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EXHIBIT 10.6
AGREEMENT AND PLAN OF REORGANIZATION
among
PERIMMUNE HOLDINGS, INC.
INTRACEL CORPORATION
and
INTRACEL ACQUISITION SUB, INC.
DATED AS OF NOVEMBER 26, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions and Usage ......................................................8
ARTICLE II
THE MERGER
Section 2.01 The Merger ................................................................12
Section 2.02 Effects of the Merger .....................................................12
Section 2.03 Certificate of Incorporation and Bylaws ...................................12
Section 2.04 Directors and Officers ....................................................12
Section 2.05 Conversion ................................................................12
Section 2.06 Tax Consequences ..........................................................14
ARTICLE III
EXCHANGE OF SHARES
Section 3.01 Exchange of Certificates ..................................................14
Section 3.02 Stock Options .............................................................16
Section 3.03 Dissenting Shares .........................................................16
Section 3.04 Adjustments ...............................................................17
Section 3.05 Lost Certificates .........................................................17
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 4.01 Organization ..............................................................17
Section 4.02 Capitalization ............................................................17
Section 4.03 Authority Relative to This Agreement ......................................18
Section 4.04 Consents and Approvals; No Violations .....................................19
Section 4.05 Absence of Certain Changes ................................................19
Section 4.06 Financial Statements ......................................................20
Section 4.07 No Undisclosed Liabilities ................................................20
Section 4.08 No Default ................................................................20
Section 4.09 Litigation ................................................................20
Section 4.10 Compliance with Applicable Law ............................................20
Section 4.11 Taxes .....................................................................21
Section 4.12 ERISA .....................................................................21
Section 4.13 Title to Property .........................................................22
Section 4.14 Intellectual Property .....................................................23
Section 4.15 Interested Party Transactions .............................................24
Section 4.16 Insurance .................................................................24
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Section 4.17 Products ..................................................................25
Section 4.18 Change in Control .........................................................25
Section 4.19 Environmental, Health, and Safety .........................................25
Section 4.20 Employment and Labor Matters ..............................................26
Section 4.21 Contracts .................................................................27
Section 4.22 Predominant Customers .....................................................27
Section 4.23 Change in Customers or Vendors ............................................27
Section 4.24 Notes and Accounts Receivable .............................................27
Section 4.25 Questionable Payments .....................................................27
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF INTRACEL
PARENT AND INTRACEL ACQUISITION SUB
Section 5.01 Organization ..............................................................28
Section 5.02 Capitalization ............................................................28
Section 5.03 Authority Relative to this Agreement ......................................29
Section 5.04 Consents and Approvals; No Violations .....................................30
Section 5.05 Financial Statements ......................................................30
Section 5.06 Absence of Certain Changes ................................................30
Section 5.07 No Undisclosed Liabilities ................................................31
Section 5.08 No Default ................................................................31
Section 5.09 Litigation ................................................................31
Section 5.10 Compliance with Applicable Law ............................................31
Section 5.11 Taxes .....................................................................32
Section 5.12 ERISA .....................................................................32
Section 5.13 Title to Property .........................................................33
Section 5.14 Intellectual Property .....................................................33
Section 5.15 Interested Party Transactions .............................................35
Section 5.16 Insurance .................................................................35
Section 5.17 Products ..................................................................35
Section 5.18 Interim Operations of Intracel Acquisition Sub ............................36
Section 5.19 Change in Control .........................................................36
Section 5.20 Environmental, Health, and Safety .........................................36
Section 5.21 Employment and Labor Matters ..............................................37
Section 5.22 Contracts .................................................................38
Section 5.23 Predominant Customers .....................................................38
Section 5.24 Change in Customers or Vendors ............................................38
Section 5.25 Notes and Accounts Receivable .............................................38
Section 5.26 Questionable Payments .....................................................38
ARTICLE VI
COVENANTS
Section 6.01 Covenants of the Company and Intracel Parent ..............................39
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Section 6.02 Additional Covenants of the Company and Intracel Parent ...................41
Section 6.03 No Solicitation ...........................................................42
Section 6.04 Access to Information .....................................................43
Section 6.05 Stockholders Meetings .....................................................43
Section 6.06 Brokers or Finders ........................................................43
Section 6.07 Consents, Approvals and Filings ...........................................43
ARTICLE VII
CONDITIONS
Section 7.01 Conditions to Each Party's Obligation to Effect the Merger ................44
Section 7.02 Conditions of Obligations of Intracel Parent and Intracel Acquisition Sub..45
Section 7.03 Conditions of Obligations of the Company ..................................47
ARTICLE VIII
TERMINATION AND AMENDMENT
Section 8.01 Termination ...............................................................50
Section 8.02 Effect of Termination .....................................................50
Section 8.03 Amendment .................................................................50
Section 8.04 Extension; Waiver .........................................................51
ARTICLE IX
POST CLOSING COVENANTS
ARTICLE X
MISCELLANEOUS
Section 10.01 Nonsurvival of Representations and Warranties .............................51
Section 10.02 Notices ...................................................................51
Section 10.03 Descriptive Headings ......................................................52
Section 10.04 Counterparts ..............................................................52
Section 10.05 Entire Agreement; Assignment ..............................................52
Section 10.06 Governing Law .............................................................52
Section 10.07 Specific Performance ......................................................52
Section 10.08 Expenses ..................................................................53
Section 10.09 Publicity .................................................................53
Section 10.10 Parties in Interest .......................................................53
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EXHIBITS
Exhibit 2.03(a) Amended and Restated Certificate of Incorporation of Surviving Corporation
Exhibit 2.03(b) Amended and Restated Certificate of Incorporation of Intracel Parent
Exhibit 2.03(c) Amended and Restated Bylaws of Surviving Corporation
Exhibit 2.03(d) Amended and Restated Bylaws of Intracel Parent
Exhibit B ▇▇▇▇▇ Letter
Exhibit C Shareholders Agreement
Exhibit D Registration Rights Agreements
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COMPANY DISCLOSURE SCHEDULES
Section 4.02 Capitalization of Company and Subsidiaries
Section 4.04 Consents and Approvals; No Violations
Section 4.05 Absence of Certain Changes
Section 4.07 No Undisclosed Liabilities
Section 4.08 No Default
Section 4.09 Litigation
Section 4.11 Taxes
Section 4.12 ERISA
Section 4.13 Title to Property
Section 4.14 Intellectual Property
Section 4.15 Interested Party Transactions
Section 4.17 Products
Section 4.18 Change in Control
Section 4.20 Employment and Labor Matters
Section 4.21 Contracts
Section 4.22 Predominant Customers
Section 4.23 Change in Customers or Vendors
Section 6.01 Covenants of the Company and Intracel Parent
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INTRACEL PARENT DISCLOSURE SCHEDULE
Section 2.04 List of Directors and Officers of Intracel Acquisition Sub, the Surviving
Corporation and Intracel
Section 5.02(a) Capitalization
Section 5.02(b) Subsidiaries of Intracel Parent
Section 5.04 Consents and Approvals; No Violations
Section 5.05 Financial Statements
Section 5.06 Absence of Certain Changes
Section 5.07 No Undisclosed Liabilities
Section 5.08 No Default
Section 5.09 Litigation
Section 5.11 Taxes
Section 5.12(a) ERISA
Section 5.12(c) Unfunded ERISA Benefit Obligations
Section 5.12(d) Obligations for Retiree and Life Benefits
Section 5.13 Title to Property
Section 5.14(b) Intracel Parent Intellectual Property and Jurisdictions
Section 5.14(c) Non-Ordinary Intellectual Property Information
Section 5.14(d) Breach of Intellectual Property Agreements
Section 5.14(e) Intellectual Property Litigation
Section 5.14(f) Intracel Parent Persons Who Have Executed Intellectual Property Protection
and Assignment Agreements
Section 5.14(g) Undisclosed Uses of Confidential Information
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Section 5.15 Interested Party Transactions
Section 5.17 Products
Section 5.19 Change in Control
Section 5.21 Employment and Labor Matters
Section 5.22 Contracts
Section 5.23 Predominant Customers
Section 5.24 Change in Customers or Vendors
Section 6.01 Covenants of the Company and Intracel Parent
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of November 26, 1997, by and
among PerImmune Holdings, Inc., a Delaware corporation (the "COMPANY"), Intracel
Corporation, a Delaware corporation ("INTRACEL PARENT"), and Intracel
Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Intracel Parent ("INTRACEL ACQUISITION SUB").
RECITALS
A. The Boards of Directors of Intracel Parent, the Company and Intracel
Acquisition Sub believe it is in the best interests of their respective
companies and the shareholders of their respective companies that the Company
and Intracel Acquisition Sub combine into a single company through the statutory
merger of Intracel Acquisition Sub with and into the Company (the "MERGER") and,
in furtherance thereof, have approved the Merger.
B. Pursuant to the Merger, among other things, the outstanding shares of
the Company capital stock, shall be converted into shares of Intracel Parent
capital stock, at the rate set forth herein.
C. Intracel Parent and Intracel Acquisition Sub desire to make certain
representations and warranties and other agreements in connection with the
Merger.
D. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "CODE"), and to cause the Merger to qualify as a
reorganization under the provisions of Section 368(a) of the Code.
NOW, THEREFORE, in consideration of the covenants and representations set
forth herein, and for other good and valuable consideration, the parties agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions and Usage. (a) For purposes of this Agreement:
"AFFILIATE" means, with respect to any person, any other person directly or
indirectly controlling, controlled by, or under common control with such person.
"ENVIRONMENTAL, HEALTH, AND SAFETY LAWS" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, and the Occupational Safety and Health
Act of 1970, each as amended, together with all other laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
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agencies thereof) concerning pollution or protection of the environment, public
health and safety, or employee health and safety, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or waste.
"FDA" means the United States Food and Drug Administration and any
successor agency thereto.
"KNOWLEDGE" of any person which is not an individual means the knowledge of
such person's officers after reasonable inquiry.
"MATERIAL ADVERSE EFFECT" means, when used in connection with Intracel
Parent or the Company, any change, effect, event, occurrence or state of facts
that has had, or would reasonably be expected to have, a material adverse effect
on the business, operations, assets, liabilities, condition (financial or
otherwise) or results of operations of Intracel Parent and its subsidiaries,
taken as a whole, or the Company and its subsidiaries, taken as a whole as the
case may be.
"OFFICER" means, in the case of Intracel Parent or the Company, any
executive officer of Intracel Parent or the Company, as applicable, within the
meaning of Rule 3b-9 of the 1934 Act.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute thereto.
"SUBSIDIARY" means, with respect to any person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at any time directly or indirectly owned by such persons.
A reference in this Agreement to any statute shall be to such statute as
amended from time to time, and to the rules and regulations promulgated
thereunder.
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(b) Each of the following terms is defined in the Sections set forth opposite
such term:
B-1 Conversion Ratio............................. 2.05(a)
B-2 Conversion Ratio............................. 2.05(a)
Certificates..................................... 3.01(b)
Certificate of Merger............................ 2.01
Closing Date..................................... 2.01
Common Conversion Ratio.......................... 2.05(a)
Company Balance Sheet............................ 4.06
Company Balance Sheet Date....................... 4.06
Company Benefit Plans............................ 4.12(a)
Company Common Stock............................. 2.05(a)
Company Disclosure Schedule...................... 4.02(a)
Company Dollar Threshold......................... 4.22
Company Financial Reports........................ 4.06
Company Intellectual Property.................... 4.14(a)
Company Permits.................................. 4.10
Company Primary Opinion.......................... 7.02(e)
Company Product.................................. 4.17(a)
Company Series A Preferred....................... 2.05(a)
Company Series B Preferred....................... 2.05(a)
Company Shares................................... 2.05(a)
Company Stock Option............................. 6.02(b)
Company Stock Option Plan........................ 3.02
Effective Time .................................. 2.01
ERISA ........................................... 4.12(a)
ERISA Affiliate.................................. 4.12(a)
Exchange Agent................................... 3.01(a)
GCL.............................................. 2.01
Governmental Entity.............................. 4.04
Incentive Stock Options.......................... 6.02(a)
Intracel Parent B-1 Preferred.................... 2.05(a)
Intracel Parent B-2 Preferred.................... 2.05(a)
Intracel Parent Balance Sheet.................... 5.05
Intracel Parent Balance Sheet Date 5.05
Intracel Parent Benefit Plans.................... 5.12
Intracel Parent Common Stock..................... 2.05(a)
Intracel Parent Disclosure Schedule 5.02(a)
Intracel Parent Financial Reports................ 5.05
Intracel Parent Permits.......................... 5.10
Intracel Parent Product.......................... 5.17(a)
Intracel Parent Shares........................... 2.05(a)
Intracel Parent Stock Plans...................... 5.02(a)
Intracel Primary Opinion......................... 7.03(e)
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IRS.............................................. 4.12(a)
Merger Consideration ............................ 2.05(d)
Surviving Corporation ........................... 2.01
Taxes............................................ 4.11
Third Party Intellectual Property................ 4.14(b)
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ARTICLE II
THE MERGER
Section 2.01 The Merger. Upon the terms and subject to the conditions hereof, as
promptly as practicable following the satisfaction or waiver of the conditions
set forth in Article VII hereof, but in no event later than two business days
thereafter, unless the parties shall otherwise agree, a certificate of merger
(the "CERTIFICATE OF MERGER") providing for the Merger shall be duly prepared,
executed and filed by the Company, as the surviving corporation (sometimes the
"SURVIVING CORPORATION"), in accordance with the relevant provisions of the
Delaware General Corporation Law (the "GCL") and the parties hereto shall take
any other actions required by law to make the Merger effective.
Following the Merger, the Company, with all its purposes, objects,
rights, privileges, powers and franchises, shall continue, and Intracel
Acquisition Sub shall cease to exist. The time the Merger becomes effective is
referred to herein as the "EFFECTIVE TIME" and the date on which the Effective
Time occurs is referred to as the "CLOSING DATE." Prior to the filing of the
Certificate of Merger, a closing shall take place at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, 1290 Avenue of the Americas, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Section 2.02 Effects of the Merger. The Merger shall have the effects set forth
in the GCL, this Agreement and the Certificate of Merger. As of the Effective
Time, the Surviving Corporation shall be a wholly owned subsidiary of Intracel
Parent.
Section 2.03 Certificate of Incorporation and Bylaws. The Certificate of
Incorporation of the Surviving Corporation and Intracel Parent shall be amended
and restated as set forth in Exhibit 2.03(a) and Exhibit 2.03(b), respectively.
The Bylaws of the Surviving Corporation and Intracel Parent shall be amended and
restated as set forth in Exhibit 2.03(c) and Exhibit 2.03(d), respectively.
Section 2.04 Directors and Officers. The directors and officers of Intracel
Acquisition Sub immediately prior to the Effective Time shall be the initial
directors and officers of the Surviving Corporation until their successors shall
have been duly elected or appointed and shall have been qualified or until their
earlier death, resignation or removal in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation. Such directors and
officers, together with the officers of Intracel Parent immediately subsequent
to the Effective Time, are set forth in Section 2.04 hereto.
Section 2.05 Conversion. At the Effective Time, by virtue of the Merger and
without any action on the part of Intracel Parent, Intracel Acquisition Sub, the
Company or the holder of any of the following securities:
(a) Subject to Section 3.01(e), each issued and outstanding share of (i)
common stock, par value $.01 per share, of the Company ("COMPANY COMMON
STOCK") (other than shares to be cancelled in accordance with Section
2.05(b) hereof) shall be converted into the
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right to receive a number of fully paid and nonassessable shares of
Intracel Parent common stock, par value $.0001 per share ("INTRACEL
PARENT COMMON STOCK") equal to the Common Conversion Ratio (as
hereinafter defined), (ii) Series preferred stock, par value $.01 per
share, of the Company ("COMPANY SERIES A PREFERRED") (other than shares
to be cancelled in accordance with Section 2.05(b) hereof) shall be
converted into the right to receive a number of fully paid and
nonassessable shares of Intracel Parent preferred stock, Class B-1, par
value $.0001 per share ("INTRACEL PARENT B-1 PREFERRED") equal to the
B-1 Conversion Ratio (as hereinafter defined); and (iii) Series B
preferred stock, par value $.01 per share, of the Company ("COMPANY
SERIES B PREFERRED" and, together with the Company Common Stock and
Company Series A Preferred, the "COMPANY SHARES") (other than shares to
be cancelled in accordance with Section 2.05(b) hereof) shall be
converted into the right to receive a number of fully paid and
nonassessable shares of Intracel Parent preferred stock, Class B-2, par
value $.0001 per share ("INTRACEL PARENT B-2 PREFERRED" and, together
with the Intracel Parent Common Stock and Intracel Parent B-1 Preferred,
"INTRACEL PARENT SHARES") equal to the B-2 Conversion Ratio (as
hereinafter defined). For purposes of the foregoing, the (i) "COMMON
CONVERSION RATIO" shall mean an amount equal to the quotient of: (A) the
total number of outstanding shares of Intracel Parent Common Stock on a
fully diluted basis immediately prior to the Effective Time, divided by
(B) the total number of outstanding shares of Company Common Stock on a
fully diluted basis immediately prior to the Effective Time, (ii) "B-1
CONVERSION RATIO" shall mean 1 and (iii) "B-2 CONVERSION RATIO" shall
mean 1. For the purposes of determining "fully diluted basis" pursuant
to the immediately preceding sentence and Section 3.01(e), all shares of
Intracel Parent Common Stock or Company Common Stock, as the case may
be, issuable upon exercise of options or warrants, or upon conversion,
exchange or exercise of other securities or other rights outstanding,
and all payment in kind dividends for any series of capital stock which
have not been paid but have accrued through the date, immediately prior
to the Effective Time (regardless of whether then exercisable,
convertible or exchangeable and including shares issuable upon exercise
of outstanding options, notwithstanding that such options are being
assumed or converted pursuant to Section 6.02(b) hereof) shall be deemed
outstanding.
(b) All Company Shares held in the treasury of the Company and all Company
Shares held by Intracel Parent or any subsidiary of Intracel Parent
shall be cancelled and retired and cease to exist.
(c) Each issued and outstanding share of the capital stock of Intracel
Acquisition Sub shall be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation.
(d) The consideration to be delivered in exchange for each security, as set
forth in this Section 2.05, is hereafter referred to as the "MERGER
CONSIDERATION."
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Section 2.06 Tax Consequences. It is intended that the Merger shall constitute a
reorganization within the meaning of Section 368(a) of the Code, and that this
Agreement shall constitute a "plan of reorganization" for the purposes of
Section 368 of the Code.
ARTICLE III
EXCHANGE OF SHARES
Section 3.01 Exchange of Certificates.
(a) At the Effective Time, Intracel Parent shall make available to Perkins,
Coie, as the exchange agent (the "EXCHANGE AGENT"), certificates
representing the aggregate number of Intracel Parent Shares issuable
pursuant to Section 2.05 in exchange for Company Shares, and the
Exchange Agent shall hold such certificates in trust for the benefit of
the holders of Company Shares for exchange in accordance with this
Article III.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each
holder of record of a certificate or certificates which immediately
prior to the Effective Time represented Company Shares (the
"CERTIFICATES") a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the
Exchange Agent and shall be in such form and have such other provisions
as Intracel Parent and the Company may reasonably specify) and
instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing Intracel Parent Shares and any
dividends payable on such Intracel Parent Shares as provided in Section
3.01(c) and cash in lieu of fractional shares as provided in clause (e)
of this Section 3.01, if applicable. Upon surrender of a Certificate to
the Exchange Agent, together with such letter of transmittal, duly
executed, the holder of such Certificate shall be entitled to receive in
exchange therefor the certificates representing whole Intracel Parent
Shares and cash in lieu of fractional shares as provided in clause (e)
of this Section 3.01, if applicable, which such holder has the right to
receive pursuant to the provisions of this Agreement, and the
Certificate so surrendered shall forthwith be cancelled. If a
certificate representing Intracel Parent Shares is to be issued in a
name other than that in which the Certificate surrendered in exchange
therefor is registered, it shall be a condition to the issuance that
such Certificate be properly endorsed (or accompanied by an appropriate
instrument of transfer) and accompanied by evidence that any applicable
stock transfer taxes have been paid or provided for. Until surrendered
as contemplated by this Section 3.01, each Certificate shall be deemed
at any time after the Effective Time to represent only the right to
receive the consideration specified herein; provided that in the event
any holder exercises his appraisal rights, if any, under Section 262 of
the GCL and becomes entitled to receive the appraised value of his
Company Shares instead of the Intracel Parent Shares into which such
Company Shares shall have been converted, Intracel Parent shall pay such
holder the appraised value of such Company Shares, together with any
other sums which it may owe him as a result of the appraisal proceeding,
upon his surrender to the Exchange Agent of the certificate or
certificates which immediately prior to the Effective Time represented
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the shares so appraised, and the Exchange Agent shall not thereafter be
required to deliver to such holder any Intracel Parent Shares.
Any certificates representing Intracel Parent Shares which remain unclaimed
by the holders of Certificates for twelve months after the Effective Time shall
remain outstanding and shall be held by Intracel Parent, and any holders of
Certificates who have not surrendered their Certificates in compliance with
Section 3.01 shall thereafter receive delivery (subject to abandoned property,
escheat or other similar laws) of the Intracel Parent Shares issuable upon the
conversion of their Certificates and any dividends payable on such Intracel
Parent Shares, without any interest thereon only after delivering their
Certificates and letters of transmittal to Intracel Parent, and otherwise
complying with Section 3.01(b).
(c) No dividends or other distributions declared or made after the Effective
Time with respect to Intracel Parent Shares with a record date after the
Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the Intracel Parent Shares represented
thereby and no cash payment in lieu of fractional shares shall be paid
to any such holder pursuant to Section 3.01(e) until the holder of
record of such Certificate shall surrender such Certificate. Following
surrender of any such Certificate, there shall be paid to the record
holder of the certificates representing whole Intracel Parent Shares
issued in exchange therefor, without interest, (i) at the time of such
surrender, the amount of any cash payable in lieu of a fractional
Intracel Parent Share to which such holder is entitled pursuant to
Section 3.01(e) and the amount of dividends or other distributions with
a record date after the Effective Time theretofore paid with respect to
such whole Intracel Parent Shares and (ii) at the appropriate payment
date, the amount of dividends or other distributions with a record date
after the Effective Time but prior to surrender and a payment date
subsequent to surrender payable with respect to such whole Intracel
Parent Shares.
(d) Following the Effective Time, there shall be no further registration of
transfers on the stock transfer books of the Surviving Corporation of
the Company Shares which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented
to the Surviving Corporation for any reason, they shall be cancelled and
exchanged as provided in this Article III.
(e) No certificate or scrip representing fractional Intracel Parent Shares
shall be issued upon the surrender for exchange of Certificates, and
such fractional share interests will not entitle the owner thereof to
vote or to any rights of a stockholder of Intracel Parent. In lieu of
any such fractional share, Intracel Parent shall pay to each former
stockholder of the Company who otherwise would be entitled to receive a
fractional Intracel Parent Share an amount in cash determined by
multiplying (i) the quotient of $75,000,000 divided by the number of
outstanding shares of Intracel Parent Common Stock on a fully diluted
basis immediately prior to the Effective Time by (ii) the fraction of an
Intracel Parent Share to which such holder would otherwise be entitled.
As promptly as practicable after any determination of the amount of cash
to be paid to holders of Company Shares in lieu of any fractional share
interests, Exchange Agent shall pay such
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amounts to such holders of Company Shares in accordance with the terms
of this Article III.
(f) The Intracel Parent Shares to be issued pursuant to this Section 3.01
shall not have been registered and shall be characterized as "restricted
securities" under the federal securities laws, and under such laws such
shares may be resold without registration under the Securities Act, only
in certain limited circumstances. Each certificate evidencing Intracel
Parent Shares to be issued pursuant to this Section 3.01 shall bear the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND WERE ISSUED IN RELIANCE UPON AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SAID ACT. SUCH SHARES MAY NOT
BE RESOLD, REOFFERED, TRANSFERRED, PLEDGED HYPOTHECATED,
CONVEYED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SAID
ACT.
(g) Notwithstanding anything to the contrary in this Section 3.01, none of
the Exchange Agent, the Company or any party hereto shall be liable to
any person for any amount properly paid to a public official pursuant to
any applicable abandoned property, escheat or similar law.
(h) If, at any time after the Effective Time, any further action is
necessary or desirable to carry out the purposes of this Agreement and
to vest the Surviving Corporation with full right, title and possession
to all assets, property, rights, privileges, powers and franchises of
the Company and Intracel Acquisition Sub, the officers and directors of
the Company and Intracel Acquisition Sub are fully authorized in the
name of their respective corporations or otherwise to take, and will
take, all such lawful and necessary action, so long as such action is
not inconsistent with this Agreement.
Section 3.02 Stock Options. At the Effective Time, the PerImmune Amended and
Restated 1996 Stock Option Plan (the "COMPANY STOCK OPTION PLAN") and each
option to purchase shares of Company Common Stock outstanding under the Company
Stock Option Plan, whether or not exercisable, and whether or not vested, shall
be assumed by Intracel Parent in accordance with Section 6.02 (b), and, prior to
the Effective Time, Intracel Parent shall take all corporate action necessary to
reserve for issuance a sufficient number of shares of Intracel Parent Common
Stock for delivery upon exercise of such options so assumed by it.
Section 3.03 Dissenting Shares. If any holder of Company Shares shall be
entitled to be paid the "fair value" of his Company Shares, as provided in
Section 262 of the GCL, the Company shall give Intracel Parent notice thereof
and Intracel Parent shall have the right to participate in all negotiations and
proceedings with respect to any such demands. The Company shall not,
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except with the prior written consent of Intracel Parent, voluntarily make any
payment with respect to, or settle or offer to settle, any such demand for
payment.
Section 3.04 Adjustments. If, between the date of this Agreement and the
Effective Time, the Intracel Parent Shares or Company Shares shall have been
exchanged into a different number of shares or a different class by reason of
any reclassification, recapitalization, split-up, combination, exchange of
shares or readjustment, or a stock dividend thereon shall be declared with a
record date within such period, the amount of Intracel Parent Shares into which
the Company Shares will be converted in the Merger shall be correspondingly
adjusted.
Section 3.05 Lost Certificates. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting of such person of a bond, in such
reasonable amount as the Surviving Corporation may direct, as indemnity against
any claim that may be made against it with respect to such Certificate, the
Exchange Agent will issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration to be paid in respect of the shares of
Company Shares represented by such Certificates as contemplated by this Article.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Intracel Parent and Intracel
Acquisition Sub as follows:
Section 4.01 Organization. Each of the Company and PerImmune, Inc. (the
"Subsidiary") is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. The Subsidiary is the only
subsidiary of the Company. The Company and the Subsidiary are duly qualified or
licensed and in good standing to do business in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business conducted
by it makes such qualification or licensing necessary, except in such
jurisdictions where the failure to be so duly qualified or licensed and in good
standing would not have a Material Adverse Effect on the Company and the
Subsidiary, taken as a whole. The Company has heretofore delivered to Intracel
Parent accurate and complete copies of the Certificate of Incorporation and
Bylaws, as currently in effect, of the Company and the Subsidiary.
Section 4.02 Capitalization. (a) The authorized capital stock of the Company
consists of 3,000 shares of Company Common Stock, 100 shares of Company Series A
Preferred, 20 shares of Company Series B Preferred and 880 Company Shares which
are preferred stock without designation, of which, as of the date hereof, 594.5
shares of Company Common Stock, 100 shares of Company Series A Preferred and 20
shares of Company Series B Preferred were issued and outstanding. All the issued
and outstanding Company Shares are validly issued, fully paid
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and nonassessable and free of preemptive rights. As of the date hereof, 257
shares of Company Common Stock were issuable upon exercise of options pursuant
to the Company Stock Option Plan. Section 4.02 of the disclosure schedule
attached hereto relating to the Company (the "COMPANY DISCLOSURE SCHEDULE") sets
forth each other subscription, option, warrant, call, right, convertible
security or other agreement or commitment of any character obligating the
Company to issue, transfer or sell any security and, as to each such security,
agreement or commitment, the average conversion or exercise price thereof, a
range of the conversion or exercise prices and the effects of the Merger and the
other transactions contemplated hereby on such security, agreement or
commitment, including pursuant to the antidilution provisions thereof. The
Company owns 100% of the issued and outstanding capital stock of PerImmune, Inc.
Except as set forth above or in Section 4.02 of the Company Disclosure
Schedule, or as contemplated hereby, there are not now, and at the Effective
Time there will not be, any shares of capital stock (or securities substantially
equivalent to capital stock) of the Company issued or outstanding or any
subscriptions, options, warrants, calls, rights, convertible securities or other
agreements or commitments of any character obligating the Company to issue,
transfer or sell any of its securities.
(b) Section 4.02 of the Company Disclosure Schedule sets forth
the name, jurisdiction of incorporation and capitalization of each subsidiary of
the Company. Except as disclosed in Section 4.02 of the Company Disclosure
Schedule, the Company does not own, directly or indirectly, any capital stock or
other equity securities of any corporation or have any direct or indirect equity
or ownership interest in any business. All of the outstanding shares of capital
stock of the Subsidiary have been validly issued and are fully paid and
nonassessable and, except as set forth in Section 4.02 of the Company Disclosure
Schedule, are owned by either the Company or the Subsidiary free and clear of
all liens, charges, claims or encumbrances. Except as set forth in Section 4.02
of the Company Disclosure Schedule, there are not now, and at the Effective Time
there will not be, any outstanding subscriptions, options, warrants, calls,
rights, convertible securities or other agreements or commitments of any
character relating to the issued or unissued capital stock or other securities
of the Subsidiary, or otherwise obligating the Company or any such subsidiary to
issue, transfer or sell any such securities. Except as set forth in Section 4.02
of the Company Disclosure Schedule, there are not now, and at the Effective Time
there will not be, any voting trusts or other agreements or understandings to
which the Company or the Subsidiary is a party or is bound with respect to the
voting of the capital stock of the Company or the Subsidiary. Except as set
forth above or in Section 4.02 of the Company Disclosure Schedule, there are no
persons or entities (other than the Subsidiary) in which the Company or the
Subsidiary has any voting rights or equity interests.
Section 4.03 Authority Relative to This Agreement. The Company has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of the Company and no
other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions so contemplated
(other than, with respect to the Merger, the approval of the Merger and adoption
of this Agreement by
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the holders of a majority of the outstanding shares of Company Common Stock, a
majority of the outstanding shares of Series A Preferred and a majority of the
outstanding shares of Series B Preferred). This Agreement has been duly and
validly executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject as to enforcement to bankruptcy, reorganization,
moratorium, insolvency or other laws of general applicability relating to or
affecting creditors rights and to general equity principles.
Section 4.04 Consents and Approvals; No Violations. Except for applicable
requirements of the Securities Act, applicable state securities laws and the
filing and recordation of a Certificate of Merger, as required by the GCL and
such other filings, permits, authorizations, consents or approvals which if not
obtained or made would not individually or in the aggregate have a Material
Adverse Effect on the Company, no filing with, and no permit, authorization,
consent or approval of, any public body or authority, including courts of
competent jurisdiction, domestic or foreign ("GOVERNMENTAL ENTITY"), is
necessary for the consummation by the Company of the transactions contemplated
by this Agreement. Except as set forth in Section 4.04 of the Company Disclosure
Schedule, neither the execution and delivery of this Agreement by the Company
nor the consummation by the Company of the transactions contemplated hereby nor
compliance by the Company with any of the provisions hereof will (i) conflict
with or result in any breach of any provision of the Certificate of
Incorporation or Bylaws of the Company or the Subsidiary, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
material note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which the Company or the Subsidiary is a party or by
which any of them or any of their properties or assets may be bound or (iii)
violate any material order, writ, injunction, decree, statute, treaty, rule or
regulation applicable to the Company, the Subsidiary or any of their properties
or assets, except in the case of (ii) or (iii) for violations, breaches or
defaults which are not in the aggregate material to the business, operations or
financial condition of the Company and the Subsidiary taken as a whole and which
will not prevent or delay the consummation of the transactions contemplated
hereby.
Section 4.05 Absence of Certain Changes. Except as set forth in Section 4.05 of
the Company Disclosure Schedule, in the Company Financial Reports (as defined
below) or the Company Balance Sheet, and except as contemplated by this
Agreement, since September 30, 1997, neither the Company nor the Subsidiary has
taken any of the actions set forth in Sections 6.01(b) to (h), suffered any
adverse changes in its business, operations or financial condition which are
material to the Company and the Subsidiary taken as a whole (other than changes
generally affecting the industries in which the Company operates, including
changes due to actual or proposed changes in law or regulation, or changes
relating to the transactions contemplated by this Agreement, including the
change in control contemplated hereby) or entered into any transaction, or
conducted its business or operations, other than in the ordinary and usual
course of business and consistent with past practice and other than in
connection with the Company's exploration of alternatives leading to the
execution of this Agreement.
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Section 4.06 Financial Statements. The Company's audited consolidated financial
statements dated December 31, 1996 ("COMPANY FINANCIAL REPORTS") and unaudited
consolidated interim financial statements dated September 30, 1997 fairly
present, in conformity with generally accepted accounting principles applied on
a consistent basis (except as may be indicated in the notes thereto), the
consolidated financial position of the Company and the Subsidiary as of the
dates thereof and their consolidated results of operations and cash flows for
the periods then ended (subject to normal year-end adjustments in the case of
any unaudited interim financial statements). For purposes of this Agreement,
"COMPANY BALANCE SHEET" means the consolidated balance sheet of the Company as
of September 30, 1997 and "COMPANY BALANCE SHEET DATE" means September 30, 1997.
Section 4.07 No Undisclosed Liabilities. Except as and to the extent set forth
in the audited Company Financial Reports, the Company Balance Sheet or Section
4.07 of the Company Disclosure Schedule, neither the Company nor the Subsidiary
had on the date of such Company Financial Report or on the Company Balance Sheet
Date any material liabilities required by generally accepted accounting
principles to be reflected on a consolidated balance sheet of the Company and
the Subsidiary. Except as set forth on Section 4.07 of the Company Disclosure
Schedule, since the Company Balance Sheet Date, neither the Company nor the
Subsidiary has incurred any liabilities material to the business, operations or
financial condition of the Company and the Subsidiary taken as a whole, except
liabilities incurred in the ordinary and usual course of business and consistent
with past practice and liabilities incurred in connection with this Agreement.
Section 4.08 No Default. Except as set forth in Section 4.08 of the Company
Disclosure Schedule, neither the Company nor the Subsidiary is in default or
violation (and no event has occurred which with notice or the lapse of time or
both would constitute a default or violation) of any term, condition or
provision of (i) its Certificate of Incorporation or its Bylaws, (ii) any
material note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which the Company or the Subsidiary is a party or by
which they or any of their properties or assets may be bound or (iii) to the
knowledge of the Company, any material order, writ, injunction, decree, statute,
rule or regulation applicable to the Company or the Subsidiary, which defaults
or violations would, in the aggregate, have a Material Adverse Effect on the
business, operations or financial condition of the Company and the Subsidiary
taken as a whole or which would prevent or delay the consummation of the
transactions contemplated hereby.
Section 4.09 Litigation. Except as disclosed in Section 4.09 of the Company
Disclosure Schedule, there is no action, suit, proceeding or, to the best
knowledge of the Company, review or investigation pending or, to the best
knowledge of the Company, threatened involving the Company or the Subsidiary, at
law or in equity, or before any Governmental Entity which are reasonably likely
to have a Material Adverse Effect on the Company or the Subsidiary.
Section 4.10 Compliance with Applicable Law. The Company and the Subsidiary
hold all material permits, licenses, variances, exemptions, orders and approvals
of all Governmental Entities necessary for the lawful conduct of their
respective businesses (the "COMPANY PERMITS"), except for failures to hold such
Company Permits which would not have a Material
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Adverse Effect on the Company. The Company and the Subsidiary are in compliance
with the terms of the Company Permits, except where the failure to so comply
would not have a Material Adverse Effect on the Company. The businesses of the
Company and the Subsidiary are not being conducted in violation of any
applicable law, ordinance, rule, regulation, decree or order of any Governmental
Entity, except for violations which do not and would not have a Material Adverse
Effect on the Company.
Section 4.11 Taxes. Except as set forth in Section 4.11 of the Company
Disclosure Schedule, the Company and the Subsidiary have duly filed all federal,
state, local and foreign tax returns required to be filed by it, and the Company
and the Subsidiary have duly paid, caused to be paid or made adequate provision
for the payment of all Taxes (as hereinafter defined) shown to be due in respect
of the periods covered by such tax returns and has made adequate provision for
payment of all Taxes anticipated to be payable in respect of all calendar
periods since the periods covered by such returns. All deficiencies and
assessments asserted as a result of any examinations or other audits known to
the Company by federal, state, local or foreign taxing authorities have been
paid, fully settled or adequately provided for in the Company Financial Reports,
and no issue or claim has been asserted for Taxes by any taxing authority for
any prior period, the adverse determination of which would result in a
deficiency which would have a Material Adverse Effect on the Company, other than
those heretofore paid or provided for. Except as set forth in Section 4.11 of
the Company Disclosure Schedule, there are no outstanding agreements or waivers
extending the statutory period of limitation applicable to any federal or
foreign income tax return of the Company or the Subsidiary. For purposes of this
Section 4.11 and Section 5.11 below, "TAXES" shall mean all taxes, assessments
and governmental charges imposed by any federal, state, county, local or foreign
government, taxing authority, subdivision or agency thereof, including interest,
penalties or additions thereto.
Section 4.12 ERISA. (a) With respect to each employee benefit plan (including,
without limitations, any "employee benefit plan", as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and
any material bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
insurance or other plan, arrangement or understanding and any employment or
change in control agreements (all the foregoing being herein called the "COMPANY
BENEFIT PLANS"), maintained or contributed to by the Company or the Subsidiary
as of the date hereof, the Company has made available to Intracel Parent a true
and correct copy of, where applicable, (i) the most recent annual report (Form
5500) filed with the Internal Revenue Service (the "IRS"), (ii) such Company
Benefit Plans, (iii) each trust agreement and group annuity contract, if any,
relating to such Company Benefit Plan and (iv) the most recent actuarial report
or valuation relating to a Company Benefit Plan subject to Title IV of ERISA.
All Company Benefit Plans are set forth on Section 4.12 of the Company
Disclosure Schedule. None of the Company Benefit Plans are multiemployer plans
within the meaning of Section 3(37) of ERISA or have been at any time since
September 26, 1980. Each of the Plans covered by ERISA (a) has been operated in
all material respects in accordance with ERISA, (b) has met the minimum funding
standards of Section 412 of the Code and (c) which is intended to be qualified
under Section 401(a) of the Code, has received or applied for, a favorable
determination letter from the IRS, and the
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Company is not aware of any circumstances likely to result in revocation of such
determination letter. No notice of "reportable event" (within the meaning of
Section 4043 of ERISA) for which the 30-day reporting requirement has not been
waived, has been required to be filed for any Plan or by the "single-employer
plan," within the meaning of Section 4001(a)(15) of ERISA, of any entity which
is considered one employer with the Company under Section 4001 of ERISA or
Section 414 of the Code (an "ERISA AFFILIATE") as of the date hereof within the
12-month period ending on the date hereof or will be required to be filed in
connection with the transaction contemplated by this Agreement. Neither the
Company nor any subsidiary has engaged in a transaction with respect to any
Company Benefit Plan that, assuming the taxable period of such transaction
expired as of the date hereof, would subject the Company or the Subsidiary to a
material tax or penalty imposed by either Section 4975 of the Code or Section
502(i) of ERISA.
(b) With respect to the Company Benefit Plans, no event has
occurred, and to the knowledge of the Company or the Subsidiary there exists no
condition or set of circumstances which in the aggregate are reasonably likely
to occur in connection with which the Company or the Subsidiary would be subject
to any liability that would have a Material Adverse Effect on the Company
(except liability for benefits claims and funding obligations payable in the
ordinary course) under ERISA, the Code or any other applicable law.
(c) Except as set forth in Section 4.12 of the Company Disclosure
Schedule, with respect to the Company Benefit Plans, there are no funded benefit
obligations for which contributions have not been made or properly accrued and
there are no unfunded benefit obligations which have not been accounted for by
reserves, or otherwise properly footnoted in accordance with generally accepted
accounting principles, on the financial statements of the Company or the
Subsidiary, which obligations are reasonably likely to have a Material Adverse
Effect on the Company.
(d) Neither the Company or the Subsidiary has any obligation for
retiree health and life benefits under any Company Benefit Plan, except as set
forth on Section 4.12 of the Company Disclosure Schedule.
Section 4.13 Title to Property. Except as set forth in Section 4.13 of the
Company Disclosure Schedule, the Company and the Subsidiary have good and
marketable title to all of their respective properties, interests in properties
and assets, real and personal, reflected in the Company Balance Sheet or
acquired after the Company Balance Sheet Date (except properties, interests in
properties and assets sold or otherwise disposed of since the Company Balance
Sheet Date in the ordinary course of business), or with respect to leased
properties and assets, valid leasehold interests in, free and clear of all
mortgages, liens, pledges, charges or encumbrances of any kind or character,
except (i) the lien of current taxes not yet due and payable, (ii) such
imperfections of title, liens and easements as do not and will not materially
detract from or interfere with the use of the properties subject thereto or
affect thereby, or otherwise materially impair business operations involving
such properties and (iii) liens securing debt which is reflected on the Company
Balance Sheet. The plants, property and equipment of the Company and the
Subsidiary that are used in the operations of their businesses are in all
material respects in good operating condition and repair, subject to normal wear
and tear. All properties used in
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the operations of the Company and the Subsidiary are reflected in the Company
Balance Sheet to the extent generally accepted accounting principles require the
same to be reflected. Section 4.13 of the Company Disclosure Schedule identifies
each material parcel of real property owned or leased by the Company or the
Subsidiary.
Section 4.14 Intellectual Property.
(a) To the Company's knowledge, the Company and the Subsidiary own, or are
licensed or otherwise possess legally enforceable rights to use all
patents, trademarks, trade names, service marks, copyrights, and any
applications therefor, maskworks, net lists, schematics, technology,
know-how, trade secrets, inventory, ideas, algorithms, processes,
computer software programs or applications (in both source code and
object code form), and tangible or intangible proprietary information or
material ("COMPANY INTELLECTUAL PROPERTY") that are used in the business
of the Company and the Subsidiary as currently conducted, except to the
extent that the failure to have such rights have not had and would not
reasonably be expected to have a Material Adverse Effect on the Company.
(b) Section 4.14 of the Company Disclosure Schedule lists (i) all patents
and patent applications and all registered and unregistered trademarks,
trade names and service marks, registered and unregistered copyrights,
and maskworks, included in the Company Intellectual Property, including
the jurisdictions in which each such Company Intellectual Property right
has been issued or registered or in which any application for such
issuance and registration has been filed, (ii) all licenses, sublicenses
and other agreements as to which the Company is a party and pursuant to
which any person is authorized to use any Company Intellectual Property,
and (iii) all licenses, sublicenses and other agreements as to which the
Company is a party and pursuant to which the Company is authorized to
use any third party patents, trademarks or copyrights, including
software ("THIRD PARTY INTELLECTUAL PROPERTY") which are incorporated
in, are, or form a part of any Company product.
(c) To the Company's knowledge, there is no unauthorized use, disclosure,
infringement or misappropriation of any Company Intellectual Property
rights, any trade secret material to the Company or of the Subsidiary,
by any third party, including any employee or former employee of the
Company or any of its subsidiaries. To the Company's knowledge, there is
no unauthorized use, disclosure, infringement or misappropriation by the
Company or the Subsidiary of any Third Party Intellectual Property right
to the extent licensed by or through the Company or the Subsidiary.
Except as set forth in Section 4.14(c) of the Company Disclosure
Schedule, neither the Company nor the Subsidiary has entered into any
agreement to indemnify any other person against any charge of
infringement of any Third Party Intellectual Property, other than
indemnification provisions contained in sales agreements arising in the
ordinary course of business. Except as set forth in Section 4.14 of the
Company Disclosure Schedule, there are no royalties, fees or other
payments payable by the Company to any Person by reason of the
ownership, use, sale or disposition of Third Party Intellectual
Property.
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(d) Except as set forth in Section 4.14 of the Company Disclosure Schedule,
neither the Company nor the Subsidiary is nor will any of such party be
as a result of the execution and delivery of this Agreement or the
performance of its obligations under this Agreement, in breach of any
license, sublicense or other agreement relating to the Third Party
Intellectual Property or Third Party Intellectual Property rights, the
breach of which would have a Material Adverse Effect on the Company.
(e) To the Company's knowledge, all patents, registered trademarks, service
marks and copyrights held by the Company or the Subsidiary are valid and
subsisting. Except as set forth in Section 4.14 of the Company
Disclosure Schedule, neither the Company nor the Subsidiary (i) has been
sued in any suit, action or proceeding which involves a claim of
infringement of any patents, trademarks, service marks, copyrights or
violation of any trade secret or other propriety right of any third
party; (ii) has knowledge that the manufacturing, marketing, licensing
or sale of its products infringes any patent, trademark, service ▇▇▇▇,
copyright, trade secret or other proprietary right of any third party;
and (iii) has brought any action, suit or proceeding for infringement of
Company or Third Party Intellectual Property or breach of any license or
agreement involving Company or Third Party Intellectual Property against
any third party.
(f) Section 4.14 of the Company Disclosure Schedule sets forth a list of all
officers, employees and consultants of the Company or the Subsidiary who
have executed and delivered to the Company an agreement regarding the
protection of proprietary information and the assignment to the Company
of all Company Intellectual Property arising from services performed for
the Company by such persons.
(g) Except as set forth in Section 4.14 of the Company Disclosure Schedule,
all use, disclosure or appropriation by the Company or the Subsidiary of
the Company or Third Party Intellectual Property not otherwise protected
by patents, patent applications or copyright (such information as it
relates to either the Company or Intracel Parent, "Confidential
Information"), has been pursuant to the terms of a written agreement
between the Company and such third party or is otherwise lawful. Except
as set forth in Section 4.14 of the Company Disclosure Schedule, all
use, disclosure or appropriation by the Company or the Subsidiary of
Confidential Information not owned by the Company has been pursuant to
the terms of a written agreement between the Company and the owner of
such Confidential Information, or is otherwise lawful.
Section 4.15 Interested Party Transactions. Except as set forth in
Section 4.15 of the Company Disclosure Schedule, neither the Company nor the
Subsidiary is indebted to any director, officer, employee or agent of the
Company or any of its subsidiaries (except for amounts due as normal salaries
and bonuses and in reimbursement of ordinary expenses), and no such person is
indebted to the Company or the Subsidiary.
Section 4.16 Insurance. The Company and the Subsidiary have policies of
insurance and bonds of the type and in amounts customarily carried by persons
conducting businesses or owning assets similar to those of the Company and the
Subsidiary. There is no material claim pending
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under any of such policies or bonds as to which coverage has been questioned,
denied or disputed by the underwriters of such policies or bonds. All premiums
due and payable under all such policies and bonds have been paid and the Company
and the Subsidiary are otherwise in compliance with the terms of such policies
and bonds. The Company has no knowledge of any threatened termination of, or
material premium increase with respect to, any of such policies.
Section 4.17 Products.
(a) Except as set forth in Section 4.17 of the Company Disclosure Schedule,
there are no statements, citations, warning letters, FDA Forms 483, or
decisions by any governmental or regulatory body that any product
produced, manufactured, marketed or distributed at any time by the
Company or the Subsidiary ("COMPANY PRODUCT") is defective or fails to
meet any applicable standards promulgated by any such governmental or
regulatory body. There have been no recalls ordered by any such
governmental or regulatory body with respect to any Company Product. To
the knowledge of the Company, there is (i) no fact relating to any
Company Product that may give rise to a recall of any Company Product or
a duty to warn of a defect in any Company Product and (ii) no latent or
overt design, manufacturing or other defect in any Company Product.
(b) All Company Products used, marketed or distributed by the Company or
the Subsidiary in clinical investigations are subject to all applicable
licenses, registrations, approvals, clearances, and authorizations
required by local, state and federal agencies, foreign or domestic,
regulating the safety, effectiveness, and market clearance of medical
devices, which licenses, registrations, approval, clearances and
authorizations are held by the Company or the Subsidiary and were
obtained by the Company or the Subsidiary on or before the date when
same were required. Those licenses, registrations, approvals,
clearances, and authorizations will not be affected or impaired by the
Merger.
(c) The Company or the Subsidiary is in full possession of all supportive
materials and data substantiating representations made to the FDA in its
material filings therewith, including any and all testing data in the
possession or under the control of the Company or the Subsidiary,
whether or not submitted to the FDA. The Company Products perform in
compliance with the representations and performance specifications as
contained in said filings.
(d) There is no proceedings by the FDA or any other governmental agency,
including but not limited to a grand jury investigation, a 405 hearing,
a civil penalty proceeding brought at any time in the past relating to
the safety or efficacy of Company Products and, to the Company's
knowledge, there is no basis for such a proceeding.
Section 4.18 Change in Control. Except as set forth in Section 4.18 of the
Company Disclosure Schedule, neither the Company nor the Subsidiary is a party
to any contract, agreement or understanding which contains a "change in control"
provision or "potential change in control" provision.
Section 4.19 Environmental, Health, and Safety.
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(a) The Company and the Subsidiary (A) have complied with all applicable
Environmental, Health, and Safety Laws governing the Company or the
Subsidiary in all material respects (and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against any of them alleging any such failure to
comply), (B) have obtained and been in substantial compliance with all
of the terms and conditions of all material permits, licenses, and other
authorizations which are required under all applicable Environmental,
Health, and Safety Laws governing the Company or the Subsidiary, and (C)
have complied in all material respects with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in the
Environmental, Health, and Safety Laws governing the Company or the
Subsidiary.
(b) To the knowledge of the Company, the Company and the Subsidiary have no
material liability (whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), there is no fact or
circumstance that with the passage of time, or occurrence of other
reasonably foreseeable events would give rise to any material liability,
and the Company and the Subsidiary have not handled or disposed of any
substance, arranged for the disposal of any substance, exposed any
employee or other individual to any substance or condition, or owned or
operated any property or facility in any manner that could give rise to
any material liability, for damage to any site, location, or body of
water (surface or subsurface), for any illness of or personal injury to
any employee or other individual, or for any reason under any
Environmental, Health, and Safety Law governing the Company or the
Subsidiary.
Section 4.20 Employment and Labor Matters. Section 4.20 of the Company
Disclosure Schedule contains a true, complete and accurate list of the names,
titles, annual compensation (including all bonuses and similar payments made
with respect to each such individual for the current and preceding fiscal years)
of all directors, officers and employees of the Company and the Subsidiary who
have an annual aggregate remuneration of $80,000 or more. The Company and the
Subsidiary have and currently are conducting their respective business in full
compliance with all laws relating to employment and employment practices, terms
and conditions of employment, wages and hours, affirmative action, and
nondiscrimination in employment. Except as disclosed in Section 4.20 of the
Company Disclosure Schedule, to the Company's knowledge, the relationships of
the Company and the Subsidiary with their respective employees are good; to the
Company's knowledge, there is, and during the past five years there has been, no
labor strike, dispute, slow-down, work stoppage or other labor difficulty
actually pending or threatened against or involving the Company or the
Subsidiary and to the Company's knowledge no attempt is currently being made or
during the past three years has been made to organize any employees of the
Company or the Subsidiary to form or enter a labor union or similar
organization. Section 4.20 of the Company Disclosure Schedule contains a list of
all grievances by employees during the past three years which have resulted in a
significant change in work practices or contract interpretation or terms or
resulted in arbitration.
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Section 4.21 Contracts. Section 4.21 of the Company Disclosure Schedule lists
all the material contracts and arrangements to which the Company or the
Subsidiary is a party or by which it is bound, or to which any of its assets or
properties is subject. The Company has delivered to Intracel Parent true and
complete copies of each document listed in Section 4.21 of the Company
Disclosure Schedule, and a written description of each oral arrangement so
listed. Except as disclosed in Section 4.21 of the Company Disclosure Schedule,
all such contracts and arrangements are in full force and effect, and neither
the Company nor the Subsidiary is in default under any of them, nor, to the
knowledge of the Company, is any other party to any such contract or arrangement
in default thereunder.
Section 4.22 Predominant Customers. Except as set forth on Section 4.22 of the
Company Disclosure Schedule, no single customer of the Company or the Subsidiary
accounts or accounted for over five percent (5%) of the total consolidated
revenues of the Company and the Subsidiary (the "COMPANY DOLLAR THRESHOLD")
during the twelve month period immediately preceding the date of this Agreement.
Section 4.23 Change in Customers or Vendors. Except as set forth on
Section 4.23 of the Company Disclosure Schedule, no customer or vendor whose
annual volume of purchases or sales during the Company fiscal year ended
December 31, 1996 exceeded the Company Dollar Threshold, has indicated to the
Company or the Subsidiary or to any of the Company or the Subsidiary's officers
or directors that it intends to cease doing business with the Company or the
Subsidiary or materially alter the amount or pricing of the business done with
the Company or the Subsidiary. To the knowledge of the Company, the relationship
of such customers and vendors will not be materially adversely affected by the
consummation of the transactions contemplated by this Agreement.
Section 4.24 Notes and Accounts Receivable. All notes and accounts receivable
of the Company and the Subsidiary are reflected properly on the Company
Financial Reports and Company Balance Sheet, are valid receivables which arose
in the ordinary course of business from bona fide transactions, subject to no
set-offs or counterclaims, subject only to the reserve for bad debts set forth
on the face of the Company Financial Reports and Company Balance Sheet.
Section 4.25 Questionable Payments. None of the Company or the Subsidiary nor
any of their respective directors, officers or other employees has: (i) made any
payments or provided services or other favors in the United States of America or
in any foreign country in order to obtain preferential treatment or
consideration by any Governmental Entity with respect to any aspect of the
business of the Company or the Subsidiary; or (ii) made any political
contributions which would not be lawful under the laws of the United States
(including the Foreign Corrupt Practices Act) or the foreign country in which
such payments were made. None of the Company or the Subsidiary or any of their
respective directors, officers or other employees nor, to the Company's
knowledge, any customer or supplier of the Company or the Subsidiary, has been
subject to any inquiry or investigation by any Governmental Entity in connection
with payments or benefits or other favors to or for the benefit of any
governmental or armed services official,
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agent, representative or employee with respect to any aspect of the business of
the Company or the Subsidiary or with respect to any political contribution.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
INTRACEL PARENT AND INTRACEL ACQUISITION SUB
Intracel Parent and Intracel Acquisition Sub represent and warrant to the
Company as follows:
Section 5.01 Organization. Intracel Parent and each of its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. Intracel Parent and each of its subsidiaries is duly
qualified or licensed and in good standing to do business in each jurisdiction
in which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification or licensing necessary, except
in such jurisdictions where the failure to be so duly qualified or licensed and
in good standing would not have a Material Adverse Effect on Intracel Parent and
its subsidiaries, taken as a whole. Intracel Parent has heretofore delivered to
the Company accurate and complete copies of the charter and bylaws, as currently
in effect, of Intracel Parent and each of its subsidiaries.
Section 5.02 Capitalization. (a) The authorized capital stock of Intracel Parent
consists of (i) 3,000,000 shares of Preferred Stock, $.01 par value per share,
of which 730,000 shares have been designated Series A Preferred, 850,000 shares
have been designated Series A-1 Preferred, 155,000 shares have been designated
Series A-2 Preferred and 200,000 shares have been designated Series A-3
Preferred and (ii) 5,000,000 shares of Intracel Parent Common Stock. As of the
date hereof, 2,475,668 shares of Intracel Parent Common Stock were issued and
outstanding, 591,786 shares of Series A Preferred were issued and outstanding,
638,392 shares of Series A-1 Preferred were issued and outstanding, 42,624
shares of Series A-2 Preferred were issued and outstanding and 145,023 shares of
Series A-3 Preferred were issued and outstanding. All of the foregoing shares of
capital stock of Intracel Parent are validly issued, fully paid and
nonassessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. 400,000 shares of Intracel Parent Common
Stock have been reserved for issuance in the event options granted pursuant to
the 1989 and 1990-91 Stock Option Plans of Intracel Parent ("INTRACEL PARENT
STOCK PLANS") are exercised. As of the date hereof, 355,517 shares of Intracel
Parent Common Stock were issuable upon exercise of options pursuant to the
Intracel Parent Stock Plans. Section 5.02(a) of the disclosure schedule attached
hereto relating to Intracel Parent (the "INTRACEL PARENT DISCLOSURE SCHEDULE")
sets forth each other subscription, option, warrant, call, right, convertible
security or other agreement or commitment of any character obligating Intracel
Parent to issue, transfer or sell any security, and, as to each such security,
agreement or commitment, the average conversion or exercise price thereof, a
range of the conversion or exercise prices and the effects of the Merger and the
other transactions contemplated hereby on such security, agreement or
commitment, including pursuant to antidilution provisions thereof.
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All shares of Intracel Parent Shares which are to be issued pursuant to the
Merger or the other transactions contemplated hereby, will be, when issued in
accordance with the respective terms thereof, duly authorized, validly issued,
fully paid and nonassessable and free of any preemptive rights in respect
thereto. Except as set forth above or in Section 5.02(a) of the Intracel Parent
Disclosure Schedule or as contemplated hereby, there are not now, and at the
Effective Time there will not be, any shares of capital stock (or securities
substantially equivalent to capital stock) of Intracel Parent issued or
outstanding or any subscriptions, options, warrants, calls, rights, convertible
securities or other agreements or commitments of any character obligating
Intracel Parent to issue, transfer or sell any of its securities.
(b) Section 5.02(b) of the Intracel Parent Disclosure Schedule
sets forth the name, jurisdiction of incorporation and capitalization of each
subsidiary of Intracel Parent. Except as disclosed in Section 5.02(b) of the
Intracel Parent Disclosure Schedule, Intracel Parent does not own, directly or
indirectly, any capital stock or other equity securities of any corporation or
have any direct or indirect equity or ownership interest in any business. All of
the outstanding shares of capital stock of each of Intracel Parent's
subsidiaries have been validly issued and are fully paid and nonassessable and,
except as set forth in Section 5.02(b) of the Intracel Parent Disclosure
Schedule, are owned either by Intracel Parent or another of its subsidiaries
free and clear of all liens, charges, claims or encumbrances. Except as set
forth in Section 5.02(b) of the Intracel Parent Disclosure Schedule, there are
not now, and at the Effective Time there will not be, any outstanding
subscriptions, options, warrants, calls, rights, convertible securities or other
agreements or commitments of any character relating to the issued or unissued
capital stock or other securities of any of Intracel Parent's subsidiaries, or
otherwise obligating Intracel Parent or any such subsidiary to issue, transfer
or sell any such securities. Except as set forth in Section 5.02(b) of the
Intracel Parent Disclosure Schedule, there are not now, and at the Effective
Time there will not be, any voting trusts or other agreements or understandings
to which Intracel Parent or any of its subsidiaries is a party or is bound with
respect to the voting of the capital stock of Intracel Parent or any of Intracel
Parent's subsidiaries. Except as set forth above or in Section 5.02(b) of the
Intracel Parent Disclosure Schedule, there are no persons or entities (other
than subsidiaries of Intracel Parent) in which Intracel Parent or any of its
subsidiaries has any voting rights or equity interests.
Section 5.03 Authority Relative to this Agreement. Each of Intracel Parent and
Intracel Acquisition Sub has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Intracel Parent and Intracel Acquisition Sub and by
Intracel Parent as the sole stockholder of Intracel Acquisition Sub and no other
corporate proceedings on the part of Intracel Parent or Intracel Acquisition Sub
are necessary to authorize this Agreement or to consummate the transactions so
contemplated (other than the affirmative vote of a majority of each of the
Intracel Parent Common Stock, Series A Stock, Series A-1 Stock, Series A-2 Stock
and Series A-3 Stock entitled to vote on the amendment to the Certificate of
Incorporation of Intracel Parent contemplated by this Agreement). This Agreement
has been duly and validly executed and delivered by each of Intracel Parent and
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Intracel Acquisition Sub and constitutes a valid and binding agreement of each
of Intracel Parent and Intracel Acquisition Sub, enforceable against each of
Intracel Parent and Intracel Acquisition Sub in accordance with its terms,
subject as to enforcement to bankruptcy, reorganization, moratorium, insolvency
or other laws of general applicability relating to or affecting creditors rights
and to general equity principles.
Section 5.04 Consents and Approvals; No Violations. Except for applicable
requirements of the Securities Act, state securities laws and the filing and
recordation of a Certificate of Merger, as required by the GCL, and such other
filings, permits, authorizations, consents or approvals which if not obtained or
made would not individually or in the aggregate have a Material Adverse Effect
on Intracel Parent, no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity, is necessary for the consummation by
Intracel Parent or Intracel Acquisition Sub of the transactions contemplated by
this Agreement. Except as set forth in Section 5.04 of the Intracel Parent
Disclosure Schedule, neither the execution and delivery of this Agreement by
Intracel Parent or Intracel Acquisition Sub nor the consummation by Intracel
Parent or Intracel Acquisition Sub of the transactions contemplated hereby nor
compliance by Intracel Parent or Intracel Acquisition Sub with any of the
provisions hereof will (i) conflict with or result in any breach of any
provision of the charter or bylaws of Intracel Parent or any of its
subsidiaries, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any material note, bond, mortgage, indenture,
license, contract, agreement or other instrument or obligation to which Intracel
Parent or any of its subsidiaries is a party or by which any of them or any of
their properties or assets may be bound or (iii) violate any material order,
writ, injunction, decree, statute, treaty, rule or regulation applicable to
Intracel Parent, any of its subsidiaries or any of their properties or assets,
except in the case of (ii) or (iii) for violations, breaches or defaults which
are not in the aggregate material to the business, operations or financial
condition of Intracel Parent and its subsidiaries taken as a whole and which
will not prevent or delay the consummation of the transactions contemplated
hereby.
Section 5.05 Financial Statements. Intracel Parent's unaudited consolidated
financial statements dated December 31, 1996 ("INTRACEL PARENT FINANCIAL
REPORTS") attached to Section 5.05 of the Intracel Parent Disclosure Schedule
and unaudited consolidated interim financial statements dated June 30, 1997
fairly present, in conformity with generally accepted accounting principles
applied on a consistent basis (except as may be indicated in the notes thereto),
the consolidated financial position of Intracel Parent and its subsidiaries as
of the dates thereof and their consolidated results of operations and cash flows
for the periods then ended (subject to normal year-end adjustments in the case
of any unaudited interim financial statements). For purposes of this Agreement,
"INTRACEL PARENT BALANCE SHEET" means the consolidated balance sheet of the
Company as of June 30, 1997 and "INTRACEL PARENT BALANCE SHEET DATE" means June
30, 1997.
Section 5.06 Absence of Certain Changes. Except as set forth in the Intracel
Parent Financial Reports, including the Intracel Parent Balance Sheet, or
Section 5.06 of the Intracel Parent Disclosure Schedule, and except as
contemplated by this Agreement, since June 30, 1997 neither Intracel Parent nor
any of its subsidiaries has taken any of the actions set forth in Sections
6.01(a)
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to (h), suffered any adverse changes in its business, operations or financial
condition which are material to Intracel Parent and its subsidiaries taken as a
whole (other than changes generally affecting the industries in which Intracel
Parent operates, including changes due to actual or proposed changes in law or
regulation) or entered into any transaction, or conducted its business or
operations, other than in the ordinary and usual course of business and
consistent with past practice.
Section 5.07 No Undisclosed Liabilities. Except as and to the extent set forth
in the Intracel Parent Financial Reports, the Intracel Parent Balance Sheet or
Section 5.07 of the Intracel Parent Disclosure Schedule, neither Intracel Parent
nor any of its subsidiaries had on the date of such Intracel Parent Financial
Report or on the Intracel Parent Balance Sheet Date any material liabilities
required by generally accepted accounting principles to be reflected on a
consolidated balance sheet of Intracel Parent and its subsidiaries. Except as
and to the extent set forth in Section 5.07 of the Intracel Parent Disclosure
Schedule, since June 30, 1997 neither Intracel Parent nor any of its
subsidiaries has incurred any liabilities material to the business, operations
or financial condition of Intracel Parent and its subsidiaries taken as a whole,
except liabilities incurred in the ordinary and usual course of business and
consistent with past practice and liabilities incurred in connection with this
Agreement.
Section 5.08 No Default. Except as set forth in Section 5.08 of the Intracel
Parent Disclosure Schedule, neither Intracel Parent nor any of its subsidiaries
is in default or violation (and no event has occurred which with notice or the
lapse of time or both would constitute a default or violation) of any term,
condition or provision of (i) its charter or its bylaws, (ii) any material note,
bond, mortgage, indenture, license, contract, agreement or other instrument or
obligation to which Intracel Parent or any of its subsidiaries is a party or by
which they or any of their properties or assets may be bound or (iii) to the
knowledge of Intracel Parent, any material order, writ, injunction, decree,
statute, rule or regulation applicable to Intracel Parent or any of its
subsidiaries, which defaults or violations would have a Material Adverse Effect
on Intracel Parent or which would prevent or delay the consummation of the
transactions contemplated hereby.
Section 5.09 Litigation. Except as disclosed in Section 5.09 of the Intracel
Parent Disclosure Schedule, there is no action, suit, proceeding or, to the best
knowledge of Intracel Parent, review or investigation pending or, to the best
knowledge of Intracel Parent, threatened involving Intracel Parent or any of its
subsidiaries, at law or in equity, or before any Governmental Entity which are
reasonably likely to have a Material Adverse Effect on Intracel Parent.
Section 5.10 Compliance with Applicable Law. Intracel Parent and its
subsidiaries hold all material permits, licenses, variances, exemptions, orders
and approvals of all Governmental Entities necessary for the lawful conduct of
their respective business (the "INTRACEL PARENT PERMITS"), except for failures
to hold such Intracel Parent Permits which would not have a Material Adverse
Effect on the Intracel Parent. Intracel Parent and its subsidiaries are in
compliance with the terms of the Intracel Parent Permits, except where the
failure so to comply would not have a Material Adverse Effect on the Intracel
Parent. The businesses of Intracel Parent and its subsidiaries are not being
conducted in violation of any applicable law, ordinance,
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rule, regulation, decree or order of any Governmental Entity, except for
violations which or in the aggregate do not and would not have a Material
Adverse Effect on Intracel Parent.
Section 5.11 Taxes. Except as set forth in Section 5.11 of the Intracel Parent
Disclosure Schedule, Intracel Parent and each of its subsidiaries has duly filed
all federal, state, local and foreign tax returns required to be filed by it,
and Intracel Parent and each of its subsidiaries has duly paid, caused to be
paid or made adequate provision for the payment of all Taxes shown to be due in
respect of the periods covered by such tax returns and has made adequate
provision for payment of all Taxes anticipated to be payable in respect of all
calendar periods since the periods covered by such returns. All deficiencies and
assessments asserted as a result of any examinations or other audits, known to
Intracel Parent, by federal, state, local or foreign taxing authorities have
been paid, fully settled or adequately provided for in the Intracel Parent
Financial Reports, and no issue or claim has been asserted for Taxes by any
taxing authority for any prior period, the adverse determination of which would
result in a deficiency which would have a Material Adverse Effect on Intracel
Parent, other than those heretofore paid or provided for. Except as set forth in
Section 5.11 of the Intracel Parent Disclosure Schedule, there are no
outstanding agreements or waivers extending the statutory period of limitation
applicable to any federal or foreign income tax return of Intracel Parent or its
subsidiaries.
Section 5.12 ERISA. (a) With respect to each employee benefit plan (including,
without limitations, any "employee benefit plan," as defined in Section 3(3) of
ERISA), and any material bonus, pension, profit sharing, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock option, phantom
stock, retirement, vacation, severance, disability, death benefit,
hospitalization, insurance or other plan, arrangement or understanding and any
employment or change in control agreements (all the foregoing being herein
called the "INTRACEL PARENT BENEFIT PLANS"), maintained or contributed to by
Intracel Parent or any of its subsidiaries as of the date hereof, Intracel
Parent has made available to the Company a true and correct copy of, where
applicable, (i) the most recent annual report (Form 5500) filed with the IRS,
(ii) such Intracel Parent Benefit Plan, (iii) each trust agreement and group
annuity contract, if any, relating to such Intracel Parent Benefit Plan and (iv)
the most recent actuarial report or valuation relating to a Intracel Parent
Benefit Plan subject to Title IV of ERISA. All Intracel Parent Benefit Plans are
set forth on Section 5.12(a) of the Intracel Parent Disclosure Schedule. None of
the Intracel Parent Benefit Plans are multiemployer plans within the meaning of
Section 3(37) of ERISA or have been at any time since September 26, 1980. Each
of the Plans covered by ERISA (a) has been operated in all material respects in
accordance with ERISA, (b) has met the minimum funding standards of Section 412
of the Code and (c) which is intended to be qualified under Section 401(a) of
the Code, has received or applied for a favorable determination letter from the
IRS, and Intracel Parent is not aware of any circumstances likely to result in a
revocation of such determination letter. No notice of "reportable event" (within
the meaning of Section 4043 of ERISA) for which the 30-day reporting requirement
has not been waived, has been required to be filed for any Plan or by the
single-employer of an ERISA Affiliate as of the date hereof, within the 12-month
period ending on the date hereof or will be required to be filed in connection
with the transaction contemplated by this Agreement. Neither Intracel Parent nor
any subsidiary has engaged in a transaction with respect to any Intracel Parent
Benefit Plan that, assuming the taxable period of such transaction expired as of
the date hereof, would subject the Intracel Parent
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or any of its subsidiaries to a material tax or penalty imposed by either
Section 4975 of the Code or Section 502(i) of ERISA.
(b) With respect to the Intracel Parent Benefit Plans, no event
has occurred, and to the knowledge of Intracel Parent or any of its
subsidiaries, there exists no condition or set of circumstances which in the
aggregate are reasonably likely to occur in connection with which Intracel
Parent or any of its subsidiaries would be subject to any liability that would
have a Material Adverse Effect on Intracel Parent, (except liability for
benefits claims and funding obligations payable in the ordinary course), under
ERISA, the Code or any other applicable law.
(c) Except as set forth in Section 5.12(c) of the Intracel Parent
Disclosure Schedule, with respect to the Intracel Parent Benefit Plans, there
are no funded benefit obligations for which contributions have not been made or
properly accrued and there are no unfunded benefit obligations which have not
been accounted for by reserves, or otherwise properly footnoted in accordance
with generally accepted accounting principles, on the financial statements of
Intracel Parent or any of its subsidiaries, which obligations are reasonably
likely to have a Material Adverse Effect on Intracel Parent.
(d) Neither Intracel Parent nor any of its subsidiaries has any
obligations for retiree health and life benefits under any Intracel Parent
Benefit Plan, except as set forth in Section 5.12(d) of the Intracel Parent
Disclosure Schedule.
Section 5.13 Title to Property. Except as set forth in Section 5.13 of the
Intracel Parent Disclosure Schedule, Intracel Parent and its subsidiaries have
good and marketable title to all of their respective properties, interests in
properties and assets, real and personal, reflected in the Intracel Parent
Balance Sheet or acquired after the Intracel Parent Balance Sheet Date (except
properties, interests in properties and assets sold or otherwise disposed of
since the Intracel Parent Balance Sheet Date in the ordinary course of
business), or with respect to leased properties and assets, valid leasehold
interests in, free and clear of all mortgages, liens, pledges, charges or
encumbrances of any kind or character, except (i) the lien of current taxes not
yet due and payable, (ii) such imperfections of title, liens and easements as do
not and will not materially detract from or interfere with the use of the
properties subject thereto or affected thereby, or otherwise materially impair
business operations involving such properties and (iii) liens securing debt
which is reflected on the Intracel Parent Balance Sheet. The plants, property
and equipment of Intracel Parent and its subsidiaries that are used in the
operations of their businesses are in all material respects in good operating
condition and repair, subject to normal wear and tear. All properties used in
the operations of Intracel Parent and its subsidiaries are reflected in the
Intracel Parent Balance Sheet to the extent generally accepted accounting
principles require the same to be reflected. Section 5.13 of the Intracel Parent
Disclosure Schedule identifies each material parcel of real property owned or
leased by Intracel Parent or any of its subsidiaries.
Section 5.14 Intellectual Property.
(a) To Intracel Parent's knowledge, Intracel Parent and its subsidiaries
own, or are licensed or otherwise possess legally enforceable rights to
use all patents, trademarks, trade names, service marks, copyrights, and
any applications therefor, maskworks, net lists,
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schematics, technology, know-how, trade secrets, inventory, ideas,
algorithms, processes, computer software programs or applications (in
both source code and object code form), and tangible or intangible
proprietary information or material ("Intracel Parent Intellectual
Property") that are used in the business of Intracel Parent and its
subsidiaries as currently conducted, except to the extent that the
failure to have such rights have not had and would not reasonably be
expected to have a Material Adverse Effect on Intracel Parent.
(b) Section 5.14(b) of the Intracel Parent Disclosure Schedule lists (i) all
patents and patent applications and all registered and unregistered
trademarks, trade names and service marks, registered and unregistered
copyrights, and maskworks, included in the Intracel Parent Intellectual
Property, including the jurisdictions in which each such Intracel Parent
Intellectual Property right has been issued or registered or in which
any application for such issuance and registration has been filed, (ii)
all licenses, sublicenses and other agreements as to which Intracel
Parent is a party and pursuant to which any person is authorized to use
any Intracel Parent Intellectual Property, and (iii) all licenses,
sublicenses and other agreements as to which Intracel Parent is a party
and pursuant to which Intracel Parent is authorized to use any Third
Party Intellectual Property rights which are incorporated in, are, or
form a part of any Intracel Parent product.
(c) To the knowledge of Intracel Parent, there is no unauthorized use,
disclosure, infringement or misappropriation of any Intracel Parent
Intellectual Property rights, any trade secret material to Intracel
Parent or any of its subsidiaries, by any third party, including any
employee or former employee of Intracel Parent or any of its
subsidiaries. To the knowledge of Intracel Parent, there is no
unauthorized use, disclosure, infringement or misappropriation by
Intracel Parent or any of its subsidiaries of any Third Party
Intellectual Property right to the extent licensed by or through
Intracel Parent or any of its subsidiaries. Except as set forth in
Section 5.14(c) of the Intracel Parent Disclosure Schedule, neither
Intracel Parent nor any of its subsidiaries has entered into any
agreement to indemnify any other person against any charge of
infringement of any Third Party Intellectual Property, other than
indemnification provisions contained in sales agreements arising in the
ordinary course of business. Except as set forth in Section 5.14(c) of
the Intracel Parent Disclosure Schedule, there are no royalties, fees or
other payments payable by Intracel Parent or any of its subsidiaries to
any Person by reason of the ownership, use, sale or disposition of Third
Party Intellectual Property.
(d) Except as set forth in Section 5.14(d) of the Intracel Parent Disclosure
Schedule, neither Intracel Parent nor any of its subsidiaries is nor
will any of such parties be as a result of the execution and delivery of
this Agreement or the performance of its obligations under this
Agreement, in breach of any license, sublicense or other agreement
relating to the Intracel Parent Intellectual Property or Third Party
Intellectual Property Rights, the breach of which would have a Material
Adverse Effect on Intracel Parent.
(e) To Intracel Parent's knowledge, all patents, registered trademarks,
service marks and copyrights held by Intracel Parent and any of its
subsidiaries are valid and subsisting.
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Except as set forth in Section 5.14(e) of the Intracel Parent Disclosure
Schedule, neither Intracel Parent nor any of its subsidiaries (i) has
been sued in any suit, action or proceeding which involves a claim of
infringement of any patents, trademarks, service marks, copyrights or
violation of any trade secret or other proprietary right of any third
party; (ii) has knowledge that the manufacturing, marketing, licensing
or sale of its products infringes any patent, trademark, service ▇▇▇▇,
copyright, trade secret or other proprietary right of any third party;
and (iii) has brought any action, suit or proceeding for infringement of
Intracel Parent or Third Party Intellectual Property or breach of any
license or agreement involving Intracel Parent Intellectual Property
against any third party.
(f) Section 5.14(f) of the Intracel Parent Disclosure Schedule sets forth a
list of all officers, employees and consultants of Intracel Parent or
any of its subsidiaries who have executed and delivered to Intracel
Parent an agreement regarding the protection of proprietary information
and the assignment to Intracel Parent of all Intracel Parent
Intellectual Property arising from services performed for Intracel
Parent by such persons.
(g) Except as set forth in Section 5.14(g) of the Intracel Parent Disclosure
Schedule, all use, disclosure or appropriation by Intracel Parent or any
of its subsidiaries of Confidential Information has been pursuant to the
terms of a written agreement between Intracel Parent or such subsidiary,
and such third party or is otherwise lawful. Except as set forth in
Section 5.14(g) of the Intracel Parent Disclosure Schedule, all use,
disclosure or appropriation by Intracel Parent or any of its
subsidiaries of Confidential Information not owned by Intracel Parent or
any of its subsidiaries has been pursuant to the terms of a written
agreement between Intracel Parent or such subsidiary, and the owner of
such Confidential Information, or is otherwise lawful.
Section 5.15 Interested Party Transactions. Except as set forth in
Section 5.15 of the Intracel Parent Disclosure Schedule, neither Intracel Parent
nor any of its subsidiaries is indebted to any director, officer, employee or
agent of Intracel Parent or any of its subsidiaries (except for amounts due as
normal salaries and bonuses and in reimbursement of ordinary expenses), and no
such person is indebted to Intracel Parent or any of its subsidiaries.
Section 5.16 Insurance. Intracel Parent and each of its subsidiaries have
policies of insurance and bonds of the type and in amounts customarily carried
by persons conducting businesses or owning assets similar to those of Intracel
Parent and its subsidiaries. There is no material claim pending under any of
such policies or bonds as to which coverage has been questioned, denied or
disputed by the underwriters of such policies or bonds. All premiums due and
payable under all such policies and bonds have been paid and Intracel Parent and
its subsidiaries are otherwise in compliance with the terms of such policies and
bonds. Intracel Parent has no knowledge of any threatened termination of, or
material premium increase with respect to, any of such policies.
Section 5.17 Products.
(a) Except as set forth in Section 5.17 of the Intracel Parent Disclosure
Schedule, there are no statements, citations, warning letters, FDA Forms
483, or decisions by any governmental
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or regulatory body that any product produced, manufactured, marketed or
distributed at any time by Intracel Parent or any of its subsidiaries
("INTRACEL PARENT PRODUCT") is defective or fails to meet any applicable
standards promulgated by any such governmental or regulatory body. There
have been no recalls ordered by any such governmental or regulatory body
with respect to any Intracel Parent Product. To the knowledge of
Intracel Parent, there is (i) no fact relating to any Intracel Parent
Product that may give rise to a recall of any Intracel Parent Product or
a duty to warn of a defect in any Intracel Parent Product and (ii) no
latent or overt design, manufacturing or other defect in any Intracel
Parent Product.
(b) All Intracel Parent Products used, marketed or distributed by Intracel
Parent or any of its subsidiaries in clinical investigations are subject
to all applicable licenses, registrations, approvals, clearances, and
authorizations required by local, state and federal agencies, foreign or
domestic, regulating the safety, effectiveness, and market clearance of
medical devices, which licenses, registrations, approval, clearances and
authorizations are held by Intracel Parent or one of its subsidiaries
and were obtained by Intracel Parent or such subsidiary on or before the
date when same were required. Those licenses, registrations, approvals,
clearances, and authorizations will not be affected or impaired by the
Merger.
(c) Intracel Parent and one of its subsidiaries is in full possession of
all supportive materials and data substantiating representations made to
the FDA in its material filings therewith, including any and all testing
data in the possession or under the control of Intracel Parent, whether
or not submitted to the FDA. The Intracel Parent Products perform in
compliance with the representations and performance specifications as
contained in said filings.
(d) There is no proceeding by the FDA or any other governmental agency,
including but not limited to a grand jury investigation, a 405 hearing,
a civil penalty proceeding brought at any time in the past relating to
the safety or efficacy of Intracel Parent Products and, to Intracel
Parent's knowledge, there is no basis for such a proceeding.
Section 5.18 Interim Operations of Intracel Acquisition Sub. Intracel
Acquisition Sub was formed solely for the purpose of engaging in the
transactions contemplated hereby, has engaged in no other business activities
and has conducted its operations only as contemplated hereby.
Section 5.19 Change in Control. Except as set forth in Section 5.19 of the
Intracel Parent Disclosure Schedule, neither Intracel Parent nor any of its
subsidiaries is a party to any contract, agreement or understanding which
contains a "change in control" or "potential change in control" provision.
Except as set forth in the Intracel Parent Financial Reports or Section 5.19 of
the Intracel Parent Disclosure Schedule, there are no agreements or
understandings between Intracel Parent and its subsidiaries, on the one hand,
and any affiliates of Intracel Parent (other than subsidiaries of Intracel
Parent), on the other hand.
Section 5.20 Environmental, Health, and Safety.
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(a) Intracel Parent and its subsidiaries (A) have complied with all
applicable Environmental, Health, and Safety Laws governing Intracel
Parent and its subsidiaries in all material respects (and no action,
suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against any of them
alleging any such failure to comply), (B) have obtained and been in
substantial compliance with all of the terms and conditions of all
material permits, licenses, and other authorizations which are required
under all applicable Environmental, Health, and Safety Laws governing
Intracel Parent and its subsidiaries, and (C) have complied in all
material respects with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules, and
timetables which are contained in the Environmental, Health, and Safety
Laws governing Intracel Parent and its subsidiaries.
(b) To the knowledge of Intracel Parent, Intracel Parent and its
subsidiaries have no material liability (whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due), there is
no fact or circumstance that with the passage of time, or occurrence of
other reasonably foreseeable events would give rise to any material
liability, and Intracel Parent and its subsidiaries have not handled or
disposed of any substance, arranged for the disposal of any substance,
exposed any employee or other individual to any substance or condition,
or owned or operated any property or facility in any manner that could
give rise to any material liability, for damage to any site, location,
or body of water (surface or subsurface), for any illness of or personal
injury to any employee or other individual, or for any reason under any
Environmental, Health, and Safety Law governing Intracel Parent and its
subsidiaries.
Section 5.21 Employment and Labor Matters. Section 5.21 of the Intracel Parent
Disclosure Schedule contains a true, complete and accurate list of the names,
titles, annual compensation (including all bonuses and similar payments made
with respect to each such individual for the current and preceding fiscal years)
of all directors, officers and employees of Intracel Parent and its subsidiaries
who have an annual aggregate remuneration of $80,000 or more. Intracel Parent
and its subsidiaries have and currently are conducting their respective
businesses in full compliance with all laws relating to employment and
employment practices, terms and conditions of employment, wages and hours,
affirmative action, and nondiscrimination in employment. Except as disclosed in
Section 5.21 of the Intracel Parent Disclosure Schedule, to Intracel Parent's
knowledge, the relationships of Intracel Parent and its subsidiaries with their
respective employees are good; to Intracel Parent's knowledge, there is, and
during the past five years there has been, no labor strike, dispute, slow-down,
work stoppage or other labor difficulty actually pending or threatened against
or involving Intracel Parent and its subsidiaries and, to Intracel Parent's
knowledge, no attempt is currently being made or during the past three years has
been made to organize any employees of Intracel Parent and its subsidiaries to
form or enter a labor union or similar organization. Section 5.21 of the
Intracel Parent Disclosure Schedule contains a list of all grievances by
employees during the past three years which have resulted in a significant
change in work practices or contract interpretation or terms or resulted in
arbitration.
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Section 5.22 Contracts. Section 5.22 of the Intracel Parent Disclosure Schedule
lists all the material contracts and arrangements to which Intracel Parent or
any of its subsidiaries is a party or by which it is bound, or to which any of
its assets or properties is subject. Intracel Parent has delivered to the
Company true and complete copies of each document listed in Section 5.22 of the
Intracel Parent Disclosure Schedule, and a written description of each oral
arrangement so listed. Except as disclosed in Section 5.22 of the Intracel
Parent Disclosure Schedule, all such contracts and arrangements are in full
force and effect, and neither Intracel Parent nor any of its subsidiaries is in
default under any of them, nor, to the knowledge of Intracel Parent, is any
other party to any such contract or arrangement in default thereunder.
Section 5.23 Predominant Customers. Except as set forth on Section 5.23 of
the Intracel Parent Disclosure Schedule, no single customer of Intracel Parent
or any of its subsidiaries accounts or accounted for over five percent (5%) of
the total consolidated revenues of Intracel Parent and its subsidiaries (the
"Intracel Dollar Threshold") during the twelve (12) month period immediately
preceding the date of this Agreement.
Section 5.24 Change in Customers or Vendors. Except as set forth on Section
5.24 of the Intracel Parent Disclosure Schedule, no customer or vendor whose
annual volume of purchases or sales during Intracel Parent's fiscal year ended
December 31, 1996 exceeded the Intracel Dollar Threshold, has indicated to
Intracel Parent or any of its subsidiaries, or to any of their respective
officers or directors that it intends to cease doing business with Intracel
Parent or such subsidiary, or materially alter the amount or pricing of the
business done with Intracel Parent or such subsidiary, respectively. To the
knowledge of Intracel Parent, the relationship of such customers and vendors
will not be materially adversely affected by the consummation of the
transactions contemplated by this Agreement.
Section 5.25 Notes and Accounts Receivable. All notes and accounts receivable
of Intracel Parent and its subsidiaries are reflected properly on the Intracel
Parent Financial Reports and Intracel Parent Balance Sheet, are valid
receivables which arose in the ordinary course of business from bona fide
transactions, subject to no set-offs or counterclaims, subject only to the
reserve for bad debts set forth on the face of the Intracel Parent Financial
Reports and Intracel Parent Balance Sheet.
Section 5.26 Questionable Payments. None of Intracel Parent, its subsidiaries,
or any of their respective directors, officers or other employees has: (i) made
any payments or provided services or other favors in the United States of
America or in any foreign country in order to obtain preferential treatment or
consideration by any Governmental Entity with respect to any aspect of the
business of Intracel Parent and its subsidiaries, or (ii) made any political
contributions which would not be lawful under the laws of the United States
(including the Foreign Corrupt Practices Act) or the foreign country in which
such payments were made. None of Intracel Parent, its subsidiaries, or any of
their respective directors, officers or other employees nor, to Intracel
Parent's knowledge, any customer or supplier of Intracel Parent or any of its
subsidiaries, has been subject to any inquiry or investigation by any
Governmental Entity in connection with payments or benefits or other favors to
or for the benefit of any governmental or
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armed services official, agent, representative or employee with respect to any
aspect of the business of Intracel Parent or its subsidiaries or with respect to
any political contribution.
ARTICLE VI
COVENANTS
Section 6.01 Covenants of the Company and Intracel Parent. During the period
from the date of this Agreement and continuing until the earlier of the
termination of this Agreement or the Effective Time, the Company and Intracel
Parent each agree as to itself and its subsidiaries that (except as expressly
contemplated or permitted by this Agreement, Section 6.01 of the Company
Disclosure Schedule or the Intracel Parent Disclosure Schedule, as the case may
be, or to the extent that the other party shall otherwise consent in writing):
(a) Each party and its subsidiaries shall carry on their respective
businesses in the usual, regular and ordinary course, consistent with
past practice and (i) use its best efforts to preserve its business
intact, keep available the services of all of its present officers,
employees, agents and representatives, and preserve the goodwill of all
suppliers, customers, clients and others having business relations with
it or any of its subsidiaries; (ii) maintain its corporate existence and
good standing in its state of incorporation; (iii) keep and maintain in
good condition, repair and working order all buildings, offices, stores
and other structures and all machinery, tools, equipment, fixtures and
other property of it and its subsidiaries and observe and conform to all
material terms and conditions upon or under which any of their
properties is held; and (iv) continue and maintain in full force and
effect all insurance now maintained and promptly proceed with the
repair, restoration or replacement of any asset or property damaged or
destroyed by fire or other casualty after the date hereof, whether
insured or uninsured, subject to the rights, if any, of the lessors or
mortgagees thereof.
(b) Except for such transaction disclosed in the appropriate party's
Disclosure Schedule, no party shall, nor shall any party permit any of
its subsidiaries to, nor shall any party or subsidiary propose to, (i)
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of any of
its capital stock, (ii) split, combine or reclassify any of its capital
stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for shares of
its capital stock or (iii) repurchase, redeem or otherwise acquire, or
permit any subsidiary to repurchase, redeem or otherwise acquire, any of
its securities or any securities of its subsidiaries.
(c) No party shall, nor shall any party permit any of its subsidiaries to,
authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to purchase or
otherwise) any stock of any class or any other securities (including
indebtedness having the right to vote) or equity equivalents (including,
without limitation, stock appreciation rights), except as required
pursuant to the agreements and instruments
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outstanding on the date hereof or disclosed in Sections 4.02 and 5.02,
or amend in any material respect any of the terms of any such securities
or agreements outstanding on the date hereof, other than the issuance of
Company Shares or shares of Intracel Parent Shares, as the case may be,
upon the exercise of stock options pursuant to Company Stock Plan or
Intracel Parent Stock Plans and upon the exercise or conversion of other
Intracel Parent and Company options, warrants or rights, in each case
outstanding on the date of this Agreement and in accordance with their
present terms.
(d) No party shall amend or propose to amend its charter or bylaws.
(e) No party shall, nor shall any party permit any of its subsidiaries to,
acquire, sell, lease, encumber, transfer or dispose of any assets
outside the ordinary course of business, consistent with past practice,
or any assets which are material to such party and its subsidiaries
taken as a whole, except pursuant to obligations in effect on the date
hereof, or enter into any commitment or transaction outside the ordinary
course of business, consistent with past practice.
(f) No party shall, nor shall any party permit any of its subsidiaries to,
incur any indebtedness for borrowed money (which shall not be deemed to
include entering into credit agreements, lines of credit or similar
arrangements until borrowings are made under such arrangements) or
guarantee any such indebtedness or issue or sell any debt securities or
warrants or rights to acquire any debt securities of such party or any
of its subsidiaries or guarantee (or become liable for) any debt of
others or make any loans, advances or capital contributions or mortgage,
pledge or otherwise encumber any material assets or create or suffer any
material lien thereupon other than in each case in the ordinary course
of business consistent with prior practice.
(g) No party shall, nor shall any party permit any of its subsidiaries to
pay, discharge or satisfy any claims, liabilities or obligations in
excess of $350,000 (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or
satisfaction in the ordinary course of business consistent with past
practice or in accordance with their terms, of liabilities reflected or
reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) of any party and its consolidated
subsidiaries or incurred in the ordinary course of business consistent
with past practice.
(h) No party shall change any of the accounting principles or practices used
by it (except as required by generally accepted accounting principles).
(i) No party shall, nor shall any party permit any of its subsidiaries to,
agree to take any of the foregoing actions or take or agree to take any
action that would or is reasonably likely to result in any of its
representations and warranties set forth in this Agreement being untrue
or in any of the conditions to the Merger set forth in Article VII not
being satisfied.
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(j) Each of the parties shall give prompt notice to the other party of: (i)
any notice of, or other communication relating to, a default or event
which, with notice or the lapse of time or both, would become a default,
received by it or any of its subsidiaries subsequent to the date of this
Agreement and prior to the Effective Time, under any agreement,
indenture or instrument material to the financial condition, properties,
businesses or results of operations of it and its subsidiaries, taken as
a whole, to which it or any of its subsidiaries is a party or is
subject; (ii) any notice or other communication from any third party
alleging that the consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement, which
consent, if required, would breach the representations contained in
Articles IV and V; and (iii) any material adverse change in the
financial condition, properties, businesses, results of operations or
prospects of it and its subsidiaries, taken as a whole.
(k) The parties shall consult with each other before issuing any press
releases or otherwise making public statements with respect to the
transactions contemplated hereby and in making any filings with any
federal or state governmental or regulatory agency or with any national
securities exchange with respect thereto.
Section 6.02 Additional Covenants of the Company and Intracel Parent.
(a) During the period from the date of this Agreement and continuing until
the earlier of the termination of this Agreement or the Effective Time,
each of the Company and Intracel Parent agrees as to itself and its
subsidiaries that it will not, without the prior written consent of the
other party, except as contemplated by this Agreement or required by
law, (i) enter into, adopt, amend or terminate any Company Benefit Plan
or Intracel Parent Benefit Plan, as the case may be, or other employee
benefit plan or any agreement, arrangement, plan or policy between the
Company or Intracel, as the case may be, and one or more of its
directors or executive officers or (ii) except for normal increases in
the ordinary course of business consistent with past practice that, in
the aggregate, do not result in a material increase in benefits or
compensation expense to the Company or Intracel, as the case may be,
increase in any manner the compensation or fringe benefits of any
director, officer or employee or pay any benefit not required by any
plan and arrangement as in effect as of the date hereof or enter into
any contract, agreement, commitment or arrangement to do any of the
foregoing.
(b) (i) At the Effective Time, each outstanding option to purchase Company
Shares (a "COMPANY STOCK OPTION") under the Company Stock Option Plan,
whether vested or unvested, shall be deemed to constitute an option to
acquire, on the same terms and conditions as were applicable under such
Company Stock Option, the same number of shares of Intracel Parent
Common Stock as the holder of such Company Stock Option would have been
entitled to receive pursuant to the Merger had such holder exercised
such option in full immediately prior to the Effective Time (not taking
into account whether or not such option was in fact exercisable), at a
price per share equal to (1) the exercise price for the Company Stock
Option divided by (2) the Common Conversion Ratio. In the case of any
Company Stock Option to which Section 421 of the Code
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applies by reason of its qualification under any of Sections 422 and 424
of the Code ("INCENTIVE STOCK OPTIONS"), the option price, the number of
shares purchasable pursuant to such option and the terms and conditions
of exercise of such option shall comply with Section 424(a) of the Code;
(ii) as soon as practicable after the Effective Time, Intracel Parent
shall deliver to the holders of the Company Stock Options set forth in
Section 6.02(b) (i) appropriate notices setting forth such holders'
rights pursuant thereto and such Company Stock Options, including that
the grants or awards pursuant to the Company Stock Option Plan, shall
continue in effect on the same terms and conditions (including further
antidilution provisions, and subject to the adjustments required by this
Section 6.02(b) after giving effect to the Merger). Intracel Parent
shall comply with the terms of such Company Stock Options and ensure, to
the extent required by, and subject to the provisions of, any such
Company Stock Option Plan, that the Company Stock Options which
qualified as incentive stock options prior to the Effective Time
continue to qualify as incentive stock options after the Effective Time.
(c) During the period from the date of this Agreement and continuing until
the earlier of the termination of this Agreement or the Effective Time,
subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use its best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective without limitation, (i) such actions as
may be required to be taken under the Securities Act and applicable
state securities laws in connection with the issuances contemplated
hereby, and (ii) the preparation and filing of all other forms,
registrations and notices required to be filed to consummate the
transactions contemplated hereby and the taking of such actions as are
necessary to obtain any requisite approvals, consents, orders,
exemptions, waivers by any public or private third party. Each party
shall promptly consult with the other with respect to, provide any
necessary information with respect to and provide the other (or its
counsel) copies of, all filings made by such party with any Governmental
Entity in connection with this Agreement and the transactions
contemplated hereby.
Section 6.03 No Solicitation. During the period from the date of this Agreement
and continuing until the earlier of the termination of this Agreement or the
Effective Time, none of the Company, Intracel Parent or any of their respective
subsidiaries, affiliates, officers, directors, representatives or agents shall,
directly or indirectly, solicit, initiate or encourage (including by way of
furnishing information) any person, entity or group concerning any merger, sale
of substantial assets outside the ordinary course of business, sale of shares of
capital stock or similar transaction involving the Company, Intracel Parent or
any of their respective subsidiaries or divisions (other than the transactions
contemplated by this Agreement). During the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
or the Effective Time, the Company shall promptly advise Intracel Parent, and
Intracel Parent shall promptly advise the Company, of any such inquiries or
proposals which are proposed by any third parties on an unsolicited basis.
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Section 6.04 Access to Information. Upon reasonable notice and subject to
restrictions contained in confidentiality agreements to which such party is
subject (from which such party shall use reasonable efforts to be released), the
Company and Intracel Parent shall each (and shall cause each of their respective
subsidiaries to) afford to the officers, employees, accountants, counsel and
other representatives of the other, reasonable access, during normal business
hours during the period prior to the earlier of the termination of this
Agreement and the Effective Time, to all its properties, books, contracts,
commitments and records and, during such period, each of the Company and
Intracel Parent shall (and shall cause each of their respective subsidiaries to)
furnish promptly to the other all information concerning its business,
properties and personnel as such other party may reasonably request. Unless
otherwise required by law or court order, the parties will hold any such
information which is nonpublic in confidence until such time as such information
otherwise becomes publicly available through no wrongful act of either party,
and in the event of termination of this Agreement for any reason each party
shall promptly return all nonpublic documents obtained from any other party, and
any copies or summaries made of such documents, to such other party.
Section 6.05 Stockholders Meetings. Each of the Company and Intracel Parent
shall either duly call, give notice of, convene and hold a meeting of its
stockholders or solicit the consents of its stockholders as promptly as
practicable for the purpose of voting, in the case of the Company, upon this
Agreement and related matters and, in the case of Intracel Parent, upon the
amendment to the Certificate of Incorporation of Intracel Parent and the
issuance of Intracel Parent Shares pursuant hereto. Intracel Parent and the
Company will, through their respective Board of Directors, recommend to their
respective stockholders approval of such matters and will coordinate and
cooperate with respect to the timing of such meetings or consent solicitations
and shall use their best efforts, if applicable, to hold such meetings on the
same day and as soon as practicable after the date hereof, and shall use their
best efforts to secure the approval of their stockholders for the transactions
contemplated herein.
Section 6.06 Brokers or Finders. Each of Intracel Parent and the Company
represents, as to itself, its subsidiaries and its affiliates, that no agent,
broker, investment banker, financial advisor or other firm or person is or will
be entitled to any broker's or finder's fee or any other commission or similar
fee in connection with any of the transactions contemplated by this Agreement
except Vector Securities International, Inc., whose fees and expenses will be
paid (a) by the Company in accordance with the Company's agreement with such
firm (of which a copy has been delivered by the Company to Intracel Parent prior
to the date of this Agreement), and (b) by Intracel Parent in accordance with
Intracel Parent's agreement with such firm (of which a copy has been delivered
by Intracel Parent to the Company prior to the date of this Agreement), and each
of Intracel Parent and the Company agree to indemnify and hold the other
harmless from and against any and all claims, liabilities or obligations with
respect to any other fees, commissions or expenses asserted by any person on the
basis of any act or statement alleged to have been made by such party or its
affiliate.
Section 6.07 Consents, Approvals and Filings. The Company and Intracel Parent
will make and cause their respective subsidiaries to make all necessary filings,
as soon as practicable, including, without limitation, those required under the
Securities Act and applicable state
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securities laws, in order to facilitate prompt consummation of the transactions
contemplated by this Agreement. In addition, the Company and Intracel Parent
will each use their best efforts, and will cooperate fully with each other (i)
to comply as promptly as practicable with all governmental requirements
applicable to the transactions contemplated by this Agreement and (ii) to obtain
as promptly as practicable all necessary permits, orders or other consents of
Governmental Entities and consents, waivers and approvals of all third parties
necessary for the consummation of the transactions contemplated by this
Agreement and to enable each of the Company and Intracel Parent to conduct and
operate its business substantially as presently conducted. Each of the Company
and Intracel Parent shall use reasonable efforts to provide such information and
communications to Governmental Entities as such Governmental Entity may
reasonably request.
ARTICLE VII
CONDITIONS
Section 7.01 Conditions to Each Party's Obligation to Effect the Merger.
The respective obligation of each party to effect the Merger shall be subject to
the satisfaction at or prior to the Closing Date of the following conditions:
(a) This Agreement shall have been approved and adopted by the affirmative
vote of the holders of a majority of the outstanding Company Common
Stock, a majority of the outstanding Company Series A Preferred and a
majority of the outstanding Company Series B Preferred, and the issuance
of Intracel Parent Shares pursuant to the Merger, the amendment of the
Certificate of Incorporation of Intracel Parent and the other terms of
this Agreement shall have been approved by the affirmative vote of the
Intracel Parent shareholders in accordance with the provisions of
Delaware Law and the respective certificate of incorporation and bylaws
of each of the Company and Intracel Parent.
(b) Other than the filing provided for by Section 2.01, all authorizations,
consents, orders or approvals of, or declarations or filings with, or
expirations or terminations of waiting periods imposed by, any
Governmental Entity (other than the filing of a Form D under the
applicable regulations promulgated under the Securities Act), and all
required third party consents, the failure to obtain which would have a
Material Adverse Effect on Intracel Parent and its subsidiaries,
including the Surviving Corporation and its subsidiaries, taken as a
whole, shall have been filed, occurred or been obtained. Intracel Parent
shall have received all state securities or Blue Sky permits and other
authorizations necessary to issue the Intracel Parent Shares pursuant to
the Merger and the other terms of this Agreement.
(c) No statute, rule, regulation, executive order, decree or injunction
which prohibits the consummation of the Merger, or limits or restricts
the operation of Intracel Parent following the Merger, shall have been
enacted, entered, promulgated or enforced by any court or governmental
authority and be in effect.
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(d) The Amended and Restated Certificate of Incorporation of Intracel
Parent shall have been filed with the Secretary of State of the State of
Delaware.
(e) ▇▇. ▇▇▇▇▇ shall have delivered the letter in substantially the form of
Exhibit B hereto.
(f) The Shareholders Agreement in substantially the form of Exhibit C hereto
shall have been duly executed and delivered by each of the parties
thereto.
(g) The Registration Rights Agreement in substantially the form of
Exhibit D hereto shall have been duly executed and delivered by each of
the parties thereto.
(h) The Employment Agreements between Intracel Parent and each of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇, respectively, in a form mutually agreeable
to each such respective party,in substantially the form of Exhibit E
hereto, shall have been duly executed and delivered by each of the
parties thereto.
(i) Intracel Parent and the Company shall have received opinions from
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, each dated at the
Effective Time and addressed to Intracel Parent and the Company, stating
that the Merger will qualify as a reorganization under section 368(a) of
the Code. In rendering such opinions, each counsel shall be entitled to
require and to rely upon representations and agreements contained in
certificates from Intracel Parent, the Company and such other parties as
they shall deem reasonably necessary.
Section 7.02 Conditions of Obligations of Intracel Parent and Intracel
Acquisition Sub. The obligations of Intracel Parent and Intracel Acquisition Sub
to effect the Merger are further subject to the satisfaction at or prior to the
Closing Date of the following conditions, unless waived by Intracel Parent and
Intracel Acquisition Sub:
(a) The representations and warranties of the Company set forth in this
Agreement shall be true and correct as of the date of this Agreement,
and shall also be true in all material respects (except for such changes
as are contemplated by the terms of this Agreement and such changes as
would be required to be made in the exhibits to this Agreement if such
schedules were to speak as of the Closing Date) on and as of the Closing
Date with the same force and effect as though made on and as of the
Closing Date, except if and to the extent any failures to be true and
correct would not, in the aggregate, have a Material Adverse Effect on
the Company and its subsidiaries taken as a whole.
(b) From the date of this Agreement through the Closing Date, except as set
forth in Section 4.05 of the Company Disclosure Schedule, the Company
shall not have suffered any adverse changes in its business, operations
or financial condition which are material to the Company and its
subsidiaries taken as a whole (other than changes generally affecting
the industries in which the Company operates, including changes due to
actual or proposed changes in law or regulation, or changes relating to
the transactions contemplated by this Agreement, including the change in
control contemplated hereby).
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(c) The Company shall have performed all obligations required to be
performed by it under this Agreement at or prior to the Closing Date, in
all material respects, other than the filing of the Certificate of
Merger.
(d) At the Closing, the Company shall have furnished Intracel Parent with
copies of (i) resolutions duly adopted by the Board of Directors of the
Company approving the execution and delivery of this Agreement and all
other necessary or proper corporate action to enable the Company to
comply with the terms of this Agreement, (ii) the resolutions duly
adopted by the holders of Company Common Stock, Company Series A
Preferred and Company Series B Preferred approving and adopting this
Agreement and the Merger, such resolutions to be certified by the
Secretary or Assistant Secretary of the Company and (iii) a Certificate
of the Secretary of the Company setting forth the capitalization of the
Company on the Closing Date, immediately prior to the Effective Time, as
specified in Section 4.02.
(e) At the Closing, the Company shall have furnished Intracel Parent with
an opinion, dated the Closing Date, of counsel to the Company, in form
and substance satisfactory to Intracel Parent and its counsel, to the
effect that:
(i) the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware;
(ii) the Subsidiary has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware;
(iii) all of the outstanding Company Shares have been duly authorized
and validly issued and are fully paid and nonassessable and none
of such issued Company Shares were issued in violation of any
preemptive rights of shareholders of the Company;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company and this Agreement constitutes a valid and
legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, fraudulent
transfer, reorganization, moratorium, insolvency and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(v) all regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company prior to the
Effective Time under the Federal laws of the United States or
the General Corporation Law of the State of Delaware for the
consummation of the transactions contemplated by this Agreement
by the Company, have been made or obtained.
In rendering the foregoing opinion (the "COMPANY PRIMARY OPINION"), such
counsel may rely on certificates of officers and other agents of the Company and
public officials as to matters of fact and, as to matters relating to the law of
jurisdictions other than New York and the General Corporation Law of the State
of Delaware, upon opinions of counsel of such other jurisdictions reasonably
satisfactory to Intracel Parent and its counsel, provided such reliance is
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expressly noted in the Company Primary Opinion and the opinions of such other
counsel and the certificates of such officers, agents and public officials
relied on are attached to the Company Primary Opinion. Notwithstanding the
foregoing, such counsel shall not be required to express an opinion with respect
to any matters relating to FDA consents, authorizations, approvals or filings;
(f) The Company shall have issued shares of Company Series B
Preferred to Mentor Corporation substantially in accordance with the terms set
forth in the Strategic Alliance Terms Sheet previously delivered to Intracel
Parent.
(g) All actions, proceedings, instruments and documents required
to carry out this Agreement, or incidental hereto, and all other legal matters
shall have been approved by counsel to Intracel Parent, and such counsel shall
have received all documents, certificates and other papers reasonably requested
by it in connection therewith.
Section 7.03 Conditions of Obligations of the Company. The obligation of the
Company to effect the Merger is further subject to the satisfaction at or prior
to the Closing Date of the following conditions, unless waived by the Company:
(a) The representations and warranties of Intracel Parent and Intracel
Acquisition Sub set forth in this Agreement shall be true and correct as
of the date of this Agreement, and shall also be true in all material
respects (except for such changes as are contemplated by the terms of
this Agreement and such changes as would be required to be made in the
exhibits to this Agreement if such schedules were to speak as of the
Closing Date) on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date, except if and to
the extent any failures to be true and correct would not, in the
aggregate, have a Material Adverse Effect on Intracel Parent.
(b) From the date of this Agreement through the Closing Date, except as set
forth in Section 5.06 of the Intracel Parent Disclosure Schedule,
Intracel Parent shall not have suffered any adverse changes in its
business, operations or financial condition which are material to
Intracel Parent and its subsidiaries taken as a whole (other than
changes generally affecting the industries in which Intracel Parent
operates, including changes due to actual or proposed changes in law or
regulation)
(c) Intracel Parent and Intracel Acquisition Sub shall have performed all
obligations required to be performed by it under this Agreement at or
prior to the Closing Date in all material respects, other than the
filing of the Certificate of Merger.
(d) At the Closing, Intracel Parent and Intracel Acquisition Sub shall have
furnished the Company with copies of (i) resolutions duly adopted by
their respective Boards of Directors approving the execution and
delivery of this Agreement and all other necessary or proper corporate
action to enable them to comply with the terms of this Agreement, (ii)
the resolutions duly adopted by the shareholders of Intracel Parent
approving the issuance of Intracel Parent Shares and the amendment to
the Certificate of Incorporation of Intracel Parent, such resolutions to
be certified by the Secretary or Assistant Secretary of Intracel
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Parent, (iii) the resolutions duly adopted by the sole shareholder of
Intracel Acquisition Sub approving and adopting this Agreement and the
Merger, (iv) a certificate of the Secretary of Intracel Parent setting
forth the capitalization of Intracel Parent on the Closing Date,
immediately prior to the Effective Time, as specified in Section 5.02
and (v) audited Intracel Parent Financial Reports.
(e) At the Closing, Intracel Parent shall have furnished the Company with
an opinion, dated the Closing Date, of counsel to the Intracel Parent
and Intracel Acquisition Sub, in form and substance satisfactory to the
Company and its counsel, to the effect that:
(i) Each of Intracel Parent, Intracel Acquisition Sub and ▇▇▇▇▇▇▇
Inc. is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of their
respective incorporation;
(ii) the Intracel Parent Shares to be issued under the Agreement (the
"Subject Shares") have been duly authorized and, upon
consummation of the transactions contemplated by the Agreement,
will be validly issued, fully paid and nonassessable, and such
issuance is not subject to any preemptive rights of shareholders
of Intracel Parent;
(iii) this Agreement has been duly authorized, executed and delivered
by Intracel Parent and Intracel Acquisition Sub and constitutes
the legal, valid and binding obligation of each, enforceable
against Intracel Parent and Intracel Acquisition Sub in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws
relating to or affecting the rights of creditors generally,
including, without limitation, laws relating to fraudulent
transfers or conveyances, preferences, and equitable
subordination;
(iv) no registration with, consent or approval of, notice to, or other
action by, any governmental entity of the United States and the
General Corporation Law of the State of Delaware is required on
the part of Intracel Parent or Intracel Acquisition Sub for the
execution, delivery or performance of this Agreement by Intracel
Parent or Intracel Acquisition Sub, or if required, such
registration has been made, such consent or approval has been
obtained, such notice has been given or such appropriate action
has been taken; and
(v) none of the transactions contemplated by this Agreement will
require registration under Section 5 of the Securities Act of
1933, as amended.
In rendering the foregoing opinion (the "INTRACEL PRIMARY OPINION"), such
counsel may rely on certificates of officers and other agents of the Company,
Intracel Parent or Intracel Acquisition Sub, the stockholders of such entities,
and public officials as to matters of fact and, as to matters relating to the
law of jurisdictions other than New York and the General Corporation Law of the
State of Delaware, upon opinions of counsel of such other jurisdictions
reasonably satisfactory to Intracel Parent and its counsel, provided such
reliance is expressly noted in the Intracel Primary Opinion and the opinions of
such other counsel and the certificates of such officers, agents and public
officials relied on are attached to the Intracel Primary
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Opinion. Notwithstanding the foregoing, such counsel shall (i) be permitted, in
connection with rendering the opinion set forth in clause (v), to assume that
the information statement delivered to the Company's shareholders complies with
Rule 502 promulgated under the Securities Act and (ii) not be required to
express an opinion with respect to any matters relating to FDA consents,
authorizations, approvals or filings.
(f) Intracel Parent shall have furnished to the Company evidence
that Intracel Parent and each of its subsidiaries has filed all federal, state,
local and foreign tax returns required to be filed by it, that the aggregate
amounts of all taxes owed pursuant to such returns shall in no event exceed
$10,000 and that any penalties imposed or to be imposed for filing such returns
late shall not be material to Intracel Parent.
(g) Intracel Parent shall have furnished to the Company a copy of
Intracel Parent's audited consolidated financial statements for the year ended
December 31, 1996 as audited by Ernst & Young LLP (the "Audited Financials").
Such Audited Financials shall not be substantially different than the Intracel
Parent Financial Reports attached to the Intracel Parent Disclosure Schedule,
and shall contain an unqualified opinion by Ernst & Young LLP.
(h) Intracel Parent shall have furnished to the Company an amendment
(the "Amendment") to each of the following agreements, in a form reasonably
satisfactory to the Company: (i) the Loan Documents (as such term is defined in
the Credit Agreement, dated as of November 16, 1995, as amended, among Intracel
Parent, Credit Anstalt Bankverien, as agent, and the lenders party thereto) (the
"CreditAnstalt Agreements"); (ii) the Secured Promissory Note, dated December
27, 1995, as amended, by Intracel Parent in favor of Northstar Advantage High
Total Return Fund (the "Northstar Agreement"); and (iii) the Secured Promissory
Note, dated June 11, 1996, by Intracel Parent in favor of CoreStates Enterprise
Fund (the "CoreStates Agreement" and, together with the CreditAnstalt Agreements
and the Northstar Agreement, the "Credit Agreements"). Such Amendment shall
expressly waive compliance by Intracel Parent with all of the covenants
(including all affirmative and negative covenants) included in each of the
Credit Agreements until December 31, 1998, except that the Amendment may contain
such covenants as are reasonably acceptable to the Company.
(i) Intracel Parent shall have furnished to the Company, in a form
reasonably satisfactory to the Company, the renewal of the License Agreement,
dated as of June 1, 1994, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ University and Intracel
Parent.
(j) Intracel Parent shall have issued shares of Intracel Parent
Common Stock to CoreStates Enterprise Fund in the manner described in the
Intracel Parent Disclosure Schedule.
(k) All actions, proceedings, instruments and documents required to
carry out this Agreement, or incidental hereto, and all other legal matters
shall have been approved by counsel to the Company, and such counsel shall have
received all documents, certificates and other papers reasonably requested by it
in connection therewith.
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ARTICLE VIII
TERMINATION AND AMENDMENT
Section 8.01 Termination. This Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval of the matters presented
in connection with the Merger by the stockholders of the Company or Intracel
Parent:
(a) by mutual consent of Intracel Parent and the Company;
(b) by either Intracel Parent or the Company if the Merger shall not have
been consummated before January 31, 1998 (unless the failure to
consummate the Merger by such date shall be due to the action or failure
to act of the party seeking to terminate this Agreement);
(c) by either Intracel Parent or the Company if any permanent injunction or
other order of a court or other competent authority preventing the
consummation of the Merger shall have become final and non-appealable;
(d) by either party if any required approval of the stockholders of Intracel
Parent or the Company shall not have been obtained by reason of the
failure to obtain the required vote pursuant to a written consent of
shareholders, or at a duly held meeting of stockholders or at any
adjournment thereof;
(e) by Intracel Parent if there has been a material breach of any
representation, warranty, covenant or agreement contained in this
Agreement on the part of the Company and such breach has not been cured
five business days prior to the Closing Date, after notice to the
Company by Intracel Parent; or
(f) by the Company if there has been a material breach of any
representation, warranty, covenant or agreement contained in this
Agreement on the part of Intracel Parent or Intracel Acquisition Sub and
such breach has not been cured five business days prior to the Closing
Date, after notice to Intracel Parent by the Company.
Section 8.02 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 8.01 hereof, this Agreement shall forthwith become
void and have no effect, without any liability on the part of any party hereto
or its affiliates, directors, officers or stockholders; provided, however, that
not withstanding the foregoing, nothing contained in this Section 8.02 shall
relieve any party from liability for any breach of this Agreement by such party.
Section 8.03 Amendment. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of Directors, at any time
before or after approval of the matters presented in connection with the Merger
by the stockholders of the Company or of Intracel Parent, but, after any such
approval, no amendment shall be made which by law requires further approval by
such stockholders without such further approval. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
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Section 8.04 Extension; Waiver. At any time prior to the Effective Time, the
parties hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party.
ARTICLE IX
POST CLOSING COVENANTS
In filing federal tax returns at any time, each of Intracel Parent, the
Company and Intracel Acquisition Sub will take consistent filing positions to
the effect that, for federal income tax purposes, the Merger qualifies as a
"reorganization" within the meaning of Section 368(a) of the Code, and no
shareholder is required to recognize income gain or loss with respect thereto.
ARTICLE X
MISCELLANEOUS
Section 10.01 Nonsurvival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
Effective Time.
Section 10.02 Notices. All notices and other communications hereunder shall
be in writing (and shall be deemed given upon receipt) if delivered personally,
telecopied (which is confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Intracel Parent or Intracel Acquisition Sub, to
Intracel Corporation
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
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(b) if to the Company, to
PerImmune Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 10.03 Descriptive Headings. The descriptive headings herein are
inserted for convenience only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
Section 10.04 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
Section 10.05 Entire Agreement; Assignment. This Agreement and the documents and
instruments and other agreements to be executed on the Closing Date (a)
constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof (other than any confidentiality agreement between the
parties; any provisions of such agreements which are inconsistent with the
transactions contemplated by this Agreement being waived hereby) and (b) shall
not be assigned by operation of law or otherwise, provided that Intracel Parent
may cause Intracel Acquisition Sub to assign its rights and obligations to
Intracel Parent or any other wholly owned subsidiary of Intracel Parent, but no
such assignment shall relieve Intracel Acquisition Sub of its obligations
hereunder if such assignee does not perform such obligations.
Section 10.06 Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware without regard to any
applicable principles of conflicts of law.
Section 10.07 Specific Performance. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
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Section 10.08 Expenses. Whether or not the Merger is consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
Section 10.09 Publicity. Except as otherwise required by law or the rules of
any national securities exchange, for so long as this Agreement is in effect,
neither the Company nor Intracel Parent shall, or shall permit any of its
subsidiaries to, issue or cause the publication of any press release or other
public announcement with respect to the transactions contemplated by this
Agreement without prior consultation with the other party.
Section 10.10 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person or
persons any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
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IN WITNESS WHEREOF, the Company, Intracel Parent and Intracel Acquisition
Sub have caused this Agreement to be signed by their respective officers
thereunto duly authorized as of the date first written above.
PERIMMUNE HOLDINGS, INC.
By
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Name:
Title:
INTRACEL CORPORATION
By
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Name:
Title:
INTRACEL ACQUISITION SUB, INC.
By
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Name:
Title:
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