Execution Copy EXHIBIT 2.6
DATED 11TH FEBRUARY 2003
FALCON INTERNATIONAL INVESTMENT HOLDINGS LLC
and
SEROLOGICALS RESEARCH PRODUCTS, INC
------------------------------------------------------------
EUROPEAN PURCHASE AGREEMENT
RELATING TO THE SALE OF THE WHOLE OF THE
ISSUED SHARE CAPITAL OF CHEMICON EUROPE LIMITED
------------------------------------------------------------
[XXXXXXXX XXXXXXX LOGO]
Execution Copy EXHIBIT 2.6
CONTENTS
PAGE
1. DEFINITIONS AND INTERPRETATION...................................... 1
2. SALE AND PURCHASE................................................... 1
3. CONSIDERATION....................................................... 2
4. CONDITIONAL AGREEMENT............................................... 2
5. WARRANTIES.......................................................... 2
6. COMPLETION.......................................................... 4
7. MATTERS PENDING COMPLETION.......................................... 5
8. CONFIDENTIALITY..................................................... 5
9. GUARANTEE........................................................... 6
10. SPECIFIC MATTERS.................................................... 6
11. TAX COVENANT........................................................ 6
12. COSTS............................................................... 7
13. NOTICES............................................................. 7
14. DEDUCTIONS FROM PAYMENTS............................................ 8
15. TERMINATION......................................................... 8
16. GENERAL............................................................. 8
SCHEDULE 1 - Warranties................................................... 12
SCHEDULE 2 - Particulars of the Company................................... 31
SCHEDULE 3 - The Subsidiary............................................... 32
SCHEDULE 4 - The Properties............................................... 33
SCHEDULE 5 - Completion Requirements...................................... 34
SCHEDULE 6 - Specific Matters............................................. 37
APPENDIX - Definitions and Interpretation................................. 38
Execution Copy EXHIBIT 2.6
DOCUMENTS IN THE AGREED FORM:
1. Form of Director's/Secretary's Resignation
2. Power of Attorney from the registered holder of the Shares
Execution Copy EXHIBIT 2.6
AGREEMENT dated 11th February 2003
PARTIES:
(1) FALCON INTERNATIONAL INVESTMENT HOLDINGS LLC, a Delaware limited
liability company whose head office is c/o Xxxxxxx Xxxx, sole manager,
0000 X. Xxxx Xxxx Xxx., Xxxxx 000-X, Xxxxxxx, Xxxxxxxx 00000-0000, XXX
(SHAREHOLDER); and
(2) SEROLOGICALS RESEARCH PRODUCTS, INC, a company incorporated in
Delaware, USA whose head office is at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxx 00000, XXX (SEROLOGICALS).
INTRODUCTION:
(A) The Shareholder is the registered holder and beneficial owner of all
the issued shares in Chemicon Europe Limited (COMPANY).
(B) The Shareholder is willing to sell such shares to Serologicals, and
Serologicals is willing to purchase them, on the terms and subject to
the conditions of this Agreement.
(C) Details of the Company are set out in Schedule 2.
(D) The Subsidiary is the only subsidiary of the Company at the date of
this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The definitions and interpretation provisions set out in the Appendix
apply in this Agreement.
2. SALE AND PURCHASE
2.1 The Shareholder shall sell and Serologicals shall purchase the Shares
on the terms and subject to the conditions of this Agreement.
2.2 The Shareholder shall sell the Shares with full title guarantee and
free from any Encumbrance.
2.3 The Shareholder shall not before Completion dispose of any interest in
the Shares or any of them or grant any Encumbrance over the Shares or
any of them.
2.4 The Shareholder shall sell the Shares with all rights now and in the
future attaching to them.
2.5 Serologicals shall not be obliged to complete the purchase of any of
the Shares unless the purchase of all the Shares is completed
simultaneously in accordance with this Agreement.
1
Execution Copy EXHIBIT 2.6
2.6 The Shareholder waives, and agrees to procure the waiver of, any
restrictions on transfer (including pre-emption rights) which may exist
in relation to the Shares under the existing articles of association of
the Company or otherwise.
2.7 For so long after Completion as it remains the registered holder of any
of the Shares the Shareholder shall hold them and any distributions,
property and rights deriving from them in trust for Serologicals and
shall deal with the Shares and any distributions, property and rights
deriving from them as Serologicals directs.
3. CONSIDERATION
3.1 The consideration for the Shares shall be the sum of US$14,025,000.
3.2 The consideration for the Shares shall be paid in full on Completion.
4. CONDITIONAL AGREEMENT
4.1 This Agreement and the rights and obligations of the parties under it
(except as provided in clause 4.3) are in all respects conditional
upon:
4.1.1 the US Securities Purchase Agreement becoming unconditional in all
respects other than the condition relating to Completion of this
Agreement; and
4.1.2 by the date that the condition in Clause 4.1.1 is satisfied, the
Secretary of State for Trade and Industry not having referred the
proposed transactions contemplated in this Agreement or matters arising
therefrom to the Competition Commission in exercise of his powers under
the Fair Trading Xxx 0000.
4.2 If the conditions set out in clause 4.1 shall not have been fully
satisfied by the date this Agreement is terminated in accordance with
clause 15 (termination), then this Agreement shall immediately lapse
and cease to have effect (other than clauses 12 (costs), 16.5
(governing law), 16.13 (announcements) and 16.18 (appointment of agent
for service) which shall remain in force) and neither party shall have
any claim against any other in respect of this Agreement except in
relation to any prior breach of this Agreement.
4.3 Despite clause 4.1, each of the parties shall perform and observe its
obligations under this Agreement which, expressly or by implication,
are required to be performed or observed at any time prior to the
earlier of (i) the time when this Agreement is terminated in accordance
with clause 15 (termination) and (ii) the fulfilment of all the
conditions set out in clause 4.1.
5. WARRANTIES
5.1 The Shareholder warrants, represents to and undertakes with
Serologicals in the terms of Schedule 1.
5.2 The Shareholder acknowledges that Serologicals is entering into this
Agreement in reliance on the Warranties.
2
Execution Copy EXHIBIT 2.6
5.3 Any reference in Schedule 1 (Warranties) to the COMPANY means the
Company and the Subsidiary separately so that the Warranties are given
in respect of the Company and the Subsidiary separately.
5.4 The Warranties are given subject to and qualified by, and Serologicals
is not entitled to claim that any fact, matter or circumstance causes
any of the Warranties to be breached in and to the extent, but only to
the extent, that the fact, matter or circumstance is fairly disclosed
in the Disclosure Letter.
5.5 The Warranties are not subject to any qualification other than the
Disclosure Letter and those qualifications referred to in the
Disclosure Letter.
5.6 Serologicals acknowledges and agrees with the Shareholder that:
5.6.1 it has had the opportunity to, and has, conducted due diligence
investigations in relation to the Company and the Subsidiary before the
date of this Agreement;
5.6.2 the Warranties are the only warranties that Serologicals requires, and
on which Serologicals has relied, in entering into this Agreement; and
5.6.3 to the extent permitted by law, all other warranties, representations
and undertakings (whether express or implied and whether oral or in
writing) made or given by the Shareholder, the Company or its employees
or advisers are expressly excluded.
5.7 In the event of any conflict or inconsistency between the provisions of
this Agreement (other than, and to the extent only that the Disclosure
Letter qualifies, the Warranties) and the Disclosure Letter the
provisions of this Agreement shall prevail.
5.8 The Shareholder undertakes to Serologicals that it will not seek to
pursue any right, remedy or claim against the Company or the Subsidiary
or any of their respective officers or employees which they or any of
them may have in respect of any misrepresentation, inaccuracy or
omission in or from any information or advice supplied or given to the
Shareholder or any of its advisers or agents in connection with this
Agreement, the Warranties, the Disclosure Letter or any other document
referred to in this Agreement except to the extent that such right,
remedy or claim arises against any of such officers or employees and as
a result of fraud or wilful concealment. In any event, the Shareholder
irrevocably undertakes to Serologicals (for itself and as trustee for
each of such persons) to waive every such claim they may have against
any of such persons.
5.9 Each of the Warranties shall be construed separately and none of the
Warranties shall limit or govern the extent, application or
construction of any other of the Warranties.
5.10 In the Warranties, the term "knowledge" in relation to the Shareholder
shall mean (i) all facts known by any person named in Schedule 3.1(f)
to the US Securities Purchase Agreement, X Xxxxxxx, K Xxxxxxx or
Xxxxxxx Xxxxxxx after due inquiry and diligence with respect to the
matters at hand and (ii) all facts that such persons should have known
with respect to the matters at hand if they had made due enquiry and
exercised diligence.
5.11 The provisions of the Indemnification Agreement shall apply in respect
of any claims under this Agreement. In the event of any matter giving
rise to a claim under this Agreement, the Shareholder and Serologicals
must comply with the provisions of Clause
3
Execution Copy EXHIBIT 2.6
2.3 of the Indemnification Agreement (Indemnification Procedure) and
2.4 (Claims Period) in respect of the notification and conduct of any
such matter and the provisions of Clause 2.5 (Liability Limits) shall
apply in respect of determining the liability of the Obligated Parties
in respect of such matter.
5.12 The liability of the Shareholder in respect of any claim for breach of
any Warranty or claim under clause 11 (Tax Covenant) (with the
exception of clause 5.12.1 which shall not apply to reduce or
extinguish claims under clause 11) is reduced or extinguished (as the
case may be) to the extent that:
5.12.1 the subject matter of any claim is expressly provided for in the
Warranted Accounts; or
5.12.2 the claim has arisen as a result of or in consequence of any voluntary
act, omission, transaction or arrangement of or on behalf of
Serologicals after the date of this Agreement otherwise than in the
ordinary course of business as it is carried on at Completion or
pursuant to a legally binding commitment created before Completion by
or on behalf of the Company or the Subsidiary and in either case where
Serologicals ought reasonably to have known that such voluntary act,
omission or transaction would cause such claim to arise; or
5.12.3 the claim is as a result of or in respect of, or where the claim arises
from, any increase in the rate of tax liable to be paid or any
imposition of tax not in effect at the date of Completion; or
5.12.4 the claim occurs or is increased as a result of legislation not in
force or in effect at the date of Completion; or
5.12.5 the claim occurs as a result of a change in any law after the date of
Completion.
5.13 If, within two years of any payments being made to Serologicals by or
on behalf of the Shareholder in respect of a claim under the Warranties
or a breach of the tax covenant at clause 11 of this Agreement, the
Company or any Subsidiary subsequently receives any sum referable to
the claim from a third party (including payment under any insurance
policy), then Serologicals:
5.13.1 must promptly notify the Shareholder of the receipt of such sum; and
5.13.2 pay to the Shareholder an amount equal to the amount (net of expenses
and tax) of the sum received by Serologicals, the Company or the
Subsidiary (as the case may be) or such lesser amount (net of expenses
and tax) as shall have been so paid to Serologicals by or on behalf of
the Shareholder.
5.14 Any amount paid by the Shareholder to Serologicals in respect of a
claim under this Agreement shall be treated as a reduction pro-rata in
the purchase consideration paid by Serologicals for the Shares.
6. COMPLETION
6.1 Completion shall take place at the offices of Serologicals' Solicitors
or at such other place as the parties may agree, as soon as is
practicable following the satisfaction or
4
Execution Copy EXHIBIT 2.6
waiver of the conditions referred to in clause 4.1 or at such later
time or date as the parties may agree in writing.
6.2 On Completion the parties will comply with their respective obligations
under Schedule 5.
6.3 If any of the requirements of Schedule 5 (to the extent not previously
waived in terms of this Agreement) are not complied with on the date
fixed for Completion the party not in default may (without prejudice to
its or their other rights and remedies including the right to claim
damages for the breach):
6.3.1 proceed to Completion so far as practicable (without prejudice
to his or their rights under this Agreement); or
6.3.2 rescind this Agreement without liability to any other party;
or
6.3.3 waive all or any of the obligations in question of the party
in default.
7. MATTERS PENDING COMPLETION
Pending Completion, the Shareholder shall, in respect of the Group,
comply with its obligations under clauses 5.1 to 5.4 of the US
Securities Purchase Agreement. References to any US legal or accounting
term or concept in clauses 5.1 to 5.4 of the US Securities Purchase
Agreement shall, in respect of this clause 7, be deemed to include what
most approximates in England to the US legal or accounting term or
concept concerned.
8. CONFIDENTIALITY
8.1 The Shareholder undertakes to Serologicals that it will not and will
procure that none of Chemicon Inc, the Group, X Xxxxxxx or K Xxxxxxx
will at any time after the date of this Agreement disclose to anyone or
use for their own purposes or for any purposes except those of any
company in the Group or through any failure to exercise all due care
and diligence cause any unauthorised disclosure of any Confidential
Information which they or any of them now possess or come into
possession of prior to Completion.
8.2 Despite clause 8.1, the Shareholder may disclose Confidential
Information:
8.2.1 to its professional advisers solely for the purpose of taking
advice on matters concerning this Agreement in which case the
Shareholder shall ensure that such professional advisers are
aware of the confidential nature of the information and shall
use its best endeavours to procure that such advisers keep
such information confidential on terms equivalent to this
clause;
8.2.2 to the extent required by law, or by any regulatory authority
to which the Shareholder may be subject.
8.3 The Shareholder will on demand made by Serologicals at any time after
Completion deliver up or cause to be delivered up to Serologicals, or
destroy or erase or cause to be destroyed or erased at Serologicals'
direction, all notes and records on whatever media
5
Execution Copy EXHIBIT 2.6
(including copies) containing Confidential Information, in each case
being in the custody, control or possession of the Shareholder, X
Xxxxxxx or K Xxxxxxx.
9. GUARANTEE
The provisions of the Parent Guaranty shall apply in respect of the
obligations of Serologicals under this Agreement.
10. SPECIFIC MATTERS
10.1 Notwithstanding disclosure made by the Shareholder in respect of any
matter giving rise to a claim in respect of the matters set out in
Schedule 6 the Shareholder agrees to indemnify Serologicals in
accordance with the provisions of the Indemnification Agreement. In the
event of any matter giving rise to a claim in respect of the matters
set out in Schedule 6, the Shareholder and Serologicals must comply
with the provisions of Clause 2.3 of the Indemnification Agreement
(Indemnification Procedure) and 2.4 (Claims Period) in respect of the
notification and conduct of any such matters and the provisions of
Clause 2.5 (Liability Limits) shall apply in respect of determining the
liability of the Obligated Parties in respect of such matters.
10.2 No claim for payment shall be made in respect of the matters set out at
clause 10.1 to the extent that an express provision for the liabilities
in question was made in the Warranted Accounts.
10.3 Any payments made by the Shareholder in respect of the matters set out
at clause 10.1 shall be treated as a reduction in the consideration for
its Shares.
11. TAX COVENANT
11.1 The Shareholder covenants to pay to Serologicals in accordance with the
terms and conditions of the Indemnification Agreement an amount equal
to:
11.1.1 any liability to Tax of a Group Member which arises:
(i) in consequence of an Event which occurred, or was
deemed to occur, on or before Completion; or
(ii) in respect of, or with reference to, any Income,
Profits or Gains which were earned, accrued or
received on or before Completion; and
11.1.2 any liability to Tax which is primarily the liability of
another person (the PRIMARY PERSON) for which a Group Member
is liable in consequence of:
(i) the Primary Person failing to discharge such
liability to Tax; and
(ii) a Group Member at any time before Completion being a
member of the same group of companies as the Primary
Person or having control of, being controlled by, or
being otherwise connected with, the Primary Person or
being controlled by the same person as the Primary
Person for any Tax purpose; and
6
Execution Copy EXHIBIT 2.6
11.1.3 any reasonable costs and expenses suffered or incurred by
Serologicals and/or a Group Member in connection with any
liability to Tax as is mentioned in this clause 11 (or any
claim for such liability to Tax).
11.2 The covenant contained in clause 11.1 does not apply in respect of a
liability to Tax of a Group Member to the extent that specific
provision or reserve in respect of that liability to Tax was made in
the last audited accounts of the relevant Group Member (excluding the
notes to those accounts and excluding any provision or reserve in
respect of deferred Tax).
11.3 The provisions of the Indemnification Agreement shall apply in respect
of any claims under this Clause 11. In the event of any matter giving
rise to a claim under this Clause 11, the Shareholder and Serologicals
must comply with the provisions of Clause 2.3 of the Indemnification
Agreement (Indemnification Procedure) and 2.4 (Claims Period) in
respect of the notification and conduct of any such matter and the
provisions of Clause 2.5 (Liability Limits) shall apply in respect of
determining the liability of the Obligated Parties in respect of such
matter.
12. COSTS
12.1 Subject to clauses 8.2(b) and 9.13 of the US Securities Purchase
Agreement, each party shall pay the costs and expenses incurred by that
party in connection with the preparation, negotiation and
implementation of this Agreement and the documents referred to in this
Agreement. However, Serologicals shall bear any stamp duty payable on
the transfer of the Shares pursuant to this Agreement.
13. NOTICES
13.1 Every notice given or required to be given under this Agreement
(NOTICE) shall be in writing. A Notice shall, in the case of
Serologicals, be sent to its head office from time to time (marked for
the attention of Xxxxxxx Xxxxxx), with a copy to King & Spalding LLP,
000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000 XXX (marked for the
attention of Xxxxxx X Xxxxxxxx) and a copy to Xxxxxxxx Xxxxxxx, 000
Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX XX (marked for the attention of Xxxx
Xxxxxx) and, in the case of the Shareholder, be sent to Xxxxxxx Xxxx,
0000 X. Xxxx Xxxx Xxx., Xxxxx 000-X, Xxxxxxx, Xxxxxxxx 00000-0000, XXX,
with a copy to Xxxx Xxxxxxxxxxx, Xxxx Xxxxxxx, 000 X. Xxxxxxxx, Xxxxx
0000, Xxx Xxxxx, XX 00000 XXX and Xxxxx Xxxxx, Xxxxxx Xxxxxxx, 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX or at such other address as that party
shall have notified to the other party in accordance with this clause.
13.2 Every Notice shall be delivered personally or sent by registered or
certified mail or by any prepaid express mail or overnight courier
service courier. To be valid a Notice must be despatched on a Business
Day.
13.3 A Notice that is delivered personally in the manner provided in this
clause 13 shall be deemed to have been served on the party to whom it
is directed on actual receipt by such party or its agent. Any Notice
that is addressed and mailed or sent by courier in the manner provided
in this clause 13 shall be deemed to be served on the party to whom it
is directed at the close of business (local time at the place of
destination) on the fourth Business Day after the day it is despatched
or, if earlier, the time of actual receipt.
7
Execution Copy EXHIBIT 2.6
13.4 In proving service of a Notice it shall be sufficient to prove that
delivery was made or that the envelope containing the Notice was
properly addressed and posted (by registered or certified mail or by
any prepaid express mail or overnight courier service courier).
14. DEDUCTIONS FROM PAYMENTS
14.1 All sums payable by the Shareholder to Serologicals and by Serologicals
to the Shareholder pursuant to this Agreement shall be paid free and
clear of all deductions or withholdings of any kind, save only as may
be required by law.
14.2 If the Shareholder or Serologicals, as the case may be, is required by
law to make a deduction or withholding from any payment referred to in
clause 14.1, the Shareholder or Serologicals, as the case may be, shall
pay to Serologicals or the Shareholder, as the case may be, such sum as
will, after the making of any deduction or withholding, leave
Serologicals or the Shareholder, as the case may be, with the same
amount as it would have received had no deduction or withholding been
made.
14.3 If any sum payable by the Shareholder to Serologicals or by
Serologicals to the Shareholder pursuant to this Agreement, other than
the payment by Serologicals of the consideration for the Shares as set
out in clause 3.1, is subject to Tax in the hands of Serologicals or
the Shareholder, as the case may be, the same obligation to make an
increased payment as is referred to in clause 14.2 shall apply in
relation to such Tax liability as if it were a deduction or withholding
required by law.
15. TERMINATION
This Agreement may be terminated at any time prior to Completion in
accordance with the provisions set out in clause 8 of the US Securities
Purchase Agreement (which for the avoidance of doubt shall apply to
this Agreement).
16. GENERAL
16.1 None of the rights or obligations of either party under this Agreement
may be assigned or transferred without the prior written consent of the
other party. However, Serologicals may at any time freely assign all or
any part of its rights and benefits under this Agreement, and any cause
of action arising under or in respect of any of them, to any Associate
of Serologicals who may enforce the assigned rights, benefits and/or
causes of action pursuant to the Contracts (Rights of Third Parties)
Xxx 0000 as if the Transferee had also been named in this Agreement as
Serologicals but in relation to the Transferee's own loss and/or
interests as beneficial owner of the whole or any part of the share
capital of the Company or of the Subsidiary.
16.2 This Agreement is binding on and shall apply for the benefit of the
parties' personal representatives, successors in title and permitted
assignees.
16.3 This Agreement, the US Securities Purchase Agreement, the
Indemnification Agreement and the documents referred to in each of them
constitute the entire agreement between the parties relating to their
subject matter, and supersede all previous agreements between the
parties relating to that subject matter. There shall be deemed to be
8
Execution Copy EXHIBIT 2.6
comprised in this Agreement all letters and acknowledgements exchanged
between the parties contemporaneously with and expressed to be
ancillary to this Agreement.
16.4 Any variation or waiver of any of the terms of this Agreement shall not
be binding unless set out in writing, expressed to amend this Agreement
and signed by or on behalf of each of the parties. Pursuant to section
2(3)(a) of the Contract (Rights of Third Parties) Xxx 0000 the parties,
in accordance with this sub-clause, may without limit or restriction
vary this Agreement or any provision of it which may be enforced by a
third party or otherwise amend this Agreement in such a way as to
extinguish or alter the third party's entitlement under any such
provision without the consent of that third party.
16.5 This Agreement shall be governed by the laws of England and each of the
parties hereby irrevocably consents and agrees that, except as provided
in the next sentence, any action, suit or proceeding arising in
connection with any disagreement, dispute, controversy or claim arising
out of or relating to this Agreement or any related document (for
purposes of this clause 16.5, a LEGAL DISPUTE) shall be brought only to
the exclusive jurisdiction of the courts of the State of California,
USA or the federal courts located in the State of California, County of
San Diego. Notwithstanding the preceding sentence, the parties hereby
irrevocably consent and agree that any Legal Dispute with respect to
any claim for indemnification pursuant to the Indemnification Agreement
shall be brought only in such federal or state court to which any third
party claims giving rise to such indemnification has been brought;
provided, however, that no party shall be prevented from raising an
objection to subject matter jurisdiction in such forum. The parties
agree that, after a Legal Dispute is before a court as specified in
this clause 16.5 and during the pendency of such Legal Dispute before
such court, all actions, suits or proceedings with respect to such
Legal Dispute or any other Legal Dispute, including, any counterclaim,
cross-claim or interpleader, shall be subject to the exclusive
jurisdiction of such court. Each of the parties hereby waives, and
agrees not to assert, as a defence in any Legal Dispute, that it is not
subject thereto or that such action, suit or proceeding may not be
brought or is not maintainable in such court (other than as set forth
above with respect to subject-matter jurisdiction) or that its property
is exempt or immune from execution, that the action, suit or proceeding
is brought in an inconvenient forum or that the venue of the action,
suit or proceeding is improper (other than as set forth above with
respect to subject-matter jurisdiction). Each party hereto agrees that
a final judgment in any action, suit or proceeding described in this
clause 16.5 after the expiration of any period permitted for appeal and
subject to any stay during appeal shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by applicable Laws (as defined in the US Securities
Purchase Agreement). The provisions of this clause 16.5 are without
prejudice to the rights of the parties to apply to the English Courts
for interim relief (to include, but not limited to, injunctions) and to
obtain the same in aid of actual or contemplated proceedings before the
courts of the State of California, USA or the federal courts located in
the State of California, San Diego County in connection with the
matters arising from or contemplated in this Agreement, and for the
purpose of an application pursuant to this sentence, the parties hereby
submit to the non-exclusive jurisdiction of the English Courts and
waive all rights to challenge such application on grounds of
jurisdiction and/or forum non conveniens.
9
Execution Copy EXHIBIT 2.6
16.6 If any provision of this Agreement, or any part of a provision of this
Agreement, is found to be illegal, invalid or unenforceable the
remaining provisions, or the remainder of the provision concerned,
shall continue in effect.
16.7 A failure or delay in enforcing compliance with any term of this
Agreement shall not be a waiver of that or any other term of this
Agreement.
16.8 Each party confirms that, in agreeing to enter into this Agreement,
that party has not relied on any representation, warranty, collateral
contract or other assurance except those set out in this Agreement. To
the extent any previous representation, warranty, collateral contract
or assurance was made to or with a party that party waives all rights
and remedies in respect of it. However, nothing in this clause shall
limit or exclude liability for fraud.
16.9 Any date or period mentioned in this Agreement may be extended by
agreement between the parties. However, as regards any date or period
(whether or not extended by agreement) time shall be of the essence of
this Agreement.
16.10 All obligations of the parties shall continue in full force and effect
after Completion, except for any obligations then already fully
performed.
16.11 The express rights and remedies provided in this Agreement do not
exclude any other rights or remedies provided by law, except to the
extent that the rights and remedies of a party are expressly excluded
or restricted by the terms of this Agreement.
16.12 Where it is agreed that any payments by the Shareholder to Serologicals
under this Agreement shall be treated as a reduction in the
consideration for the Shares, such payments shall, to the extent that
in aggregate they are less than or equal to such consideration,
constitute a repayment of and a reduction in (or, as the case may be, a
full return of) such consideration.
16.13 Neither party shall at any time make any announcement of this
transaction or disclose any term of this Agreement, or of any document
referred to in this Agreement, without the prior written approval of
the other party except to the extent that such information is already
lawfully in the public domain. The parties shall each use their best
endeavours to keep the terms of this Agreement and the documents
referred to in it which are not already lawfully in the public domain
from time to time strictly confidential. Despite the above, a party
shall be entitled to make any announcement or disclosure which is
imposed on that party by law or by the rules of any regulatory body to
which that party is subject but the parties shall, as far as
practicable, consult with one another on the form of such announcement
or disclosure.
16.14 Completion shall not constitute a waiver of any breach of this
Agreement even if the breach was known about at the time of Completion.
16.15 This Agreement may be executed in any number of counterparts and all
the counterparts when taken together will constitute one agreement.
Each party may enter into this Agreement by executing a counterpart.
10
Execution Copy EXHIBIT 2.6
16.16 Each party shall execute such further documents and perform and do such
further acts and things following Completion as the other party may
reasonably request in writing in order to carry the provisions of this
Agreement into full effect. The costs and expenses incurred in carrying
out any such request will be paid by the party making the request.
16.17 At any time after Completion the Shareholder shall provide or procure
to be provided to Serologicals and its agents and advisers all
information in their possession or under their control concerning the
business, accounts, finance or contractual arrangements or other
dealings, transactions or affairs of the Group as Serologicals shall
from time to time reasonably require and the Shareholder will give or
procure to be given to Serologicals and its agents and advisers such
access (including the right to take copies) to such documents
containing such information as Serologicals shall from time to time
reasonably require.
16.18 Each of Serologicals and the Shareholder irrevocably appoints
Serologicals' Solicitors in respect of Serologicals and Xxxxxx Xxxxxxx
of 00 Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX in respect of the Shareholder,
and their respective successors in business, and each of their
respective partners from time to time as their agent to accept service
of any UK proceedings pursuant to clause 16.5 arising out of or
connected with this Agreement or any document entered into pursuant to
this Agreement. Each of Serologicals and the Shareholder may change the
details of the person irrevocably authorised to accept service to
another name and address provided the address is within England and
that he gives not less than 30 days prior notice in writing to the
other party. Until the end of the notice period, service on the former
address shall remain effective.
16.19 Each individual signing this Agreement on behalf of a party represents
that he has been fully empowered by that party to execute this
Agreement, that all necessary action to authorise execution of this
Agreement by him has been taken by such party, that the party on whose
behalf he executes this Agreement has full authority, power and
capacity to enter into this Agreement and that all necessary actions
have been taken to enable that party lawfully to enter into this
Agreement.
16.20 Unless expressly provided in this Agreement, no provision of this
Agreement is enforceable pursuant to the Contracts (Rights of Third
Parties) Xxx 0000 by any person who is not a party to it.
EXECUTED by the parties on the date specified at the beginning of this
Agreement.
11
Execution Copy EXHIBIT 2.6
SCHEDULE 1 - WARRANTIES
1. CAPACITY
1.1 The Shareholder has all requisite corporate power and authority to
enter into and perform its obligations under this Agreement and the
agreements and deeds to be entered into pursuant to this Agreement
which will, when executed, constitute binding obligations on the
Shareholder in accordance with their terms.
1.2 The Shareholder is the beneficial owner of or is otherwise entitled to
sell and transfer to Serologicals the full legal and beneficial
ownership of the entire issued share capital of the Company on the
terms of this Agreement.
2. INFORMATION
2.1 The facts set out in the Introduction to this Agreement and Schedules 2
and 3 are true, accurate and complete in all respects and there are no
other facts or matters which would render any such facts or information
misleading.
2.2 The information contained in the Disclosure Documents is (or in the
case of historic information was at the date of such information) true
and accurate in all material respects (provided that this Warranty
shall not apply to the extent that the subject matter of any such
information is the subject matter of any other Warranty).
3. SHARE CAPITAL AND CONSTITUTION
3.1 The Shares will at Completion constitute the whole of the issued and
allotted share capital of the Company and all the Shares are fully paid
up.
3.2 Apart from this Agreement, there is no Encumbrance on, over or
affecting the issued or unissued share or loan capital of the Company
and there is no agreement or commitment to give or create any such
Encumbrance and no claim has been made by any person to be entitled to
any such Encumbrance.
3.3 The register of members and, to the knowledge of the Shareholder, the
other statutory books of the Company have been properly kept and
contain an accurate and complete record of the matters with which they
should deal and no notice or allegation that any of them is incorrect
or should be rectified has been received.
3.4 All material returns, particulars, resolutions and documents required
by the Act or any other legislation to be filed with the Registrar of
Companies in respect of the Company have been duly filed on time and
were correct in all material respects.
3.5 The copy of the memorandum and articles of association of the Company
supplied to Serologicals is true and complete and the Company has at
all times carried on its business and affairs within the powers and in
accordance with the provisions of its memorandum and articles of
association and they set out fully the rights and restrictions
attaching to each class of authorised share capital of the Company.
3.6 The Shareholder has delivered or made available to Serologicals copies
of the minutes of the meetings of each of the board of directors and
shareholders of the Company that are
12
Execution Copy EXHIBIT 2.6
the complete, true and correct records of the meetings of the board of
directors and shareholders of the Company.
3.7 Since the Accounting Date, neither the Company nor any class of its
members has passed any resolution (other than resolutions relating to
business at an annual general meeting which was not special business).
3.8 The Company's share capital has not been listed on any stock exchange
or subject to any kind of dealing or marketing arrangement which makes
the Company subject to the City Code on Takeovers and Mergers.
4. ACCOUNTS AND ACCOUNTING RECORDS
4.1 The Warranted Accounts show a true and fair view, in all material
respects, of the state of affairs of the Company at the Accounting Date
and its profits for the accounting reference period ended on that date,
fully provide for or disclose all liabilities (whether actual,
contingent or disputed) in existence at the Accounting Date, comply
with all current Financial Reporting Standards and other accounting
standards applicable to a United Kingdom company and with the
requirements of the Act and all other applicable legislation, were not
affected by any extraordinary, exceptional or non-recurring item,
properly reflect the financial position of the Company as at the
Accounting Date and were prepared in accordance with the historical
cost convention.
4.2 The bases and policies of accounting adopted for the purpose of
preparing the Warranted Accounts are the same as those adopted in
preparing the audited accounts of the Company in respect of the three
last preceding accounting reference periods and no changes in the basis
of accounting were made during the accounting reference period ended on
the Accounting Date or have been made since that date.
4.3 In relation to the Company's accounts for the accounting reference
periods immediately preceding the periods to which the Warranted
Accounts relate, the statements contained in paragraph 4.1 above, with
the substitution of the relevant accounting dates for the Accounting
Date and of the relevant accounting periods for the period ended on the
Accounting Date, are true and accurate in all material respects and
those accounts, taken with the Warranted Accounts, correctly show the
trend of the Company's profits for the entire period covered by them.
5. POSITION SINCE THE ACCOUNTING DATE
Since 31 October 2002 and except as contemplated by this Agreement the
Company has conducted its business only in the Ordinary Course of
Business and has not:
5.1 received any notice of termination of any material contract,
lease or other agreement or suffered any damage, destruction
or loss (whether or not covered by insurance) which, in any
case or in the aggregate, has had, or could reasonably be
expected to have, a Material Adverse Effect;
5.2 made any declaration, setting aside or payment of any dividend
or other distribution of assets (whether in cash or property)
with respect to the Shares or any equity interest in the
Company or purchased or redeemed, or obligated
13
Execution Copy EXHIBIT 2.6
itself to purchase or redeem, any shares or any equity
interest in the Company or other securities;
5.3 except for customary increases based on term of service or
regular promotion of non-officer employees, (i) increased the
compensation payable or to become payable to any employee,
officer, shareholder, director, manager, member, distributor
or agent of the Company or (ii) increased any bonus,
insurance, pension, vacation or other employee benefits,
payments or arrangements for such persons;
5.4 entered into or amended any employment (other than "at-will"
employment agreements), consulting, severance, change in
control, or similar agreement;
5.5 paid, discharged or satisfied any Encumbrance other than those
then required to be discharged or satisfied, or paid any
indebtedness, obligation or liability, absolute, accrued,
contingent or otherwise, whether due or to become due, other
than current liabilities shown in the Warranted Accounts and
current liabilities incurred since 31 October 2002 in the
Ordinary Course of Business;
5.6 permitted any of their property, business or assets to be
subjected to any Encumbrance;
5.7 waived or released any claims or rights;
5.8 sold, transferred, leased or otherwise disposed of any of its
assets or properties in excess of L10,000 per transaction or
L20,000 in the aggregate;
5.9 made any single capital expenditure or investment in excess
of L10,000 or capital expenditures in the aggregate in
excess of L20,000;
5.10 made any change in any method of accounting or any practice or
principle of accounting;
5.11 paid, loaned or advanced any amount or sold, transferred,
loaned or leased any asset to any employee, except for normal
compensation involving salary and benefits;
5.12 written off as irrecoverable any debt or increased or
decreased its allowance for doubtful debts by a total of more
than L10,000;
5.13 hired any employee with annual compensation greater
than L20,000;
5.14 entered into any material commitment or transaction, other
than in the Ordinary Course of Business, affecting their
operations or suffered any event or occurrence that has had,
or could reasonably be expected to have, a Material Adverse
Effect;
5.15 issued or sold shares or other equity interest or other
securities, or promised, issued, granted or sold any options,
rights or warrants with respect thereto, or acquired any
shares or other securities of any company or any interest in
any
14
Execution Copy EXHIBIT 2.6
business enterprise, or otherwise made any loan or advance to
or investment in any person, firm or company;
5.16 incurred any indebtedness for borrowed money in excess
of L10,000 that has not been repaid;
5.17 materially changed any material business practice other than
in the Ordinary Course of Business;
5.18 conducted their cash management customs and practices other
than in the Ordinary Course of Business (including, with
respect to collection of debts, purchases of supplies, repairs
and maintenance, payment of creditors, accrued expenses and
payroll, levels of capital expenditures and operation of cash
management practices generally);
5.19 amended or terminated any material contract (except as
otherwise contemplated by this Agreement or required by law)
or any insurance policy, in force on 31 December 2002;
5.20 written off, or increased the reserve for, any inventory
(including, raw materials, supplies, manufactured and
purchased parts, goods or work in process and finished goods)
by a total of more than L10,000; or
5.21 agreed in writing, or otherwise, to take any action described
in this paragraph 5.
6. TAXATION
6.1 For the purposes of paragraph 23 (Repetition of Warranties) of this
Schedule 1, references in this paragraph 6 to "the date of this
Agreement" will be construed at the date of Completion to state "at the
Date of Completion".
6.2 COMPLIANCE AND LIABILITIES
TAXATION LIABILITIES
(a) All liabilities of the Company for Tax as at the Accounting Date
whether as principal, agent or trustee are fully provided for in the
Warranted Accounts and all Tax for which the Company is liable or for
which the Company is liable to account has been duly paid (insofar as
it ought to have been paid) and without limitation the Company has made
all such deductions and retentions that it was obliged or entitled to
make and has accounted in full to the appropriate authority for all
amounts so deducted and retained.
DEDUCTIONS AND WITHHOLDINGS
(b) The Company has not prior to the date of this Agreement received any
notice from any Tax Authority which has required the Company to
withhold Tax from any payment made since the Accounting Date up to the
date of this Agreement or specifically requires it to withhold Tax for
payments to be made after the date of this Agreement .
(c) The Company has not made any payment in respect of which it has not
deducted or withheld Tax in accordance with section 349A(1) of the
Taxes Act on the basis of a
15
Execution Copy EXHIBIT 2.6
reasonable belief, at the time the payment was made, that one of the
conditions specified in section 349B of the Taxes Act was satisfied and
the Company has not received any direction pursuant to section 349C of
the Taxes Act directing that section 349A(1) of the Taxes Act should
not apply in relation to any payment.
TAX RETURNS
(d) The Company has punctually effected and submitted to any Tax Authority
all returns required to be submitted, and has supplied all information
required to be supplied, kept all relevant records required to be kept,
and made all relevant notices and payments required to be made, in each
case for the purposes of Taxation.
(e) The Shareholder is not aware of any circumstance which will , prior to
the date of this Agreement, whether by lapse of time or the issue of
any notice of assessment or otherwise, give rise to any dispute with
any relevant Taxation Authority in relation to the Company's liability
or accountability for Taxation.
INVESTIGATION
(f) The Company has not within six years of the date of this Agreement been
the subject of an investigation, audit or visit by or involving any Tax
Authority and so far as the Shareholder is aware there are no
circumstances existing which make it likely that such an investigation,
audit or visit will be made.
6.3 VALUE ADDED TAX
REGISTRATION
(a) The Company is a registered and taxable person for the purposes of VAT
and such registration is not subject to any conditions imposed by or
agreed with HM Customs & Excise.
OPTION TO CHARGE VAT ON SUPPLIES BY THE COMPANY
(b) The Company (or any person in relation to which the Company is or has
been a relevant associate as defined in paragraph 3(7) Schedule 10 VATA
) has not made any election to waive exemption from VAT under Schedule
10 VATA in respect of any property in which the Company has any
interest.
CAPITAL GOODS SCHEME
(c) The Company does not at the date of this Agreement have any interest in
any assets which are capital items for the purposes of Part XV Value
Added Tax Regulations 1995 (the capital goods scheme).
16
Execution Copy EXHIBIT 2.6
6.4 COMPANIES LEAVING A GROUP
(a) The execution or completion of this Agreement will not result in any
profit, credit or gain being deemed to accrue to the Company for
Taxation purposes whether pursuant to section 179 TCGA or otherwise.
6.5 DISTRIBUTIONS AND OTHER PAYMENTS
INTEREST TREATED AS DISTRIBUTION
(a) The Company has no liability to Taxation at the date of this Agreement
which has arisen from interest payable on securities (within the
meaning of section 254(1) Taxes Act) which has fallen to be treated as
a distribution under section 209 Taxes Act (meaning of "distribution").
LOAN RELATIONSHIPS
(b) All interest, discounts and premiums payable by the Company in respect
of its loan relationships within the meaning of Chapter II of Part IV
Finance Xxx 0000 are capable at the date of this Agreement of being
brought into account by the Company as a debit for the purposes of that
Chapter as and to the extent that they are from time to time recognised
in the Company's accounts (assuming that the accounting policies and
methods adopted for the purpose of the Warranted Accounts continue to
be so adopted).
6.6 FOREIGN COMPANIES AND OVERSEAS TRADE ETC
UK RESIDENCE
(a) The Company is resident in the United Kingdom for the purposes of
United Kingdom Taxation and is not, and has never been, liable for Tax
in any other jurisdiction.
NON-ARM'S LENGTH TRANSACTIONS
(b) The Company is not a party to any transaction or arrangement under
which there is a liability to Taxation prior to the date of this
Agreement which has arisen under Schedule 28AA Taxes Act.
6.7 STAMP DUTY
DOCUMENTS DULY STAMPED
(a) All documents in the possession or under the control of the Company to
which the Company is a party and which attract stamp duty have been
properly stamped.
STAMP DUTY RESERVE TAX
(b) The Company has not entered into any transactions in respect of which
it is continuing to be liable for stamp duty reserve tax.
(c) The Company has not made any claims for group relief for stamp duty
purposes under section 42 of the Finance Xxx 0000 or section 151 of the
Finance Xxx 0000 in relation to instruments executed after 23 April
2002.
17
Execution Copy EXHIBIT 2.6
7. INTERESTS OF SHAREHOLDER, FOUNDERS, DIRECTORS AND EMPLOYEES
7.1 There are:
(a) no loans made by the Company to the Shareholder, the Xxxxxxx
Trust, the Beckmans and/or any of the directors of the Company
and/or any Associate of any of them;
(b) no debts owing to the Company by the Shareholder, the Xxxxxxx
Trust, the Beckmans and/or any of the directors of the Company
and/or any Associate of any of them; and
(c) no securities for any such loans or debts as mentioned above.
7.2 There are no existing contracts, engagements, guarantees or indemnities
to which the Company is a party and in which the Shareholder, the
Xxxxxxx Trust, the Beckmans and/or any of the directors of the Company
and/or any Associate of any of them is directly or indirectly
interested and the Company does not depend upon or derive any benefit
from any assets, facilities or services owned or supplied by the
Shareholder, the Xxxxxxx Trust, the Beckmans or any of their Associates
or any contract to which the Shareholder, the Xxxxxxx Trust, the
Beckmans or any of their Associates is a party.
7.3 Neither the Shareholder, the Xxxxxxx Trust, the Beckmans nor any of
their Associates nor any of the officers or employees (or former
officers or employees) of the Company have any claim, demand or right
of action against the Company (whether actual, contingent or
prospective) otherwise than for remuneration accrued (but not yet due
for payment) in respect of the calendar month in which this Agreement
is executed or for reimbursement of business expenses incurred during
such month in each case in accordance with their contracts of
employment and none of them is entitled to accrued holiday pay other
than in respect of the Company's current holiday year.
8. TITLE, ENCUMBRANCES AND ASSETS
8.1 The Company has possession and control of and a good and marketable
title to all the assets used in the operation of its business and no
distress, execution or other process has been levied on any of such
assets nor do any circumstances exist under which any person may claim
entitlement to possession of any of such assets in competition with or
in priority to the Company.
8.2 There is set out in the Disclosure Letter a complete and accurate list
of all assets used by the Company in or in connection with its business
as such list is maintained in the Company's fixed assets list as at the
date of this Agreement.
8.3 All of the assets used by the Company in or in connection with its
business are in reasonably good condition and repair, normal wear and
tear excepted (other than machinery and equipment under repair or out
of service in the ordinary course of business).
8.4 No Encumbrance (or agreement or commitment to grant any Encumbrance) is
outstanding against any part of the undertaking of the Company or
against any of the
18
Execution Copy EXHIBIT 2.6
assets used in or in connection with its business (except for retention
of title agreements (as defined in section 251 of the Insolvency Act
1986) arising in the ordinary course of business) and no claim has been
made by any person to be entitled to any such Encumbrance.
8.5 No asset of the Company is shared with any other person.
8.6 Any assets of the Company which will not be situated at the Properties
on Completion are specified in the Disclosure Letter and are clearly
identified as assets of the Company.
9. FINANCIAL MATTERS
9.1 Full and accurate details of all overdrafts, loans or other financial
facilities and any foreign currency facilities and dealings outstanding
or available to the Company (FACILITIES) are contained in the
Disclosure Letter and true and complete copies of all documents
relating to the Facilities are included in the Disclosure Documents.
9.2 All debts owed to the Company are reflected properly in the Interim
Financial Statements and none of such debts is subject to any dispute,
right of set-off or counter-claim of any kind.
9.3 The allowance for doubtful debts owed to the Company as set out in the
Interim Balance Sheet was calculated in accordance with past practice
and is adequate in light of all known facts and circumstances having a
bearing on the collectibility of the debts owed to the Company.
9.4 Neither the Company nor the Shareholder is insolvent or unable to pay
its debts as and when they fall due and is not the subject of any
liquidation or insolvency proceedings, petitions or resolutions or any
statutory demand nor has any administrator, receiver and/or manager,
administrative receiver, trustee in bankruptcy or other insolvency
officer been appointed of the Company or the Shareholder or over any of
its or their assets. No voluntary arrangement, compromise or scheme of
arrangement has been approved or sanctioned in respect of the Company
or the Shareholder nor has any floating charge created by the Company
or the Shareholder crystallised and there are no facts known to the
Shareholder which could give rise to any of the events or circumstances
referred to in this paragraph 9.4.
10. THE PROPERTIES
TITLE
10.1 The Properties comprise all the properties owned, occupied or otherwise
used by the companies in the Group in connection with their businesses.
10.2 Those of the Properties which are occupied or otherwise used by the
companies in the Group in connection with their businesses are so
occupied or used by right of ownership or under lease or licence, and
the terms of any such lease or licence permit such occupation or use.
10.3 One of the companies in the Group is the legal and beneficial owner of
a leasehold interest in each of the Properties.
19
Execution Copy EXHIBIT 2.6
10.4 The information contained in Schedule 4 as to the tenure of each of the
Properties, the principal terms of the leases or licences held by the
Group, and the principal terms of the tenancies and licences subject to
and with the benefit of which the Properties are held is true and
accurate in all material respects.
10.5 No member of the Group owns or to the knowledge of the Shareholder has
ever owned a freehold interest in property.
10.6 The Properties have been duly registered at H.M. Land Registry where
required.
ENCUMBRANCES
10.7 The Properties are free from any Encumbrance for the repayment of
moneys or other obligation or liability of any of the companies in the
Group or any other party.
10.8 Save as disclosed in the leasehold documentation provided as part of
the Disclosure Documents, the Properties are not subject to any
outgoings, other than general rates, water charges, insurance premiums
and rent and service charges.
10.9 Save as disclosed in the leasehold documentation provided as part of
the Disclosure Documents, the Properties are not subject to any
restrictive covenants, stipulations, easements, profits a prendre,
wayleaves, licences, grants, restrictions, overriding interests or
other such rights vested in third parties.
10.10 Save as disclosed in the leasehold documentation provided as part of
the Disclosure Documents, the Properties are free from any local land
charge, land charge, caution, inhibition or notice, and no matter
exists which is capable of registration against any of the Properties.
PLANNING
10.11 The use of each of the Properties is the permitted use for the purposes
of the Town and Country Planning Acts 1971-1990 and the Planning and
Compensation Xxx 0000 (PLANNING ACTS).
ADVERSE ORDERS
10.12 There are no compulsory notices, orders or resolutions affecting any of
the Properties, nor to the knowledge of the Shareholder are there any
circumstances likely to lead to any being made.
10.13 There are no closing, demolition or clearance orders, enforcement
notices or stop notices affecting the Properties, nor to the knowledge
of the Shareholder are there any circumstances likely to lead to any
being made.
CONDITION OF THE PROPERTIES
10.14 The buildings and other structures on the Properties are in reasonably
good condition and repair.
20
Execution Copy EXHIBIT 2.6
10.15 To the knowledge of the Shareholder there are no disputes with any
adjoining or neighbouring owner with respect to boundary walls and
fences, or with respect to any easement, right or means of access to
the Properties.
10.16 The principal means of access to the Properties is over roads which the
Company has a right to use pursuant to its leasehold interest in the
Properties or which have been taken over by the Local or other Highway
Authority and which are maintainable at the public expense, and no
means of access to the Properties is shared with any other party nor
subject to rights of determination by any other party.
10.17 To the knowledge of the Shareholder none of the Properties is located
in an area or subject to circumstances particularly susceptible to
flooding.
10.18 The Properties are not subject to any rights of common save as excepted
and reserved under the leases of the Properties.
LEASEHOLD PROPERTIES
10.19 The relevant company in the Group has paid the rent and observed and
performed the covenants on the part of the tenant and the conditions
contained in any leases (which expression includes underleases) under
which the Properties are held and the last demands for rent (or
receipts if issued) were unqualified, and all such leases are valid and
in full force.
10.20 The Disclosure Letter contains copies of all leases, subleases and
licences in respect of each of the Properties to which the Company is a
party.
10.21 All licences, consents and approvals required from any landlords (which
expression, in this paragraph 10, includes any superior landlords)
under any leases of the Properties have been obtained, and the
covenants on the part of the tenant and, to the knowledge of the
Shareholder, on the part of the landlords, contained in such licences,
consents and approvals have been duly performed and observed.
10.22 There are no rent reviews under the leases of the Properties currently
in progress.
10.23 There is not outstanding any unobserved or unperformed obligation
necessary to comply with any notice or other requirement given by any
landlords under any leases of the Properties.
10.24 There is no obligation to reinstate any of the Properties by removing
or dismantling any alteration made to it by any company in the Group or
any predecessor in title.
RESIDUAL LIABILITIES
10.25 Except in relation to the Properties, the Company has no liabilities
(actual or contingent) arising out of the conveyance, lease, tenancy,
licence, agreement or other document relating to land or premises or an
interest in land or premises, including, without limitation, leasehold
premises assigned or otherwise disposed of.
21
Execution Copy EXHIBIT 2.6
11. THE COMPANY'S BUSINESS
11.1 The Company's inventory consists of raw materials and supplies,
manufactured and purchased parts and materials, goods in process, and
finished goods. The book value of any such inventory that is
slow-moving, obsolete, damaged, or defective does not exceed the
reserve for the Company's inventory set forth on the face of the
Interim Balance Sheet (rather than in the notes) and the book value of
any such inventory that is slow-moving, obsolete, damaged, or defective
as of the Closing Date will not exceed the reserve for inventory used
to determine Actual Working Capital in accordance with Section 2.4 of
the US Securities Purchase Agreement. Except as set forth in Schedule
3.14(a) of the US Securities Purchase Agreement the amount at which the
inventory of the Company is carried on the Interim Balance Sheet fairly
represents, in all material respects, the cost (or market value, if
lower) of such inventory as determined in accordance with GAAP.
11.2 The Company has no liability or obligation (and, to the knowledge of
the Shareholder, there is no basis for any present or future action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand against any of them giving rise to any liability or obligations)
for replacement of any product manufactured, sold, leased or delivered
by the Company or damages in connection therewith, subject only to the
reserve for product warranty claims set forth on the face of the
Interim Balance Sheet (rather than in the notes).
11.3 No product manufactured, sold, leased or delivered by the Company is
subject to any guaranty, warranty or other indemnity beyond the
standard terms and conditions thereof, which are fully and accurately
set out in the Disclosure Letter.
11.4 The Company has no liability or obligations (and, to the knowledge of
the Shareholder, there is no basis for any present or future action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand against it giving rise to any liability or obligation) arising
out of any injury to individuals or property as a result of the
ownership, possession, or use of any product manufactured, sold,
leased, or delivered by the Company.
12. INFORMATION SYSTEMS AND INFORMATION TECHNOLOGY
12.1 The Company does not use any proprietary software or information
technology.
13. CONTRACTS AND OTHER OBLIGATIONS
13.1 Except for contracts for the purchase of services, goods or raw
materials by the Company entered into in the Ordinary Course of
Business that do not individually involve an amount in excess of
L10,000 (treating each purchase order as a separate agreement)
and that are reasonably expected to be fully performed within six (6)
months of their respective dates, the Disclosure Documents include
correct and complete copies of all material subsisting contracts to
which the Company is a party.
13.2 The Company has not given any guarantee, indemnity or security for or
otherwise agreed to become directly or contingently liable for any
present or future obligation of any other
22
Execution Copy EXHIBIT 2.6
person and no person has given any guarantee of or indemnity or
security for any obligation of the Company.
13.3 No event has occurred regarding the Company which would entitle any
third party to terminate any contract or benefit enjoyed by the Company
or to call in any money before the due date for it to be repaid and, to
the knowledge of the Shareholder, no third party is in default of any
such contract.
13.4 The Company has no knowledge of the invalidity of or grounds for
rescission, avoidance or repudiation of any agreement or other
transaction to which it is or has been a party and has received no
notice of any intention to terminate any such agreement or to repudiate
or disclaim any other transaction.
13.5 The Company has not been party to any transaction with any third party
which, in the event of any such third party going into liquidation or
an administration order or a bankruptcy order being made in relation to
it or him, would constitute (in whole or in part) a transaction at an
undervalue, a preference, an invalid floating charge or an extortionate
credit transaction or part of a general assignment of debts, under
sections 238 to 245 inclusive and sections 339 to 344 inclusive of the
Insolvency Xxx 0000.
14. INTELLECTUAL PROPERTY
14.1 There is no registered Company Intellectual Property or applications
for registration thereof and details of any material unregistered
Company Intellectual Property are set out in the Disclosure Letter.
14.2 The Company Intellectual Property and all the material Intellectual
Property the subject of the licences granted to the Company and
disclosed at paragraph 14.7 below comprise all the Intellectual
Property which is necessary to enable the Group to carry on its
businesses in the same manner and to the same extent as they have been
carried on at or in the two years prior to Completion and will not be
adversely affected by the transactions effected by this agreement.
14.3 There have not been, and there are not pending or, to the knowledge of
the Shareholder, anticipated any actions, claims, counterclaims,
applications or allegations (CLAIMS) impugning the validity or
enforceability of any Company Intellectual Property or the Company
ownership thereof and there are no facts, matters or circumstances
which could give rise to any such Claims.
14.4 To the knowledge of the Shareholder the activities of the Company do
not and are not likely to infringe the Intellectual Property rights of
any third party, the Company is not a party to any legal proceedings in
respect of infringement of third party Intellectual Property rights and
the Company has not agreed to indemnify any third party for or against
any interference, infringement, misappropriation or other conflict with
respect to the Company Intellectual Property.
14.5 There have been no Claims against any third party alleging infringement
of any of the Company Intellectual Property and there are no and there
have been no facts, matters or circumstances which could give or which
might have given rise to any such Claim.
23
Execution Copy EXHIBIT 2.6
14.6 Save where indicated in the Disclosure Letter the Company is the sole
legal and beneficial owner of all the Company Intellectual Property and
the Company Intellectual Property is not subject to any Encumbrances,
agreements, licences or registered user rights affecting such
Intellectual Property or subject to any claims from employees or others
and is valid and subsisting.
14.7 Details of all written and material unwritten agreements and licences
granted to or by the Company for the use of any Intellectual Property
are disclosed in the Disclosure Letter and are valid and subsisting and
none of the parties to such agreements and licences are in breach of
any of the provisions of such agreements or licences and nothing has
been done or omitted to be done which would enable a party to terminate
such an agreement or licence.
14.8 The Company has not entered into any agreement or arrangement for the
provision or acquisition of any know-how or technical information or
assistance nor is it a party to an agreement which may prohibits or
restricts the use or disclosure of any know-how or technical
information.
14.9 The Company has in its possession all necessary documentation and other
things necessary to establish the Company's ownership of that part of
the Company Intellectual Property which is not capable of registration
and to prove that such Company Intellectual Property is original and/or
novel.
14.10 All persons engaged or employed by the Company who, in the course of
their work for the Company will or might reasonably be expected to
bring into existence Intellectual Property are, so far as is reasonably
practicable, individually bound by agreements with the Company under
which all Intellectual Property which such persons may bring into
existence during their work for the Company vests in the Company.
14.11 The Company has no liability to pay compensation under sections 40 to
41 of the Patents Xxx 0000 nor are there any claims from employees
relating thereto.
14.12 None of the Intellectual Property owned or used by the Company is
subject to compulsory licensing or the granting of any licences of
right nor, to the knowledge of the Shareholder, will it become so by
operation of law.
15. DISPUTES AND LITIGATION
15.1 There are no court orders, injunctions or unsatisfied judgments
outstanding against the Company and the Company is not party to any
undertaking or assurance given to a court, tribunal, regulatory
authority, governmental agency or any other person in connection with
the determination or settlement of any claim or proceedings which if
adversely determined would have, or could reasonably be expected to
have, individually or in the aggregate, a material adverse effect on
the Company in any way.
15.2 Apart from normal trade debt collection involving debts not exceeding
L10,000 in the aggregate, neither the Company nor any of its officers
nor any person for whose acts or defaults the Company may be liable is
involved in any material civil, criminal or arbitration proceedings and
to the knowledge of the Shareholder no such proceedings and no claims
of any nature are pending or threatened by or against the Company or
any
24
Execution Copy EXHIBIT 2.6
such person which if adversely determined would have, or could
reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the Company in any way or in respect of
which the Company is liable to indemnify any party concerned and to the
knowledge of the Shareholder there are no facts likely to give rise to
any such proceedings.
15.3 The Company is not the subject of or engaged in any proceedings,
investigations or enquiries, and to the knowledge of the Shareholder no
proceedings, investigations or enquiries are pending or threatened, by
or before any governmental or municipal department, commission, board,
tribunal or other administrative, judicial or quasi-judicial agency
(whether in the United Kingdom or elsewhere) in which any unfavourable
judgment, decision, ruling or finding could have a material adverse
effect the Company in any way.
16. INSURANCE
16.1 A complete and accurate list of the Company's policies of insurance are
contained in the Disclosure Letter and such policies are in full force
and effect and all premiums in relation to them have been paid on time.
16.2 The Company has not done or omitted to do or suffered anything to be
done anything which has rendered or might render any policy of
insurance taken out by it void or voidable or not renewable on normal
terms and at generally applicable premium rates. No such policy is
subject to any special or unusual terms, restrictions or rates of
premium.
16.3 No claim is outstanding under any of the insurance policies maintained
by the Company and no circumstances exist which are likely to give rise
to any such claim. There have been no material claims against insurers
by the Company in the period of three years prior to the date of this
Agreement.
16.4 In the last three years no application or proposal made by the Company
for a policy of insurance of any kind has been refused or rejected by
any insurance company in whole or in part nor has the level of
insurance cover provided by any policy of insurance in favour of the
Company been reduced or in any way altered at the instance of the
insurance company issuing such policy of insurance.
17. EMPLOYEES AND CONSULTANTS
17.1 The Disclosure Letter fully and accurately sets out particulars of the
identities, dates of commencement of employment or engagement, dates of
birth, notice periods and holiday entitlements of all the employees and
officers of the Company (and of any persons whom the Company has agreed
to employ or engage as an employee or an officer) and all remuneration
payable and other benefits provided or which the Company is bound to
provide (whether now or in the future) to each such person.
17.2 The Disclosure Letter contains material particulars of all contracts
for services which the Company has with any individual.
25
Execution Copy EXHIBIT 2.6
17.3 The Disclosure Letter contains material particulars of all bonus or
incentive schemes which the Company has with any individual.
17.4 No employee of the Company whose gross remuneration exceeded or exceeds
L20,000 per annum has been dismissed in the last three months or
has given or been given notice of termination of his employment or has
indicated that he wishes to leave the Company's employ.
17.5 The copy contracts in the Disclosure Documents are the specimen forms
of contract under which all the officers, employees and consultants of
the Company are currently employed or engaged.
17.6 The Company is not bound or accustomed to pay any moneys other than
remuneration or emoluments of employment to or for the benefit of any
officer or employee of the Company.
17.7 There is not in existence any contract of service with any employee or
officer of the Company (or any contract for services with any
individual) which cannot be terminated by three months' notice or less
without giving rise to any claim for damages or compensation (other
than a statutory redundancy payment or statutory compensation for
unfair dismissal).
17.8 The Company is not in dispute with any of its employees or former
employees or any trade union or other body representing its employees
or former employees and its labour relations are considered to be good.
17.9 There is no agreement or arrangement in existence between the Company
and any trade union or any other body representing its employees.
17.10 The Company does not have in existence nor is it proposing to introduce
any share option scheme, share incentive scheme or profit sharing
scheme for any of its officers or employees.
17.11 No person has a right to return to work or a right to be reinstated or
re-engaged by the Company under the provisions of the Employment Rights
Xxx 0000 and no payments are due by the Company under any such right.
17.12 No person is absent from work on maternity leave or parental leave (or
given notice of their intention to take such leave) under the
provisions of the Employment Rights Xxx 0000 or the Employment
Relations Xxx 0000 or Maternity and Parental Leave etc Regulations
1999.
17.13 The Company has not given notice of any redundancies to any employee or
government department or started consultations about any redundancies
pursuant to any statute or regulation.
17.14 There are no early retirement or enhanced redundancy schemes operated
by the Company.
17.15 The Disclosure Letter contains full and accurate particulars of all
employees of the Company whose continuous period of employment for any
purpose would include any
26
Execution Copy EXHIBIT 2.6
employment by any other person prior to the commencement of their
employment with the Company.
18. PENSIONS
The Company is not a party to nor participates in nor contributes to
any scheme, arrangement or agreement (whether legally enforceable or
not) for the provision of any pension, retirement, death, incapacity,
sickness, disability, accident or other like benefits (including the
payment of medical expenses) for any past or present employee or
officer of the Company or of any predecessor to all or part of its
business (each a RELEVANT EMPLOYEE) or for the widow, widower, child or
dependant of any Relevant Employee.
19. CONSENTS AND COMPLIANCE WITH LAWS
19.1 The Company has and there are now in force all permits, authorities,
licences and consents necessary for the Company to carry on its
business effectively in the manner and in the places in which its
business is now carried on and to the knowledge of the Shareholder
there are no circumstances which might lead to the suspension,
alteration or cancellation of any such permits, authorities, licences
or consents and none is limited in duration or subject to onerous
conditions.
19.2 The Company has performed all obligations required to be performed by
it with respect to or affecting its business, employees and assets and
has complied in all material respects (and has been at all times during
the past 5 years in compliance in all material respects) with all laws,
regulations, orders, decrees, judgments, contracts, agreements,
licences, obligations or restrictions of whatever nature binding upon
it or which affect its assets or employees or the operations of its
business.
19.3 To the knowledge of the Shareholder, no officer or employee of the
Company is or has been subject to any bankruptcy or criminal
proceedings or is or has been the officer of any company which has been
the subject of liquidation or insolvency proceedings.
19.4 To the knowledge of the Shareholder, no officer, employee or agent of
the Company has paid any bribe or used any of the Company's assets
unlawfully to obtain an advantage for any person.
19.5 The Company has not been nor is it concerned in any agreements or
arrangements which infringed or infringe or which have or should have
been registered under or which have or may become the subject of any
reference, enquiry, proceeding, report, assurance or undertaking under
or in respect of the Restrictive Trade Practices Acts 1976 and 1977,
the Fair Trading Xxx 0000, Article 81 or Article 82 of the Treaty of
Rome, the Competition Xxx 0000 or any other anti-trust,
anti-restrictive practice or similar legislation in any jurisdiction
and the Company has not made or threatened to make any complaint
against any other person to any relevant authority under any law or
legislation referred to in this paragraph 19.5.
20. ENVIRONMENTAL MATTERS
20.1 The Company has at all times complied and is complying in all material
respects with all Environmental and Health Laws and Environmental and
Health Permits.
27
Execution Copy EXHIBIT 2.6
20.2 The Company has not received any indication, notice, complaint or other
communication from any person (including any Competent Authority) since
1 January 1997 alleging that there is a breach of or liability under
(including any liability to take or pay for Remedial Action) any
Environmental and Health Laws or Environmental and Health Permits or
that future action will be necessary to ensure compliance or discharge
any liability. To the knowledge of the Shareholder there are no
circumstances which might give rise to such an indication, notice,
complaint or communication being received.
20.3 The Company has obtained all Environmental and Health Permits required
for the operation of its business as now carried on. All such
Environmental and Health Permits are valid and subsisting.
20.4 The Company is not and has not been engaged in, and to the knowledge of
the Shareholder, no facility or property owned or occupied by the
Company has ever been subject to, any regulatory inquiry or
investigation, action, litigation, arbitration or dispute resolution
proceedings relating to or concerning any actual or potential breach of
or liability (including a liability to take or pay for Remedial Action)
under Environmental and Health Laws and/or Environmental and Health
Permits (DISPUTE) and no such Dispute is pending or threatened and
there are no circumstances likely to give rise to any such Dispute.
20.5 There are no facts or circumstances which may give rise to any actual
or potential obligation or liability on the part of the Company under
or pursuant to Environmental and Health Laws or any Environmental and
Health Permit (including any liability to undertake or pay for any
Remedial Action).
20.6 To the knowledge of the Shareholder, there are no landfill sites or
underground storage tanks in or at or, to the knowledge of the
Shareholder (but in this instance without having made any enquiry)
within 250 metres of the Properties.
20.7 No property formerly owned, occupied or used by the Company has been or
is contaminated with any Hazardous Substances in circumstances where
the Company may incur or suffer an obligation or liability under
Environmental and Health Laws or any Environmental and Health Permit
(including any liability to undertake or pay for any Remedial Action).
20.8 The Properties are not contaminated with and to the knowledge of the
Shareholder are not likely to be contaminated with any Hazardous
Substance. No Hazardous Substances are migrating or are likely to
migrate off the Properties and to the knowledge of the Shareholder no
Hazardous Substances are migrating or are likely to migrate onto the
Properties. The operations of the Company have not contaminated the
Environment or any other properties (whether by migration or otherwise)
with any Hazardous Substance. No Remedial Action has been undertaken at
the Properties or in respect of any contamination arising from or
connected with the operations of the Company.
20.9 All environmental audits and other assessments, reviews and reports in
the possession or control of the Shareholder, the Beckmans or the
Xxxxxxx Trust (whether conducted internally or externally) relating to
the Company and/or the Properties have been disclosed to Serologicals.
28
Execution Copy EXHIBIT 2.6
20.10 The Company is and has been in compliance with its obligations pursuant
to the Producer Responsibility Obligations (Packaging Waste)
Regulations 1997.
20.11 The Company has at all times complied and is complying in all respects
with the Environmental Protection Xxx 0000 and the Control of Pollution
Xxx 0000 and all related subordinate legislation (in each case as
amended from time to time) in relation to Waste.
20.12 Details of any Asbestos present at the Properties are set out in the
Disclosure Letter. All such Asbestos is in a good condition such that
it does not pose any risk to human health.
20.13 All information provided to Serologicals or its advisers, agents or
consultants by or on behalf of the Shareholder, the Beckmans or the
Xxxxxxx Trust relating to the Environment or human health and the
Company and/or the Properties was when given and is now true and
accurate in all material respects and not misleading in any respect.
21. SUBSIDIARIES
The particulars of the Subsidiary set out in Schedule 3 are true and
complete and the shares of the Subsidiary are held and owned as shown
in Schedule 3 free from any Encumbrance and with all rights now and in
the future attaching to them.
22. EFFECT OF AGREEMENT
22.1 Compliance with the terms of this Agreement:
(a) does not require the consent or agreement of any person who is
not a party to this Agreement;
(b) will not cause the Company to lose any interest in or the
benefit of any asset, right, licence or privilege it presently
owns or enjoys;
(c) will not relieve any person of any obligation to the Company;
(d) will not result in any of the employees of the Company
becoming entitled by virtue of their contract of service to
any enhancement in or improvement to their remuneration,
benefits or terms and conditions of service;
(e) will not cause the Company or the Shareholder to be in breach
of any of their respective obligations;
(f) will not result in any present or future indebtedness of the
Company becoming due prior to its stated maturity;
(g) will not give rise to or cause to become exercisable any
option or right of pre-emption; and
(h) will not result in the creation or imposition of any
Encumbrance on or over any of the assets of the Company or the
Shares.
22.2 There are no agreements or arrangements concerning the Company which
can be terminated or are terminable or the terms of which can be varied
or are in any way
29
Execution Copy EXHIBIT 2.6
variable as a result of any change in the control of the Company or
change in the composition of the board of directors of the Company.
22.3 Neither this Agreement nor the acquisition for which it provides has
been procured by any agent or broker on behalf of the Company and no
agency or brokerage fees or charges are payable by the Company in
respect of this Agreement or the acquisition for which it provides.
23. REPETITION OF WARRANTIES
Each of the Warranties will remain true and accurate at Completion and
at all times between the execution of this Agreement and Completion.
30
Execution Copy Exhibit 2.6
SCHEDULE 2 - PARTICULARS OF THE COMPANY
1. Registered Number: 2524801
2. Place of Incorporation: England and Wales
3. Date of Incorporation: 23 July 1990
4. Type of company: Private Limited Company
5. Authorised share capital: L1,000 divided into 1,000
ordinary shares of L1 each
6. Issued share capital: 2 ordinary shares of L1 each
7. Registered holder of the Falcon International Investment
issued share capital: Holdings, LLC
8. Beneficial owner of the Falcon International Investment
issued share capital: Holdings, LLC
9. Loan capital: None
10. Registered office: Xxx Xxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxxxxx XX00 0XX
11. Directors: Xx Xxxxx Xxxx Xxxxxxx
Ms Xxxxxxx Xxxxx Xxxxx-Xxxx Xxxx-Xxxxxx
12. Secretary: Ms Xxxxxxx Xxxxx Xxxxx-Xxxx Xxxx-Xxxxxx
13. Accounting Reference Date: 31 December
14. Auditors: None
15. Date of latest accounts filed: 31 December 2000
16. Date of latest annual return 23 July 2002
filed:
17. Bankers: Barclays Bank PLC
Harrow Branch
000 Xxxxxxx Xxxx
Xxxxxx
Xxxxxxxxx XX0 0XX
18. Tax residence: United Kingdom
31
Execution Copy EXHIBIT 2.6
SCHEDULE 3 - THE SUBSIDIARY
CYMBUS BIOTECHNOLOGY LIMITED
1. Registered Number: 3144138
2. Place of Incorporation: England and Wales
3. Date of Incorporation: 8 January 1996
4. Type of company: Private Limited Company
5. Authorised share capital: L1,000 divided into 1,000
ordinary shares of L1 each
6. Issued share capital: 237 ordinary shares of L1 each
7. Registered holder of the Chemicon Europe Limited
issued share capital:
8. Beneficial owner of the Chemicon Europe Limited
issued share capital:
9. Loan capital: None
10. Registered office: Xxxx X
Xxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxxxxx
XX00 0XX
11. Directors: Xx Xxxxx Xxxx Xxxxxxx
Ms Xxxxxxx Xxxxx Xxxxx-Xxxx Xxxx-Xxxxxx
12. Secretary: Ms Xxxxxxx Xxxxx Xxxxx-Xxxx Xxxx-Xxxxxx
13. Accounting Reference Date: 31 December
14. Auditors: None
15. Date of latest accounts filed: 31 May 2001
16. Date of latest annual return 8 January 2002
filed:
17. Bankers: Barclays Bank Plc
Harrow Branch
000 Xxxxxxx Xxxx
Xxxxxx
Xxxxxxxxx
XX0 0XX
18. Tax residence: United Kingdom
32
Execution Copy Exhibit 2.6
SCHEDULE 4 - THE PROPERTIES
----------------------------------------------------------------------------------------------------------------
RENT REVIEW LENGTH OF TERM
PROPERTY CURRENT RENT DUE/OUTSTANDING
----------------------------------------------------------------------------------------------------------------
Unit J L17,000 p.a. 1. 24.06.1999 Commencing
Eagle Close 29.02.1996 and
Chandlers Ford 2. 24.06.2004 expiring
Hampshire 21.06.2009
XX00 0XX
----------------------------------------------------------------------------------------------------------------
Unit K L22,000 p.a. 1. 25.12.2001 Commencing
Eagle Close 02.07.1997 and
Chandlers Ford expiring
Hampshire 2. 25.12.2006 24.12.2011
XX00 0XX
----------------------------------------------------------------------------------------------------------------
Unit L L25,000 p.a. 25.03.2006 Commencing on date
Eagle Close of grant and
Chandlers Ford expiring
Hampshire 25.03.2011
XX00 0XX
----------------------------------------------------------------------------------------------------------------
2 Admiral House L15,000 p.a. 25.12.2004 and every Commencing
Cardinal Way 4th anniversary thereof 01.07.2000 and
Harrow expiring
Middlesex 01.12.2012
XX0 0XX
----------------------------------------------------------------------------------------------------------------
Xxxxxxxxxxx Xxx 0X (euro)1,919.92 per month 31.05.03 Commencing
D-65719 plus VAT 01.06.1998 and
Hofheim expiring on
Germany 31.05.03
----------------------------------------------------------------------------------------------------------------
33
Execution Copy EXHIBIT 2.6
SCHEDULE 5 - COMPLETION REQUIREMENTS
On Completion the parties will comply with the following requirements:
SHAREHOLDER'S OBLIGATIONS:
1. The Shareholder shall deliver to Serologicals' Solicitors (or shall
procure the delivery to Serologicals in such other manner as is agreed
by the parties):
1.1 transfers of the Shares duly executed by the Shareholder in
favour of Serologicals or its nominees together with the
relative share certificates (or an indemnity in such form as
Serologicals shall require in relation to any missing
certificates);
1.2 duly signed letters of resignation in the Agreed Form from X
Xxxxxxx as Director and Xxxxxxx Xxxxx-Xxxxxx as Director and
Company Secretary in respect of each of the Company and the
Subsidiary;
1.3 the certificate of incorporation, (and, if applicable any
certificates of incorporation on change of name) any common
seal, any securities seal, statutory minute books and
registers (duly made up to the date of Completion), share
certificate book and all available copies of the memorandum
and articles of association of the Company and the Subsidiary;
1.4 all title deeds and other deeds and documents (including plans
and consents) relating to the Properties including expired
leases and insurance policies (except to the extent that they
are in the possession of or are required to be returned to
mortgagees as mentioned in the Disclosure Letter);
1.5 a certified copy of any power of attorney under which any
document delivered on Completion has been executed on behalf
of the Shareholder;
1.6 written confirmations from the relevant banks as to the
respective bank balances of the Company and the Subsidiary as
at the close of business on the second Business Day preceding
Completion or at such other time as may be agreed by the
parties together with a list of all unpresented cheques and
uncleared lodgements which upon presentation or clearance
would be debited or credited to the respective accounts;
1.7 copies of all bank mandates of the Company and of the
Subsidiary together with a blank mandate in respect of each
bank account maintained by the Company and the Subsidiary;
1.8 all papers, books, records, keys, credit cards and other
property (if any) of the Company and the Subsidiary which are
in the possession or under the control of the Shareholder;
1.9 (if not received prior to the date of this Agreement) receipt
of a Form 403(a) duly sworn and completed in respect of the
fixed and floating charges pursuant to the debenture granted
by the Subsidiary in favour of Barclays Bank plc on 28
February 1996;
34
Execution Copy EXHIBIT 2.6
1.10 duly executed releases of the Company and the Subsidiary from
any guarantee, suretyship, indemnity, collateral security or
letter of comfort given in support of any of the liabilities
of any Shareholder Group Company or any Associate of any
Shareholder Group Company or any director or employee (or
former director or employee) of the Company or the Subsidiary
or any Associate of any such director or employee; and
1.11 an irrevocable power of attorney in the Agreed Form executed
by the Shareholder in favour of Serologicals and its directors
to enable Serologicals (pending registration of the transfers
of such shares) to exercise all voting and other rights
attaching to the Shares and to appoint proxies for this
purpose.
2. The Shareholder shall repay and shall procure each of the other
Shareholder Group Companies and the directors and employees of the
Company and the Subsidiary and the Associates of such directors and
employees to repay all moneys then owing by any of them to the Company
or the Subsidiary whether due for payment or not.
3. The Shareholder shall procure that there shall be held a meeting of the
directors of each of the Company and the Subsidiary attended by a
quorum of the directors, at which:
3.1 such persons as Serologicals may nominate shall be appointed
additional directors (but not so as to exceed any maximum
number permitted by its articles of association);
3.2 the above-mentioned resignations of X Xxxxxxx and Xxxxxxx
Xxxx-Xxxxxx shall be accepted with immediate effect and such
persons and firm as Serologicals may nominate shall be
appointed as Directors and Company Secretary respectively in
their places and such firm as Serologicals may nominate shall
be appointed as auditors;
3.3 its registered office shall be changed to such address as
Serologicals may direct;
3.4 subject to the Act and if required by Serologicals, its
accounting reference date shall be changed to such date as
Serologicals may instruct;
3.5 the transfer referred to in paragraph 1.1 of this Schedule 5
shall be approved for registration (subject to stamping with
any required stamp duty);
3.6 such resolutions and actions regarding bankers as Serologicals
may require shall be passed and taken;
3.7 such other business as Serologicals may reasonably require
shall be transacted; and
3.8 the above-mentioned resignations of the present directors
shall be accepted with effect from the end of the meeting
and the Shareholder shall deliver to Serologicals certified copies of
the minutes of such board meeting.
35
Execution Copy EXHIBIT 2.6
PURCHASER'S OBLIGATIONS:
4. Against compliance with the above provisions of this Schedule
Serologicals shall remit the sum of $14,025,000 by bank electronic
transfer to such nominated account in accordance with the Closing
arrangements set out in the US Securities Purchase Agreement and the
documents entered into pursuant to the same.
36
Execution Copy EXHIBIT 2.6
SCHEDULE 6 - SPECIFIC MATTERS
1. Any liability of the Company, the Subsidiary or Serologicals up to, but
not in excess of, L175,000 as a result of or with respect to the case
styled as Biogenesis Limited v Cymbus Biotechnology Limited, Claim No.
HC02C02120 filed in the London High Court of Justice.
2. Any liability of the Company, the Subsidiary or Serologicals for
payment of rents (together with any interest on the same) in respect of
Units J and K, Xxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxxxxx XX00 0XX in
respect of periods prior to 31 May 2002.
37
Execution Copy EXHIBIT 2.6
APPENDIX - DEFINITIONS AND INTERPRETATION
1. DEFINITIONS
The following definitions apply in this Agreement:
ACCOUNTING DATE means, in relation to the Company, 31 December 2000
and, in relation to the Subsidiary, 31 May 2001, being the dates to
which the last audited accounts of the Company and the Subsidiary,
respectively, were made up;
ACT means the Companies Xxx 0000 (as amended);
AGREED FORM means, in relation to any document, the form of that
document initialled for the purpose of identification by or on behalf
of the Shareholder's Solicitors and Serologicals' Solicitors;
AGREEMENT means this agreement including its schedules, appendices and
attachments (if any);
ASSOCIATE means:
(a) (in relation to an individual):
(i) any Close Relative;
(ii) any trust (other than a public trust as defined
below) in which the individual or any Close Relative
has an interest (whether contingent discretionary or
otherwise) or any trustee of such a trust;
(iii) any company which is or may be controlled by any of
the above or by any two or more of them; or
(iv) any Related Company of any such company;
(b) (in relation to a corporation) any Related Company or
associated company or any director or any person who alone or
with others controls the corporation, and any Associate of
such person; and
(c) (in relation to the Shareholder) in addition to any person
described in (a) or (b) above any person who has any interest
(whether contingent, discretionary or otherwise) in any trust
(other than a public trust) to which any shares in the Company
held by the Shareholder are subject and any Associate of such
person
and for the purpose of this definition CONTROL and ASSOCIATED COMPANY
shall bear the meanings given in section 416 of the Taxes Xxx 0000 and
a PUBLIC TRUST is a trust having not less than twenty beneficiaries and
which is associated with a pension or loan stock or the like or a unit
trust in which interests have been offered to the public;
AUDITORS mean the auditors of the Company from time to time;
38
Execution Copy EXHIBIT 2.6
BECKMANS means Xxxxx Xxxx Xxxxxxx (X XXXXXXX) and Xxxxx Xxxx Xxxxxxx (K
XXXXXXX), both of 39193 Calle Companero, Murrieta Xxxxxxxx, Xxxxxxxxxx
00000, XXX and references in this Agreement to the Beckmans shall
include each of Xxxxx Xxxx Xxxxxxx and Xxxxx Xxxx Xxxxxxx severally;
XXXXXXX TRUST means a trust created pursuant to the laws of California,
the trustees of which are Xxxxx Xxxx Xxxxxxx and Xxxxx Xxxx Xxxxxxx;
BUSINESS DAY means a day (not being a Saturday or Sunday) when banks
are open for general business in London, UK and Atlanta, Georgia, USA;
CHEMICON INC means Chemicon International, Inc, a company incorporated
in California whose head office is at 00000 Xxxxxx Xxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 XXX;
CLOSE RELATIVE means any spouse, child, step-child, adopted child,
grandchild, parent or spouse's parent; or any child, step-child,
adopted child or grandchild of any such person; or any spouse of any of
the above, and for the purposes of this definition SPOUSE includes de
facto spouse or co-habitee;
COMPANY INTELLECTUAL PROPERTY means all Intellectual Property owned by
the Company or the Subsidiary and used in the businesses of the Company
and/or the Subsidiary at Completion;
COMPETENT AUTHORITY means any person (including any Government
Department or Government Agency, the Environment Agency, local
authorities or the Health and Safety Executive) having regulatory
powers and/or authority at law and/or any court of law or tribunal.
COMPLETION means the performance by the parties of the obligations (to
the extent not previously waived in terms of this Agreement) assumed by
them respectively under clause 6.2 and Schedule 5;
CONFIDENTIAL INFORMATION means (i) any information concerning the
business, accounts, finances, contractual arrangements or Intellectual
Property (whether owned or licensed) or other dealings, transactions,
affairs or property of the Company or the Subsidiary but does not
include information which is trivial or obvious or otherwise clearly of
a non-confidential nature or information which has become a matter of
public knowledge (other than by reason of a breach of clause 8 or its
unlawful disclosure by any person) and (ii) any information in respect
of which an obligation of confidence is owed to any third party by the
Company or the Subsidiary;
DIRECTORS means the directors of the Company whose names are specified
in Schedule 2;
DISCLOSURE DOCUMENTS means the copy documents disclosed to Serologicals
which are listed in the index at Attachment 1 to the Disclosure Letter;
DISCLOSURE LETTER means the letter (including the Disclosure Documents)
of the same date as this Agreement from the Shareholder to Serologicals
containing qualifications to the Warranties;
39
Execution Copy EXHIBIT 2.6
ENCUMBRANCE means and includes any interest or equity of any person
(including, without limitation, any right to acquire, option, right of
pre-emption or right of conversion) or any mortgage, charge, pledge,
lien, assignment or any other encumbrance, priority or security
interest or arrangement of whatever nature over or in the relevant
property;
ENVIRONMENT means any or all of the following: living organisms
(including humans) including the ecological systems of which they form
part and the following media (alone or in combination): air (including
the air within the buildings and the air within other natural or man
made structures whether above or below ground); water (including
without limitation water under or within land or in drains or sewers
and surface, ground, coastal and inland waters); and land (including
surface land, sub-surface strata, land under water and natural and
manmade structures); and in the case of man includes his senses and his
property;
ENVIRONMENTAL AND HEALTH LAWS means all and any of the following to the
extent that they are enforceable from time to time:
(i) all supranational, national, European Union, federal, state or
local statutes, directives or other laws or legislation or
subordinate legislation;
(ii) all rules, regulations, orders, notices, guidelines, guidance
notes, codes of practice or circulars) made or issued under
(a) above;
(iii) all common laws, civil codes and equity;
(iv) all judgements, decisions, notices, orders, directions,
consent, agreements, instructions or awards by or with any
Competent Authority; and
(v) all legally binding deeds, contracts, leases, licences or
other agreements,
to the extent that they relate to or concern pollution or contamination
of the Environment or have as a purpose or effect the protection of the
Environment or the provision of remedies or compensation for pollution
or contamination of the Environment or any loss arising therefrom, or
they relate to or concern human health or safety or its protection or
have as a purpose or effect the provision of remedies or compensation
for Personal Injury or any loss arising therefrom; and/or they relate
to or concern the generation, use, handling, storage, release, emission
or disposal of Hazardous Substances;
ENVIRONMENTAL AND HEALTH PERMIT means any licence, authorisation,
consent, permit or any other approval (and any conditions or
requirements thereof) required under or pursuant to any Environmental
and Health Law;
EVENT means an event, transaction (including Completion of this
Agreement), action or omission whether alone or in conjunction with any
other transaction, action or omission occurring on or before Completion
and includes further (without limitation) the death of any person; a
company becoming, being or ceasing to be a member of a group of
companies (however defined) for the purposes of any Tax;
GROUP means the Company and the Subsidiary and GROUP MEMBER means
either of them;
40
Execution Copy EXHIBIT 2.6
HAZARDOUS SUBSTANCE means any substance, matter or thing whether in
solid, liquid, vaporous or gaseous form (and whether alone or in
combination with any other substance, matter or thing) capable of
causing harm or damage to the Environment or pollution or contamination
and shall include any Waste, any radiation and any antibodies, tissues,
sera, cells or parts of cells;
INCOME, PROFITS OR GAINS means revenue profits, chargeable gains and
any other similar measure by reference to which Tax is chargeable or
assessed and references to INCOME, PROFITS OR GAINS earned, accrued or
received on or before a particular date or in respect of a particular
period include Income, Profits or Gains which are deemed for the
purposes of any Tax to have been earned, accrued or received at or
before that date or in respect of that period;
INDEMNIFICATION AGREEMENT means the agreement dated the same day as
this Agreement between the Shareholder, the Xxxxxxx Trust, the Beckmans
and Serologicals pursuant to which the Shareholder, the Xxxxxxx Trust
and the Beckmans have agreed to indemnify Serologicals from and against
the matters set out in such agreement;
INTELLECTUAL PROPERTY means patents, trade marks, service marks,
registered designs, applications for any of the above, copyright,
know-how, design rights, database rights, trade secrets, confidential
information, trade and business names and brands, Internet domain names
and any other similar protected rights in any country;
INTEREST means interest (as well after as before judgment) at the rate
in question accruing daily and compounded with rests on the last day of
each calendar month;
PERSONAL INJURY means any death, personal injury, disease, medical
condition, illness, effect on or insult to bodily tissue or other
actual or alleged adverse impact on health or wellbeing or
psychological or emotional condition, anguish, anxiety or fear;
PROPERTIES means the leasehold properties described in Schedule 4;
RELATED COMPANY means, in relation to a company, any company which is a
holding company of that company or a subsidiary of that company or of
such holding company (and the expression RELATED COMPANIES shall be
construed accordingly);
REMEDIAL ACTION means:
(a) any works, steps, operations or measures to inspect,
investigate, sample, assess or monitor any Personal Injury,
any contamination or any pollution of the Environment, or the
effect or potential effect of any Hazardous Substances on the
Environment or human health, or the condition of the
Environment or human health after any works etc described in
sub-paragraphs (b) or (c) have been carried out;
(b) any works, steps, operations or measures to avoid, prevent,
minimise, treat, xxxxx, remove, remedy, contain, control,
manage or ameliorate any Personal Injury, any contamination or
any pollution of the Environment, or the effect or potential
effect of any Hazardous Substances on the Environment or human
health; and/or
41
Execution Copy EXHIBIT 2.6
(c) any works, steps, operations or measures to restore the
Environment or human health to its former state;
SEROLOGICALS' GROUP means Serologicals or any Related Company of
Serologicals other than a company in the Group;
SEROLOGICALS' SOLICITORS means Xxxxxxxx Xxxxxxx of 000 Xxxxxxxxxx
Xxxxxx Xxxxxx XX0X 0XX, XX or their successors in business or any other
firm of solicitors appointed by Serologicals for the purposes of this
Agreement;
SHAREHOLDER GROUP COMPANY means the Shareholder or any Related Company
of the Shareholder other than a company in the Group and Chemicon Inc;
SHAREHOLDER'S SOLICITORS means Xxxxxx Xxxxxxx of 00 Xxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, XX or their successors in business or any other firm
of solicitors appointed by the Shareholder for the purposes of this
Agreement;
SHARES means the two ordinary shares of L1 each in the capital of the
Company comprising the entire issued share capital of the Company;
SUBSIDIARY means the subsidiary of the Company at the date of this
Agreement details of which are set out in Schedule 3;
TAX or TAXATION means any form of tax, levy, impost, duty, contribution
or withholding of any kind (excluding uniform business rates, water
rates, community charge or council tax) imposed, collected or assessed
by, or payable to, a Tax Authority and all penalties, charges and
interest included in or relating to any of the above or to any
obligation in respect of any of the above (in all cases, regardless of
whether such taxes, penalties, charges and interest are directly or
primarily chargeable against or attributable to the Company or the
Subsidiary or any other person and regardless of whether the Company or
the Subsidiary has, or may have, any right of reimbursement against any
other person);
TAXATION AUTHORITY means any government, state or municipality or any
local, state, federal or other fiscal, revenue, customs or excise
authority, body or official competent to impose, collect or assess tax
in the United Kingdom or elsewhere;
TAXES ACT means the Income and Corporation Taxes Xxx 0000;
TCGA means the Taxation of Chargeable Gains Xxx 0000;
US$ or US DOLLARS means United States dollars, the lawful currency of
the United States of America;
US SECURITIES PURCHASE AGREEMENT means the agreement dated the same
date as this Agreement between the Shareholder and Serologicals for the
acquisition by Serologicals of the entire issued share capital of
Chemicon Inc;
VAT means value added tax or other similar sales tax whether of the
United Kingdom or elsewhere;
42
Execution Copy EXHIBIT 2.6
VATA means the Value Added Tax Xxx 0000;
WARRANTED ACCOUNTS means (i) the audited balance sheet as at 31
December 2000 of the Company and the directors' reports and other
documents annexed to it; and (ii) the audited balance sheet as at 31
May 2001 of the Subsidiary and the directors' reports and other
documents annexed to it;
WARRANTIES means the warranties, representations and undertakings
contained or referred to in clause 5.1 and Schedule 1;
WASTE means waste as defined in Environmental and Health Law including
any substance, material, effluent or article constituting controlled
waste, directive waste, special waste, hazardous waste or refuse.
2. INTERPRETATION
In this Agreement:
2.1 references to statutes or statutory provisions include those statutes
or statutory provisions as amended, extended, consolidated, re-enacted
or replaced from time to time and any orders, regulations, instruments
or other subordinate legislation made under them;
2.2 words and phrases defined in the Act and in the relevant legislation
relating to Taxation bear the same meanings, unless given a different
meaning in this Agreement;
2.3 words and phrases defined in the US Securities Purchase Agreement and
Indemnification Agreement shall bear the same meanings in this
Agreement, unless given a different meaning in this Agreement;
2.4 references in this Agreement to any English statute, regulation or
other legislation or English legal or accounting term for any action,
remedy, method of judicial proceeding, legal or accounting document,
legal or accounting status, insolvency proceeding, event of incapacity,
legal or accounting status, court, governmental or administrative
authority or agency, accounting body, official or any legal or
accounting concept, practice or principle or thing shall in respect of
the Company's business in Germany be deemed to include what most
approximates in German law to the English statute, regulation or other
legislation or English legal or accounting term concerned;
2.5 unless specified to the contrary, use of the singular is deemed to
include the plural, use of any gender is deemed to include every gender
and any reference to a person is deemed to include a corporation, a
partnership and other body or entity; and (in each case) vice versa;
2.6 references to this Agreement or any other document shall, where
appropriate, be construed as references to this Agreement or such other
document as varied, supplemented, novated and/or replaced in any manner
from time to time;
2.7 any reference to a document in the Agreed Form includes a reference to
that document in its final executed form;
43
Execution Copy EXHIBIT 2.6
2.8 any reference to an AGREEMENT or CONTRACT includes an agreement,
contract, deed, franchise, concession, licence or undertaking and any
waiver or release (in each case whether written, oral, implied or
arising by operation of law);
2.9 any undertaking by either party not to do any act or thing shall be
deemed to include an undertaking not to permit or suffer or assist the
doing of that act or thing;
2.10 any reference to a time is to United States Pacific Time;
2.11 any reference to books, records or other information means books,
records or other information in any form including paper,
electronically stored data, magnetic media, film and microfilm; and
2.12 the headings shall not affect interpretation.
44
Execution Copy EXHIBIT 2.6
SIGNED by FALCON INTERNATIONAL )
INVESTMENT HOLDINGS LLC ) /s/ Xxxxxxx Xxxx
in the presence of: )
Signature of Witness: /s/ Xxxx X. Xxxxxx
Name of Witness: Xxxx X. Xxxxxx
Address of Witness: 0000 X. Xxxx Xxxx
Xxxxx 000X
Xxxxxxx, Xx 00000
Occupation of Witness: Manager of Administrative Services
SIGNED by SEROLOGICALS )
RESEARCH PRODUCTS, INC ) /s/ Xxxxx X. Xxxx
in the presence of: )
Signature of Witness: /s/ Xxxxxxx X. Xxxxxx
Name of Witness: Xxxxxxx X. Xxxxxx
Address of Witness: 0000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
Occupation of Witness: Vice President
45
