Exhibit 10.3
TERMINATION AND OPTION AGREEMENT
This TERMINATION AND OPTION AGREEMENT ("Agreement") is made and entered
into as of ________ __, 2004 by NORWELL LAND COMPANY, a New York general
partnership ("Landlord") and BIOPHARMA ACQUISITION COMPANY, INC., a Delaware
corporation ("Tenant").
W I T N E S S E T H :
For and in consideration of the covenants herein set forth, and intending
to be legally bound hereby, Landlord and Tenant hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 "Closing Date" shall have the meaning specified in Section
3.4.
1.2 "FMV" shall have the meaning specified in Section 3.1.
1.3 "Historical Revenue" shall mean the revenue realized by Tenant
from its operations at the Leased Premises during the twelve calendar month
period immediately preceding the Termination Notice Date, which shall equal the
sum of (i) the revenues received during such period from Persons which are not
Affiliates of Tenant, or from Affiliates of Tenant pursuant to arm's length
transactions with Tenant, plus (ii) the value of the services that Tenant has
performed during such period for its internal purposes, or for any of its
Affiliates with which it deals other than on an arm's length basis, which shall
be calculated on the basis of the standard hourly rates charged by the Tenant to
third Persons applicable for the personnel by whom such services are performed.
1.4 "Landlord's Termination Option" shall have the meaning
specified in Section 2.1
1.5 "Lease" means the Agreement of Lease of even date herewith
between Landlord and Tenant.
1.6 "Person" means any natural person, corporation, partnership,
proprietorship, association, joint venture, trust or other legal entity.
1.7 "Projected Revenue" shall mean the revenue projected to be
realized by Tenant from its operations at the Leased Premises during the twelve
calendar month period immediately succeeding the Termination Notice Date, which
shall equal the sum of (i) the revenues expected to be received during such
period from Persons which are not Affiliates of Tenant, or from Affiliates of
Tenant pursuant to arm's length transactions with Tenant, in each case pursuant
to binding commitments to purchase goods or services in existence on the
Termination Notice Date, plus (ii) subject to adjustment pursuant to Section
2.1(d), the value of the services that Tenant expects to perform during such
period for its internal purposes, or for any of its Affiliates with which it
deals other than on an arm's length basis, which shall be calculated on the
basis of the standard
hourly rates charged by the Tenant to third Persons applicable for the personnel
by whom such services are performed.
1.8 "Purchase Option" shall have the meaning specified in Section
3.1.
1.9 "Termination Date" shall have the meaning specified in Section
2.1.
1.10 "Termination Notice" shall have the meaning specified in
Section 2.1.
1.11 "Termination Notice Date" shall have the meaning specified in
Section 2.1.
1.12 "Termination Payment" shall have the meaning specified in
Section 2.1.
1.13 "Viable" shall have the meaning specified in Section 2.1(c).
1.14 All capitalized terms used and not defined herein shall have
the meanings given to such terms in the Lease.
ARTICLE 2
TERMINATION OPTIONS
2.1 If the Master Tenant ceases or has made a decision to cease
all its manufacturing activities at the Building and has so advised Landlord in
writing, Landlord shall have the option (the "Landlord's Termination Option") at
any time thereafter, on notice (the "Termination Notice") to Tenant as
hereinafter provided, to terminate the Lease effective on a date (the
"Termination Date") specified in the Termination Notice; provided that the
Termination Date may not be earlier than the later of (a) two years after the
date of the Termination Notice and (b) the fifth anniversary of the Commencement
Date. The date on which the Tenant receives the Termination Notice is referred
to herein as the "Termination Notice Date"; provided, however, that if a
Termination Notice is delivered prior to the third anniversary of the
Commencement Date, for all purposes of this Agreement, such Termination Notice
shall be deemed to have been delivered on such third anniversary. If Landlord
exercises such option, Tenant has timely vacated the Leased Premises on or
before the Termination Date, and Tenant has not exercised the Purchase Option,
Landlord shall pay to Tenant, within sixty (60) days after the Termination Date,
a payment (the "Termination Payment") in an amount as follows:
(a) If Tenant's activities at the Leased Premises are Viable as of
the Termination Notice Date, the amount of the Termination Payment shall be as
follows:
Amount of
Termination Date Payment
- ---------------- -----------
On or after __ _________________ __, 2009 and through _________________ __, 2010 $ 8,000,000
On or after __ _________________ __, 2010 and through _________________ __, 2011 $ 6,000,000
On or after __ _________________ __, 2011 and through _________________ __, 2012 $ 4,000,000
On or after __ _________________ __, 2012 and through _________________ __, 2013 $ 2,000,000
On or after __ _________________ __, 2013 and through _________________ __, 2014 $ 0
(b) If Tenant's activities at the Leased Premises are not Viable
as of the Termination Notice Date, the amount of the Termination Payment shall
be an amount equal to all actual, reasonable and customary costs to relocate and
reestablish Tenant's operations at the Leased Premises for which Tenant has
presented Landlord reasonable supporting documentation including evidence that
any relocated equipment will be actively used in a continuing business operated
by Tenant.
(c) Tenant's activities at the Leased Premises will be deemed to
be "Viable" if either Historical Revenue or Projected Revenue is greater than or
equal to $3,000,000. Tenant shall deliver Tenant's calculation of whether its
activities at the Leased Premises are Viable (the "Final Viability Data") within
thirty (30) days after the Termination Notice Date.
(d) The Final Viability Data shall become final and binding upon
Landlord and Tenant unless, within fifteen (15 ) days following the submittal
thereof to Landlord, Landlord notifies Tenant of its objection thereto in
writing (the "Objection Notice"). If Landlord so notifies Tenant of its
objection to the Final Viability Data, Landlord and Tenant shall negotiate in
good faith to resolve any differences. If, within fifteen (15) days following
the receipt of the Objection Notice by Landlord, any of such differences have
not been resolved, Landlord and Tenant shall submit the dispute to an
independent auditor reasonably acceptable to both parties. In the event the
parties cannot agree upon an independent auditor within fifteen (15) days,
either of the parties upon written notice to the other party hereto may request
such appointment by a court having jurisdiction. Such independent auditor's
opinion thereon and the resulting Final Viability Data shall be final, binding,
and not subject to any appeal. The fees and expenses of such independent auditor
in connection with any such resolution shall be paid one-half by Landlord and
one-half by Tenant. Landlord's obligation to pay the Termination Payment shall
be postponed to the date that is two (2) business days after the final
determination rendered by such independent auditor.
(e) If Landlord exercises Landlord's termination right provided
for in Article 14.3 of the Lease, Landlord shall pay the Termination Payment to
Tenant, provided, however, that (i) the Termination Date shall be deemed to be
the termination date of the Lease stated in Landlord's notice of termination
given pursuant to said Article 14.3, and (ii) the Termination Payment shall be
net of any insurance recoveries paid to Tenant or its Affiliates in connection
with the fire or other casualty. Except as otherwise expressly contemplated by
Article 13 of the Lease and as described below, Tenant shall not have any
obligation to obtain insurance coverage or otherwise mitigate its damages
resulting from a fire or other casualty. Tenant agrees to use commercially
reasonable efforts to exercise its rights under insurance carried by it from
which recoveries may be obtained in connection with any fire or other casualty
giving rise to Landlord's right to terminate the Lease, the parties hereby
agreeing that such efforts shall not include the obligation to litigate to
obtain a recovery from an insurance carrier.
ARTICLE 3
PURCHASE OPTION
3.1 In the event that Landlord exercises the Landlord's
Termination Option and the Termination Date is on or before September____, 2013,
Tenant shall have the option to purchase (the "Purchase Option") all of
Landlord's right, title and interest in the Building and the Building systems,
the Land, the other improvements thereon and appurtenances thereto
(collectively, the "Option Property").
3.2 If Tenant exercises the Purchase Option, the purchase price
shall be paid on the Closing Date, by electronic wire transfer of immediately
available funds pursuant to wiring instructions given to Tenant at least two (2)
business days prior to the Closing Date. The purchase price shall equal the fair
market value of the Option Property ("FMV") as of the Termination Date, as
determined by Landlord and Tenant within thirty (30) days of Landlord's exercise
of Landlord's Termination Option or, in the absence of agreement, as provided in
Section 3.9 below.
3.3 If Tenant elects to exercise the Purchase Option, Tenant must
give notice of such exercise to Landlord within the later of (i) one hundred
twenty (120) days after the date on which Tenant receives the Termination Notice
and (ii) thirty (30) days after the date on which the purchase price for the
Option Property is determined. Delivery of an exercise notice by Tenant shall
vitiate the obligation of Landlord to make any payment under Section 2.1 unless
Landlord defaults in closing.
3.4 If Tenant exercises the Purchase Option, the closing of the
purchase shall take place on the Termination Date or such earlier date on which
the parties may agree (the "Closing Date"). Tenant's notice of exercise shall be
accompanied by a deposit, on account of the purchase price, equal to 10%
thereof.
3.5 (a)If Landlord defaults in its obligation to sell the Option
Property in accordance with the terms hereof following Tenant's exercise of the
Purchase Option, Tenant's sole remedy against Landlord by reason thereof shall
be (i) to bring an action seeking specific performance of Landlord's obligation
to sell the Option Property as herein provided, the parties acknowledging that
specific performance is an appropriate remedy under the circumstances, or (ii)
to terminate this Agreement and receive the return of its deposit together with
the interest thereon, and Landlord shall have the obligation to pay to Tenant
the Termination Payment under Section 2.1.
(b) If Tenant defaults in its obligation to purchase the
Option Property in accordance with the terms hereof (i) the Purchase Option
shall thereupon expire without any further notice from Landlord and be of no
further force or effect, (ii) Landlord's sole remedy against Tenant by reason
thereof shall be to retain any deposit together with interest thereon as
liquidated damages, the parties acknowledging that actual damages would be
difficult or impossible to ascertain, and (iii) the Lease shall expire and
terminate in accordance with Article 2 and Landlord shall have no obligation to
make any payment under Section 2.1.
3.6 Landlord, on the Closing Date, shall convey good and
marketable fee simple title to the Option Property to Tenant (or to its
designee, provided Tenant so requests at least three (3) business days prior to
the Closing Date) by special warranty deed, and bill of sale in the case of
equipment, subject only to the Lease, the rights of subtenants under the Lease
and to those matters shown on Schedule A hereto and to any lien or encumbrance
created or caused by Tenant or created by Landlord at the request of Tenant
(collectively, "Permitted Encumbrances"). Transfer taxes shall be divided
equally. Landlord and Tenant each agrees to indemnify and hold harmless from and
against any loss or liability including, but not limited to reasonable
attorney's fees, resulting from a failure to pay any tax for which it is
responsible. Landlord and Tenant shall each complete such tax filings as may be
required and shall furnish such other documentation as may be reasonably
required to consummate the sale.
3.7 Landlord shall be obligated to cure any title defects other
than Permitted Encumbrances, by the use of sales proceeds for such purpose or
otherwise, on or prior to the
Closing Date. In the event Landlord is unable to cure such defects, Tenant shall
have the option, but not the obligation to waive any such defects and purchase
the Option Property subject to such title defects without abatement of the
purchase price. In the event that a condemnation of a material part of the
Option Property occurs between the exercise of the Purchase Option and the
Closing Date, Tenant shall have the option to rescind its exercise of the
Purchase Option, and in such event the Purchase Option shall expire and be of no
further force and effect and the Lease shall remain in full force and effect.
The Purchase Option is coupled with the Lease and is non-transferable, except
(1) to the assignee under a permitted assignment by Tenant of its interest under
the Lease or (2) as provided in the last sentence of this Section 3.7. If the
Purchase Option shall not have otherwise expired it shall expire and be of no
further force and effect upon the expiration or earlier termination of the
Lease. At the closing of the purchase, Tenant may designate a Person other than
Tenant to take title to the Option Property.
3.8 The FMV is to be considered as of the Termination Date. The
Building is to be considered as already occupied by a purchaser and suitable for
the use of the purchaser (but consideration not to be given to the rental amount
being paid under the Lease), and shall be determined by agreement of Landlord
and Tenant as hereinabove provided, or in the absence of agreement, by the
appraisal procedure in Section 3.9 below.
3.9 Either party may initiate the appraisal process by giving
written notice to that effect to the other party and shall in such notice
appoint a disinterested person of recognized competence in real estate
appraisals as appraiser on its behalf. Within fifteen (15) days thereafter, the
other party shall by written notice to the original party appoint a second
disinterested person of recognized competence in real estate appraisals as
appraiser on its behalf. Within thirty (30) days thereafter the parties shall
simultaneously exchange appraisals and, if the greater appraisal is less than
10% greater than the lesser appraisal, the determined figure shall be the
average of the two appraisals. If not, the appraisers thus appointed shall
appoint a third disinterested person of recognized competence in real estate
appraisals, such third appraiser shall prepare a third appraisal within thirty
(30) days of appointment, and the determined figure shall be the average of the
third appraiser's determination and the next closest appraisal; provided,
however, that if the two appraisers appointed by the parties shall be unable to
agree, within fifteen (15) days after the appointment of the second appraiser,
upon the appointment of a third appraiser, they shall give written notice of
such failure to agree to the parties, and, if the parties fail to agree upon the
selection of such third appraiser within fifteen (15) days after the appraisers
appointed by the parties give notice as aforesaid, then within ten (10) days
thereafter, either of the parties upon written notice to the other party hereto
may request such appointment by a court having jurisdiction. Landlord and Tenant
shall each be entitled to present evidence and argument to the appraisers. In
the event any appraiser selected in accordance with this Section 3.9 shall be
unable or unwilling to act, because of death, sickness or other cause, a
replacement for such appraiser shall be appointed within fifteen (15) days after
such event in the same manner, and by the same party as provided in this Section
3.9 for the appointment of the original appraiser so unable or unwilling to act.
Each party shall pay the fees and expenses of the appraiser appointed by such
party and one-half of the other expenses (including the fees and expenses of the
third appraiser) properly incurred hereunder.
ARTICLE 4
NOTICE
4.1 All notices that are required or permitted hereunder shall be
in writing and shall be delivered (a) personally or (b) by "next day" courier
service, addressed as follows:
To Landlord:
Norwell Land Company
One Stamford Forum
Stamford, Connecticut 06901
Attn: General Counsel
To Tenant:
Biopharma Acquisition Company, Inc.
700 Union Boulevard
Totowa, New Jersey 07512
Attn: Christopher J. Davis
with a copy to:
Safeguard Scientifics, Inc.
800 The Safeguard Building
435 Devon Park Drive
Wayne, Pennsylvania 19087
Attn: Christopher J. Davis
or elsewhere, as the respective parties may from time to time designate in
writing. All notices shall be deemed given when received.
ARTICLE 5
APPLICABLE LAW AND CONSTRUCTION OF PROVISIONS
This Agreement shall be governed by and construed under the laws of the
State of New Jersey. The captions used in this Agreement are for convenience
only and do not in any way modify, limit or amplify the terms and provisions
hereof. The language in all parts of this Agreement shall in all cases be
construed according to its fair meaning and not strictly for or against either
Landlord or Tenant, and the construction of this Agreement and any of its
various provisions shall be unaffected by any argument or claim, whether or not
justified, that it has been prepared, wholly or in substantial part, by or on
behalf of either Landlord or Tenant.
ARTICLE 6
SEVERABILITY
Any provision of this Agreement that proves to be invalid, void or illegal
shall in no way affect, impair, or invalidate any other provision(s) hereof, and
such other provision(s) shall remain in full force and effect.
ARTICLE 7
AUTHORITY
Each individual executing this Agreement hereby represents and warrants
that (a) the entity on whose behalf such individual is executing this Agreement
is duly formed and validly existing, (b) the entity on whose behalf such
individual is executing this Agreement has full right and authority to enter
into this Agreement, and (c) such individual is duly authorized to execute this
Agreement on behalf of such entity.
ARTICLE 8
COUNTERPARTS
This Agreement may be executed in multiple counterparts, all of which
shall constitute one and the same Agreement.
ARTICLE 9
SUCCESSORS
This Agreement shall bind and inure to the benefit of the parties hereto,
their respective successors, permitted assignees of the Lease, heirs, executors
and administrators, subject to the provisions herein.
ARTICLE 10
WAIVER OF JURY TRIAL
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF
THIS AGREEMENT.
ARTICLE 11
TIME OF THE ESSENCE
TIME SHALL BE OF THE ESSENCE WITH RESPECT TO ALL DATES AND TIME PERIODS IN
THIS AGREEMENT.
ARTICLE 12
MEMORANDUM OF OPTION
Landlord and Tenant shall enter into a short form of this Agreement for
the purpose of recording the same, and shall, at Tenant's expense, record the
same. The short form agreed upon by the parties is attached as Exhibit A and
shall be executed contemporaneously with the execution of this Agreement.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement the
day and year first above written.
TENANT:
BIOPHARMA ACQUISITION COMPANY, INC.
By: ___________________________________________
Name:
Title:
LANDLORD:
NORWELL LAND COMPANY
By: Connecticut Avenue Realty Co., Inc.,
its managing general partner
By: ___________________________________________
Name:
Title
Schedule A
Existing Matters That are Permitted Encumbrances
Exhibit A
Short Form of Memorandum of Option
This Memorandum of Termination and Option Agreement ("Memorandum"), dated
as of ___________, 2004, evidences that a Termination and Option Agreement
("Agreement"), dated as of __________, 2004, was made and entered into by and
between Norwell Land Company, a New York general partnership ("Landlord") and
[Safeguard Acquisition Co.], a Delaware corporation ("Tenant").
The Agreement provides in part that Landlord grants to Tenant an option to
purchase the property located at 700 Union Boulevard in Totowa, New Jersey (the
"Property") under certain terms and conditions set forth more fully in the
Agreement. The Property is further described in Exhibit A attached hereto. The
option price payable by Tenant to Landlord for the Property is more particularly
set forth in the Agreement. The term of the option granted by Landlord to Tenant
commences on ___________, 2004 and expires if Landlord has not exercised the
Landlord's Termination Option (as such term is defined in the Agreement) such
that the Termination Date (as such term is defined in the Agreement) is on or
before _________, 2013. The Agreement contains no right to extend the term of
the option.
The parties have executed this Memorandum as of the day and year first
above written.
TENANT:
BIOPHARMA ACQUISITION COMPANY, INC.
By: ___________________________________________
Name:
Title:
LANDLORD:
NORWELL LAND COMPANY
By:Connecticut Avenue Realty Co., Inc., its
managing general partner
By: ___________________________________________
Name:
Title
Acknowledgment
State of ________ )
) ss.
County of _______ )
On this ___ day of ________ in the year 2004 before me,
__________________ , a Notary Public of said State, duly commissioned and sworn,
personally appeared _______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as president (or secretary) or on behalf of the
corporation therein and acknowledged to me that such corporation executed the
same.
In Witness Whereof, I have hereunto set my hand and affixed by
official seal the day and year in this certificate first above written.
__________________________
Notary Public
[Notarial Stamp]
Acknowledgment
State of ________ )
) ss.
County of _______ )
On this ___ day of __________ in the year 2004 before me,
__________________ , a Notary Public of said State, duly commissioned and sworn,
personally appeared _______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as president (or secretary) or on behalf of the
corporation therein and acknowledged to me that such corporation executed the
same.
In Witness Whereof, I have hereunto set my hand and affixed by
official seal the day and year in this certificate first above written.
_____________________________
Notary Public
[Notarial Stamp]
Exhibit A
to
Memorandum of Termination and Option Agreement
Property Description