Exhibit 2.1
STOCK PURCHASE AGREEMENT
AMONG
ZEPTOMETRIX CORPORATION,
HEMAGEN DIAGNOSTICS, INC.,
CELLULAR PRODUCTS INC.,
JAMES C.D. HENGST,
AND
MICHAEL S. DURSKI
As of JUNE 15, 1999
TABLE OF CONTENTS
Page
----
1. DEFINITIONS 1
2. SALE AND PURCHASE OF STOCK 1
2.1 Sale and Purchase of Stock 1
2.2 Purchase Price 1
2.3 Payment at the Closing 2
3. ADDITIONAL UNDERTAKINGS AND COVENANTS 2
3.1 Consents and Approvals 2
3.2 Access; Investigations by Buyer 2
3.3 Operation of Business of the Company 3
3.4 No Inconsistent Negotiations 4
3.5 News Releases 5
3.6 Agreement for Non-Use 5
3.7 Subsequent Events 5
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND HEMAGEN 5
4.1 Organization and Standing 5
4.2 Subsidiaries 6
4.3 Certificate or Articles of Incorporation and Bylaws 6
4.4 Capitalization 6
4.5 Directors and Officers 6
4.6 Financial Statements 6
4.7 No Liabilities 6
4.8 Accounts Receivable 7
4.9 Taxes 7
4.10 Conduct of Business; Absence of Material Adverse Change 8
4.11 Assets 9
4.12 Insurance 9
4.13 Intellectual Property 9
4.14 Debt Instruments 10
4.15 Leases 10
4.16 Other Agreements 10
4.17 Books and Records 11
4.18 Litigation; Disputes 11
4.19 Labor Relations 11
4.20 Pension and Benefit Plans 11
4.21 Environmental 12
4.22 Transactions with Related Parties 13
4.23 Restrictions and Covenants 13
4.24 Authorization 13
4.25 Absence of Violation 14
4.26 Copies of Documents 14
4.27 Binding Obligation 14
4.28 Disclosure 14
5. REPRESENTATIONS AND WARRANTIES OF HEMAGEN 15
5.1 Title to Common Stock 15
5.2 Authority and Capacity 15
5.3 Absence of Violation 15
5.4 Restrictions and Consents 15
5.5 Binding Obligation 15
5.6 Transfer of Title 16
6. REPRESENTATIONS AND WARRANTIES OF BUYER 16
6.1 Organization and Standing 16
6.2 Authorization 16
6.3 Binding Obligation 16
7. RESTRICTED SECURITIES 16
7.1 No Registration Under the Securities Act 16
7.2 Acquisition for Investment 17
7.3 Evaluation of Merits and Risks of Investment 17
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY AND HEMAGEN 17
8.1 Representations and Warranties 17
8.2 Performance 17
8.3 Legal Proceedings 17
8.4 Buyer's Certificate 18
8.5 Certificate of Principals 18
8.6 Documents at Closing 18
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER 18
9.1 Representations and Warranties 18
9.2 Performance 18
9.3 Absence of Adverse Changes 18
9.4 Legal Proceedings 18
9.5 Officer's Certificate 19
9.6 Hemagen's Certificate 19
9.7 Opinion of Counsel 19
9.8 Title 19
9.9 Authorization by the Company's Independent Certified Public
Accountants 19
9.10 Documents at Closing 19
9.11 Resignations of Directors and Officers 19
9.12 Consents 19
9.13 Resolutions and Charter Documents 20
9.14 Survey 20
10. CLOSING 20
10.1 Closing of Sale and Purchase 20
10.2 Deliveries by Hemagen 20
10.3 Deliveries by the Company 20
10.4 Deliveries by Buyer 21
10.5 Deliveries by Principals 21
11. SURVIVAL OF REPRESENTATIONS; REMEDIES 21
11.1 Survival of Representations 21
11.2 Agreement of Hemagen regarding Taxes 21
11.3 Specific Performance 22
11.4 Remedies Cumulative 22
11.5 Limitations on Liability 22
12. TERMINATION 23
12.1 Termination 23
12.2 Effect of Termination 23
13. MISCELLANEOUS 23
13.1 Additional Actions and Documents 23
13.2 No Brokers 23
13.3 Expenses 24
13.4 Assignment 24
13.5 Entire Agreement; Amendment 24
13.6 Waiver 24
13.7 Consent to Jurisdiction 25
13.8 Severability 25
13.9 Governing Law 25
13.10 Notices 25
13.11 Headings 26
13.12 Execution in Counterparts 26
13.13 Limitation on Benefits 27
13.14 Binding Effect 27
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Purchase Agreement") is entered into
as of June 15, 1999, by and among ZEPTOMETRIX CORPORATION, a Delaware
corporation with a principal place of business at 231 Cimarand Court,
Getzville, New York 14068 ("Buyer"), HEMAGEN DIAGNOSTICS, INC., a Delaware
corporation with a principal place of business at 40 Bear Hill Road,
Waltham, Massachusetts 02154-1002 ("Hemagen"), and CELLULAR PRODUCTS INC, a
Delaware corporation with a principal place of business at 872 Main Street,
Buffalo, New York 14202 (the "Company"); JAMES C.D. HENGST, an individual
residing at 231 Cimarand Court, Getzville, New York 14068 ("Hengst") and
MICHAEL S. DURSKI, an individual residing at 11 Blackfriar Court,
Getzville, New York 14068 ("Durski") (together, Hengst and Durski are
hereinafter referred to as "Principals").
WHEREAS, Buyer desires to acquire the Company;
WHEREAS, Principals, who are principals in the Buyer, are currently
in the employ of the Company and have primary responsibility for the
management of day-to-day operations of the Company;
WHEREAS, Hemagen owns all of the issued and outstanding shares of
Common Stock of the Company; and
WHEREAS, Hemagen desires to sell and Buyer desires to purchase all of
the issued and outstanding shares of Common Stock of the Company;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto
hereby agree as follows:
1. DEFINITIONS
For all purposes of this Purchase Agreement, certain capitalized
terms specified in Exhibit B shall have the meanings set forth in that
Exhibit B, except as otherwise expressly provided. For purposes of this
Purchase Agreement, the phrase, "to the best of its (or his or their)
knowledge", or any variant thereof, shall mean that no fact has come or
been brought to that party's attention to the contrary; but shall not
necessarily mean that the party making such statement has made a diligent
search with regard to any such fact.
2. SALE AND PURCHASE OF STOCK
2.1 Sale and Purchase of Stock
On the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions hereof, Hemagen
agrees to sell to Buyer, and Buyer agrees to purchase from Hemagen, all
shares of issued and outstanding Common Stock of the Company at the
Purchase Price specified in Section 2.2.
2.2 Purchase Price
The Purchase Price shall be $800,000.00.
2.3 Payment at the Closing
At the Closing, Buyer shall deliver the Purchase Price to Hemagen in
immediately available funds.
3. ADDITIONAL UNDERTAKINGS AND COVENANTS
3.1 Consents and Approvals
(a) Buyer, the Company and Hemagen shall take all measures
reasonably necessary or advisable to secure such consents, authorizations
and approvals of governmental authorities and of private persons or
entities with respect to the transactions contemplated by this Purchase
Agreement, and to the performance of all other obligations of such parties
hereunder, as may be required by any applicable statute or regulation of
the United States or any country, state or other jurisdiction or by any
Agreement of any kind whatsoever to which Buyer, the Company or Hemagen is
a party or by which Buyer, the Company or Hemagen is bound.
(b) Buyer, the Company and Hemagen shall (i) cooperate in the
filing of all forms, notifications, reports and information, if any,
required or reasonably deemed advisable pursuant to applicable statutes,
rules, regulations or orders of any governmental authority in connection
with the transactions contemplated by this Purchase Agreement and (ii) use
their respective good faith efforts to cause any applicable waiting periods
thereunder to expire and any objections to the transactions contemplated
hereby to be withdrawn before the Closing.
3.2 Access; Investigations by Buyer
(a) Hemagen shall cause the Company through the Closing Date, to
provide to representatives of Buyer full access to the offices, books,
Agreements, records (including, without limitation, tax returns and
correspondence with accountants), officers, directors, employees,
consultants and contractors of the Company and Furnish representatives of
Buyer with such financial and operating data and other information with
respect to the businesses and Assets of the Company as Buyer may request,
including, without limitations, Agreements with clients, customers,
vendors, lessors, licensors and suppliers of the Company. Buyer agrees at
all times through Closing Date to use reasonable efforts, at least as
stringent as those employed by it with respect to its own confidential
information, (i) to keep confidential all such information that is
identified as being of a confidential nature, (ii) not to use such
confidential information on its own behalf, except in connection with the
transactions contemplated hereby, or on behalf of any other person, firm,
or entity, and (iii) not to disclose such confidential information to any
Third Party (other than to Buyer's counsel, accountants and other
consultants , which consultants shall be required to enter into a
confidentiality agreement in form and substance reasonably satisfactory to
Hemagen, in connection with the transactions contemplated hereby), without
the Company's advance written authorization; provided, however, that Buyer
shall have no such obligations with respect to confidential information
that (A) was lawfully obtained by it not subject to restrictions of
confidentiality; (B) is a matter of public knowledge; or (C) has been or is
hereafter publicly disclosed other than by or through Buyer. In the event
this Purchase Agreement is terminated, Buyer will return to the Company all
documents, work papers and other materials Furnished to Buyer relating to
the transactions contemplated hereunder, whether obtained before or after
the execution of this Purchase Agreement, In the event of a breach or
threatened breach by Buyer of the provisions of this Section, the Company
shall be entitled to an injunction restraining Buyer from disclosing, in
whole or in part, such information, as its exclusive remedy.
(b) Hemagen hereby acknowledges that it has obtained and may
continue to obtain knowledge of and access to confidential and valuable
business information relating to Buyer not generally known by or available
to the general public. Hemagen agrees at all times through the Closing
Date to use reasonable efforts, at least as stringent as those employed by
it with respect to its own confidential information, (i) to keep
confidential all such information that is identified as being of a
confidential nature, (ii) not to use such confidential information on its
own behalf, except in connection with the transactions contemplated hereby,
or on behalf of any other person, firm or entity, and (iii) not to disclose
such confidential information to any Third Party (other than to Hemagen's
counsel, accountants and other consultants in connection with the
transactions contemplated hereby) without Buyer's advance written
authorization; provided, however, that Hemagen shall have no such
obligations with respect to confidential information that (A) was lawfully
obtained by it not subject to restrictions of confidentiality; (B) is a
matter of public knowledge; or (C) has been or is hereafter publicly
disclosed other than by or through the Hemagen. In the event this Purchase
Agreement is terminated, Hemagen will return to Buyer all documents,
workpapers and other materials Furnished to Hemagen relating to the
transactions contemplated hereunder, whether obtained before or after the
execution of this Purchase Agreement. In the event of a breach or
threatened breach by Hemagen of the provisions of this Section, Buyer shall
be entitled to an injunction restraining Hemagen, as the case may be, from
disclosing, in whole or in part, such information, as its exclusive remedy.
(c) Buyer's investigation of the financial and operating data,
Assets, Real Property and other information with respect to the businesses
and Assets of the Company shall in no way affect the obligations of the
Company and Hemagen with respect to the agreements, representations,
warranties, covenants and indemnification provisions set forth in this
Purchase Agreement.
3.3 Operation of Business of the Company
(a) Hemagen, through the Closing Date, shall preserve the Company's
corporate organization.
(b) Except as contemplated by this Purchase Agreement or as
reasonably required to carry out their obligations hereunder, Hemagen shall
cause the Company, through the Closing Date, to conduct its respective
business only in the Ordinary Course of Business and, in addition, shall
not: (i) issue any capital stock or any options, warrants or other rights
to subscribe for or purchase any of its capital stock or any securities
convertible into or exchangeable for its capital stock; (ii) declare, set
aside or pay any dividend or distribution with respect to its capital stock
to Hemagen or its Affiliates; (iii) directly or indirectly redeem,
purchase or otherwise acquire any of its capital stock; (iv) effect a
split, reclassification or other change in or of any of its capital stock;
(v) amend its certificate or articles of incorporation or their bylaws;
(vi) grant any increase in the compensation payable or to become payable by
the Company to officers or employees of the Company, or enter into any
bonus, insurance, pension or other benefit plan, payment or arrangement for
or with any of such officers or employees other than in the Ordinary Course
of Business; (vii) borrow or agree to borrow any funds (except for
intercompany adjustments made in the Ordinary Course of Business), or
directly or indirectly guarantee or agree to guarantee the obligations of
others; (viii) enter into any Agreement which may have a material effect on
its business and operations; (ix) place, or allow to be placed, an
Encumbrance on any of their Assets; (x) cancel any indebtedness owing to
the Company or any Claims which the Company may possess, or waive any
rights of substantial value; (xi) sell, assign or transfer any Intellectual
Property; (xii) sell or otherwise dispose of any interest in any Asset
(other than in the Ordinary Course of Business); (xiii) violate any Law;
(xiv) commit any act or omit to do any act, or engage in any activity or
transaction or incur any obligation (by conduct or otherwise), which
(individually or in the aggregate) reasonably could be expected to have a
material adverse effect on their businesses or Assets; or (xv) make any
loan or advance to any officer or director of Hemagen, or the Company, or
to any of their Affiliates, or to any other person, firm or corporation.
Prior to the Closing Date, the Company and Hemagen (i) will not do or agree
to do any of the things listed in clauses (a) through (s) of Section 4.10
and (ii) will maintain all insurance, which shall meet the requirements of
Section 4.12. At Closing, the Company and Buyer shall return to Hemagen
the personal property owned by Hemagen and more particularly shown on
Exhibit F, attached hereto and made a part hereof
(c) To the best of its knowledge, Hemagen shall notify Buyer
promptly of any adverse change in the business, operations, prospects,
condition (financial or otherwise), Assets or liabilities of the Company,
including, without limitation, information (including, without limitation,
copies of all Documents relating thereto) concerning all Claims instituted,
threatened or asserted against or affecting the Company or its business or
Assets at law or in equity or admiralty, before or by any court or
governmental authority.
(d) Hemagen shall keep proper corporate records in which true and
complete entries will be made of all applicable transactions, and shall
supply to Buyer such Documents, as Buyer shall request.
3.4 No Inconsistent Negotiations
Subject to fiduciary obligations under Law as advised by counsel in
writing, and except for Principals, Hemagen shall not permit or authorize
any director, officer, employee or other agent of the Company, or Hemagen,
directly or indirectly, to
(i) Take any action to solicit, initiate or encourage the
submission of a Proposal, or
(ii) Participate in any negotiations regarding, or Furnish to
any other person, entity or group any non-public
information with respect to, or otherwise cooperate in
any way with, or assist or participate in, facilitate, or
encourage, any effort or attempt by any other person,
entity or group to do or seek any of the foregoing.
In addition, Hemagen shall use its best efforts to cause any
financial adviser engaged by Hemagen for any purpose within the past 12
months to refrain from taking any of the actions referred to in clause (i)
or (ii) of the immediately preceding sentence. Hemagen shall immediately
cease and cause to be terminated any existing discussions or negotiations
with any parties (other than Buyer and Principals) conducted heretofore
with respect to any of the foregoing. Hemagen shall notify Buyer promptly
of the occurrence of any Proposal, or inquiry or contact. Hemagen shall
not respond to any such Proposal.
3.5 News Releases
Neither Buyer nor Hemagen shall issue or approve any news release or
other public announcement concerning the transactions contemplated by this
Purchase Agreement without the prior approval of Buyer and Hemagen (which
approval shall not be unreasonably withheld by either of them). Any
information required to be disclosed by Law or regulation shall not require
prior approval. Buyer hereby consents in advance to any filing by Hemagen
of a Current Report on Form 8-K announcing the impending sale of the
Company to Buyer.
3.6 Agreement for Non-Use
The Company, Hemagen and Buyer shall each enter into an Agreement,
dated as of the Closing Date, substantially in the form of Exhibit C.
3.7 Subsequent Events
Any or all of the Company, Hemagen and Principals shall notify Buyer
and each other promptly in writing of the occurrence of any event, or the
failure of any event to occur, prior to the Closing that results in an
omission from, or breach of, any of the covenants, representations or
warranties made by or on behalf of the Company, or Hemagen or Principals in
this Purchase Agreement, the Disclosure Schedule or any other Document
Furnished in connection with or pursuant to this Purchase Agreement, but
such notification shall not excuse breaches of representations, warranties,
covenants or agreements disclosed in such notification.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY and HEMAGEN
Except as specifically set forth in the Disclosure Schedule attached
hereto as Exhibit G (with disclosure with respect to a Section of this
Purchase Agreement requiring a specific reference to the Disclosure
Schedule to which each such disclosure applies, but no disclosure to be
deemed to apply with respect to any Section to which it does not expressly
apply), and, to the extent applicable, relying on representations and
warranties of the Principals, the Company and Hemagen jointly and severally
represent and warrant (which representation and warranty shall be deemed to
include the disclosure with respect thereto so specified in the Disclosure
Schedule) to Buyer, as follows:
4.1 Organization and Standing
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has the full
and unrestricted corporate power and authority to own, operate and lease
its Assets, to carry on its business as currently conducted, to execute and
deliver this Purchase Agreement and to carry out the transactions
contemplated hereby. To the best of the Hemagen's knowledge (a) the
Company is duly qualified to conduct business as a foreign corporation and
is in good standing in the states, countries and territories listed on the
Disclosure Schedule; (b) the Company is not qualified to conduct business
in any other jurisdiction, and neither the nature of the business conducted
by the Company nor the character of the Assets owned, leased or otherwise
held by it makes any such qualification necessary; and (c) there is no
state, country or territory wherein the absence of licensing or
qualification as a foreign corporation would have a material adverse effect
upon the business of the Company as currently conducted.
4.2 Subsidiaries
The Company has no Subsidiaries and no equity investment or other
interest in, nor has the Company made advances or loans (except for
intercompany transfers) to, any Affiliate, corporation, association,
partnership, joint venture or other entity.
4.3 Certificate or Articles of Incorporation and Bylaws
Hemagen has Furnished to Buyer a true and complete copy of the
certificate or articles of incorporation of the Company, as currently in
effect, certified as of a recent date by the Secretary of State (or
comparable governmental authority) of the respective jurisdictions of
incorporation, and a true and complete copy of the bylaws of the Company,
as currently in effect, certified by their respective corporate
secretaries. Such certified copies are attached as exhibits to, and part
of, the Disclosure Schedule
4.4 Capitalization
The authorized capital stock of the Company consists of shares of
Common Stock, no par value per share, of which 100 shares are duly
authorized and validly issued and outstanding, fully paid and
nonassessable. No shares of capital stock of the Company have been
reserved for any purpose. There are no outstanding securities convertible
into or exchangeable for Common Stock, and no outstanding options, rights
(preemptive or otherwise), or warrants to purchase or to subscribe for any
shares of such stock or other securities of the Company. Except as
provided in Section 5.1 of this Purchase Agreement, there are no
outstanding Agreements affecting or relating to the voting, issuance,
purchase, redemption, repurchase or transfer of the Company's Common Stock,
and other securities of the Company, except as contemplated hereunder. The
Common Stock, which has been pledged by Hemagen in connection with certain
of its credit arrangements, shall be released from pledge prior to or at
Closing and shall be sold free and clear of Encumbrance of any kind.
4.5 Directors and Officers
The Disclosure Schedule lists all current directors and officers of
the Company, showing each such person's name, positions, and annual
remuneration, bonuses and fringe benefits for the current fiscal year and
the most recently completed fiscal year, all of which shall terminate upon
the Closing Date.
4.6 Financial Statements
Intentionally omitted.
4.7 No Liabilities
Except as reflected in the consolidated financial statements
Furnished pursuant to this Purchase Agreement or as described on the
Disclosure Schedule, there exist no liabilities (whether contingent or
absolute, matured or unmatured, known or unknown) of the Company. Except
as described in the Disclosure Schedule, since November 1, 1996, the
Company has not incurred any liabilities (whether contingent or absolute,
matured or unmatured, known or unknown) other than in the Ordinary Course
of Business.
4.8 Accounts Receivable
Intentionally omitted.
4.9 Taxes
(a) Hemagen has (or, in the case of returns becoming due after the
date hereof and on or before the Closing Date, will have prior to the
Closing Date) duly filed all the Company Tax Returns required to be filed
by the Company and/ or by Hemagen on the Company's behalf on or before the
Closing Date with respect to all applicable Taxes. No penalties or other
charges are or will become due with respect to any of the Company Tax
Returns as the result of the late filing thereof. All of the Company Tax
Returns are (or, in the case of returns becoming due after the date hereof
and on or before the Closing Date, will be) true and complete in all
respects. The Company: (i) has paid all Taxes due or claimed to be due by
any Taxing authority in connection with any of the Company Tax Returns
(without regard to whether or not such Taxes are shown as due on such
Company Tax Returns); or (ii) have established (or, in the case of amounts
becoming due after the date hereof, prior to the Closing Date will have
paid or established) in consolidated financial statements provided to
Buyer. The amounts set up as reserves for taxes on the consolidated
financial statements of the Company are sufficient for the payment of all
unpaid Taxes, whether or not such Taxes are disputed or are yet due and
payable, for or with respect to the period, and for which the Company may
be liable in its own right (including, without limitation, by reason of
being a member of the same affiliated group) or as a transferee of the
Assets of, or successor to, any corporation, person, association,
partnership, joint venture or other entity.
(b) The Company, either in its own right (including, without
limitation, by reason of being a member of the same affiliated group) or as
a transferee, does not, or on the Closing Date will not have any liability
for Taxes payable for or with respect to any periods prior to and including
the Closing Date in excess of the amounts actually paid prior to the
Closing Date or reserved for in consolidated financial statements Furnished
to Buyer.
(c) There is no action, suit, proceeding, audit, investigation or
claim pending or, to the best knowledge of Hemagen, threatened in respect
of any Taxes for which the Company is or may become liable, nor has any
deficiency or claim for any such Taxes been proposed, asserted, to the
knowledge of the Company, threatened. Neither the Company nor Hemagen has
consented to any waivers or extensions of any statute of limitations with
respect to any taxable year of the Company or Hemagen. There is no
Agreement, waiver or consent providing for an extension of time with
respect to the assessment or collection of any Taxes against the Company or
Hemagen, and no power of attorney granted by the Company or Hemagen with
respect to any tax matters is currently in force.
(d) Hemagen has Furnished to Buyer true and complete copies of all
the Company Tax Returns and all written communications relating to any such
Company Tax Returns or to any deficiency or claim proposed and/or asserted,
irrespective of the outcome of such matter, but only to the extent such
items relate to tax years (i) which are subject to an audit, investigation,
examination or other proceeding, or (ii) with respect to which the statute
of limitations has not expired.
(e) The Disclosure Schedule sets forth (i) all federal tax
elections that currently are in effect with respect to the Company or any
of the Subsidiaries, and (ii) all elections for purposes of foreign, state
or local Taxes and all consents or Agreements for purposes of federal,
foreign, state or local Taxes in each case that reasonably could be
expected to affect or be binding upon the Company or its Assets or
operations after the Closing. The Disclosure Schedule sets forth all
changes in accounting methods for tax purposes at any time made, agreed to,
requested or required with respect to the Company.
(f) The Company has never or is not (i) been a partner in a
partnership or an owner of an interest in an entity treated as a
partnership for federal income tax purposes; or (ii) executed or filed with
the Internal Revenue Service any consent to have the provisions of Section
341(f) of the Code apply to it; or (iii) subject to Section 999 of the
Code; (iv) a passive foreign investment company as defined in Section
1296(a) of the Code; or (v) a party to an Agreement relating to the
sharing, allocation or payment of, or indemnity for, Taxes (other than an
Agreement the only parties to which are the Company).
4.10 Conduct of Business; Absence of Material Adverse Change
To the best of Hemagen's knowledge, other than as set forth in the
Disclosure Schedule, since May 18, 1999, there has been no material adverse
change, and no change except in the Ordinary Course of Business, in the
business, operations, prospects, condition (financial or otherwise), Assets
or liabilities of the Company. The Company has conducted its business
diligently and substantially in the manner heretofore conducted and only in
the Ordinary Course of Business, and has not (a) incurred loss of, or
significant injury to, any Assets of the Company as the result of any fire,
explosion, flood, windstorm, earthquake, labor trouble, riot, accident, act
of God or public enemy or armed forces, or other casualty; (b) issued any
capital stock, bonds or other corporate securities or debt instruments,
granted any options, warrants or other rights calling for the issuance
thereof, or borrowed any funds; (c) incurred, or become subject to, any
obligation or liability (absolute or contingent, matured or unmatured,
known or unknown), except current liabilities incurred in the Ordinary
Course of Business; (d) discharged or satisfied any Encumbrance or paid any
obligation or liability(absolute or contingent, matured or unmatured, known
or unknown) other than current liabilities shown in the balance sheets
Furnished to Buyer, and current liabilities incurred since September 30,
1998 in the Ordinary Course of Business; (e) declared or made payment of,
or set aside for payment, any dividends or distributions of any Assets, or
purchased, redeemed or otherwise acquired any of its capital stock, any
securities convertible into capital stock, or any other securities; (f)
mortgaged, pledged or subjected to any Encumbrance any of its Assets; (g)
sold, exchanged, transferred or otherwise disposed of any of its Assets, or
concealed any debts or claims, except in each case in the Ordinary Course
of Business; (h) written down the value of any Assets or written off as
uncollectible any notes or accounts receivable, except write-downs and
write-offs in the Ordinary Course of Business, none of which, individually
or in the aggregate, are material; (i) entered into any transactions other
than in the Ordinary Course of Business; (j) increased the rate of
compensation payable, or to become payable, by it to any of its officers,
employees, agents or independent contractors over the rate being paid to
them on October 1, 1998; (k) made or permitted any amendment or termination
of any material Agreement to which it is a party; (l) through negotiation
or otherwise made any commitment or incurred any liability to any labor
organization; (m) made any accrual or arrangement for or payment of bonuses
or special compensation of any kind to any director, officer or employee;
(n) directly or indirectly paid any severance or termination pay to any
officer or employee in excess of one months' salary; (o) made capital
expenditures, or entered into commitments therefor, aggregating more than
$5,000; (p) made any change in any method of accounting or accounting
practice; (q) entered into any transaction of the type described in Section
4.22; (r) made any charitable contributions or pledges; or (s) made an
Agreement to do any of the foregoing.
4.11 Assets
On or about November 1, 1996, Hemagen purchased the Assets in the
context of a liquidating Chapter 11 Bankruptcy proceeding, and that to the
best knowledge of Hemagen, the Company has good, valid and Marketable title
to all Assets owned by it including, without limitation, the Real Property
more particularly identified in Exhibit A to this Purchase Agreement, and
all Assets reflected in the balance sheets Furnished to Buyer (except for
Assets which have been sold or otherwise disposed of in the Ordinary Course
of Business), free and clear of all Encumbrances, except Permitted
Encumbrances. To the best of Hemagen's knowledge, all personal property of
the Company is in good operating condition and repair and is suitable and
adequate for the uses for which it is intended or is being used; and that
to the best of Hemagen's knowledge, all Inventory of the Company consists
of items which are good and merchantable and of a quality and quantity
presently usable and salable in the Ordinary Course of Business.
4.12 Insurance
The Company is covered by Hemagen's policies regarding title, Asset,
fire, hazard, casualty, liability, worker's compensation and other forms of
insurance. All such policies: (a) are with insurance companies reasonably
believed by Hemagen to be financially sound and reputable: (b) are in full
force and effect; (c) are sufficient for compliance by the Company with all
requirements of Law and of all Agreements to which the Company is a party;
(d) are valid and outstanding policies enforceable against the insurer; (e)
insure against risks of the kind customarily insured against and in amounts
customarily carried by companies similarly situated and by companies
engaged in similar businesses and owning similar properties, and provide
adequate insurance coverage for the businesses and Assets of the Company;
and (f) will remain in full force and effect up to and including the
Closing Date.
4.13 Intellectual Property
To the best of Hemagen's knowledge, the Company owns or has rights to
use all of the Intellectual Property listed in the Disclosure Schedule, and
owns or possesses adequate rights to use all Intellectual Property
necessary to the conduct of the present business of the Company. The
Company, Principals and Hemagen have no knowledge, and have received no
notice to the effect, that any product that the Company manufactures or
sells, or that any service that the Company renders, or that the marketing
or use by the Company, or other of any such product or service, may or is
claimed to infringe upon any Intellectual Property or legally protectable
right of another.
4.14 Debt Instruments
Prior to or at Closing, Hemagen will provide evidence satisfactory to
Buyer and its counsel that the Company has been released from any
obligations incurred by Hemagen on its own or on the Company's behalf,
including release of the Assets (or any of them) or the Common Stock from
any Encumbrance.
4.15 Leases
The Company is not a party to any Leases and is the owner and holder
of all Assets, real and personal.
4.16 Other Agreements
(a) The Disclosure Schedule lists and briefly describes all
Agreements to which the Company is a party or by which the Company is bound
at the date hereof. Each such Agreement is in full force and effect and
constitutes a legal, valid and binding obligation of, and is legally
enforceable against, the respective parties thereto. All necessary
governmental approvals with respect thereto have been obtained, all
necessary filings or registrations therefor have been made, and there have
been no threatened cancellations thereof and there are no outstanding
disputes thereunder. The Company has in all respects performed all the
obligations thereunder required to be performed by any of them to date. No
party is in default in any respect under any of the Agreements described in
the Disclosure Schedule, and there has not occurred any event which
(whether with or without notice, lapse of time or the happening or
occurrence of any other event) would constitute such a default.
(b) Except as specified in the Disclosure Schedule (and without
limiting the foregoing), to the best of Hemagen's knowledge, the Company is
not a party to any oral or written (i) Agreement for the employment of any
officer, employee, consultant or independent contractor; (ii) license
agreement or distributor, dealer, manufacturer's representative, sales
agency, advertising, property management or brokerage agreement; (iii)
Agreement with any labor organization or other collective bargaining unit;
(iv) Agreement for the future purchase of materials, supplies, services,
merchandise or equipment involving payments of more than $100,000 over its
remaining term (including, without limitation, periods covered by any
option to renew by either party); (v) Agreement for the purchase, sale or
lease of any real estate or other Assets; (vi) profit-sharing, bonus,
incentive compensation, deferred compensation, stock option, severance pay,
stock purchase, employee benefit, insurance, hospitalization, pension,
retirement or other similar plan or Agreement; (vii) Agreement for the sale
of any of its Assets or the grant of any preferential rights to purchase
any of its Assets or rights, other than in the Ordinary Course of Business;
(viii) Agreement which contains any provisions requiring the Company to
indemnify any other party thereto; (ix) joint venture agreement or other
Agreement involving the sharing of profits; (x) outstanding loan to any
person or entity or receivable due from Hemagen or persons or entities
Controlling, Controlled by or under Common Control with the Company; (xi)
any Agreement (including, without limitation, Agreements not to compete and
exclusivity Agreements) that reasonably could be interpreted to impose any
restriction on any business operations of the Company; or (xii) other
Agreement which by its terms does not terminate or is not terminable by the
Company within 30 days or upon 30 days' (or less) notice.
4.17 Books and Records
The corporate stock records, minute books and other records of the
Company are true and complete and have been maintained in accordance with
good business practices.
4.18 Litigation; Disputes
(a) There are no, and there is no basis for any action, actions,
suits, claims, arbitrations, proceedings or investigations pending, or, to
the best of Hemagen's knowledge, threatened or reasonably anticipated
against, affecting or involving the Company or its business or Assets, or
the transactions contemplated by this Agreement, at Law or in equity or
admiralty, or before or by any court, arbitrator or governmental authority,
domestic or foreign. The Company is not operating under, subject to or in
default with respect to any order, award, writ, injunction, decree or
judgment of any court, arbitrator or governmental authority.
(b) The Company is not currently involved in or, to the best
knowledge of Hemagen, reasonably anticipates any dispute with any of its
current or former employees, agents, brokers, distributors, vendors,
customers, business consultants, franchisees, franchisors, representatives
or independent contractors (or any current or former employees of any of
the foregoing persons or entities) affecting the business or Assets of the
Company.
4.19 Labor Relations
To the best of Hemagen's knowledge:
There are no strikes, work stoppages, grievance proceedings, union
organization efforts or other controversies pending, threatened or
reasonably anticipated between the Company and (i) any current or former
employees of the Company or (ii) any union or other collective bargaining
unit representing such employees. The Company has complied and is in
compliance with all Laws relating to employment or the workplace,
including, without limitation, provisions relating to wages, hours,
collective bargaining, safety and health, work authorization, equal
employment opportunity, immigration, withholding, unemployment
compensation, workers' compensation, employee privacy and right to know.
There are no collective bargaining agreements, employment agreements
between the Company and any of its respective employees, or professional
service agreements not terminable at will relating to the business and
Assets of the Company. The consummation of the transactions contemplated
hereby will not cause Buyer or the Company to incur or suffer any liability
relating to, or obligation to pay, severance, termination or other payments
to any person or entity.
4.20 Pension and Benefit Plans
Except for the participation of its employees in Hemagen's 401(k)
Plan, the Company, neither on its own nor through Hemagen, is a participant
in any Plan, including, without limitation, any Qualified Plan, Statutory-
Waiver Plan, Title I Plan, Welfare Plan, or Pension Plan.
4.21 Environmental
To the best of Hemagen's knowledge:
(a) The Company has complied and is in compliance with, and
the Real Property and all improvements thereon are in compliance
with, all Environmental Laws.
(b) There are no pending or threatened actions, suits,
orders, claims, legal proceedings or other proceedings based on, and
neither the Company nor any officer, director or stockholder thereof
has directly or indirectly received any formal or informal notice of
any complaint, order, directive, citation, notice of responsibility,
notice of potential responsibility, or information request from any
governmental authority or any other person or entity or knows or
suspects any fact(s) which might reasonably form the basis for any
such actions or notices arising out of or attributable to: (i) the
current or past presence, Release of threatened Release of Hazardous
Materials at or from any part of the Real Property; (ii) the off-site
disposal or treatment of Hazardous Materials originating on or from
the Real Property or the businesses or Assets of the Company; (iii)
any facility operations, procedures or designs of the Company which
do not conform to requirements of the Environmental Laws; or (iv) any
violation of Environmental Laws at any part of the Real Property or
otherwise arising from the Company's activities (or the activities of
the Company's predecessors in title) involving Hazardous Materials.
(c) The Company has been duly issued, and currently have and
will maintain through the Closing State, all permits, licenses,
certificates and approvals required under any Environmental Law. A
true and complete list of such permits, licenses, certificates and
approvals, all of which are valid and in full force and effect, is
set out in the Disclosure Schedule. Except in accordance with such
permits, licenses, certificates and approvals, there has been no
Release of material regulated by such permits, licenses, certificates
or approvals.
(d) The Real Property contains no underground improvements,
including but not limited to treatment or storage tanks, or
underground piping associated with such tanks, used currently or in
the past for the management of Hazardous Materials, and no portion of
the Real Property is or has been used as a dump or landfill or
consists of or contains filled in land or wetlands.
(e) The Company will promptly furnish to Buyer written notice
of any Release or of any actions or notices described in Section
4.21(b).
(f) Neither PCBs nor asbestos-containing materials are
present on or in the Real Property.
(g) The Company and Hemagen hereby grant to Buyer a license
to enter and inspect the Real Property, such inspection to be
completed prior to Closing. In order to complete such investigation,
Buyer or its designated consultant shall have the right but not the
obligation: (i) to conduct tests of the soil, surface or subsurface
waters, and air quality at, in, on, beneath or about the Real
Property, in a manner consistent with good engineering practice; (ii)
to inspect all records, reports, permits, applications, monitoring
results, studies, correspondence, data and any other information or
documents relevant to Hazardous Materials or other environmental
conditions; and (iii) to inspect all buildings and equipment at the
Property for asbestos-containing materials or other Hazardous
Materials. Buyer agrees to conduct such investigations in a manner
that minimizes the disruption to the Company's business activities,
and the Company agrees to permit Buyer reasonable access to all
portions of the Real Property, both during business hours and after
business hours, upon notice to Hemagen and shall provide Hemagen with
a description of the nature of the investigation. Buyer shall have
the unilateral right, in its sole discretion, to terminate its
obligations under this Agreement without penalty on or before the
completion of the Investigation if such Investigation reveals, in
Buyer's sole judgment, any information that would cause the
representations set forth in this Section 4.21 not to be true and
complete at the Closing Date. Buyer agrees to keep and hold
confidential any and all reports, summaries, studies or results that
are the product of its investigations of the Real Property, and not
to disclose such reports without the written consent of the Company
or unless required to do so by applicable law. Any report rendered
by any consultant to the Buyer or its counsel in connection with this
Section 4.21 shall promptly be also made available to Hemagen or its
counsel.
(h) No Encumbrance in favor of any person relating to or in
connection with any Claim under any Environmental Law has been filed
or has attached to Real Property.
4.22 Transactions with Related Parties
Other than this Purchase Agreement, neither any present or former
officer, director or 5% or more stockholder of Hemagen, nor any Affiliate
of such officer, director or stockholder, is currently a party to any
transaction with the Company, including, without limitation, any Agreement
providing for the employment of, furnishing of services by, rental of
Assets from or to, or otherwise requiring payments to, any such officer,
director, 5% or more stockholder or Affiliate.
4.23 Restrictions and Covenants
There are no Agreements, Laws or other restrictions of any kind to
which Hemagen or the Company (or any asset thereof) is party or subject
that would prevent or restrict the execution, delivery or performance of
this Purchase Agreement or result in any penalty, forfeiture, Agreement
termination, or restriction on business operations of Buyer, the Company
as a result of the execution, delivery or performance of this Purchase
Agreement. The Disclosure Schedule lists all such Agreements and Laws that
reasonably could be interpreted or expected to require the consent or
acquiescence of any person or entity not party to this Purchase Agreement
with respect to any aspect of the execution, delivery or performance of
this Purchase Agreement by Hemagen or the Company.
4.24 Authorization
The execution, delivery and performance by the Company of this
Purchase Agreement and all other Documents contemplated hereby, the
fulfillment of and compliance with the respective terms and provisions
hereof and thereof, and the consummation by the Company of the transactions
contemplated hereby and thereby, do not and will not: (a) require any
consent or approval of any party other than Hemagen and the financial
institution with which it has a credit relationship; (b) to the best of the
Company's knowledge, conflict with, or violate any provision of, any Law
having applicability to the Company or any of its Assets, or any provision
of the certificate or articles of incorporation or bylaws of the Company;
(c) conflict with, or result in any breach of, or constitute a default
under any Agreement to which the Company is a party or by which it or any
of the Company's Assets may be bound; or (d) result in or require the
creation or imposition of or result in the acceleration of any
indebtedness, or of any Encumbrance of any nature upon, or with respect to,
the Company or any of the Assets now owned or hereafter acquired by the
Company.
4.25 Absence of Violation
The Company is not in violation of or default under, nor has it
breached, any term or provision of its certificate or articles of
incorporation or bylaws or, to the best of Hemagen's knowledge, any
Agreement or restriction to which the Company is a party or by which the
Company or any Asset thereof is bound or affected. To the best of
Hemagen's knowledge, the Company has complied and is in full compliance
with all Laws. Neither the Company, nor any of its officers, directors,
employees or agents (or stockholder, distributors, representatives or other
persons acting on the express, implied or apparent authority of the
Company) have paid, given or received or have offered or promised to pay,
give or receive, any bribe or other unlawful, questionable or unusual
payment of money or other thing of value, any extraordinary discount, or
any other unlawful or unusual inducement, to or from any person, business
association or governmental official or entity in the United States or
elsewhere in connection with or in furtherance of the business of the
Company (including, without limitation, any offer, payment or promise to
pay money or other thing of value (i) to any foreign official or political
party (or official thereof) for the purposes of influencing any act,
decision, or omission in order to assist the Company in obtaining business
for or with, or directing business to, any person, or (ii) to any person,
while knowing that all or a portion of such money or other thing of value
will be offered, given or promised to any such official or party for such
purposes). The business of the Company is not in any manner dependent upon
the making or receipt of such payments, discounts or other inducements.
4.26 Copies of Documents
True and complete copies of the Documents required to be delivered to
Buyer prior to execution of this Purchase Agreement have been Furnished to
Buyer prior to such time.
4.27 Binding Obligation
This Purchase Agreement constitutes a valid and binding obligation of
the Company, enforceable in accordance with its terms, and each Document to
be executed by the Company pursuant hereto, when executed and delivered in
accordance with the provisions hereof, shall be a valid and binding
obligation of the Company, enforceable in accordance with its terms.
4.28 Disclosure
To the best of Hemagen's knowledge, all facts of importance to the
business, operations, prospects, condition (financial or otherwise), Assets
or liabilities of the Company has been truthfully and completely disclosed
to Buyer in this Purchase Agreement. No representation or warranty by the
Company or Hemagen in this Agreement, and no Document Furnished or to be
Furnished to Buyer pursuant to this Purchase Agreement, or in connection
herewith or with the transactions contemplated hereby, contains or will
contain any untrue or misleading statement or omits or will omit any fact
necessary to make the statements contained herein or therein, in light of
the circumstances under which made, not misleading.
5. REPRESENTATIONS AND WARRANTIES OF Hemagen
Hemagen represents and warrants to Buyer, as follows:
5.1 Title to Common Stock
Hemagen is, and on the Closing Date will be, the lawful owner of the
number of shares of Common Stock set forth in this Purchase Agreement.
Since the date of issuance or sale of such shares of Common Stock to
Hemagen, and except for pledge of the shares of Common Stock to Hemagen's
financial institution, there has been no event, or action taken (or failure
to take action) by or against Hemagen, which has resulted or might result
in the creation of any Encumbrance on such shares. On the Closing Date,
Hemagen will have good, valid and Marketable title, free and clear of all
Encumbrances, to the number of shares of Common Stock so set forth herein,
with full right and lawful authority to sell and transfer the shares to
Buyer pursuant to this Purchase Agreement.
5.2 Authority and Capacity
Hemagen has full legal right, capacity, power and authority to
execute this Purchase Agreement and to consummate the transactions
contemplated hereby.
5.3 Absence of Violation
The execution, delivery and performance by Hemagen of this Purchase
Agreement and all other Documents contemplated hereby, the fulfillment of
and the compliance with the respective terms and provisions hereof and
thereof, and the consummation of the transactions contemplated hereby and
thereby, do not and will not (a) conflict with, or violate any provision
of, any Law having applicability to the Company or Hemagen; or (b) conflict
with, or result in any breach of, or constitute a default under, any
Agreement to which the Company, or Hemagen is a party.
5.4 Restrictions and Consents
There are no Agreements, Laws or other restrictions of any kind to
which Hemagen is party or subject that would prevent or restrict the
execution, delivery or performance of this Purchase Agreement or result in
any penalty, forfeiture, Agreement termination, or restriction on business
operations of Buyer, or the Company as a result of the execution, delivery
or performance of this Agreement. The Disclosure Schedule lists all such
Agreements and Laws that reasonably could be interpreted or expected to
require the consent or acquiescence of any person or entity not party to
this Purchase Agreement with respect to any aspect of the execution,
delivery or performance of this Purchase Agreement by the Company.
5.5 Binding Obligation
This Purchase Agreement constitutes a valid and binding obligation of
Hemagen, enforceable in accordance with its terms. Each Document to be
executed by Hemagen pursuant hereto, when executed and delivered in
accordance with the provisions hereof, will be a valid and binding
obligation of Hemagen , enforceable in accordance with its terms.
5.6 Transfer of Title
Upon payment for the shares of Common Stock to be purchased from
Hemagen pursuant to the terms of this Purchase Agreement, Buyer will
acquire good, valid and Marketable title thereto, free and clear of all
Encumbrances.
6. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Company and Hemagen, as
follows:
6.1 Organization and Standing
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the full and
unrestricted partnership power and authority to carry on its business as
currently conducted, to enter into this Purchase Agreement and to carry out
the transactions contemplated hereby.
6.2 Authorization
The execution, delivery and performance by Buyer of this Purchase
Agreement and all other Documents contemplated hereby, the fulfillment of
and the compliance with the respective terms and provisions hereof and
thereof, and the consummation by Buyer of the transactions contemplated
hereby and thereby have been duly authorized by its Board of Directors,
(which authorization has not been modified or rescinded and is in full
force and effect), and will not: (a) conflict with, or violate any
provision of, any term or provision of the articles of incorporation of
Buyer, or (b) conflict with, or result in any breach of, or constitute a
default under, any Agreement to which Buyer is a party or by which Buyer is
bound. No other corporate action is necessary for Buyer to enter into this
Purchase Agreement and all other Documents contemplated hereby and to
consummate the transactions contemplated hereby and thereby.
6.3 Binding Obligation
This Purchase Agreement constitutes a valid and binding obligation of
Buyer, enforceable in accordance with its terms. Each Document to be
executed by Buyer pursuant hereto, when executed and delivered in
accordance with the provisions hereof, shall be a valid and binding
obligation of Buyer, enforceable in accordance with its terms.
7. RESTRICTED SECURITIES
Buyer hereby represents, warrants and covenants, as follows:
7.1 No Registration Under the Securities Act
Buyer understands that the Common Stock to be purchased by it under
this Purchase Agreement has not been registered under the Securities Act,
in reliance upon exemptions contained in the Securities Act or
interpretations thereof, and cannot be offered for sale, sold or otherwise
transferred unless such Common Stock being acquired hereunder subsequently
is so registered or qualifies for exemption from registration under the
Securities Act.
7.2 Acquisition for Investment
The Common Stock is being acquired under this Purchase Agreement by
Buyer in good faith solely for its own account, for investment and not with
a view toward resale or other distribution within the meaning of the
Securities Act. The Common Stock will not be offered for sale, sold or
otherwise transferred by Buyer without either registration or exemption
from registration under the Securities Act.
7.3 Evaluation of Merits and Risks of Investment
Buyer has such knowledge and experience in financial and business
matters that Buyer is capable of evaluating the merits and risks of Buyer's
investment in such Common Stock being acquired hereunder. Buyer
understands and is able to bear any economic risks associated with such
investment (including, without limitation, the necessity of holding such
Common Stock for an indefinite period of time, inasmuch as such Common
Stock has not been registered under the Securities Act).
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY AND HEMAGEN
The obligations of the Company and Hemagen under this Purchase
Agreement are subject to the fulfillment, at or prior to the Closing, of
each of the following conditions, and failure to satisfy any such condition
shall excuse and discharge all obligations of the Company and Hemagen to
carry out the provisions of this Agreement, unless such failure is agreed
to in writing by the Company and Hemagen.
8.1 Representations and Warranties
The representations and warranties made by Buyer in, and the
Principals pursuant to, this Purchase Agreement or in any Document
Furnished by Buyer and Principals pursuant to this Purchase Agreement shall
be true and complete when made and on and as of the Closing Date as though
such representations and warranties were made on and as of such date,
except for any changes expressly permitted by this Agreement.
8.2 Performance
Buyer shall have performed and complied with all Agreements and
conditions required by this Purchase Agreement to be performed or complied
with by Buyer prior to the Closing Date.
8.3 Legal Proceedings
No action or proceeding by or before any governmental authority shall
have been instituted or threatened (and not subsequently dismissed, settled
or otherwise terminated) which is reasonably expected to restrain, prohibit
or invalidate the transactions contemplated by this Purchase Agreement,
other than an action or proceeding instituted or threatened by the Company
or Hemagen.
8.4 Buyer's Certificate
Buyer shall have delivered to Hemagen a certificate, dated as of the
Closing Date and executed by the President of Buyer, certifying to the
fulfillment of the conditions set forth in Sections 6.1 through 6.3.
8.5 Certificate of Principals
The Principals shall have delivered the Certificate referred to in
Section 9.1 of this Agreement containing the covenants with, and the
representations and warranties to be relied upon by, Hemagen.
8.6 Documents at Closing
All Documents required to be furnished by Buyer to Hemagen prior to
or at the Closing shall have been so furnished.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer under this Purchase Agreement are subject to
the fulfillment, at or prior to the Closing, of each of the following
conditions, and failure to satisfy any such condition shall excuse and
discharge all obligations of Buyer to carry out the provisions of this
Purchase Agreement, unless such failure is agreed to in writing by Buyer.
9.1 Representations and Warranties
The representations and warranties made (jointly or severally) by the
Company and Hemagen in this Purchase Agreement and the statements contained
in the Disclosure Schedule and Exhibits attached hereto or in any Document
Furnished by the Company or Hemagen pursuant to this Purchase Agreement
shall be true and complete when made, and on and as of the Closing Date as
though such representations and warranties were made on and as of such
date, except for any changes expressly permitted by this Agreement. Buyer
agrees that as to certain of the representations and warranties contained
herein, Hemagen shall be entitled to rely on the Certificate of the
Principals attached hereto as Exhibit E. The Company and Hemagen shall
have delivered to Buyer certificates briefly describing all matters
required to be reported to Buyer pursuant to Section 3.7.
9.2 Performance
The Company and Hemagen shall have performed and complied with all
Agreements and conditions required by this Purchase Agreement to be
performed or complied with prior to the Closing Date.
9.3 Absence of Adverse Changes
There shall have been no changes since May 18, 1999 in the business,
operations, prospects, condition (financial or otherwise), Assets or
liabilities of the Company (regardless of whether or not such events or
changes are inconsistent with the representations and warranties given
herein by the Company and Hemagen), except changes contemplated by this
Purchase Agreement.
9.4 Legal Proceedings
No action or proceeding by or before any governmental authority
shall have been instituted or threatened (and not subsequently settled,
dismissed or otherwise terminated) which is reasonably expected to
restrain, prohibit or invalidate the transactions contemplated by this
Purchase Agreement other than an action or proceeding instituted or
threatened by Buyer.
9.5 Officer's Certificate
The Company shall have delivered to Buyer, a certificate, dated as of
the Closing Date and executed by the Company's President, in his capacity
as such, certifying to the fulfillment of the conditions specified in
Sections 9.1 through 9.4.
9.6 Hemagen's Certificate
Hemagen shall have delivered to Buyer a certificate, dated as of the
Closing Date, and executed by the President of Hemagen, certifying to the
fulfillment of the conditions specified in Sections 9.1 through 9.4.
9.7 Opinion of Counsel
Buyer shall have received an opinion of the General Counsel to
Hemagen and the Company, dated as of the Closing Date, to the effect and in
substantially the form of Exhibit D.
9.8 Title
Buyer acknowledges that the Company is in possession of an abstract
of title for the Real Property, indicating that the Company has good and
Marketable title in fee simple to the Real Property, subject only to
Permitted Encumbrances.
9.9 Authorization by the Company's Independent Certified Public
Accountants
Buyer shall have received a letter from BDO Seidman, LLP, independent
certified public accountants to the Company, dated as of the Closing Date,
authorizing Buyer to rely upon the Company's Tax Returns prepared by them
on behalf of Hemagen and the Company.
9.10 Documents at Closing
All Documents required to be Furnished by the Company and Hemagen to
Buyer prior to or at the Closing shall have been so Furnished.
9.11 Resignations of Directors and Officers
Buyer shall have received the written resignations of all of the
members of the Board of Directors and officers of the Company (effective as
of the Closing).
9.12 Consents
(a) Buyer shall have received all consents, authorizations and
approvals of governmental and private parties which are required to be
obtained in order to consummate the transactions contemplated hereby, shall
be in full force and effect on the Closing Date.
(b) The Company and Hemagen shall have received all consents,
authorizations and approvals, if any, of governmental and private parties
which are required to be obtained in order to consummate the transactions
contemplated hereby, shall have been duly obtained and shall be in full
force and effect on the Closing Date, and Hemagen and the Company shall
have delivered to Buyer a certificate, dated as of the Closing Date and
executed by Hemagen's and the Company's President, in his capacity as such,
certifying to the fulfillment of the conditions specified in this Section
9.12(b).
9.13 Resolutions and Charter Documents
Buyer shall have received true and complete copies of (a) resolutions
of the Board of Directors of the Company and Hemagen authorizing this
transaction, certified by each of the Company's and Hemagen's respective
Secretary; (b) copies of the Company's articles of incorporation, as
amended, and the Company's bylaws, as amended, certified by the Company's
Secretary.
9.14 Survey
Buyer acknowledges that it is in possession of a copy of the Survey
with respect to the Real Property contemplated by Section 4.11, which is,
in form and substance, satisfactory to Buyer.
10. CLOSING
10.1 Closing of Sale and Purchase
Subject to the terms and conditions of this Purchase Agreement, the
Closing shall take place at the offices of Hiscock & Barclay, LLP.
10.2 Deliveries by Hemagen
At the Closing, Hemagen shall deliver to Buyer the following:
(a) certificates representing the shares of Common Stock
being sold to Buyer pursuant to Section 2.1, duly endorsed in blank
or with duly executed stock powers attached;
(b) a certified copy of the resolutions adopted by the Board
of Directors of Hemagen authorizing the transactions contemplated by
this Purchase Agreement
(c) the certificate required by Section 9.6;
(d) the Agreement required by Section 3.6;
(e) an opinion of General Counsel to Hemagen, dated as of the
Closing Date, to the effect and substantially in the form of Exhibit
D, as required by Section 9.7; and
(f) such other Documents as Buyer may reasonably request.
10.3 Deliveries by the Company
At the Closing, the Company shall deliver to Buyer the following:
(a) a certified copy of the resolutions adopted by the Board
of Directors of the Company authorizing the transactions contemplated
by this Purchase Agreement;
(b) the certificates required by Sections 9.5, and 9.12(b);
(c) an opinion of General Counsel to the Company, dated as of
the Closing Date, to the effect and substantially in the form of
Exhibit D, as required by Section 9.7;
(d) a letter from BDO Seidman, LLP, independent certified
public accountants to the Company, dated as of the Closing Date,
Furnished to Buyer, as required by Section 9.9;
(e) certificates of incumbency and specimen signatures of the
signatory officers of the Company;
(f) franchise tax certificates as of a date not more than
five days prior to the Closing Date issued by the Secretary of State
of the state of incorporation of the Company, and of each state in
which the Company is qualified to do business;
(g) the articles of incorporation, bylaws, minute books and
stock books of the Company and all other books and records reasonably
requested by Buyer;
(h) the Agreement required by Section 3.6; and
(i) such other Documents as Buyer may reasonably request.
10.4 Deliveries by Buyer
At the Closing, Buyer shall deliver the following:
(a) to Hemagen, the Purchase Price;
(b) to the Company and Hemagen, a certified copy of the
resolutions adopted by the Board of Directors of Buyer, authorizing
the transactions contemplated by this Purchase Agreement;
(c) the Agreement required by Section 3.6; and
(d) such other Documents as the Company or Hemagen may
reasonably request.
10.5 Deliveries by Principals
The Certificate of Principals in substantially the form annexed as
Exhibit E to this Purchase Agreement.
11. SURVIVAL OF REPRESENTATIONS; REMEDIES
11.1 Survival of Representations
All representations, warranties, covenants (except as hereinafter
provided) and other Agreements made by any party to this Purchase Agreement
herein or pursuant hereto shall also be deemed made on and as of the
Closing Date as though such representations, warranties, covenants, and
other Agreements were made on and as of such date, and all such
representations, warranties, covenants, and other Agreements shall survive
the Closing and any investigation, audit or inspection at any time made by
or on behalf of any party hereto for a period of twelve months commencing
the Closing Date, unless otherwise set forth below.
11.2 Agreement of Hemagen regarding Taxes
(a) If within two years of the Closing Date, the Company, Buyer, or
Hemagen (or any of them) receives notice of a Tax Contest which has given
or may give rise to a Claim or Claims for Taxes, the party receiving notice
shall notify the other parties in writing within 30 days of receipt of such
notice. In such event, and Hemagen shall have the option of either (i)
choosing to pay to Buyer in immediately available funds and within 30 days
of the notice, the amount of the Claim as liquidated damages under this
Section 11; or (ii) undertaking, at Hemagen's sole cost and expense and
with acceptance of full liability for such Claim, the defense against such
Claim or Claims.
Notwithstanding the preceding, in no event shall Hemagen's payment or
payments to Buyer as liquidated damages under subsection 11.2(a)(i) for
such two year period exceed $75,000 in the aggregate; and failure or delay
by Buyer or the Company to provide the notification required by this
Section 11.2 (if received by either of them) shall relieve Hemagen of any
further obligation with regard to the particular Tax Contest or Claim,
which was the subject of such required notice; provided, however, that
failure by Hemagen to provide any notice herein required shall not thereby
relieve Hemagen of its obligations under this Section 11.2.
(b) Whatever option may be chosen by Hemagen under this Section
11.2, each party to this Purchase Agreement agrees to cooperate with the
others in the event of any Tax Contest, including, without limitation, to
make available to the inquiring party relevant books and records, to permit
consultation among relevant employees of the Company and Hemagen, and to
execute powers of attorney authorizing professionals of the defending
party's to represent the Company and/or Hemagen.
(c) Except as expressly set forth in this Purchase Agreement, and
except with respect to bad faith or fraud on behalf of the Company or the
Principals, Hemagen hereby irrevocably waives any and all right to recourse
against the Company with respect to any representation, warranty,
liquidated damages or other Agreement or action made or taken by or
pursuant to this Purchase Agreement, but shall nevertheless, as a defense,
be entitled to rely on the Certificate of Principals as to representations
and warranties set forth therein. Except with respect to bad faith or
fraud, Hemagen shall not be entitled to contribution from, subrogation to
or recovery against the Company with respect to any liability of Hemagen
that may arise under or pursuant to this Purchase Agreement or the
transactions contemplated hereby.
11.3 Specific Performance
In addition to any other remedies which Buyer may have at law or in
equity, the Company and Hemagen hereby acknowledge that the Common Stock
and the Company is unique, and that the harm to Buyer resulting from
breaches by the Company or Hemagen of its respective obligations cannot be
adequately compensated by damages. Accordingly, the Company and Hemagen
agree that Buyer shall have the right to have all obligations,
undertakings, Agreements, covenants and other provisions of this Purchase
Agreement specifically performed by the Company or Hemagen, as the case may
be, and that Buyer shall have the right to obtain an order or decree of
such specific performance in any of the courts of the United States of
America or of any state or other political subdivision thereof.
11.4 Remedies Cumulative
The remedies provided herein shall be cumulative and shall not
preclude the assertion by the Company, Hemagen or Buyer of any other rights
or the seeking of any other remedies against the other, or their respective
successors or assigns.
11.5 Limitations on Liability
(a) The maximum liability of Hemagen under any provision of this
Purchase Agreement will not exceed the Purchase Price actually paid to
Hemagen pursuant to this Purchase Agreement.
(b) Except with respect to bad faith or fraud, Hemagen shall not
have any liability with respect to any representations or warranties set
forth in Section 4.21.
12. TERMINATION
12.1 Termination
This Purchase Agreement may be terminated at any time before the
Closing Date under any one or more of the following circumstances:
(a) by the mutual consent of the parties hereto;
(b) by Buyer, by written notice of termination delivered to
Hemagen, if any of the conditions set forth in Section 9 have not
been fulfilled by Hemagen, and such failure to fulfill conditions is
not the result solely of the necessity of obtaining government
approvals or satisfying governmental requirements;
(c) by Hemagen, by written notice of termination delivered to
Buyer, if any of the conditions set forth in Section 9 have not been
fulfilled by Buyer, and such failure to fulfill conditions is not the
result solely of the necessity of obtaining government approvals or
satisfying governmental requirements;
(d) by Buyer or Hemagen, by written notice of termination to
the other, if the Closing has not occurred by July 23, 1999, unless
the Buyer and Hemagen mutually agree to an extension of such Closing
Date.
12.2 Effect of Termination
In the event this Purchase Agreement is terminated as provided in
this Section 12, this Purchase Agreement shall forthwith become wholly void
and of no effect, and the parties shall be released from all future
obligations hereunder; provided, however, that the obligations of Buyer,
the Company and Hemagen as to confidentiality provided in Section 3.2, and
the provisions of Sections 3.1(b) and 13.3 relating to the payment of
expenses, shall not be extinguished but shall survive such termination.
The parties hereto shall have any and all remedies to enforce such
obligations provided at law or in equity (including, without limitation,
specific performance and nothing in this section shall terminate the
ability of any party to maintain an action (in law or equity) against any
other party for a breach of any covenant, representation and warranty or
any other provision of this Purchase Agreement.
13. MISCELLANEOUS
13.1 Additional Actions and Documents
Each of the parties hereto hereby agrees to take or cause to be taken
such further actions, to execute, deliver and file or cause to be executed,
delivered and filed such further documents, and will obtain such consents,
as may be necessary or as may be reasonably requested in order to fully
effectuate the purposes, terms and conditions of this Purchase Agreement.
13.2 No Brokers
Each of the parties hereto represents and warrants to the other
parties (and to each of them) that such party has not engaged any broker,
finder or agent in connection with the transactions contemplated by this
Purchase Agreement and has not incurred (and will not incur) any unpaid
liability to any broker, finder or agent for any brokerage fees, finders'
fees or commissions, with respect to the transactions contemplated by this
Purchase Agreement. Each party agrees to indemnify, defend and hold
harmless each of the other parties from and against any and all claims
asserted against such parties for any such fees or commissions by any
persons purporting to act or to have acted for or on behalf of the
indemnifying party.
13.3 Expenses
Subject to the provisions of Section 11 and 3.1(b), each party shall
pay its own expenses incident to this Purchase Agreement and the
transactions contemplated hereunder, including all legal and accounting
fees and disbursements.
13.4 Assignment
Buyer shall have the right to assign its rights and obligations under
this Purchase Agreement, in whole or in part, to an Affiliate or to
designate any of its Affiliates to the extent permitted by Law) to receive
directly the shares of Common Stock to be purchased hereunder or to
exercise any of the rights of Buyer, or to perform any of its obligations.
Buyer and Hemagen shall not assign its rights and obligations under this
Purchase Agreement, in whole or in part, whether by operation of law or
otherwise, without the prior written consent of the other parties hereto,
and any such assignment contrary to the terms hereof shall be null and void
and of no force and effect. In no event shall the assignment by Buyer or
Hemagen of its respective rights or obligations under this Purchase
Agreement, whether before or after the Closing, release Buyer or Hemagen
from its respective liabilities and obligations hereunder.
13.5 Entire Agreement; Amendment
This Purchase Agreement, including the Disclosure Schedule, the
Exhibits and other Documents referred to herein or Furnished pursuant
hereto, constitutes the entire Agreement among the parties hereto with
respect to the transactions contemplated herein, and it supersedes all
prior oral or written Agreements, commitments or understandings with
respect to the matters provided for herein. No amendment, modification or
discharge of this Purchase Agreement shall be valid or binding unless set
forth in writing and duly executed and delivered by the party against whom
enforcement of the amendment, modification, or discharge is sought.
13.6 Waiver
No delay or failure on the part of any party hereto in exercising any
right, power or privilege under this Purchase Agreement or under any other
Documents Furnished in connection with or pursuant to this Purchase
Agreement shall impair any such right, power or privilege or be construed
as a waiver of any default or any acquiescence therein. No single or
partial exercise of any such right, power or privilege shall preclude the
further exercise of such right, power or privilege, or the exercise of any
other right, power or privilege. No waiver shall be valid against any
party hereto unless made in writing and signed by the party against whom
enforcement of such waiver is sought and then only to the extent expressly
specified therein.
13.7 Consent to Jurisdiction
(a) This Purchase Agreement and the duties and obligations of
Buyer, the Company and Hemagen hereunder and under each of the Documents
referred to herein shall be enforceable against any of Buyer, the Company
or Hemagen in the Federal District Court for the Western District of New
York or the Supreme Court for State of New York in Erie County. For such
purpose, Buyer, the Company and Hemagen hereby irrevocably submit to the
exclusive jurisdiction of such courts, and agree that all claims in respect
of this Purchase Agreement and such other Documents shall be heard and
determined in such courts.
(b) Buyer, the Company and Hemagen hereby irrevocably agree that a
final judgment of any of the courts specified above in any action or
proceeding relating to this Purchase Agreement or to any of the other
Documents referred to herein or therein shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
13.8 Severability
If any part of any provision of this Purchase Agreement or any other
Agreement or Document given pursuant to or in connection with this Purchase
Agreement shall be invalid or unenforceable in any respect, such part shall
be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provision or the
remaining provisions of this Purchase Agreement.
13.9 Governing Law
This Purchase Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by
and construed in accordance with the laws of the State of New York
(excluding the choice of law rules thereof).
13.10 Notices
All notices, demands, requests or other communications which may be
or are required to be given, served, or sent by any party to any other
party pursuant to this Purchase Agreement shall be in writing and shall be
hand-delivered, sent by overnight courier or mailed by first class,
registered or certified mail, return receipt requested, postage prepaid, or
transmitted by telegram, telecopy or telex, addressed as follows:
(a) If to BUYER (until Closing):
ZEPTOMETRIX CORPORATION
231 Cimarand Court
Getzville, New York 14068
Attention: President
Telephone: (716) 688 4931
with a copy (which shall not constitute notice) to:
Hiscock & Barclay, LLP
50 Fountain Plaza, Suite 301
Buffalo, New York 14202
Attention: Sandra S. O'Loughlin, Esq.
Telephone: (716) 856-0911
Fax: (716) 856-2567
(b) If to the Company:
CELLULAR PRODUCTS INC.
872 Main Street
Buffalo, New York 14202
Attention: President
Telephone: (716) 882 0920
Fax: (716) 882 0959
(c) If to HEMAGEN DIAGNOSTICS, INC.
40 Bear Hill Road
Waltham, Massachusetts
Attention: President
Telephone: (781) 890 3766
Fax: (781) 890 3748
with a copy (which shall not constitute notice) to:
William Franzblau, Vice President & General Counsel
40 Bear Hill Road
Waltham, Massachusetts
Attention: President
Telephone: (781) 890 3766
Fax: (781) 890 3748
(d) If to PRINCIPALS:
JAMES C.D. HENGST
231 Cimarand Court
Getzville, New York 14068
MICHAEL S. DURSKI
11 Blackfriar Court
Getzville, New York 14068
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request or communication which shall be hand
delivered, sent, mailed, telecopied or telexed in the manner described
above, or which shall be delivered to a telegraph company, shall be deemed
sufficiently given, served, sent, received or delivered for all purposes at
such time as it is delivered to the addressee (with the return receipt, the
delivery receipt, or (with respect to a telecopy or telex) the answer back
being deemed conclusive, but not exclusive, evidence of such delivery) or
at such time as delivery is refused by the addressee upon presentation.
13.11 Headings
Section headings contained in this Purchase Agreement are inserted
for convenience of reference only, shall not be deemed to be a part of this
Purchase Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
13.12 Execution in Counterparts
To facilitate execution, this Purchase Agreement may be executed in
as many counterparts as may be required. It shall not be necessary that
the signatures of, or on behalf of, each party, or that the signatures of
all persons required to bind any party, appear on each counterpart; but it
shall be sufficient that the signature of, or on behalf of, each party, or
that the signatures of the persons required to bind any party, appear on
one or more of the counterparts. All counterparts shall collectively
constitute a single Agreement. It shall not be necessary in making proof
of this Purchase Agreement to produce or account for more than a number of
counterparts containing the respective signatures of, or on behalf of, all
of the parties hereto.
13.13 Limitation on Benefits
The covenants, undertakings and agreements set forth in this Purchase
Agreement shall be solely for the benefit of, and shall be enforceable only
by, the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns, except that
the agreements set forth in Section 11 also shall be for the benefit of,
and enforceable by, Buyer Indemnified Persons, the Company Indemnified
Persons and their respective successors, heirs, executors, administrators,
legal representatives or permitted assigns.
13.14 Binding Effect
Subject to any provisions hereof restricting assignment, this
Purchase Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Purchase Agreement, as of the day and year first above written.
ZEPTOMETRIX CORPORATION
By: _____________________________
James C.D. Hengst, President
HEMAGEN DIAGNOSTICS, INC.
By: _____________________________
Carl Franzblau, President
CELLULAR PRODUCTS INC.
By: _____________________________
Carl Franzblau, President
_____________________________
JAMES C.D. HENGST
_____________________________
MICHAEL S. DURSKI
STATE OF NEW YORK )
COUNTY OF ERIE ) SS.:
CITY OF BUFFALO )
On the day of July, 1999, before me personally came James C.D.
Hengst, to me known, who being by me duly sworn did depose and say: that he
resides in Getzville, NY; that he is President of ZEPTOMETRIX CORPORATION,
the corporation described in and which executed the foregoing instrument; and
that he executed the foregoing instrument by order of the Board of Directors
said corporation.
__________________________________
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF ) SS.:
CITY OF WALTHAM )
On the day of July, 1999, before me personally came Carl
Franzblau, to me known, who being by me duly sworn did depose and say: that
he resides in _________, Massachusetts; that he is President of HEMAGEN
DIAGNOSTICS, INC., the corporation described in and which executed the
foregoing instrument; and that he executed the foregoing instrument by order
of the Board of Directors of said corporation.
__________________________________
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF ) SS.:
CITY OF WALTHAM )
On the day of July, 1999, before me personally came Carl
Franzblau, to me known, who being by me duly sworn did depose and say: that
he resides in _________, Massachusetts; that he is
President of CELLULAR PRODUCTS INC., the corporation described in and which
executed the foregoing instrument; and that he executed the foregoing
instrument by order of the Board of Directors of said corporation.
__________________________________
Notary Public
STATE OF NEW YORK )
COUNTY OF ERIE ) SS.:
CITY OF BUFFALO )
On this day of July, 1999, before me personally came JAMES C.D.
HENGST to me known and known to me to be the individual(s) described in and
who executed the foregoing instrument, and he duly acknowledged to me that
he executed the same.
__________________________________
Notary Public
STATE OF NEW YORK )
COUNTY OF ERIE ) SS.:
CITY OF BUFFALO )
On this day of July, 1999, before me personally came MICHAEL S.
DURSKI to me known and known to me to be the individual(s) described in and
who executed the foregoing instrument, and he duly acknowledged to me that
he executed the same.
__________________________________
Notary Public
Exhibit Reference Section
- ------- --------- -------
A Description of Real Property 4.11
B Definitions 1
C Agreement 3.6
D Opinion of Counsel 9.07
E Certificate of Principals 10.5
F Personal Property to Be Returned 3.3(b)
G Disclosure Schedule 4
All Exhibits other than Exhibit B are specifically excluded from this
filing. The Registrant will provide copies of all the Exhibits supplementally
to the Commission upon request.
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
EXHIBIT B
TO STOCK PURCHASE AGREEMENT
DATED AS OF JUNE 15, 1999
DEFINITIONS
"Affiliate" means: (a) with respect to a person, any member of such
person's family; (b) with respect to an entity, any officer, director,
stockholder, partner or investor of or in such entity or of or in any
Affiliate of such entity; and (c) with respect to a person or entity, any
person or entity which directly or indirectly, through one or more
intermediaries, Controls, is Controlled by, or is under common Control with
such person or entity.
"Agreement" means any concurrence of understanding and intention
between two or more persons (or entities) with respect to their relative
rights and/or obligations or with respect to a thing done or to be done
(whether or not conditional, executory, express, implied, in writing, or
meeting the requirements of contract), including, without limitation,
contracts, leases, promissory notes, covenants, easements, rights of way,
covenants, commitments, arrangements and understandings.
"Assets" means assets of every kind and everything that is or may be
available for the payment of liabilities (whether inchoate, tangible or
intangible), including, without limitation, real and personal property.
"Buyer" means ZEPTOMETRIX CORPORATION, a Delaware corporation with a
principal place of business until Closing at 231 Cimarand Court, Getzville,
New York 14068.
"Buyer Indemnified Persons" means Buyer and its officers and
directors.
"Claims" means all demands, claims, actions or causes of action,
assessments, losses, damages (including, without limitations, diminution in
value), liabilities, costs and expenses, including, without limitation,
interest, penalties and attorneys' fees and disbursements.
"Closing" means the closing of the sale of the Common Stock by
Hemagen and the payment by the Buyer to Hemagen of the Purchase Price.
"Closing Date" means the date of Closing, which shall not be a date
later than July 23, 1999, unless extended by mutual agreement of Hemagen
and the Buyer.
"Code" means the Internal Revenue Code of 1986, as amended, and all
laws promulgated pursuant thereto or in connection therewith.
"Common Control Entity" means any trade or business under common
control (as such term is defined in Section 414(b) or 414(c) of the Code)
with the Company.
"Common Stock" means the 100 shares of issued and outstanding common
stock, no par value per share, of the Company.
"Company" means CELLULAR PRODUCTS INC., a Delaware corporation with a
principal place of business at 872 Main Street, Buffalo New York 14202.
"Company Tax Returns" means all federal, state, foreign and other
applicable tax returns, declarations of estimated tax reports required to
be filed by the Company or Hemagen (without regard to extensions of time
permitted by law or otherwise).
"Control" means possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of voting securities, by Agreement or otherwise).
"Disclosure Schedule" means the disclosure schedule identified as the
Disclosure Schedule to the Purchase Agreement.
"Documents" means any paper or other material (including, without
limitation, computer storage media) on which is recorded (by letters,
numbers or other marks) information that may be evidentially used,
including, without limitation, legal opinions, mortgages, indentures,
notes, instruments, leases, Agreements, insurance policies, reports,
studies, financial statements (including, without limitation, the notes
thereto), other written financial information, schedules, certificates,
charts, maps, plans, photographs, letters, memoranda and all similar
materials.
"Encumbrance" means any mortgage, lien, pledge, encumbrance, security
interest, deed of trust, option, encroachment, reservation, order, decree,
judgment, condition, restriction, charge, Agreement, claim or equity of any
kind.
"Environmental Laws" means any Laws (including, without limitation,
the Comprehensive Environmental Response, Compensation, and Liability Act),
including any plans, other criteria, or guidelines promulgated pursuant to
such Laws, now or hereafter in effect relating to the generation,
production, installation, use, storage, treatment, transportation, release,
threatened release or disposal of Hazardous Materials, noise control, or
the protection of human health, safety, natural resources, animal health or
welfare, or the environment.
"Exhibit" means an exhibit attached to the Purchase Agreement.
"Furnished" means supplied, delivered or provided in any way.
"Hazardous Materials" means any wastes, substances, radiation or
materials (whether solids, liquids or gases) (a) which are hazardous,
toxic, infectious, explosive, radioactive, carcinogenic or mutagenic; (b)
which are or become defined as "pollutants", "contaminants", "hazardous
materials", "hazardous wastes", "hazardous substances", "toxic substances",
"radioactive materials", solid wastes or other similar designations in, or
otherwise subject to regulation under, any Environmental Laws; (c) the
presence of which on the Real Property cause or threaten to cause a
nuisance pursuant to applicable statutory or common law upon the Real
Property or to adjacent properties; (d) without limitation, which contain:
polychlorinated biphenyls (PCBs), asbestos, lead-based paints, urea-
formaldehyde foam, insulation and petroleum or petroleum products
(including, without limitation, crude oil or any fraction thereof), or (e)
which pose a hazard to human healthy, safety, natural resources, industrial
hygiene, or the environment, or an impediment to working conditions.
"Hemagen" means HEMAGEN DIAGNOSTICS, INC., a Delaware corporation
with a principal place of business at 40 Bear Hill Road, Waltham,
Massachusetts 02154-1002.
"Hemagen Indemnified Persons" means Hemagen and its officers and
directors.
"Intellectual Property" means all franchises, patents, patent
qualifications, trademarks, service marks, tradenames, trade styles,
brands, private labels, copyrights, know-how, computer software, industrial
designs and drawings and general intangibles of a like nature, trade
secrets, licenses, and rights and filings with respect to the foregoing,
and all reissues, extensions and renewals thereof.
"Inventory" means all new materials, work in process and finished
goods and inventoriable supplies.
"Laws" means all foreign, federal, state and local statutes, laws,
ordinances, regulations, rules, resolutions, orders, determinations, writs,
injunctions, common law rulings, awards (including, without limitation,
awards of any arbitrator), judgments and decrees applicable to the
specified persons or entities and to the businesses and Assets thereof
(including, without limitation, Laws relating to securities registration
and regulation; the sale, leasing, ownership or management of real
property; employment practices, terms and conditions, and wages and hours;
building standards, land use and zoning; safety, health and fire
prevention; and environmental protection, including Environmental Laws).
"Lien" means any interest in personal or real property securing an
obligation owed by the Company, or any Affiliate to any Third Person,
whether such interest is based on the common law, statute or contract. The
term "Lien" includes reservations, exceptions, encroachments, easements,
rights of way, covenants, conditions, restrictions, leases and other
similar title exceptions and encumbrances affecting the Real Property.
"Marketable" means unencumbered and freely transferable, assignable
and readily salable subject only to federal and state securities laws.
"Ordinary Course of Business" means ordinary course of business
consistent with past practices and prudent business operations.
"Pension Plan" means an "employee pension benefit plan" as such term
is defined in Section 3(2) of ERISA.
"Permitted Encumbrances" means (a) any Lien(s) identified as
exceptions in the title insurance policy prepared in connection with the
Closing and reasonably acceptable to Buyer and its counsel; (b) any
utility, access and other easements and rights of way, restrictions and
exceptions that do not materially impair the utility or the value of the
Real Property for the purposes for which it is intended; and (c) any
Lien(s) agreed to by Buyer.
"Plan" means any plan, program or arrangement, whether or not
written, that is or was an "employee benefit plan" as such term is defined
in Section 3(3) of ERISA and (a) which was or is established or maintained
by the Company or any Subsidiary; (b) to which the Company or any
Subsidiary contributed or was obligated to contribute or to fund or provide
benefits; or (c) which provides or promises benefits to any person who
performs or who has performed services for the Company or any Subsidiary
and because of those services is or has been (i) a participant therein or
(ii) entitled to benefits thereunder.
"Principals" means James C.D. Hengst and Michael S. Durski.
"Proposal" means any proposal, offer or indication of interest from
any person, entity or group relating to any acquisition or purchase of all
or (other than in the Ordinary Course of Business) any portion of the
assets of, or any equity in, the Company or any business combination with
the Company, other than the transactions contemplated by the Purchase
Agreement.
"Purchase Agreement" means this Stock Purchase Agreement, including
the Disclosure Schedule and all Exhibits hereto.
"Purchase Price" means the purchase price for the shares of Common
Stock to be sold and purchased pursuant to the Purchase Agreement.
"Qualified Plan" means a Pension Plan that satisfies, or is intended
by the Company to satisfy, the requirements for tax qualification described
in Section 401 of the Code.
"Real Property" means the real property, including the land and all
improvements thereon, owned, operated or used by the Company as of the
date hereof, all as more particularly set forth on Exhibit A to the
Purchase Agreement and commonly known as 872 Main Street, Buffalo, New York
14202.
"Release" means any emission, spill, seepage, leak, escape, leaching,
discharge, injection, pumping, pouring, emptying, dumping, disposal, or
release of Hazardous Materials from any source (including, without
limitation, the Real Property and property adjacent to the Real Property)
into or upon the environment, including the air, soil, improvements,
surface water, groundwater, the sewer, septic system, storm drain, publicly
owned treatment works, or waste treatment, storage, or disposal systems at,
on, above, or under the Real Property.
"Section" means a Section (or a subsection) of the Purchase
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and
all laws promulgated pursuant thereto or in connection therewith.
"Statutory-Waiver Plan" means a Pension Plan that is not subject to
title I, subtitle B, part 3, of ERISA (concerning "funding").
"Subsidiary" means a corporation or other entity of which at least
80% of the outstanding securities or other interests having rights to vote
or otherwise exercise Control are held, directly or indirectly, by the
Company. The Company has no Subsidiaries.
"Survey" means a current, as-built survey of each parcel of the Real
Property.
"Taxes" means all federal, state and foreign taxes and deficiencies
of , or attributable to the Company through Hemagen, including income,
profit, and franchise taxes, and any interest, penalties or additions to
such taxes imposed thereon or in connection therewith, but does not include
local property taxes and assessments, sales and use or other taxes which
have been paid directly by the Company.
"Tax Contest" means, with regard to Taxes, any pending or threatened
tax examination, audit, or judicial proceeding brought by any governmental
entity in connection with any Taxes paid by on behalf of Hemagen (or the
Company while under the Control of Hemagen) or in connection with any
Company Tax Returns for Taxes prepared by or on behalf of Hemagen and/or
the Company.
"Title I Plan" means a Plan that is subject to Title I of ERISA.
"Third Party" shall mean any person or entity excluding each of the
following: (a) the Company, any Affiliate or Associate of the Company; and
(b) Hemagen and any of its respective successors, officers, directors,
Affiliates or Associates and partners (limited and general).
"Welfare Plan" means an "employee welfare benefit plan" as such term
is defined in Section 3(1) of ERISA.