: /s/ Hal I. Lieberman
-------------------------
Hal I. Lieberman, President
and Chief Executive Officer
PARENT:
HEMACARE CORPORATION
By: /s/ Hal I. Lieberman
---------------------------
Hal I. Lieberman, President
and Chief Executive Officer
BUYER:
ATOPIX PHARMACEUTICALS CORPORATION
By: /s/ William Pollack
--------------------------
William Pollack, President
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LIST OF EXHIBITS AND SCHEDULES
Exhibit 1 Form of Promissory Note
Exhibit 2 Form of Security Agreement
Schedule A-1 San Diego Product Licenses
Schedule A-2 Sherman Oaks Product Licenses
Schedule B Other San Diego Equipment
Schedule C Description of Materials Inventory-San Diego Center
Schedule D-1 Valencia Clean Room Equipment
Schedule D-2 Other Valencia Equipment
Schedule E-1 Long-Term Assumed Contracts
Schedule E-2 Terminable Contracts
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