PORTIONS OF THIS EXHIBIT HAVE BEEN
OMITTED AND FILED SEPARATELY WITH
THE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT
UNDER RULE 24(B)-2. THE LOCATION OF
THOSE OMITTED PORTIONS IS DENOTED
BY ASTERISKS.
Exhibit 2.1
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
BY AND BETWEEN
NABI
AND
CSL LIMITED
June 25th, 2001
AGREEMENT FOR PURCHASE AND
SALE OF ASSETS
THIS AGREEMENT FOR PURCHASE AND SALE OF ASSETS (this "Agreement") is made
and entered into effective as of June 25th, 2001 by and between Nabi, a Delaware
corporation (the "Seller"), and CSL Limited, A.C.N. 051 588 348, an Australian
Capital Territory corporation (the "Buyer").
BACKGROUND
The Seller owns and operates 47 antibody collection centers at various
sites throughout the United States (the "Centers") and the testing laboratory
identified on Appendix A attached hereto (the "Laboratory") (collectively the
"Transferred Antibody Collection Business"). The Buyer desires to purchase from
the Seller the assets, properties and rights described herein and to assume from
the Seller the liabilities described herein, and the Seller desires to sell such
assets, properties and rights and to have such liabilities assumed, all on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants, agreements, representations and warranties contained herein, the
parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1. Assets To Be Transferred. Except as otherwise provided in Section 1.2
below and subject to the terms and conditions of this Agreement, at the Closing
(as hereinafter defined) the Seller shall sell, assign, transfer, convey and
deliver to the Buyer, and the Buyer shall purchase, acquire and accept from the
Seller, all of the Seller's right, title and interest in and to the following
assets, with such changes, deletions or additions thereto as may occur from the
date hereof to the Closing in the ordinary course of business and consistent
with the terms and conditions of this Agreement (collectively, the "Assets"):
(a) those certain parcels of real property listed on Schedule 1.1(a)
attached hereto (including all buildings, improvements and structures located
thereon and all appurtenances thereto) (collectively, the "Owned Properties");
(b) all of the leasehold interests and rights of the Seller (the "Leasehold
Interests") under the tenant space leases, ground leases and other leases of
real property listed on Schedule 1.1(b) attached hereto (collectively, the
"Leases") (the Owned Properties and the Leasehold Interests are hereinafter
referred to collectively as the "Real Properties" and individually as a "Real
Property");
(c) except to the extent set forth on Schedule 1.1(c) attached hereto (the
parties agree that such list is not final and is subject to mutual discussion
and approval prior to
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Closing), all fixtures, furnishings, furniture, office supplies, tools,
machinery and equipment owned or leased by the Seller, located on the Real
Properties or at the Laboratory and used in the operation of the Centers and the
Laboratory (collectively, the "Equipment");
(d) all fixed assets, other than Equipment owned or leased by the Seller,
located on the Real Properties or at the Laboratory and used in the operation of
the Centers and the Laboratory (collectively, the "Fixed Assets");
(e) all the plasma inventories and related supplies identified on Schedule
1.1(e) attached hereto (the "Plasma Inventory") and all inventories of general
production supplies located on the Real Properties and used in the operation of
the Centers and the Laboratory as they are currently being operated (the
"Supplies Inventory");
(f) those certain contracts, agreements, arrangements and/or commitments
listed on Schedule 1.1(f) attached hereto (the "Contracts");
(g) the licenses and permits identified on Schedule 1.1(g) attached hereto
(except for those relating to hepatitis B programs);
(h) all business and financial records and personnel and donor records
relating exclusively to the Assets or the Centers or the Laboratory (the "Books
and Records");
(i) the assets identified on Schedule 1.1(i) attached hereto (the "Other
Assets");
(j) the Seller's proprietary data bases, donor lists and records, donor
center technical guides, quality control and training manuals, specialty guides
and standard operating procedures with respect to the operations of the Centers
and the Laboratory (the "Transferred Intellectual Property"); and
(k) good will related to the Transferred Antibody Collection Business.
In addition, at the Closing, the Seller shall execute and deliver (i) the
Laboratory Subleases dated as of the Closing Date substantially in the form
attached hereto as Exhibit A (the "Laboratory Subleases"), (ii) the Testing
Contracts dated as of the Closing Date substantially in the form attached hereto
as Exhibits B-1 and B-2 (the "Testing Contracts") (the parties agree that the
form, terms and conditions of the Testing Contracts are not final and are
subject to mutual discussion and approval prior to Closing) and (iii) the DMS
Sublicense dated as of the Closing Date substantially in the form attached
hereto as Exhibit C (the "DMS Sublicense").
1.2. Excluded Assets. The Seller is not selling, assigning, transferring or
conveying to the Buyer any assets, rights or properties of the Seller not
specifically referred to in Section 1.1. Without limiting the foregoing, the
following assets, rights and properties are excluded from the transactions
contemplated in this Agreement (the "Excluded Assets"):
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(a) the Seller's cash and bank accounts other than cash on hand at the
Centers which, though not included in the Assets, will be made available to the
Buyer and accounted for in the adjustments contemplated by Section 3.2(b);
(b) the Seller's accounts receivable including, without limitation,
intra-company accounts receivable from other divisions of the Seller and
accounts receivable from subsidiaries and affiliates of the Seller and amounts
owed to the Seller by or claims by the Seller against third parties, including
any right or claim to refunds or deposits (other than those for which the Seller
is reimbursed by the Buyer pursuant to Section 3.2(b);
(c) subject to the provisions of Section 7.1, any right, title and interest
in and to the trade name "Nabi" and all related trademarks, service marks and
other registrations;
(d) subject to the provisions of Section 7.5, and except for the
Transferred Intellectual Property, all intellectual property, software, patents,
trade secrets, know-how and other information proprietary to the Seller (the
"Retained Intellectual Property"); and
(e) the Seller's rights and obligations arising out of or related to that
certain Plasma Purchase Agreement between the Seller and Bayer Corporation dated
as of 1 January 1995, as amended (the "Bayer Supply Agreement").
1.3. Assignment of Assets.
(a) To the extent that any lease, contract, agreement, sales or purchase
order, commitment, property interest, qualification or other Asset described in
Section 1.1, and not otherwise excluded in Section 1.2, that is to be sold,
assigned, transferred or conveyed to, or assumed by, the Buyer hereby cannot be
sold, assigned, transferred, conveyed or assumed without the approval, consent
or waiver of any third person (including any government or governmental unit),
or if such sale, assignment, transfer, conveyance or assumption would constitute
a breach thereof or a violation of any law, decree, order, regulation or other
governmental edict, this Agreement shall not (unless and until such consent,
approval or waiver is obtained) constitute a sale, assignment, transfer,
conveyance or assumption thereof, or an attempted sale, assignment, transfer,
conveyance or assumption thereof; provided, however, that the Seller shall make
arrangements reasonably satisfactory to the Buyer to provide the benefits of any
such lease, contract, agreement, sales or purchase order, commitment, property
interest, qualification or other Asset described in Section 1.1 to the Buyer at
no additional cost and on no less favorable terms than would be the case if such
sale, assignment, transfer or conveyance could be accomplished as contemplated
by this Agreement, so long as doing so shall not require the Seller to make any
financial concessions to any third party which the Buyer has not agreed in
writing to reimburse.
(b) The Seller shall not be obligated to sell, assign, transfer or convey
to the Buyer any of its rights and obligations in and to a particular Asset
without first obtaining all approvals, consents or waivers necessary to effect
such sale, assignment, transfer or conveyance with respect to such particular
Asset. The Seller shall use good faith efforts, and
3
the Buyer shall cooperate with the Seller, to obtain all necessary approvals,
consents or waivers, and to resolve any impracticalities of transfer referred to
in Section 1.3(a) necessary to sell, assign, transfer or convey the Assets to
the Buyer as soon as practicable; provided, however, that the Seller shall not
be obligated to make any financial concessions to any third party from whom such
approval, consent or waiver is requested; and provided further, that in
obtaining such consents, the Seller shall not, without the Buyer's prior written
consent, agree or enter into any material modification or amendment to any
contract, lease or other agreement relating to any of the Assets.
1.4. Obtaining Permits and Licenses. The Buyer shall be responsible for
obtaining all permits and licenses required by any governmental agency with
respect to the Centers, the Laboratory or the Assets after the Closing. The
Seller will cooperate reasonably with the Buyer in obtaining such permits and
licenses. At the Closing, to the extent permitted by law, the Seller shall
transfer such permits and licenses to the Buyer. To the extent that any such
permits or licenses cannot be lawfully transferred to the Buyer, the Seller
shall have the right to cancel such non-transferable permits or licenses or any
bonds, guarantees or undertakings by the Seller now applicable to the Centers,
the Laboratory or the Assets; provided, however, that to the extent permitted by
law the Seller shall allow the Buyer to operate under such permits and licenses
for a term of one hundred eighty (180) days following the Closing, and the
Seller shall make no such cancellation during such time.
ARTICLE 2
LIABILITIES AND OBLIGATIONS ASSUMED
2.1. Assumed Liabilities and Obligations. At the Closing, the Buyer shall
assume and shall thereafter pay, discharge and perform in the ordinary course
all obligations arising after the Closing Date (as hereinafter defined) (a)
under the Leases, Contracts and the other items (the "Assumed Obligations")
listed in the Assumed Obligations Schedule attached as Schedule 2.1(a) hereto
(the "Assumed Obligations Schedule") and (b) liabilities to employees as
described on Schedule 2.1(b) attached hereto (the "Assumed Employee
Liabilities"). In addition, at the Closing the Buyer shall execute and deliver
the Laboratory Sublease, the Testing Contracts and the DMS Sublicense.
2.2. No Other Liabilities or Obligations Assumed. The Buyer does not assume
and shall not be liable for any liabilities or obligations of the Seller other
than as set forth in Section 2.1. The Seller shall remain responsible for all
liabilities and obligations related to the Transferred Antibody Collection
Business arising prior to the Closing Date except for the Assumed Employee
Liabilities.
ARTICLE 3
THE CLOSING
3.1 Closing and Closing Date. The term "Closing" shall mean the closing of
the transactions contemplated by this Agreement. The Closing shall take place at
the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, at 10:00
4
A.M., local time, on Tuesday, August 28th, 2001, or on the fifth (5th) business
day after the conditions set forth in ARTICLE 8 have been satisfied or waived,
whichever is earlier, or at such other date, place and time as may be agreed
upon by the parties, it being understood that the parties shall endeavor to
close at the earliest practicable date, time being of the essence of this
Agreement. The term "Closing Date" shall mean the date the Closing takes place
and the transactions provided for herein shall be effective as of the close of
business on the Closing Date.
3.2. Purchase Price.
(a) In full consideration of the sale, transfer, assignment, conveyance and
delivery of the Assets, and subject to the terms and conditions of this
Agreement, the Buyer shall pay to the Seller at the Closing the amount of One
Hundred Fifty Two Million Dollars (US$152,000,000) (the "Purchase Price"),
subject to adjustment as hereinafter provided in this ARTICLE III, by wire
transfer of immediately available funds to the bank account or accounts
specified by the Seller for such purpose.
(b) The following items are to be adjusted between the Buyer and the Seller
as of 11:59 p.m. of the day immediately preceding the Closing Date with respect
to the Real Properties.
(i) real property taxes and assessments, on the basis of the fiscal
year for which assessed;
(ii) water rates and charges;
(iii) sewer taxes and rents;
(iv) common area maintenance costs, enclosed mail charges, merchants'
association dues and all other fees, charges, rents, payments, costs or
expenses due pursuant to any agreement affecting any Real Property;
(v) electricity charges and all other utilities which are supplied to
the Real Properties;
(vi) personal property taxes, if any;
(vii) base, minimum, ground, additional and percentage rents payable
and receivable pursuant to the Leases;
(viii) fuel, if any, and all taxes thereon, on the basis of readings
taken as close as possible to the Closing Date;
(ix) deposits with utility companies and fees and charges for
transferable governmental permits and licenses;
(x) security deposits under all Leases;
5
(xi) cash on hand at the Centers; and
(xii) except as may be otherwise provided herein, all other expenses
incurred in connection with the operation by the Seller of any of the Real
Properties shall be prorated as of 11:59 p.m. on the day preceding the
Closing Date, with the result that those expenses that are attributable to
the period prior to the Closing Date shall be the obligation of the Seller
and those attributable to the period from and after the Closing Date shall
be the obligation of the Buyer.
To the extent reasonably practicable, all such adjustments shall be reflected in
the Purchase Price paid at the Closing; otherwise, they shall be made through
payments by the Seller to the Buyer or by the Buyer to the Seller, as the case
may be, from time to time as items become ascertainable, in each case without
interest.
3.3. Alternative Arrangements. If the Seller is unable at Closing for any
reason whatsoever to assign and transfer a particular Center to the Buyer,
including without limitation due to the failure of any landlord to consent to
the transfer of a lease relating to a particular Center, then the transactions
contemplated by this Agreement shall nevertheless proceed and the Seller shall
assign and transfer the Assets relating to any such Center which can be assigned
and transferred, excluding the Assets which cannot be assigned or transferred,
without any reduction in the Purchase Price; provided that (i) the Seller shall
make arrangements regarding any or all such excluded Assets for the Buyer
pursuant to Section 1.3(a), pursuant to a management agreement or other
structure reasonably acceptable to the Buyer and the Seller, and (ii) if at any
time after the Closing Date the Seller can lawfully assign and transfer a
particular excluded Asset to the Buyer, then the Seller shall without additional
consideration promptly assign and transfer to the Buyer such excluded Asset.
3.4. [Reserved.]
3.5. Adjustment of Purchase Price Based on Assumed Employee Liabilities and
Plasma Inventory.
(a)(i) Nine months after the Closing Date (or if such date is not a
business day, on the first business day following nine months after the Closing
Date), the Buyer shall deliver to the Seller a schedule setting forth in
reasonable detail (i) the amount of Assumed Employee Liabilities actually paid
by the Buyer during such nine-month period and (ii) the amount of Assumed
Employee Liabilities the Buyer reasonably believes in good faith it may yet have
to pay ("Employee Liabilities Reserves") (the total of such amounts is
hereinafter referred to as the "Total Actual and Proposed Payment"). If the
Total Actual and Proposed Payment is less than one million dollars ($1,000,000),
the Buyer shall pay to the Seller within five business days, without interest,
the difference between one million dollars ($1,000,000) and the Total Actual and
Proposed Payment, and if the Total and Actual Proposed Payment is more than one
million dollars ($1,000,000), the Seller shall pay to the Buyer, within five
business days, without interest, the difference between one million dollars
($1,000,000) and the Total and Proposed Payment. If the Total Actual and
Proposed Payment (A) is more than one million
6
dollars ($1,000,000) and (B) includes Employee Liabilities Reserves which prove
to be in excess of the amounts actually paid by the second anniversary of the
Closing Date, then on such date (or if such date is not a business day, on the
first business day following such date) the Buyer shall pay to the Seller, with
interest at the prime rate from time to time published in The Wall Street
Journal, from the date of the Seller's earlier payment to the Buyer under this
Section 3.5(a) until the date payment is made, the difference between the amount
of the Employee Liabilities Reserves and the amount of the Employee Liabilities
Reserves the Buyer has actually paid. If the Total Actual and Proposed Payment
(A) is more than one million dollars ($1,000,000) and (B) includes Employee
Liabilities Reserves which prove to be less than the amounts actually paid, then
the Seller shall pay to the Buyer, on request, without interest, the difference
between the amount of the Assumed Employee Liabilities the Buyer has actually
paid and the aggregate amount the Seller has previously paid to the Buyer under
this Section 3.5(a).
(ii) Upon the written request of the Seller, the Buyer shall permit
the Seller and its representatives to have access during normal business
hours to such records of the Buyer as may be reasonably necessary to verify
the accuracy of the schedule furnished to the Seller by the Buyer pursuant
to Section 3.5(a)(i) and other information relevant to determine any
payments which may be due under Section 3.5(a)(i). Such verification shall
be conducted at the Seller's expense and the Seller agrees that all
information obtained in connection therewith shall be held in confidence by
it.
(b)(i) On the last Sunday prior to the Closing Date, a physical inventory
shall be taken of the Plasma Inventory under the joint supervision of
representatives of the Seller and the Buyer. Such inventory shall then be
corrected to the date of Closing and valued by the Seller at its cost in
accordance with accounting principles consistently applied by the Seller in
reflecting the cost of Plasma Inventory for purposes of its published financial
statements. If the value of the Plasma Inventory determined as provided in this
Section 3.5(b) exceeds ten million dollars ($10,000,000), on the thirtieth
business day following the Closing Date the Buyer shall pay to the Seller,
without interest, the amount of such excess, and if the value of the Plasma
Inventory determined as provided in this Section 3.5(b) is less than ten million
dollars ($10,000,000), the Seller shall pay on the thirtieth business day
following the Closing Date to the Buyer the amount of such deficiency, without
interest.
(ii) Upon the written request of the Buyer, the Seller shall permit
the Buyer and its representatives to have access during normal business
hours to such records of the Seller as may be reasonably necessary to
verify the accuracy of valuation contemplated by Section 3.5(b)(i). Such
verification shall be conducted at the Buyer's expense and the Buyer agrees
that all information obtained in connection therewith shall be held in
confidence by it.
3.6. Instruments of Conveyance. The sale, transfer, assignment, conveyance
and delivery of the Assets by the Seller to the Buyer shall be effected by the
execution and delivery of:
7
(a) a ▇▇▇▇ of sale and assumption of liabilities substantially in the form
attached hereto as Exhibit D; and
(b) such other documents and instruments of conveyance, sale, transfer and
assignment, in proper form for recording and in form and substance reasonably
satisfactory to counsel for the Buyer, as shall be necessary to sell, transfer,
assign and convey to, and to vest in, the Buyer, good and marketable title to
the Assets, free and clear of the security interests referred to in Schedule
4.4(b).
3.7. Allocation of Purchase Price. Prior to the Closing Date the Purchase
Price shall be allocated among the Assets as mutually agreed by the Buyer and
the Seller. The parties shall report all taxes in a manner consistent with such
allocation, and no party shall take any inconsistent position upon any
examination of any tax return, in any refund claim, or in any litigation,
investigation or otherwise.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as follows:
4.1. Organization, Existence and Authority. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Seller has all requisite corporate power and authority to
execute, deliver and perform this Agreement and all other agreements entered
into or delivered in connection with the transactions contemplated hereby. The
Seller is qualified to do business as a foreign corporation in each jurisdiction
in which the failure to so qualify would have a Material Adverse Effect (as
hereinafter defined). The Seller has all authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental or regulatory
bodies necessary to own and/or lease the properties and assets employed by the
Seller in the conduct of the Transferred Antibody Collection Business and to
conduct the business and operations of the Transferred Antibody Collection
Business as currently conducted, except where the failure to do so would not
have a Material Adverse Effect. For purposes of this Agreement, a "Material
Adverse Effect" shall mean any matter with an adverse financial impact to the
Buyer of five hundred thousand dollars ($500,000) or more.
4.2 Authorization; Execution and Delivery; No Violation. The execution,
delivery and performance of this Agreement and all other agreements entered into
in connection with the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of the Seller.
This Agreement has been duly executed and delivered by the Seller, constitutes
the valid and binding obligation of the Seller, and is enforceable in accordance
with its terms. All other agreements to be entered into at the Closing by the
Seller in connection with the transactions contemplated hereby will be duly
executed and delivered by the Seller, will constitute the valid and binding
obligations of the Seller, and will be enforceable in accordance with their
respective terms. The execution, delivery and performance of this Agreement does
not, and all other agreements entered into in
8
connection with the transactions contemplated hereby by the Seller will not,
violate, conflict with, result in a breach of or constitute a default under (or
an event which with due notice or lapse of time, or both, would constitute a
breach of or default under) or result in the creation of any lien, security
interest or other encumbrance under (a) the Certificate of Incorporation or
By-laws of the Seller, as amended to date, (b) any note, agreement, contract,
license, instrument, lease or other obligation to which the Seller is a party or
by which it is bound, and which affects the Assets, (c) any judgment, order,
decree, ruling or injunction or (d) any statute, law, regulation or rule of any
governmental agency or authority.
4.3. Regulatory Approvals and Consents. Except for compliance with the
provisions of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended (the "HSR Act") and applicable comparable foreign laws, no consent,
authorization, or waiver by or filing with any governmental agency is required
in connection with the execution or performance of this Agreement by the Seller
or the consummation by the Seller of the transactions contemplated hereby,
except such that the absence of which will not have a Material Adverse Effect.
4.4. Title.
(a) Except as set forth in Schedule 4.4(a), the Seller has good and
marketable title to each parcel of Owned Property free and clear of all liens,
claims and encumbrances other than (i) imperfections of title, easements,
pledges, charges, restrictions and encumbrances, including without limitation,
survey matters and mechanics' liens, if any, that do not materially detract from
the value of the property subject thereto or materially interfere with the
manner in which it is currently being used in the Transferred Antibody
Collection Business or materially impair the operations of the Transferred
Antibody Collection Business, and (ii) taxes and general and special assessments
not in default and payable without penalty or interest.
(b) The Seller has good and marketable title to the Equipment, Fixed
Assets, Plasma Inventory and Supplies Inventory. Except to the extent set forth
in Schedule 4.4(b) attached hereto, the Equipment, Fixed Assets, Plasma
Inventory and Supplies Inventory are not subject to any mortgage, pledge, lien,
charge, security interest, encumbrance, restriction, lease, license, easement,
liability or adverse claim of any nature whatsoever, direct or indirect, whether
accrued, absolute, contingent or otherwise, except for those imperfections of
title and encumbrances, if any, that (a) are not substantial in character,
amount or extent and do not materially detract from the value of the properties
subject thereto; (b) do not materially and adversely interfere with either the
present or continued use of such property or materially and adversely affect the
conduct of normal operations of the Centers or the Laboratory; and (c) have
arisen only in the ordinary course of business.
(c) Notwithstanding the other provisions of this Section 4.4, the Assets
shall be conveyed by the Seller to the Buyer at the Closing free and clear of
all liens, claims and encumbrances of any nature whatsoever which are security
for the payment of money.
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4.5. Contracts and Leases. Except as set forth in Schedule 4.5 attached
hereto, neither the Seller nor, to the knowledge of the Seller, any other party
is in breach of or in default under any Contract or Lease, and there exists no
condition or event which after the lapse of time or notice (or both) would
constitute any such breach or default, except for such breaches or defaults (if
any) which would not have a Material Adverse Effect.
4.6. Absence of Certain Changes or Events. Since December 31, 2000, there
has not been: (a) except for general business conditions, any material adverse
change in the Transferred Antibody Collection Business or any event or condition
which to the Seller's knowledge would have a Material Adverse Effect, or (b) any
damage, destruction or loss, whether covered by insurance or not, suffered by
the Transferred Antibody Collection Business which has had a Material Adverse
Effect.
4.7. Litigation; Compliance with Laws. Except as set forth on Schedule 4.7
attached hereto, there is no action, lawsuit, proceeding, claim, controversy,
arbitration or investigation pending or, to the Seller's knowledge, threatened
against, or directly involving, the Transferred Antibody Collection Business or
the Assets. There is no unsatisfied or outstanding order, writ, judgment,
injunction or decree affecting the Transferred Antibody Collection Business or
the Assets. To the knowledge of the Seller, and except as set forth on Schedule
4.7, the Transferred Antibody Collection Business or the Assets has complied and
is complying with all laws, ordinances, and governmental rules and regulations
applicable to it and its properties, assets and business, the non-compliance
with which would have a Material Adverse Effect, and has obtained all material
government licenses, permits and authorizations necessary for the ownership of
its properties and the conduct of its business as currently conducted, the lack
of which would have a Material Adverse Effect.
4.8. Environmental Matters. With respect to the Transferred Antibody
Collection Business and the Assets, the Seller is in compliance with all
applicable existing federal, state and local laws and regulations relating to
protection of the environmental or imposing liability or standards of conduct
concerning any Hazardous Material (as hereinafter defined) ("Environmental
Laws"), except where such noncompliance would not have a Material Adverse
Effect. The term "Hazardous Material" means (a) any "hazardous substance" as
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (b) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (c) any petroleum or petroleum
product, (d) any polychlorinated biphenyl and (e) any pollutant or contaminant
or hazardous, dangerous, or toxic chemical, material, waste or substance
regulated under or within the meaning of any other law or regulation protecting
the environment. There is no alleged or, to the Seller's knowledge, potential
liability (including, without limitation, liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages, property
damages, personal injuries or penalties) of the Seller with respect to the
Transferred Antibody Collection Business or the Assets arising out of, based on
or resulting from (i) the presence or release into the environment of any
Hazardous Material at any site owned or leased by the Seller or (ii) any
violation or alleged violation of any Environmental Law, which alleged or
potential liability if adversely determined would have a Material Adverse
Effect.
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4.9. Employees; Employee Relations.
(a) Attached hereto as Schedule 4.9 is a list of (i) all current employees
of Seller assigned exclusively to the Transferred Antibody Collection Business,
and (ii) a correct and complete list setting forth the name, job title and
current hourly or salaried rate of compensation of each such employee with a
salaried rate of $50,000 or more in 2000 from the Seller in earnings subject to
employment income tax.
(b) With respect to the Transferred Antibody Collection Business, to the
Seller's knowledge, the Seller is in material compliance with all federal, state
and municipal laws respecting employment, employment practices, terms and
conditions of employment and wages and hours, and is not engaged in any unfair
labor practice.
(c) The Seller is not a party to any collective bargaining agreement with
respect to the Transferred Antibody Collection Business. No labor union or
similar organization represents the employees of the Transferred Antibody
Collection Business and, to the knowledge of the Seller, no such organization is
attempting to organize such employees.
4.10. Certain Agreements. The Seller with respect to the Transferred
Antibody Collection Business is not a party to, or liable in connection with,
and has not granted any written or oral, express or implied:
(a) material agreement or arrangement for the sale of any of its assets,
property or rights outside the ordinary course of business;
(b) agreement restricting the Transferred Antibody Collection Business from
conducting business anywhere in the world; or
(c) joint venture contract or similar arrangement or agreement which is
likely to involve a sharing of profits of the Transferred Antibody Collection
Business or future payments.
4.11. Consents. Except as listed on Schedule 4.11 attached hereto, no
consent or approval of any third party or governmental body is required for the
consummation by the Seller of the transactions contemplated by this Agreement or
the sale, assignment, transfer, conveyance and delivery of the Assets to the
Buyer, except for such consents or approvals which the failure to obtain will
not have a Material Adverse Effect.
4.12. ERISA.
(a) Except as set forth on Schedule 4.12(a) attached hereto, with respect
to the Transferred Antibody Collection Business the Seller does not now maintain
or make contributions to any employee benefit plan which is subject to the
minimum funding standards of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"). Except as set forth on Schedule 4.12(a) attached
hereto, with respect to the Transferred Antibody Collection Business the Seller
does not now maintain or make contributions to and has not at
11
any time in the past sixty (60) months maintained or made contributions to any
multi-employer plan subject to the terms of the Multi-Employer Pension Plan
Amendment Act of 1980.
(b) Schedule 4.12(b) attached hereto lists all employee benefit plans of
the Seller with respect to the Transferred Antibody Collection Business which
are not listed on Schedule 4.12(a) (the plans listed in Schedules 4.12(a) and
(b) are referred to herein as the "Plans").
(c) To the Seller's knowledge, the Plans have been maintained in all
material respects in accordance with the applicable requirements of ERISA and
the Internal Revenue Code of 1986, as amended (the "Code").
4.13. Plasma Inventory. Subject to the reserves reflected on Schedule
1.1(e), the Plasma Inventory is in all material respects in good, merchantable
and usable condition and of a quality and quantity salable in the ordinary
course of business.
4.14. Finder. The Seller has not retained the services of any person, firm
or entity as a finder or broker, or incurred any liability for any brokerage or
finder's fees or commissions, in connection with the transactions contemplated
hereby, except for Stonebridge Associates, LLC, the fees for which shall be
borne solely by the Seller.
4.15. Selected Financial Information. The written direct cost information
provided to the Buyer has been prepared from the books and records of the Seller
and is presented in a manner that, when combined with the corresponding costs
for the Retained Centers (as hereafter defined), is consistent with the antibody
segment disclosure in the Seller's financial reports on Form 10K for 1999 and
2000. All such information is fairly presented in accordance with U.S. generally
accepted accounting principles consistently applied. Each Center's volume
information for fiscal years 1999 and 2000 as set forth in Schedule 4.15
attached hereto is true and correct.
4.16. Sufficiency of the Assets. Except as would not have a Material
Adverse Effect, (i) all Real Property, Equipment, Fixed Assets, Plasma Inventory
(to the extent being transferred hereby), Supplies Inventory, Contracts, legally
transferable licenses and permits, Books and Records, Other Assets, and
Transferred Intellectual Property used in the Transferred Antibody Collection
Business are being transferred by the Seller to the Buyer hereunder, and (ii)
such Assets, together with the rights and services provided to the Buyer
pursuant to the provisions of this Agreement and the Exhibits hereto, shall
provide the Buyer with all necessary rights and assets to continue to operate
the Transferred Antibody Collection Business in the same manner as the Seller
operated the Transferred Antibody Collection Business prior to the date of this
Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as follows:
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5.1. Organization, Existence and Authority. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
Australian Capital Territory. The Buyer has all requisite power and authority to
execute, deliver and perform this Agreement and all other agreements entered
into or delivered in connection with the transactions contemplated hereby.
5.2. Authorization; Execution and Delivery; No Violation. The execution,
delivery, and performance of this Agreement and all other agreements entered
into in connection with the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the party of the Buyer.
This Agreement has been duly executed and delivered by the Buyer, constitutes
the valid and binding obligation of the Buyer and is enforceable against it in
accordance with its terms. All other agreements to be entered into at the
Closing by the Buyer in connection with the transactions contemplated hereby
will be duly executed and delivered by the Buyer, will constitute the valid and
binding obligations of the Buyer, and will be enforceable in accordance with
their respective terms. The execution, delivery and performance of this
Agreement does not, and all other agreements to be entered into in connection
with the transactions contemplated hereby by the Buyer will not, violate,
conflict with, result in a breach of or constitute a default under (or an event
which with due notice or lapse of time or both, would constitute a breach of or
default under) or result in the creation of any lien, security interest or other
encumbrance under (a) its charter or By-laws, (b) any note, agreement, contract,
license, instrument, lease or other obligation to which the Buyer is a party or
by which it is bound, (c) any judgment, order, decree, ruling or injunction or
(d) any statute, law, regulation or rule of any governmental agency or
authority.
5.3. Finder. The Buyer has not retained the services of any person, firm or
entities as a finder or broker, or incurred any liability for any brokerage or
finder's fee of commissions, in connection with the transactions contemplated
hereby, except for ▇▇▇▇▇▇▇ ▇▇▇▇▇, the fees for which shall be borne solely by
the Buyer.
5.4. Litigation. There is no action, suit, proceeding or investigation
pending or threatened that affects or would affect the ability of Purchaser to
execute and deliver this Agreement or the other agreements or documents
contemplated hereby or to consummate the transactions contemplated hereby and
thereby.
ARTICLE 6
ACTIONS PRIOR TO THE CLOSING DATE
The parties covenant and agree to take the following actions between the
date hereof and the Closing Date:
6.1 Access to Information. The Seller shall afford to the officers,
employees and authorized representatives of the Buyer (including, without
limitation, independent public accountants, financial advisors and attorneys)
reasonable access during normal business hours, upon reasonable advance notice,
to the offices, properties, employees and business and financial records
(including computer files, retrieval programs and similar
13
documentation) of the Transferred Antibody Collection Business to the extent the
Buyer shall reasonably deem necessary or desirable and shall furnish to the
Buyer or its authorized representatives such additional information concerning
the Transferred Antibody Collection Business and the Assets as shall be
reasonably requested; provided, however, that the Seller shall not be required
to violate any obligation of confidentiality to which the Seller is subject in
discharging its obligations pursuant to this Section 6.1. The Buyer agrees that
such investigation shall be conducted in such a manner as not to interfere
unreasonably with the operations of the Transferred Antibody Collection
Business. If in the course of any investigation pursuant to this Section 6.1,
the Buyer's officers, employees or authorized representatives discover any
breach of any representation or warranty contained in this Agreement, or any
circumstance or condition that upon Closing would constitute such a breach, the
Buyer covenants that it will promptly so inform the Seller.
6.2. Notifications. The Buyer, on the one hand, and the Seller, on the
other hand, shall promptly notify the other of any action, suit or proceeding
that shall be instituted or threatened against such party to restrain, prohibit
or otherwise challenge the legality of any transaction contemplated by this
Agreement. The Seller hereto shall promptly notify the Buyer of any lawsuit,
claim, proceeding or investigation that may be threatened, brought, asserted or
commenced against the Seller that would have been listed in Schedule 4.7 if such
lawsuit, claim, proceeding or investigation had arisen prior to the date hereof.
6.3. Consents of Third Parties; Governmental Approvals.
(a) The Seller and the Buyer will cooperate and act diligently and
reasonably to secure, before the Closing Date, the consents and approvals listed
on Schedule 4.11; provided, however, that such action shall not include any
requirement to commence or participate in any litigation or offer or grant any
accommodation (financial or otherwise) to any third party.
(b) During the period prior to the Closing Date, the Seller and the Buyer
shall act diligently and reasonably, and shall cooperate with each other, to
secure any consents and approvals of any governmental body required to be
obtained by them in order to permit the consummation of the transactions
contemplated by this Agreement.
(c) Subject to the terms and conditions of this Agreement, each party shall
use its reasonable efforts to cause the Closing to occur.
6.4. Operations Prior to the Closing Date.
(a) The Seller shall use reasonable efforts to cause the Transferred
Antibody Collection Business to operate substantially as operated prior to the
date of this Agreement. Consistent with the foregoing, the Seller shall use its
reasonable efforts consistent with good business practice to preserve the
goodwill of the suppliers, contractors, licensors, employees, customers,
distributors and others having business relations with the Transferred Antibody
Collection Business.
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(b) Notwithstanding Section 6.4(a) except as otherwise contemplated by this
Agreement or as consented to in writing by the Buyer (which consent shall not be
unreasonably withheld or delayed), the Seller shall not with respect to the
Transferred Antibody Collection Business:
(i) make any material change in the Transferred Antibody Collection
Business or its operations, except such changes as may be required to
comply with any applicable requirements of law;
(ii) make any contract or commitment therefor in excess of $100,000 in
the aggregate, except in the ordinary course of the Transferred Antibody
Collection Business;
(iii) except to the extent set forth in Schedule 6.4(b)(iii) attached
hereto (for which the consent of the Buyer shall be required, such consent
to not be unreasonably withheld), enter into any contract for the purchase
of real property or enter into any new lease of real property or exercise
any option to extend a Lease;
(iv) sell, lease (as lessor), transfer or otherwise dispose of, or
mortgage or pledge, or impose or suffer to be imposed any encumbrance on,
any of the Assets, other than in the ordinary course of business;
(v) institute any material increase in any profit-sharing, bonus,
incentive, deferred compensation, insurance, pension, retirement, medical,
hospital, disability, welfare or other employee benefit plan with respect
to the employees of the Transferred Antibody Collection Business, other
than in the ordinary course or as required by any such plan or requirements
of law;
(vi) make any general change in the compensation of the employees of
the Transferred Antibody Collection Business, other than changes made in
accordance with normal compensation practices; or
(vii) sell or otherwise transfer any Plasma Inventory other than
pursuant to (A) Contract (existing as of the date of this Agreement without
amendment subsequent to the date of this Agreement), (B) the Bayer Supply
Agreement, or (C) sales to the Korean Green Cross in accordance with past
practices.
6.5. Antitrust Law Compliance.
(a) Within ten days after the date hereof, the Buyer and the Seller shall
file with the Federal Trade Commission and the Antitrust Division of the
Department of Justice the notifications and other information required to be
filed under the HSR Act, or any rules and regulations promulgated thereunder,
with respect to the transactions contemplated hereby. The Buyer and the Seller
shall also promptly file or cause the filing of any notices, applications and
15
requests required under all foreign federal and state statutes, rules,
regulations, orders, decrees, administrative and judicial doctrines, and other
laws that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of trade. Each party
warrants that all such filings by it will be, as of the date filed, true and
accurate in all material respects and in material compliance with the
requirements of the HSR Act and any such rules and regulations. The Buyer and
the Seller agree to make available to the other party hereto such information as
each of them may reasonably request relative to its business, assets and
property as may be required of each of them to file any additional information
requested by such agencies under the HSR Act and any such rules and regulations
or as may be requested of each of them to submit pursuant to any such foreign
laws or regulations.
(b) In furtherance and not in limitation of the foregoing, the Buyer shall
use its good faith efforts to resolve such objections, if any, as may be
asserted with respect to the transactions contemplated by this Agreement under
any antitrust, competition or trade regulatory laws, rules or regulations.
(c) Each party hereto shall promptly inform the other of any material
communication from the Federal Trade Commission, the Department of Justice or
any other governmental body regarding any of the transactions contemplated by
this Agreement. If any party receives a request for additional information or
documentary material from the Federal Trade Commission, the Department of
Justice or any such other governmental body with respect to the transactions
contemplated by this Agreement, then such party will endeavor in good faith to
make, or cause to be made, as soon as reasonably practicable and after
consultation with the other party, an appropriate response in compliance with
such request. The Buyer will advise the Seller promptly in respect of any
understandings, undertaking or agreements (oral or written) which the Buyer
proposes to make or enter into with the Federal Trade Commission, the Department
of Justice or any other governmental bodies in connection with the transactions
contemplated by this Agreement.
6.6 Transition and Shared Services. Commencing within ten (10) days after
the date hereof, the parties shall cause their representatives to meet as a
committee (the "Joint Transition Team") as necessary to jointly plan and manage
the transition of the Transferred Antibody Collection Business from the Seller
to the Buyer. The Joint Transition Team shall discuss and agree upon operational
matters that should be addressed prior to Closing, and the parties at their
respective costs shall reasonably cooperate to address such operational matters.
The Joint Transition Team shall also discuss and make recommendations with
respect to (i) services that should be provided by the Seller to the Buyer or by
the Buyer to the Seller for a limited period of time following the Closing,
which shall at least include the types of services specified in Schedule 6.6
attached hereto as "Transition" ("Transition Services"), and (ii) services that
should be provided by the Seller to the Buyer or by the Buyer to the Seller for
an indefinite or extended period of time following the Closing, which shall at
least include the types of services specified in Schedule 6.6 attached hereto as
"Shared" ("Shared Services"). The parties shall negotiate and mutually agree
upon the terms and conditions of a "Transition Services Agreement" for the
Transition Services and a "Shared
16
Services Agreement" for the Shared Services which shall be executed and
delivered by the parties at Closing. The Transition Services and the Shared
Services shall be provided by one party to the other party "at cost", which
shall be further clarified and defined in the Transition Services Agreement and
the Shared Services Agreement. The Joint Transition Team shall not have the
final authority to conclude the terms of the Transition Services Agreement or
the Shared Services Agreement; such authority is reserved to the parties. In the
event that the parties for whatever reason fail to negotiate and mutually agree
upon the terms of the Transition Services Agreement at the time of Closing, the
provisions of Schedule 6.6 shall apply and shall have the effect of a binding
legal commitment between the parties on the terms thereof with respect to the
Transition Services (and the Shared Services to the extent that the Shared
Services are also provided as Transition Services) until such time as a binding
Transition Services Agreement is executed and delivered between the parties.
ARTICLE 7
ADDITIONAL AGREEMENTS
7.1. Use of Name. The parties have agreed to certain matters related to the
trademark and trade name "NABI" as specified in Schedule 7.1 attached hereto.
Between the date of this Agreement and the Closing Date, the parties shall
negotiate and mutually agree upon the terms and form of a "Trademark License
Agreement" based upon the principal terms specified in such Schedule 7.1, which
the parties shall execute and deliver at the Closing.
7.2 Employees. Effective as of the Closing, the Buyer shall offer
employment to the employees of the Transferred Antibody Collection Business
listed on Schedule 4.9 hereto at the same salary or wage rates as are in effect
under such employees' employment with the Seller on the Closing Date and shall,
for a period of not less than six months, provide the employees who accept such
offers with the benefits described in Schedule 7.2 attached hereto. Such
employees shall receive full credit for years of service with the Seller or any
subsidiary of the Seller prior to the Closing Date for all purposes under the
Buyer's employee benefit plans and programs. The Buyer may contact and hold
discussions with such employees prior to the Closing with respect thereto. With
respect to such employees listed on Schedule 4.9, the Seller shall be
responsible for the payment of (i) salaries attributable to service with Seller
prior to the Closing, and (ii) severance benefits, if any, due and payable under
any severance benefit plan or contract maintained by the Seller and the Buyer
shall have no responsibility therefor. The Buyer shall offer enrollment in its
existing medical and dental plans, waive any enrollment period and pre-existing
conditions requirements imposed by the Buyer with respect to such plans, and
provide immediate medical and dental coverage to the extent presently provided
for in such medical and dental plans to all employees hired by the Buyer and to
such employees' dependents. Notwithstanding the foregoing, nothing in this
Agreement will (a) create any obligation on the part of the Buyer to continue
the employment of any employee for any definite period following the Closing
Date or (b) preclude Buyer from altering, amending or terminating any of its
employee benefit plans or the participation of any of its employees in these
plans at any time. It is expressly understood and agreed to by the parties that,
except for the Assumed Employee Liabilities, (x) the Buyer, as a result of the
transactions contemplated by this Agreement, shall not assume any
17
liability or obligation of the Seller or any Affiliate (as defined below) of the
Seller relating to or arising under any employee benefit plan, program or
arrangement maintained or contributed to by the Seller or such Affiliate
(whether or not such plan, program or arrangement is an "employee benefit plan"
within the meaning of Section 3(3) of ERISA); (y) any such liability or
obligation shall remain as the responsibility of the Seller or such Affiliate,
as the case may be; and (z) the transactions contemplated by this Agreement do
not nor are they intended to meet the statutory requirements of ERISA Section
4203 concerning sales of assets. For purposes of this Section 7.2 "Affiliate"
shall mean any person or entity which, with respect to the Seller, must be
treated as a single employer under any provision of Section 414 of the Internal
Revenue Code of 1986, as amended, or Section 4001 of ERISA.
7.3. Access to Records and Personnel.
(a) Following the Closing, the Buyer shall (i) upon request, provide the
Seller reasonable access to the Books and Records and to the Buyer's employees
in connection therewith, and such other assistance as the Seller shall
reasonably request with regard to any actual or potential liabilities of the
Seller relating to the Transferred Antibody Collection Business which is not
being assumed by the Buyer hereunder, and (ii) retain the Books and Records for
not less than three years from the Closing Date, or for such period of time as
is set forth in Section 6501(a) of the Code governing limitations on assessment
and collection of taxes, whichever is longer.
(b) Following the Closing, the Seller shall (i) upon request, provide the
Buyer reasonable access to the Seller's business and financial records and
personnel and donor records relevant to the Transferred Antibody Collection
Business and the Buyer shall have the right to use the information contained in
such records for any lawful purpose, and to the Seller's employees in connection
therewith, and (ii) retain such records for not less than three years from the
Closing Date (in the event that the Seller determines to discard or destroy any
such records, the Seller shall first provide notice to the Buyer who shall have
the right to require that such records be transferred to the Buyer at the
Buyer's cost). Any information obtained by the Buyer pursuant to this Section
7.3(b) which is not related to the Transferred Antibody Collection Business
shall be maintained in confidence, and not used, by the Buyer.
7.4 Insurance; Risk of Loss. The Seller will keep insurance policies
currently maintained with respect to the Assets and the Transferred Antibody
Collection Business or suitable replacements therefor, in full force and effect
through the close of business on the Closing Date. The Buyer in its sole
discretion may maintain insurance coverage for risk of loss based on events
occurring after the Closing Date with respect to the Assets and the Transferred
Antibody Collection Business. To the extent that after the Closing any party
requires any information regarding claim data, payroll or other information in
order to make filing with insurance carriers or self insurance regulators from
another party hereto, the other party will promptly supply such information. For
a period of five (5) years after the Closing Date, each party at their cost
shall arrange for the other party to be added as an additional insured on its
insurance policies for general liability and products liability, with respect to
"claims made" relating to time periods prior to the Closing for the Seller's
18
insurance policies and with respect to "claims made" relating to time periods
after the Closing for the Buyer's insurance policies; each party shall arrange
for certificates of insurance to be provided to the other party at the other
party's reasonable request.
7.5. Access to Intellectual Property. The Buyer hereby grants to the Seller
a perpetual, non-exclusive, royalty-free license to use the Transferred
Intellectual Property for any lawful purpose (which may include the operation of
additional collection centers). The Seller hereby grants to the Buyer a
perpetual, non-exclusive, royalty-free license to use the Retained Intellectual
Property for any lawful purpose related to the Transferred Antibody Collection
Business (which may include the operation of additional collection centers).
7.6. Plasma Supply Arrangements. The parties have agreed to certain matters
related to the purchase and sale of plasma as specified in Schedule 7.6 attached
hereto. Between the date of this Agreement and the Closing Date, the parties
shall negotiate and mutually agree upon the terms and form of a "Plasma Supply
Agreement" based upon the principal terms specified in such Schedule 7.6, which
the parties shall execute and deliver at the Closing. In the event that the
parties for whatever reason fail to negotiate and mutually agree upon the terms
of the Plasma Supply Agreement at the time of Closing, the provisions of
Schedule 7.6 shall apply and shall have the effect of a binding legal commitment
between the parties on the terms thereof until such time as a binding Plasma
Supply Agreement is executed and delivered between the parties.
7.7. Access to Certain Donors. Nothing contained in this Agreement shall
preclude the Seller from soliciting and accepting collections from those donors
listed on Schedule 7.7 attached hereto. Alternatively, the Buyer shall use
commercially reasonable efforts to draw plasma and/or whole blood from such
donors for the Seller at the Seller's request assuming the participation of such
donors, which shall be supplied to the Seller pursuant to the terms of the
Plasma Supply Agreement.
7.8 Right of First Refusal. In the event that within four (4) years after
the Closing Date the Seller proposes to sell, transfer or convey any antibody
collection center listed on Schedule 7.8 attached hereto ("Retained Centers") to
a party other than an affiliate of the Seller, the Seller shall first offer such
Retained Center(s) to the Buyer for purchase by the Buyer by submitting to the
Buyer an offer, setting forth the price at which the Seller proposes to sell,
transfer or convey the Retained Center(s) and the material terms and conditions
of such sale, transfer or conveyance (the "Offer Terms"). The Buyer shall have a
period of thirty (30) days to notify the Seller in writing that it elects to
purchase all (but not less than all) of the Retained Centers covered by the
Offer Terms upon the Offer Terms. The Seller shall promptly provide such due
diligence information as is customary or reasonably requested by the Buyer,
subject to reasonable confidentiality limitations, during such thirty (30) day
period to enable the Buyer to evaluate the Offer Terms. If the Buyer elects not
to purchase all of the Retained Centers offered to the Buyer on the Offer Terms
or does not give notice of acceptance of the Offer Terms to the Seller during
such thirty (30) day period, the Seller shall be free to sell, transfer and
convey the Retained Centers covered by the Offer Terms on the Offer Terms
provided that a binding agreement with respect to such sale, transfer or
19
conveyance is entered into within one hundred twenty (120) days after the
expiration of such thirty (30) day period. For purposes of this Section 7.8, (i)
a sale of a controlling interest in the voting stock of the Seller or of all or
substantially all of the assets of the Seller, or (ii) a merger or consolidation
to which the Seller is a party in which the stockholders of the Seller
immediately prior to the merger or consolidation do not own a majority of the
voting stock of the surviving corporation immediately after the merger or
consolidation shall not constitute a sale, transfer or conveyance of the
Retained Centers.
7.9. Baxter Arbitration.
(a) The Seller is a party to an arbitration proceeding in Miami, Florida
with ▇▇▇▇▇▇ Healthcare Corporation entitled ▇▇▇▇▇▇ Healthcare Corporation,
Claimant, v. Nabi, Respondent, American Arbitration Association No. 32 181 00370
00 (the "Arbitration Proceeding").
(b) From and after the date hereof until the Closing Date, the Seller shall
have, at its expense, the sole and absolute right to control, negotiate, settle
****************** ************* and otherwise deal with the Arbitration
Proceeding. The Seller shall keep the Buyer reasonably informed of all
developments in the Arbitration Proceeding subject to any obligations of
confidentiality required by the Arbitration Proceeding and to the preservation
of the attorney-client privilege. During such period, the Buyer shall have the
option, at its expense, to participate with the Seller in the prosecution and
defense of the Arbitration Proceeding.
(c) From and after the Closing Date, the Buyer shall assume, at its
expense, the sole and absolute right to control, negotiate, settle (subject to
the provisions of this Section 7.9) and otherwise deal with the Arbitration
Proceeding. ********************************************************************
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7.10. Additional Necessary Services. To the extent that the Assets,
together with the Transition Services, the Shared Services and the rights and
services provided to the Buyer pursuant to the provisions of the Exhibits hereto
are insufficient to continue the operation of the Transferred Antibody
Collection Business substantially as operated prior to the date of this
Agreement, the Seller shall provide services to the Buyer as necessary to so
continue the Transferred Antibody Collection Business at cost for a maximum
period of twelve (12) months from the Closing Date, provided that the Seller
performed such services for the Transferred Antibody Collection Business prior
to the Closing. Notwithstanding the foregoing, if the Seller notifies the Buyer
of its intent to implement organizational changes that may materially affect the
Seller's ability to provide such services, the Buyer shall have thirty (30) days
to (i) consent to such changes, (ii) decline such changes, whereupon the Seller
shall continue to provide such services pursuant to this Section 7.10, or (iii)
negotiate an alternative arrangement with the Seller.
7.11. Further Assurances. At any time and from time to time after the
Closing, at the Buyer's request and without further consideration, the Seller
shall execute and deliver such other instruments of sale, transfer, conveyance,
assignment and confirmation, and take such actions, as may be reasonably
necessary to transfer, convey, and assign to the Buyer, and to confirm the
Buyer's title to, the Assets and to put the Buyer in actual possession and
operating control of the Assets including those Assets leased by the Seller for
use in the business of the Antibody Collection Group.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
The obligations of the Buyer under this Agreement shall be subject to the
satisfaction, on or prior to the Closing Date, of the following conditions:
8.1. No Misrepresentation or Breach of Covenants and Warranties. There
shall have been no material breach by the Seller in the performance of any of
its respective covenants and agreements herein which shall not have been
remedied or cured; each of the representations and warranties of the Seller
contained in this Agreement shall be true and correct in all material respects
on the Closing Date as though made on the Closing Date (except to the extent
that they expressly relate to an earlier date), except for changes therein
specifically permitted by this Agreement or resulting from any transaction
expressly consented to in writing by the Buyer or any transaction permitted by
Section 6.4; and there shall have been delivered to the Buyer a certificate to
such effect, dated the Closing Date, signed on behalf of the Seller by a duly
authorized officer of the Seller.
8.2. No Restraint. The waiting period under the HSR Act and any applicable
foreign statute or regulation shall have expired or been terminated, and no
injunction or restraining order shall have been issued by any court of competent
jurisdiction and be in effect which restrains or prohibits any material
transaction contemplated hereby.
21
8.3. Consents and Approvals. The consents and approvals identified in
Schedule 8.3 shall have been obtained.
For purposes of Section 8.1, a representation and warranty shall be deemed
to be true and correct in all material respects unless the breach of all
representations and warranties involves an aggregate adverse financial impact to
the Buyer of five million dollars ($5,000,000) or more. Notwithstanding the
failure of any one or more of the foregoing conditions, the Buyer may proceed
with the Closing without satisfaction, in whole or in part, of any one or more
of such conditions and without written waiver.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
The obligations of the Seller under this Agreement shall be subject to the
satisfaction, on or prior to the Closing Date, of the following conditions:
9.1. No Misrepresentation or Breach of Covenants and Warranties. There
shall have been no material breach by the Buyer in the performance of any of its
respective covenants and agreements herein which shall not have been remedied or
cured; each of the representations and warranties of the Buyer contained in this
Agreement shall be true and correct in all material respects on the Closing Date
as though made on the Closing Date (except to the extent that they expressly
relate to an earlier date), except for changes therein specifically permitted by
this Agreement or resulting from any transaction expressly consented to in
writing by the Seller or any transaction permitted by Section 6.4; and there
shall have been delivered to the Seller a certificate to such effect, dated the
Closing Date, signed on behalf of the Buyer by a duly authorized officer of the
Buyer.
9.2. No Restraint. The waiting period under the HSR Act and any applicable
foreign statute or regulation shall have expired or been terminated, and no
injunction or restraining order shall have been issued by any court of competent
jurisdiction and be in effect which restrains or prohibits any material
transaction contemplated hereby.
9.3. Consents and Approvals. The consents and approvals identified in
Schedule 9.3 shall have been obtained.
For purposes of Section 9.1, a representation and warranty shall be deemed
to be true and correct in all material respects unless the breach of all
representations and warranties involves an aggregate adverse financial impact to
the Seller of be five million dollars ($5,000,000) or more. Notwithstanding the
failure of any one or more of the foregoing conditions, the Seller may proceed
with the Closing without satisfaction, in whole or in part, of any one or more
of such conditions and without written waiver.
ARTICLE 10
INDEMNIFICATION
10.1. Indemnification by the Seller.
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(a) The Seller agrees to indemnify and hold harmless the Buyer from and
against any and all damages, losses, obligations, liabilities, claims, actions
or causes of actions ("Losses") incurred by the Buyer in connection with or
arising from (i) any breach of any warranty or the inaccuracy of any
representation of the Seller contained or referred to in this Agreement or any
certificate delivered by or on behalf of the Seller pursuant hereto, (ii) any
breach by the Seller of, or failure by the Seller to perform, any of its
covenants or obligations contained in this Agreement or (iii) the operations of
the Transferred Antibody Collection Business prior to the Closing Date (except
for the Assumed Employee Liabilities); provided, however, that the Seller shall
be required to indemnify and hold harmless under clause (i) of this Section
10.1(a) with respect to Losses incurred by the Buyer only to the extent that:
(w) the amount of Loss suffered by the Buyer related to each individual claim
exceeds $50,000; (x) the aggregate amount of Losses incurred by the Buyer for
which the Seller is required to indemnify and hold harmless the Buyer pursuant
to Section 10.1(a) exceeds $500,000; and (y) that the aggregate amount required
to be paid by the Seller pursuant to this Section 10.1(a) shall not exceed the
Purchase Price; and (z) that the aggregate amount required to be paid by the
Seller pursuant to clause 10.1(a)(i) with respect to Sections 4.4, 4.5, 4.6,
4.8, 4.9, 4.12, 4.13, 4.15 and 4.16 shall not exceed fifty percent (50%) of the
Purchase Price.
(b) The indemnification provided for in Section 10.1(a)(i) shall terminate
eighteen (18) months after the Closing Date (and no claims shall be made by the
Buyer under Section 10.1(a)(i) thereafter), except that the indemnification by
the Seller shall continue as to any Losses of which the Buyer has notified the
Seller in accordance with the requirements of Section 10.3 on or prior to the
date such indemnification would otherwise terminate in accordance with this
Section 10.1, as to which the obligation of the Seller shall continue until the
liability of the Seller shall have been determined pursuant to this ARTICLE 10,
and the Seller shall have reimbursed the Buyer for the full amount of such
Losses in accordance with this ARTICLE 10.
10.2. Indemnification by the Buyer.
(a) The Buyer agrees to indemnify and hold harmless the Seller from and
against any and all Losses incurred by the Seller in connection with or arising
from (i) any breach of any warranty or the inaccuracy of any representation of
the Buyer contained or referred to in this Agreement or in any certificate
delivered by or on behalf of the Buyer pursuant hereto, (ii) any breach by the
Buyer of, or failure by the Buyer to perform, any of its covenants and
obligations contained in this Agreement or (iii) the operations of the
Transferred Antibody Collection Business following the Closing Date including,
without limitation, the use of the Seller's permits and licenses as provided in
Section 1.4, the Buyer's failure to pay, discharge and perform the Assumed
Obligations as provided in Section 2.1, the use of names as provided in Section
7.1 and the proper performance by the Seller of the arrangements referred to in
Section 1.3(a).
(b) The indemnification provided for in Section 10.2(a)(i) shall terminate
eighteen (18) months after the Closing Date (and no claims shall be made by the
Seller under Section 10.2(a)(i) thereafter), except that the indemnification by
the Buyer shall continue as to
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any Losses of which the Seller has notified the Buyer in accordance with the
requirements of Section 10.3 on or prior to the date such indemnification would
otherwise terminate in accordance with this Section 10.2 as to which the
obligation of the Buyer shall continue until the liability of the Buyer shall
have been determined pursuant to this ARTICLE 10, and the Buyer shall have
reimbursed the Seller for the full amount of such Losses in accordance with this
ARTICLE 10.
10.3. Notice of Claims.
(a) Any party (the "Indemnified Party") seeking indemnification hereunder
shall give promptly to the party obligated to provide indemnification to such
Indemnified Party (the "Indemnitor") a written notice (a "Claim Notice")
describing in reasonable detail the facts giving rise to the claim for
indemnification hereunder and shall include in such Claim Notice (if then known)
the amount or the method of computation of the amount of such claim, and a
reference to the provision of this Agreement or any other agreement, document or
instrument executed hereunder or in connection herewith upon which such claim is
based. The failure of any Indemnified Party to give the Claim Notice promptly as
required by this Section 10.3 shall not affect such Indemnified Party's rights
under this ARTICLE 10 except to the extent such failure is actually prejudicial
to the rights and obligations of the Indemnitor.
(b) In calculating any Loss, there shall be deducted any insurance recovery
in respect thereof (and no right of subrogation shall accrue hereunder to any
insurer). Any indemnity payment hereunder with respect to any Loss shall be
calculated on an "After-Tax Basis", which shall mean an amount which is
sufficient to compensate the Indemnified Party for the event giving rise to such
Loss (the "Indemnified Event"), determined after taking into account (1) all
increases in federal, state, local or other taxes (including estimated taxes)
payable by the Indemnified Party as a result of the receipt of the indemnity
payment (as a result of the indemnity payment being included in income,
resulting in a reduction of tax basis, or otherwise); provided, however, that
the Buyer and the Seller agree to report each payment made in respect of a Loss
as an adjustment to the Purchase Price for federal income tax purposes, (2) all
increases in federal, state, local and other taxes (including estimated taxes)
payable by the Indemnified Party for all affected taxable years as a result of
the Indemnified Event, and (3) all reductions in federal, state, local and
foreign taxes (including estimated taxes) payable by the Indemnified Party as a
result of the Indemnified Event. All calculations shall be made using reasonable
assumptions agreed upon by the Buyer and the Seller and, in the case of any
present value calculations, shall be made using the applicable federal rate in
effect at the time of the Indemnified Event (based on the Federal mid-term rate)
using semi-annual compounding plus two percentage points.
(c) After the giving of any Claim Notice pursuant hereto, the amount of
indemnification to which an Indemnified Party shall be entitled under this
ARTICLE 10 shall be determined: (i) by the written agreement between the
Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any
court of competent jurisdiction; or (iii) by any other means to which the
Indemnified Party and the Indemnitor shall agree. The judgment or decree of a
court shall be deemed final when the time for appeal, if any, shall have expired
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and no appeal shall have been taken or when all appeals taken shall have been
finally determined.
10.4. Third Person Claims.
(a) In order for a party to be entitled to any indemnification provided for
under this Agreement in respect of, arising out of or involving a claim or
demand made by any third party against the Indemnified Party, such Indemnified
Party must promptly notify the Indemnitor in writing, and in reasonable detail,
of the third party claim after receipt by such Indemnified Party of written
notice of the third party claim, but the failure to so notify the Indemnitor
shall not relieve it of any liability it may have to the Indemnified Party
except to the extent such failure is actually prejudicial to the rights and
obligations of the Indemnitor. Thereafter, the Indemnified Party shall deliver
to the Indemnitor copies of all notices and documents (including court papers)
received by the Indemnified Party relating to the third party claim.
Notwithstanding the foregoing, should a party be physically served with a
complaint with regard to a third party claim, the Indemnified Party must notify
the Indemnitor with a copy of the complaint after receipt thereof and shall
deliver to the Indemnitor after the receipt of such complaint copies of notices
and documents (including court papers) received by the Indemnified Party
relating to the third party claim.
(b) In the event of the initiation of any legal proceeding against the
Indemnified Party by a third party, the Indemnitor shall have the sole and
absolute right after the receipt of notice, at its option and at its own
expense, to be represented by counsel of its choice and to control, defend
against, negotiate, settle or otherwise deal with any proceeding, claim, or
demand which relates to any loss, liability or damage indemnified against
hereunder; provided, however, that the Indemnified Party may participate in any
such proceeding with counsel of its choice and at its expense. The parties
hereto agree to cooperate fully with each other in connection with the defense,
negotiation or settlement of any such legal proceeding, claim or demand. To the
extent the Indemnitor elects not to defend such proceeding, claim or demand, and
the Indemnified Party defends against or otherwise deals with any such
proceeding, claim or demand, the Indemnified Party may retain counsel, at the
expense of the Indemnitor, and control the defense of such proceeding. Without
the consent of the other party, such consent not to be unreasonably withheld if
the settlement only requires the payment of money, neither the Indemnitor nor
the Indemnified Party may settle any such proceeding which settlement obligates
the other party to pay money, to perform obligations or to admit liability.
After any final judgment or award shall have been rendered by a court,
arbitration board or administrative agency of competent jurisdiction and the
time in which to appeal therefrom has expired, or a settlement shall have been
consummated, or the Indemnified Party and the Indemnitor shall arrive at a
mutually binding agreement with respect to each separate matter alleged to be
indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to
the Indemnitor notice of any sums due and owing by it with respect to such
matter and the Indemnitor shall pay all of the sums so owing to the Indemnified
Party by wire transfer, certified or bank cashier's check within 30 days after
the date of such notice.
10.5. Limitations.
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(a) In any case where an Indemnified Party recovers from third parties any
amount in respect of a matter with respect to which an Indemnitor has
indemnified it pursuant to this ARTICLE 10, such Indemnified Party shall
promptly pay over to the Indemnitor the amount so recovered (after deducting
therefrom the full amount of the expenses incurred by it in procuring such
recovery), but not in excess of the sum of (i) any amount previously so paid by
the Indemnitor to or on behalf of the Indemnified Party in respect of such
matter and (ii) any amount expended by the Indemnitor in pursuing or defending
any claim arising out of such matter.
(b) Except for remedies that cannot be waived as a matter of law and
injunctive and provisional relief, if the Closing occurs, this ARTICLE 10 shall
be the exclusive remedy for breaches of this Agreement (including any covenant,
obligation, representation or warranty contained in this Agreement or in any
certificate delivered pursuant to this Agreement) or otherwise in respect of the
transactions contemplated hereby.
10.6. Mitigation. Each of the parties agree to take all reasonable steps to
mitigate their respective Losses upon and after becoming aware of any event or
condition which could reasonably be expected to give rise to any Losses that are
indemnifiable hereunder.
ARTICLE 11
TERMINATION
11.1. Termination. Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated at any time prior to the
Closing Date:
(a) by the mutual consent of the Buyer and the Seller;
(b) by the Buyer in the event of any material breach by the Seller of any
of the Seller's agreements, representations or warranties contained herein and
the failure of the Seller to cure such breach within 30 days after receipt of
notice from the Buyer requesting such breach to be cured;
(c) by the Seller in the event of any material breach by the Buyer of any
of the Buyer's agreements, representations or warranties contained herein and
the failure of the Buyer to cure such breach within 30 days after receipt of
notice from the Seller requesting such breach to be cured;
(d) by the Buyer or the Seller if any court of competent jurisdiction shall
have issued a final and non-appealable order, decree or ruling permanently
restraining, enjoining or otherwise prohibiting the consummation of the
transactions contemplated hereby; or
(e) by the Buyer or the Seller, if the Closing shall not have occurred on
or before October 30th, 2001 (or such later date as may be agreed to in writing
by the Buyer and the Seller); provided, however, that if the Closing shall not
have occurred because the waiting
26
period under the HSR Act shall not have expired or been terminated, either party
may extend the October 30th, 2001 date to up to November 30th, 2001; and
provided, further, that if the cause of delay of the Closing is due in whole or
in substantial part to the default of a party, such party in default shall not
have the right to terminate this Agreement pursuant to this clause (e).
11.2. Notice of Termination. Any party desiring to terminate this Agreement
pursuant to Section 11.1 shall give written notice of such termination to the
other parties to this Agreement.
11.3. Effect of Termination. In the event that this Agreement shall be
terminated pursuant to this ARTICLE 11, all further obligations of the parties
under this Agreement (other than Sections 12.2 and 12.10) shall be terminated
without further liability of either party to the other; provided, that, nothing
herein shall relieve any party from liability for its willful breach of this
Agreement.
ARTICLE 12
GENERAL PROVISIONS
12.1. Survival of Representations and Warranties. All representations and
warranties contained in this Agreement shall survive the consummation of the
transactions contemplated by this Agreement through the period during which
claims for indemnification in respect thereof may be made pursuant to ARTICLE 10
(at which time all representations and warranties shall terminate).
12.2. Confidential Nature of Information. Each party hereto agrees that all
documents, materials and other information which it shall have obtained
regarding the other parties during the course of the negotiations leading to the
consummation of the transactions contemplated hereby (whether obtained before or
after the date of this Agreement), the investigation provided for herein and the
preparations of this Agreement and other related documents shall be held in
confidence pursuant to the letter agreement between the parties dated April 4,
2001 (the "Confidentiality Agreement"), provided that from and after the Closing
the Buyer may use and disclose such documents, materials and other information
in its sole discretion (unless such documents, materials and other information
otherwise prohibit such use and disclosure).
12.3 No Public Announcement. Neither the Buyer, on the one hand, nor the
Seller, on the other hand, shall, without the approval of the other, make any
press release or other public announcement concerning the transactions
contemplated by this Agreement, except as and to the extent that any such party
shall be so obligated by law, in which case the other party shall be advised and
the parties shall use their best efforts to cause a mutually agreeable release
or announcement to be issued; provided, however, that the foregoing shall not
preclude communications or disclosures necessary to implement the provisions of
this Agreement or to comply with the accounting and disclosure obligations of
the Securities and
27
Exchange Commission or the rules of any stock exchange or Nasdaq or to enable
the Buyer to obtain debt or equity financing.
12.4. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered when
delivered personally or when sent by registered or certified mail or by private
courier addressed as follows:
If to the Buyer, to:
CSL Limited
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Managing Director
with a copy to:
CSL Limited
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
General Counsel
If to the Seller, to:
Nabi
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
and Chief Operating Officer
and
▇▇▇▇ ▇. ▇▇▇▇, Esq.
Senior Director and General Counsel
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
or to such other address as such party may indicate by a notice delivered to the
other parties hereto.
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12.5. Successors and Assigns
(a) The rights of either party under this Agreement shall not be assignable
by such party hereto prior to the Closing without the written consent of the
other party, provided that the Buyer may assign this Agreement or its rights
hereunder to one or more subsidiaries of the Buyer without the consent of the
Seller. No such assignment shall relieve the Buyer from any obligation or
liability under this Agreement.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended or shall be construed to confer
upon any person, other than the parties and successors and assigns permitted by
this Section 12.5 any right, remedy or claim under or by reason of this
Agreement.
12.6. Entire Agreement; Amendments. This Agreement and the Exhibits and
Schedules referred to herein and the documents delivered pursuant hereto and the
Confidentiality Agreement contain the entire understanding of the parties hereto
with regard to the subject matter contained herein or therein, and supersede all
other prior agreements, understandings or letters of intent between or among any
of the parties hereto. This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
12.7. Interpretation.
(a) Articles, title and headings to sections herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement. The Schedules referred to
herein shall be construed with and as an integral part of this Agreement to the
same extent as if they were set forth verbatim herein. Disclosure of any fact or
item in any Schedule hereto referenced by a particular section in this Agreement
shall be deemed to have been disclosed with respect to every other section in
this Agreement. Neither the specification of any dollar amount in any
representation or warranty contained in this Agreement nor the inclusion of any
specific item in any Schedule hereto is intended to imply that such amount, or
higher or lower amounts, or the item so included or other items, are or are not
material, and no party shall use the fact of the setting forth of any such
amount or the inclusion of any such item in any dispute or controversy between
the parties as to whether any obligation, item or matter not described herein or
included in any Schedule is or is not material for purposes of this Agreement.
Unless this Agreement specifically provides otherwise, neither the specification
of any item or matter in any representation or warranty contained in this
Agreement nor the inclusion of any specific item in any Schedule hereto is
intended to imply that such item or matter, or other items or matters, are or
are not in the ordinary course of business, and no party shall use the fact of
the setting forth or the inclusion of any such item or matter in any dispute or
controversy between the parties as to whether any obligation, item or matter not
described herein or included in any Schedule is or is not in the ordinary course
of business for purposes of this Agreement.
29
(b) The parties acknowledge and agree that: (i) each party and its counsel
reviewed and negotiated the terms and provisions of this Agreement and has
contributed to its revision; (ii) the rule of construction to the effect that
any ambiguities are resolved against the drafting party shall not be employed in
the interpretation of this Agreement; and (iii) the terms and provisions of this
Agreement shall be construed fairly as to all parties hereto and not in favor of
or against any party, regardless of which party was generally responsible for
the preparation of this Agreement.
12.8. "Seller's Knowledge" Defined. For purposes of this Agreement,
"Seller's knowledge" means, as to a particular matter, (a) the actual knowledge
of the following persons: Chief Executive Officer; Executive Vice President and
Chief Operating Officer; Chief Financial Officer; Senior Vice President,
Manufacturing Operations; and General Counsel and (b) that knowledge that would
be obtained or for which a reason to believe would ordinarily develop upon
customary (within the industry) and reasonably prudent inquiry into or analysis
of the matter at hand.
12.9. Waivers. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the party or parties entitled
to the benefit thereof. Any such waiver shall be validly and sufficiently
authorized for the purposes of this Agreement if, as to any party, it is
authorized in writing by an authorized representative of such party. The failure
of any party hereto to enforce at any time any provision of this Agreement shall
not be construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereto or the right of any party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
12.10. Expenses; Taxes.
(a) Each party hereto will pay all costs and expenses incident to its
negotiations and preparation of this Agreement and to the performance and
compliance with all agreements and conditions contained herein on its part to be
performed or complied with, including the fees, expenses and disbursements of
its counsel and independent public accountants.
(b) The Buyer shall pay all sales and other taxes imposed by any
governmental entity in connection with the transfer of the Assets, excluding any
taxes on or measured by the Seller's net income.
12.11. Currency. All dollar amounts set forth in this Agreement are
expressed in currency of the United States of America, and all payments to be
made pursuant to this Agreement shall be made in United States of America
dollars.
12.12. Partial Invalidity. Wherever possible, each provision hereof shall
interpreted in such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
provision shall be ineffective to the extent, but
30
only to the extent, of such invalidity, illegality or unenforceability without
invalidating the remainder of such invalid, illegal or unenforceable provision
or provisions or any other provision hereof, unless such a construction would be
unreasonable.
12.13. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be considered an original instrument, but
all of which shall be considered one and the same agreement, and shall become
binding when one or more counterparts have been signed by each of the parties
hereto and delivered to the Seller and the Buyer.
12.14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Delaware.
12.15. Disclaimer of Warranties. The Seller makes no representations or
warranties with respect to any projections, forecasts or forward-looking
information provided to the Buyer. There is no assurance that any projected or
forecasted results will be achieved. EXCEPT AS TO THOSE MATTERS EXPRESSLY
COVERED BY THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT AND THE
CERTIFICATE DELIVERED BY THE SELLER PURSUANT TO SECTION 8.1, THE SELLER IS
SELLING THE ASSETS ON AN "AS IS, WHERE IS" BASIS AND THE SELLER DISCLAIMS ALL
OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, WHETHER EXPRESS OR IMPLIED AND
THE SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE AND NO IMPLIED WARRANTIES WHATSOEVER. The Buyer
acknowledges that neither the Seller nor any of its representatives nor any
other person has made any representation or warranty, express or implied, as to
the accuracy or completeness of any memoranda, charts, summaries or schedules
heretofore made available by the Seller or its representatives to the Buyer or
any other information which is not included in this Agreement or the Schedules
hereto, and neither the Seller nor any of its representatives nor any other
person will have or be subject to any liability to the Buyer or any other person
resulting from the distribution of any such information to, or use of any such
information by, the Buyer or any of its agents, consultants, accountants,
counsel or other representatives.
[Remainder of this page left blank intentionally.]
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
NABI
By
---------------------------------
Name:
Title:
CSL LIMITED
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
32