EXHIBIT 2.1
FORECLOSURE SALE AGREEMENT
This FORECLOSURE SALE AGREEMENT ("Agreement") is
entered into as of October 22, 1998 by and among
COMDISCO, INC., a Delaware corporation, COMDISCO HEALTH
CARE GROUP, INC. ("Comdisco"), on the one hand, and
HEMACARE CORPORATION, a California corporation ("HC"),
and CORAL BLOOD SERVICES, INC., a California corporation
and a wholly-owned subsidiary of HC ("CBS" and together
with HC, "HemaCare").
RECITALS:
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1. This sale ("Sale") is made to HemaCare by Comdisco
pursuant to Illinois Commercial Code 9504 after default by
Coral Therapeutics, Inc. ("Debtor") under the terms of that
certain Subordinated Loan and Security Agreement, dated as of
September 30, 1997, between Comdisco and Debtor (the "Term Loan
Agreement").
2. The Debtor also has defaulted under equipment leases
between Comdisco and the Debtor identified as a Master Lease
Agreement dated September 26, 1997 between Comdisco Health Care
Group and the Debtor and a Master Lease Agreement dated as of
May 28, 1997 between Comdisco and the Debtor (collectively, the
"Equipment Leases"), which lease equipment is referred to
below.
3. The Debtor also is obligated to Comdisco pursuant to
that certain Receivables Loan and Security Agreement dated as
of May 29, 1997 between the Debtor and Comdisco (the
"Receivables Agreement"), which obligations are past due.
4. Comdisco has not released the Debtor from any of the
operative documents nor has it released any of the indebtedness
thereunder.
5. The Sale referenced herein is evidenced by a certain
Bill of Sale of even date herewith executed by Comdisco in
favor of HemaCare in the form of Exhibit A hereto.
6. The Debtor is familiar with the terms of the Sale.
7. HemaCare desires to purchase and Comdisco agrees,
upon payment to Comdisco of the purchase price as defined below
and the additional consideration recited herein, to sell the
personal property referenced herein to HemaCare.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing,
and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Assets.
A. The assets which are the subject of this Agreement
are all the personal property of the Debtor to the extent that
such property constitutes collateral under the Term Loan
Agreement pursuant to which the Debtor granted Comdisco a
security interest in substantially all of the Debtor's personal
property, accounts, chattel paper, general intangibles,
inventory, equipment, fixtures, and goods, all as more
specifically described Exhibit B hereto (the "Personal
Property").
B. Comdisco will release its security interest in the
accounts to the extent that the security interests pursuant to
the Receivables Agreement may be prior to the security
interests of the Term Loan Agreement. Also, Comdisco will
abandon and release any interests that it may have in the
equipment identified in the Equipment Leases.
C. The Personal Property to be transferred specifically
includes: all Debtor's customers lists, software, accounts,
and trade names and trademarks and other intellectual property
rights to which the Debtor has any right, title or interest to
the extent such property constitutes collateral under the Term
Loan Agreement.
2. Nonassumption of Liability. HemaCare is not
assuming any liabilities, debts or obligations of the Debtor
whatsoever, including, but not limited to, the Debtor's
liability with respect to leases, or to any of the Debtor's
creditors or employees or any contracts or agreements to which
the Debtor is a party unless otherwise expressly assumed by
HemaCare in writing. HemaCare is not obligated to hire any of
the Debtors employees; however, it may do so.
3. Purchase Price. The Purchase Price for the
assets shall be:
A. $950,000 in cash or its equivalent paid by check or
wire transfer to the account designated by Comdisco in writing;
B. 450,000 shares of Preferred Stock ("Preferred
Shares") of HC as described pursuant to the Certificate of
Determination of Series A Convertible Preferred Stock, a copy
of which is attached hereto as Exhibit C and is referred to
more specifically in Paragraph 6 below).
C. Seventy-five percent (75%) of the amount, if any,
that actual costs and expenses related to the acquisition of
Debtor's assets and integration of the Debtor's business with
that of HemaCare are less than the amount currently anticipated
and budgeted (as more
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specifically described in Paragraph 8
below and referred to hereinafter as the "Cost Savings").
4. Terms of Payment. Concurrent with the execution
of this Agreement and the consummation of the transactions
contemplated hereby, HemaCare shall deliver to
"Bank of America
231 S. Lasalle Street
Chicago, IL 60697
ABA # - 071000039
For the Account of - Comdisco, Inc.
Reference: Coral Therapeutics, Inc.
Attention: Dave Reynolds"
cash in the amount of $950,000 and a stock certificate
representing the Preferred Shares. In addition, at the time
when it is determined that the Debtor's business is fully
integrated with that of HemaCare which will not be later than 6
months from the date hereof, HemaCare shall deliver to Comdisco
a final accounting and, if applicable, payment of the Cost
Savings.
5. Delivery of Possession of Assets to HemaCare.
A. Comdisco shall deliver to HemaCare a Bill of Sale in
the form attached hereto Exhibit A upon the delivery of
Item 3(A) and (B) of the Purchase Price and this executed
Agreement.
B. Comdisco hereby acknowledges that at the time that
the Bill of Sale is delivered in exchange for Purchase Price as
recited above, it hereby releases any claim it has under the
Receivables Loan Agreement to accounts or other collateral
identified therein and any claim it has to any of the equipment
subject to either Equipment Lease identified in the recitals
above which equipment is identified in Exhibit D attached
hereto. Comdisco's claims against the Debtor are not
extinguished. Comdisco does not know nor represent the
location nor existence of any of the equipment. The transfer
is on a "where is, as," basis without representation or
warranty whatsoever.
C. It shall be HemaCare's responsibility to take
possession of the Personal Property from the Debtor as the Sale
is on a "where is/as is" basis.
D. It is HemaCare's responsibility to arrange for any
appropriate sublease or possession agreement with either the
Debtor or the owner of any site where the Personal Property is
located. Comdisco makes no representation or warranty in
relation to the availability of any such site.
6. Preferred Stock. The Preferred Shares will
contain the terms set forth in the Certificate of Determination
of the Series A Convertible Preferred Stock attached hereto as
Exhibit C, which represents 450,000 shares of Preferred Stock
which may be convertible into 500,000 shares Common Stock of HC
upon the terms set forth therein. The Preferred
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Shares shall
be convertible two years after issuance. The Preferred Shares
will have a liquidation preference of ninety cents ($0.90) per
share. The Preferred Shares also will be entitled to receive
dividends equal to those on Common Stock (on an "as if
converted basis"). The Preferred Shares and the Common Stock
to which it is convertible will be subject to adjustment for
stock splits, stock dividends, reclassifications, capital
reorganizations and similar transactions. The Common Stock
issuable upon conversion of the Preferred Shares will have
registration rights as set forth in the Certificate of
Determination.
7. Investment Representations. Comdisco represents
and warrants to HemaCare that (A) Comdisco understands that the
offering and sale of the Preferred Shares and the shares of
Common Stock issuable upon conversion thereof (collectively,
the "Securities") have not been, and will not be, registered
under the Securities Act of 1933, as amended (the "Securities
Act"), or under any state securities laws, and are being
offered and sold in reliance upon federal and state exemptions
for transactions not involving any public offering,
(B) Comdisco is acquiring the Securities solely for his own
account for investment purposes, and not with a view to the
distribution thereof, (C) Comdisco is a sophisticated investor
with knowledge and experience in business and financial
matters, (D) Comdisco has received certain information
concerning HemaCare and has had the opportunity to obtain
additional information as desired in order to evaluate the
merits and the risks inherent in holding the Securities,
(E) Comdisco is able to bear the economic risk and lack of
liquidity inherent in holding the Securities, and (F) Comdisco
is an accredited investor (within the meaning of Regulation D
promulgated under the Securities Act). Comdisco acknowledges
that the Securities will not be freely transferable, that
certificates representing the Securities will bear restrictive
legends under applicable federal and state securities laws and
shall be subject to stops on transfer.
8. Transaction Costs/Sharing Savings. Attached
hereto as Exhibit E is a schedule of anticipated transaction
costs to be incurred by HemaCare as part of the acquisition of
the Debtor's assets and integration of the Debtor's business
with that of HemaCare. To the extent that HemaCare's costs are
less than the currently anticipated expenses as set forth in
Exhibit E, HemaCare will pay as deferred Purchase Price
seventy-five percent (75%) of the amount by which the actual
costs are less than the scheduled transaction costs and
expenses.
The transaction costs and expenses will include, but
are not limited to, the legal, accounting and consulting fees
relating to HemaCare and the Debtor's advisors, travel expenses
associated with the acquisition transaction and the integration
activities, obligations to the Debtor's creditors (other than
Comdisco) for transactions or services prior to closing, costs
of noncompetition agreements with Peter Logue, David Barrone,
Dan Reale, Stuart Dinney and Lori Terra-Vassalo and other costs
associated with closing the Debtor's Atlanta administrative
headquarters and the transfer of management functions to
HemaCare's office in Los Angeles, employee severance and other
costs associated with the closing of any operations of the
Debtor that will not be continued by HemaCare.
As part of the transaction costs and in reaching noncompetition agreements
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HemaCare anticipates that it will pay
cash, issue Common Stock and warrants to purchase its Common
Stock as settlement of various costs and expenses associated
with the acquisition of the Debtor's assets and integration of
its business.
For purposes of computing transaction costs, to the
extent that securities are used to settle obligations of the
Debtor, securities will be valued at the amount of the
obligation for which the securities were issued in settlement.
To the extent that HC's securities are so utilized to settle
on the liabilities of the Debtor they will be valued at not
more than ninety cents ($.90) per common share. The
anticipated stock and equivalents that will be outstanding
after the contemplated transactions are reflected on Exhibit D
attached hereto.
9. Legal Restraints. Should legal restraint of any
type prohibit Comdisco from conducting the Sale as noticed
pursuant to the terms hereof on or before October 22, 1998,
this Agreement shall terminate. The parties would be free to
renegotiate a new transaction.
10. Miscellaneous.
A. Each party shall bear its own costs and expenses in
relation to this Agreement and the transaction contemplated
hereby.
B. This Agreement shall be governed by the laws of
California. The sale as provided in the loan documents between
Comdisco and Debtor is governed by the law of Illinois.
C. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered
by personal delivery, mail, overnight courier or telecopier.
Such communications shall be deemed given, if by personal
delivery, when received if by mail, when mailed by certified or
registered mail (postage prepaid and return receipt requested);
or if by overnight courier or telecopier, when delivered to
such courier or sent by telecopier (provided that the party
giving the notice has confirmation of such delivery or
sending), and in each case, addressed to the party to whom
notice is to be given as set forth below:
If to Comdisco: Comdisco, Inc.
6111 North River Road
Rosemont, IL 60018
Attention: Ron Rapp
Telephone: (847) 518-5071
Telecopier: (847) 518-5088
with a copy to: Murphy Sheneman Julian and Rogers
101 California Street, Suite 3900
San Francisco, California 94111
Attn.: John D. Fredericks, Esquire
Telephone: (415) 398-4700
Telecopier: (415) 421-7879
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if to: HemaCare Corporation
4954 Van Nuys Blvd.
Van Nuys, California 91403
Attention: Chief Executive Officer
Telephone: (818) 986-3883
Telecopier: (818) 986-1417
copy to: Sheppard, Mullin, Richter & Hampton
333 South Hope Street, 48th Floor
Los Angeles, California 90071
Attention: James M. Rene, Esquire
Telephone: (213) 620-1780
Telecopier: (213) 620-1398
C. Comdisco and HemaCare agree to cooperate in the
completion of the transaction including the providing of such
further documents as may be necessary to effect the transfer
such an assignment of trademarks, tradenames, or other
intellectual property which may be necessary to be recorded in
various offices. HemaCare will prepare any such documents at
its expense.
D. Together with the Bill of Sale and the Certificate of
Determination of the Series A Convertible Preferred Stock and
the certificates issued thereunder, this is the sole agreement
between the parties with reference to the subject matter hereof
and may only be amended in writing. This Agreement replaces
any prior agreement oral or written relating to the subject
matter hereof.
F. Delivery of an executed counterpart of the signature
page to this Agreement by facsimile shall be as effective as
delivery of a manually executed counterpart of this Agreement;
provided, that any party so delivering an executed counterpart
by facsimile shall thereafter promptly deliver a manually
executed counterpart of this Agreement to the other party, but
failure to deliver such manually executed counterpart shall not
affect the validity, enforceability and binding effect of this
Agreement, and (vi) shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereby execute this
Agreement to be effective as of October 22, 1998.
COMDISCO, INC.
By: /s/ James P. Labe, President
-------------------------------
Comdisco Ventures Division
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COMDISCO HEALTH CARE GROUP, INC.
By: /s/ Doug Berman
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Its: Credit Manager
HEMACARE CORPORATION
By: Alan C. Darlington
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Its: Chairman
CORAL BLOOD SERVICES, INC.
By: William D. Nicely
------------------------------
Its: Chief Executive Officer
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LIST OF EXHIBITS
Exhibit A - Bill of Sale
Exhibit B - Description of Assets
Exhibit C - Certificate of Determination of Series B
Senior Convertible Preferred Stock
Exhibit D - List of Leased Equipment
Exhibit E - Description of Transaction Costs
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SUPPLEMENT NO. 1 TO
FORECLOSURE SALE AGREEMENT
THIS SUPPLEMENT NO. 1 TO FORECLOSURE SALE
AGREEMENT (the "Amendment"), is made and entered into as
of October 22, 1998, by and among COMDISCO, INC., a
Delaware corporation, and COMDISCO HEALTH CARE GROUP,
INC. (collectively, "Comdisco"), on the one hand, and
HEMACARE CORPORATION, a California corporation ("HC"),
and CORAL BLOOD SERVICES, INC., a California corporation
and a wholly-owned subsidiary of HC ("CBS" and together
with HC, "HemaCare"), on the other hand. Comdisco and
HemaCare are referred to collectively below as the
"Parties."
Recitals
1. The Parties are parties to a Foreclosure Sale Agreement
dated as of October 22, 1998 (the "Foreclosure Sale Agreement").
2. The Parties desire to supplement and amend the Foreclosure
Sale Agreement as set forth below.
NOW THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
1. References to Series A Preferred Stock. The Parties
agree that all references in the Foreclosure Sale Agreement
(and all agreements and documents related thereto) to HC's
"Series A Convertible Preferred Stock," "Series A Preferred
Stock" or "Preferred Shares" shall be deemed to refer to shares
of HC's Series B Senior Convertible Preferred Stock containing
the terms and conditions set forth in a Certificate of
Determination filed by HC with the California Secretary of
State on October 22, 1998.
2. Amendment of Section 6. The reference in the fifth
line of Section 6 to "two years" is hereby amended to read "one
year."
3. Effectiveness. This Amendment shall be deemed
effective as of October 22, 1998 as if executed on such date.
Except as supplemented and amended hereby, the Foreclosure Sale
Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
4. Miscellaneous. This Amendment shall be deemed to be
a contract made under
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the laws of the State of California and
for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts
to be made and performed entirely within such state. This
Amendment may be executed in any number of counterparts, each
of such counterparts shall for all purposes be deemed an
original and all such counterparts shall together constitute
but one and the same instrument. Delivery of an executed
counterpart of the signature page to this Amendment by
facsimile shall be as effective as delivery of a manually
executed counterpart of this Amendment; provided, that any
party so delivering an executed counterpart by facsimile shall
thereafter promptly deliver a manually executed counterpart of
this Amendment to the other party, but failure to deliver such
manually executed counterpart shall not affect the validity,
enforceability and binding effect of this Amendment.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereby execute this
Amendment as of the date first above written.
COMDISCO, INC.
By: /s/
-----------------------------
Its:
COMDISCO HEALTH CARE GROUP, INC.
By: /s/ Doug Berman
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Its: Credit Manager
HEMACARE CORPORATION
By:/s/ JoAnn R. Stover
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Its: Secretary
CORAL BLOOD SERVICES, INC.
By: /s/ JoAnn R. Stover
--------------------------------
Its: Secretary
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