EXHIBIT 2.1
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this
"Agreement") is made and entered into as of the 26th day of June
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").
This Agreement is being entered into for the purpose of amending
and restating the Asset Purchase Agreement, dated as of May 2,
1996, among the parties to this Agreement (the "Original
Agreement").
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.
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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:
1. Purchase and Sale of Purchased Assets. Seller hereby agrees to
sell, transfer, assign and convey to Buyer at the Initial Closing
and the Second Closing (each as defined below), and Buyer hereby
agrees to purchase from Seller at the Initial Closing and the
Second Closing, all of Seller's right, title and interest in and
to:
(a) At the Initial Closing:
(i) 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 (A) it can be removed without damage to the
Valencia Premises and without impairing the ability
of Seller to sublet the Valencia Premises or
(B) Buyer pays for the costs of restoring the
Valencia Premises; and
(ii) all claims and rights against third parties
relating to the Valencia Equipment, 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.
(b) At the Second Closing:
(i) the Licenses;
(ii) 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");
(iii) 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;
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(iv) the furniture, fixtures, leasehold improvements and
equipment at the San Diego Center described on
Schedule B attached hereto (the "Other San Diego
Equipment");
(v) 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 Second
Closing Date (as defined below), with no assurance
or guaranty of any minimum inventory to be on hand
on the Second Closing Date;
(vi) all plasma inventory on hand at the San Diego
Center on the Second Closing Date other than any
plasma inventory (including work in progress) that
was on hand on or prior to the Initial Closing Date
(as defined below), and all accounts receivable of
the San Diego Center other than those relating to
any plasma inventory (including work in progress)
that was on hand on or prior to the Initial Closing
Date;
(vii) 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;
(viii) 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 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 Second Closing Date (collectively, the "Assumed
Contracts"); and
(ix) all claims and rights against third parties
relating to the assets being purchased hereunder at
the Second Closing, 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.
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2. Excluded 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 (other than those
described in Section 1((b)(vi)), bank accounts and
other cash assets;
(b) all plasma inventories (including work in progress)
in existence on or prior to the Initial Closing Date;
(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(a)(i);
(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 applicable 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 Second Closing Date.
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 Second
Closing and perform when due:
(a) Seller's obligations to be performed after the
Second 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 Second
Closing Date.
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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 Second 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(b)(iv) and 1(b)(v) 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
check at the Initial Closing.
(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 the Initial
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 Initial Closing
substantially in the form attached hereto as Exhibit 2 and
otherwise satisfactory in form and substance to Seller. Prior to
the Initial 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 Initial
Closing Date and June 30, 1996. If paid at the Initial 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
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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 Initial 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 Initial Closing. If the
Valencia Equipment is not removed by Buyer from the Valencia
Premises within fifteen (15) days after the Initial 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; provided,
however, that if Seller needs to remove the Valencia Equipment in
order to sublet, assign or terminate its lease for all or any
portion of its space in Valencia, California, Buyer shall reimburse
Seller for the actual costs incurred by Seller to move and store
the Valencia Equipment in lieu of such payment. Such
reimbursements shall be made as such costs are incurred by Seller.
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
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 the Original Agreement, Seller prepared and submitted
applications to the FDA seeking amendments to the Licenses for the
assignment and transfer of the Licenses to Buyer. Seller has
requested 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 has cooperated and shall continue to
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 Second Closing for any reason, Buyer and Seller shall use their
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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
Second 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.
(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
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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 Second 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
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 sale
and conveyance of such Purchased Assets hereunder, 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
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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. Representations 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.
(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 Initial Closing Date or the
Second Closing Date, as the case may be:
(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 Initial
Closing Date or the Second 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 Second Closing,
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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 their sale,
transfer and conveyance hereunder.
(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(s)
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.
(b) Buyer's Covenants. Buyer covenants and agrees with
Seller that between the date of this Agreement and the Closing Date
or the Second Closing date, as the case may be (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 Initial Closing Date
or the Second Closing Date, as the case may be, 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.
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(iv) Buyer will arrange to contract with vendors, as of
the Second Closing Date, for the provision of all goods and
services of the types provided to Seller under the Essential
Contracts.
(v) Buyer will give timely notice(s), in compliance with
Division 6 of the California Commercial Code, of the
transfer(s) 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(b)(vii) 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.
(d) Additional Covenant to Enter into Interim Operating
Agreement. At the Initial Closing, Buyer and Seller shall enter
into an Interim Operating Agreement substantially in the form of
Exhibit 3 attached hereto (the "Interim Operating Agreement").
11. Conditions to Obligations of Buyer.
(a) Initial Closing. The obligation of Buyer to proceed
with the Initial Closing is subject to the satisfaction or waiver
of the following conditions on or before the Initial Closing Date:
(i) 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 Initial Closing Date, with the same force and
effect as though made at and as of the Initial 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.
(ii) 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 Initial 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.
(iii) 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
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contemplated hereby or to obtain substantial damages in
connection therewith.
(iv) Seller and/or Parent shall have obtained the
contractual consents referred to in Section 8(d) or otherwise
required for the sale and assignment, as of the Second Closing
Date, to Buyer of the Purchased Assets or for the consummation
of the transactions contemplated hereby.
(v) The notice contemplated by Section 10(b)(v) with
respect to the Purchased Assets to be sold, transferred and
conveyed at the Initial Closing shall have been given in the
manner and within the time periods required by Division 6 of
the California Commercial Code.
(vi) The Haemonetics Amendment shall have been entered
into (or shall be the subject of an irrevocable offer from
Haemonetics) and, if executed, shall be in full force and
effect with an effective date of the Second Closing Date.
(b) Second Closing. The obligation of Buyer to proceed
with the Second Closing is subject to the satisfaction or waiver of
the following conditions on or before the Second Closing Date:
(i) Each representation and warranty of Seller and
Parent made in or pursuant to this Agreement (except any such
representations and warranties to the extent they relate to
the sale, transfer and conveyance of the Valencia Equipment
consummated at the Initial Closing) shall be true and correct
in all material respects as of the Second Closing Date, with
the same force and effect as though made at and as of the
Second 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.
(ii) Each of Seller and Parent shall have performed and
complied with all the obligations, agreements and conditions
(other than any such obligations, agreements and conditions to
the extent they relate to the sale, transfer and conveyance of
the Valencia Equipment consummated at the Initial Closing)
required by this Agreement and the Interim Operating Agreement
to be performed or complied with by it at or prior to the
Second 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.
(iii) 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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(iv) The FDA shall have amended the San Diego Licenses to
give effect to their transfer from Seller to Buyer.
(v) The notice contemplated by Section 10(b)(v) with
respect to the Purchased Assets to be sold, transferred and
conveyed at the Second Closing shall have been given in the
manner and within the time periods required by Division 6 of
the California Commercial Code.
(vi) The Haemonetics Amendment shall have been entered
into and shall be in full force and effect.
(vii) Seller and/or Parent shall have obtained the
contractual consents referred to in Section 8(d) or otherwise
required for the sale and assignment, as of the Second Closing
Date, to Buyer of the Purchased Assets or for the consummation
of the transactions contemplated hereby.
(ix) The Initial Closing shall have been completed.
12. Conditions to Obligations of Seller.
(a) Initial Closing. The obligation of Seller to
proceed with the Initial Closing is subject to the satisfaction or
waiver of the following conditions on or before the Initial Closing
Date:
(i) 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
Initial Closing Date, with the same force and effect as though
made at and as of the Initial 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.
(ii) 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 Initial 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.
(iii) 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.
(iv) 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.
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(v) The notice contemplated by Section 10(b)(v) with
respect to the Purchased Assets to be sold, transferred and
conveyed at the Initial Closing shall have been given in the
manner and within the time periods required by Division 6 of
the California Commercial Code.
(vi) The Haemonetics Amendment shall have been entered
into (or shall be the subject of an irrevocable offer from
Haemonetics) and, if executed, shall be in full force and
effect with an effective date of the Second Closing Date.
(vii) 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.
(b) Second Closing. The obligation of Seller to proceed
with the Second Closing is subject to the satisfaction or waiver of
the following conditions on or before the Second Closing Date:
(i) Each representation and warranty of Buyer made in or
pursuant to this Agreement (except any such representations
and warranties to the extent they relate to the sale, transfer
and conveyance of the Valencia Equipment consummated at the
Initial Closing) shall be true and correct in all material
respects as of the Second Closing Date, with the same force
and effect as though made at and as of the Second 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 and Parent.
(ii) Buyer shall have performed and complied with all the
obligations, agreements and conditions required by this
Agreement and the Interim Operating Agreement to be performed
or complied with by it at or prior to the Second 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.
(iii) 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.
(iv) The FDA shall have amended the San Diego Licenses to
give effect to their transfer from Seller to Buyer.
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(v) The notice contemplated by Section 10(b)(v) with
respect to the Purchased Assets to be sold, transferred and
conveyed at the Second Closing shall have been given in the
manner and within the time periods required by Division 6 of
the California Commercial Code.
(vi) No Event of Default under the Security Agreement
shall have occurred and be continuing as of the Second Closing
Date, and no event shall have occurred as of the Second
Closing Date that, with notice or the passage of time or both,
will result in an Event of Default under the Security
Agreement, 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.
(vii) 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.
(viii) The Haemonetics Amendment shall have been
entered into and shall be in full force and effect as of the
Second Closing Date.
(ix) The Initial Closing shall have been completed.
13. Closings.
(a) Initial Closing. Except as provided in
Sections 13(b) and (c) below, the transfers and deliveries to be
made pursuant to this Agreement (the "Initial 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 of execution of
the Haemonetics Amendment or, if earlier, the date of an
irrevocable offer from Haemonetics to enter into the Haemonetics
Amendment effective as of the Second Closing Date, or such other
place, time or date as the parties shall agree upon in writing.
The date on which the Initial Closing is to occur is herein
referred to as the "Initial Closing Date". At the Initial Closing,
the parties shall deliver the following documents or such documents
in substitution therefor as are satisfactory to the recipient:
(i) Deliveries by Seller. Seller (and/or Parent, as the
case may be) shall deliver to Buyer:
(A) 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
to be conveyed at the Initial Closing and good and marketable
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title to the Purchased Assets to be conveyed at the Initial
Closing subject only to exceptions referred to on the
Schedules hereto;
(B) All required consents to assignments, as of the
Second Closing Date, of the Lease and the Assumed Contracts,
including the Haemonetics Amendment (or the irrevocable offer
by Haemonetics to enter into the Haemonetics Amendment
effective as of the Second Closing);
(C) The Security Agreement;
(D) 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;
(E) The certificates executed by officers of Seller
and Parent provided for in Sections 11(a)(i) and 11(a)(ii);
(F) Possession of the Purchased Assets to be
conveyed at the Initial Closing;
(G) The Interim Operating Agreement; and
(H) Such other instruments and documents as may be
reasonably requested by, and in form and substance
satisfactory to, Buyer.
(ii) Deliveries by Buyer. Buyer shall deliver to Seller
(and/or Parent, as the case may be):
(A) Certified or bank cashier's checks in the
aggregate amount required by Sections 1(a)(i) (clause (B)),
4(a), 4(d) and 16;
(B) The Note and the Security Agreement;
(C) 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;
(D) The certificates executed by officers of Buyer
provided for in Sections 12(a)(i) and 12(a)(ii);
(E) The Interim Operating Agreement; and
(F) Such other instruments and documents as may be
reasonably requested by, and in form and substance
satisfactory to, Seller.
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(b) Second Closing. Except as provided in
Sections 13(a) and (c) below, the transfers and deliveries to be
made pursuant to this Agreement (the "Second 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 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, or such other place, time or date as the parties
shall agree upon in writing. The date on which the Second Closing
is to occur is herein referred to as the "Second Closing Date". At
the Second Closing, the parties shall deliver the following
documents or such documents in substitution therefor as are
satisfactory to the recipient:
(i) Deliveries by Seller. Seller (and/or Parent, as the
case may be) shall deliver to Buyer:
(A) 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
to be conveyed at the Second Closing and good and marketable
title to the Purchased Assets to be conveyed at the Second
Closing subject only to exceptions referred to on the
Schedules hereto;
(B) The amendment of the Licenses giving effect to
the transfer of the Licenses from Seller to Buyer;
(C) All required consents to assignments of the
Lease and the Assumed Contracts, including the Haemonetics
Amendment;
(D) The certificates executed by officers of Seller
and Parent provided for in Sections 11(b)(i) and 11(b)(ii);
(E) Possession of the Purchased Assets to be
conveyed at the Second Closing; and
(F) Such other instruments and documents as may be
reasonably requested by, and in form and substance
satisfactory to, Buyer.
(ii) Deliveries by Buyer. Buyer shall deliver to Seller
(and/or Parent, as the case may be):
(A) The certificates executed by officers of Buyer
provided for in Sections 12(b)(i), 12(b)(ii) and 12(b)(vi);
and
(B) Such other instruments and documents as may be
reasonably requested by, and in form and substance
satisfactory to, Seller.
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(d) 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 Second Closing Date, the
sale, purchase and transfer of the Sherman Oaks Licenses shall be
excluded from the Second 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 of the Sherman Oaks Licenses hereunder shall
survive the Second 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 with respect to the Sherman Oaks Licenses (the
"Additional Closing") at which Seller shall deliver the items
described in clauses (B), (D) and (F) of Section 13(b)(i) and Buyer
shall deliver the items described in clauses (A) and (B) of
Section 13(b)(ii). Subject to the foregoing, the date, time and
place of the Additional Closing shall be mutually agreed upon by
Seller and Buyer. 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.
If Buyer is the terminating party under the preceding sentence,
Seller and/or Parent shall promptly return to Buyer the amount of
the Sherman Oaks Purchase Price actually paid by 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
Second 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, Seller and/or
Parent shall promptly return to Buyer the amount of the Sherman
Oaks Purchase Price actually paid by Buyer (unless the failure of
the FDA to amend the Sherman Oaks License is due to failure of a
condition to Seller's obligations or a breach of any representation
or warranty contained herein by Buyer or a default by Buyer in the
timely performance of any of its obligations contained herein, and
no party hereto shall have any other liability or obligation
pursuant to this Agreement to any other party hereto with respect
to the Sherman Oaks Licenses, except for liabilities or obligations
arising under Sections 15, 16, 19 and 20.
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 Initial
Closing Date or the Second 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) with respect to a termination prior
to the Initial Closing Date only, by Buyer or Seller upon written
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notice to the other party if the Initial 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 Initial Closing or
the Second Closing, as applicable, abandon the transactions
contemplated hereby 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 Initial
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 or in the Interim Operating Agreement.
Notwithstanding the foregoing or any other provision of this
Agreement, no termination of this Agreement following the Initial
Closing shall result in any rescission, reformation or termination
of the sale, transfer and conveyance of the Purchased Assets
consummated at the Initial Closing. In the event of a termination
of this Agreement after the Initial Closing, Seller and/or Parent
shall promptly return to Buyer the amount of the Purchase Price
(excluding the Valencia Purchase Price) plus any sales tax thereon
actually paid by Buyer; provided, however, that if any such
termination is made by Seller due to a failure or breach by Buyer,
Seller and/or Parent shall be entitled to retain out of such amount
as liquidated damages and not as a penalty Fifty Thousand and
00/100 Dollars ($50,000.00). BUYER HEREBY AGREES THAT THE AMOUNT
OF DAMAGES SELLER AND PARENT WOULD SUFFER AS A RESULT OF SUCH A
FAILURE OR BREACH WOULD BE EXTREMELY DIFFICULT TO ASCERTAIN AND
THAT THE ABOVE AMOUNT OF LIQUIDATED DAMAGES IS A REASONABLE AND
FAIR ESTIMATE OF THE AMOUNT OF ACTUAL DAMAGES THAT WOULD BE
SUFFERED.
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 any applicable 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
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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 any applicable 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 Initial Closing or the Second Closing, as the
case may be, and attributable to the period prior to such 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
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, the Original Agreement and the
Terms Sheet leading to the execution of the Original Agreement and
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this Agreement and consummating the transactions contemplated
hereby, and the reasonable fees and expenses of Buyer's counsel in
reviewing the Original Agreement and 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.
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.
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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
with a copy to:
Boldra & Klueger
15760 Ventura Boulevard, Suite 1900
Encino, California 91436
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
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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 Second 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.
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25. Further Assurances. After any Closing under this Agreement,
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 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 conveyed at such Closing.
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
A-24
A-25
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