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EXHIBIT 2.2
FIRST AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This Amendment is entered into as of September 6, 2001 (the "Closing
Date") by Nabi, a Delaware corporation ("Seller"), and ZLB Bioplasma Inc., a
Delaware corporation ("Buyer").
BACKGROUND
A. Seller and CSL Limited, an Australian Capital Territory corporation ("CSL"),
are parties to an Agreement for Purchase and Sale of Assets dated June 25, 2001
(the "Purchase Agreement"). CSL has assigned its rights and obligations under
the Purchase Agreement to Buyer. Capitalized terms used in this Addendum without
definition shall have the meaning assigned in the Purchase Agreement. All
references to the Purchase Agreement in any document executed by the parties
shall mean the Purchase Agreement as amended by this Amendment.
B. The parties desire to amend the Purchase Agreement in the manner described in
this Amendment.
In consideration of the foregoing and the mutual promises and covenants
contained herein, the parties amend the Purchase Agreement as follows:
1. DMS SUBLICENSE. All references in the Purchase Agreement to the DMS
Sublicense are deleted.
2. REVISED SCHEDULES. The Schedules to the Purchase Agreement are hereby
amended as set forth in Exhibit A hereto.
3. LICENSES AND PERMITS. The licenses and permits listed on Exhibit B
hereto cannot lawfully be transferred by Seller to Buyer. As provided
in Section 1.4 of the Purchase Agreement, Seller shall allow Buyer to
operate under such licenses and permits for a period of 180 days
following the Closing Date and shall not cancel any such license or
permit or any bonds, guarantees or undertakings of Seller in connection
therewith until expiration of such 180 day period.
4. (Reserved)
5. LEASE ASSIGNMENTS. The consents of the respective lessors ("Landlords")
to the assignment of the Leases listed in Exhibit D have not been
obtained as of the Closing Date. Buyer and Seller shall execute a
mutually acceptable Management Agreement under which Buyer will be
engaged to manage the business conducted at the Plasma Centers
represented by those Leases until the required Landlord consents are
obtained.
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Upon receipt of the applicable Landlord consent to the assignment of
each such Lease, Seller and Buyer will terminate the Management
Agreement with respect to that Plasma Center and will execute an
Assignment and Assumption of Lease with respect to that Lease in the
form executed by the parties on the Closing Date. The effective date of
each such assignment shall be the date on which the applicable
Landlord's consent is obtained. With respect to each such Lease, (a)
Seller shall perform all financial obligations and retain all
liabilities under the Lease prior to receipt of the Landlord's consent,
but (b) in no event shall Seller be liable to Buyer with respect to any
claim for breach under any such Lease by virtue of the Management
Agreement or Buyer's operation of any Plasma Center pursuant thereto.
6. BILL OF SALE. The Bill of Sale contemplated in Section 3.6(a) of the
Purchase Agreement shall not include an assumption of liabilities.
7. PURCHASE PRICE ALLOCATION. The parties shall agree to an allocation of
the Purchase Price pursuant to Section 3.7 of the Purchase Agreement as
soon as possible following the Closing Date.
8. AGENT'S LETTER. Notwithstanding the provisions of Section 4.4 of the
Purchase Agreement and Schedules 4.4(a) and 4.4(b) thereto, the
mortgages encumbering the Owned Properties and held by Bank of America,
N.A. ("Bank of America") and the liens encumbering other Assets held by
Bank of America shall be released in accordance with Bank of America's
written undertaking to that effect dated August 28, 2001 ("Agent's
Letter"). Seller shall perform all covenants on its part recited in the
Agent's Letter.
9. NOTICE. For purposes of Section 12.4 of the Purchase Agreement, notice
to Buyer shall be given to:
ZLB Bioplasma Inc.
801 N. Brand Avenue
Suite 1150
Glendale, California 91203
Attn: Peter de Hart, President
with copies to the persons identified in the Purchase Agreement.
10. NONCOMPETE AGREEMENTS. To the extent any employees of Seller who become
employed by Buyer after the Closing Date are parties to a noncompete
agreement with Seller, Seller agrees that it will not enforce the
non-competition provision of any such agreement arising solely from the
employee's employment by Buyer or any of its affiliates.
11. SUBSTITUTE ATTACHMENTS. The Substitute Attachments to Appendix A to the
Purchase Agreement circulated between and initialed by the parties on
the date hereof are accepted by Seller and Buyer.
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12. SAP CONFIGURATIONS. All SAP software configurations (including but not
limited to all customized codes, protocols, interfaces to DMS software
and Dalas software, training guides, manuals, customized test utility
programs and other documentation) used or prepared by Seller in
connection with or related to the Transferred Antibody Collection
Business (collectively, the "SAP Configurations") are included within
the Retained Intellectual Property licensed to Buyer in accordance with
Section 7.5 of the Purchase Agreement, without further consideration.
Not later than 30 days after the Closing Date, Seller shall furnish to
Buyer copies of the SAP Configurations as currently used or developed
by Seller, together with a complete inventory of the SAP
Configurations. Seller represents and warrants that the SAP
Configurations are in the form currently used in the Transferred
Antibody Collection Business, but the SAP Configurations are otherwise
furnished on an "as-is" "where-is" basis. Buyer acknowledges that no
future modifications, extensions or developments to the SAP
Configurations prepared by Seller are licensed to Buyer. The parties
agree that the foregoing represents the entire obligation of Seller
under Section 7.5 of the Purchase Agreement with regard to the SAP
Configurations.
13. PURCHASE PRICE ADJUSTMENT. As described in Exhibit E attached hereto,
the Purchase Price, as adjusted as of the Closing Date, shall be
$152,996,735, subject to further adjustment as provided in the Purchase
Agreement.
14. Except as amended hereby, the Purchase Agreement shall remain in full
force and effect.
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This Amendment may be executed in counterparts, each of which is an
original and both of which, taken together, shall constitute a single
instrument.
Nabi
By:
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Name:
Title:
ZLB Bioplasma Inc.
By:
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Name: Peter Turner
Title: Director
By:
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Name: Peter Turvey
Title: Secretary
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