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ASSET PURCHASE AGREEMENT
among:
CORD PARTNERS, INC.
a
Florida corporation
CORD BLOOD AMERICA,
INC.,
a Florida corporation
and
CURESOURCE, INC.,
a South Carolina
corporation
____________________________
Dated as of August 20,
2007
___________________________
ASSET PURCHASE
AGREEMENT
THIS ASSEST PURCHASE AGREEMENT is entered
into as of August 20, 2007, by and among: CURESOURCE, INC
. , a South Carolina corporation (the
“Seller” ); CORD PARTNERS, INC.
, a Florida corporation (the
“Purchaser” ) and CORD BLOOD
AMERICA, INC., a Florida corporation (the
“Company”). Capitalized terms used in this
Agreement are defined in Exhibit A
.
RECITALS
WHEREAS, the Seller wishes to sell and transfer the Acquired
Business to the Purchaser, and the Purchaser wishes to purchase and
acquire the Acquired Business as it is currently conducted by the
Seller, including the assumption of certain Liabilities relating to
the Acquired Assets; and
WHEREAS, the Company has agreed to issue to Seller certain
shares of Parent Common Stock (as hereinafter defined) as partial
consideration for the transfer of the Acquired Business (as
hereinafter defined).
NOW,
THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and
subject to the conditions herein set forth, the parties hereto
hereby agree as follows:
AGREEMENT
1.
PURCHASE AND SALE OF ASSETS; RELATED
TRANSACTIONS
1.1
Sale of Assets.
(a)
The Seller shall sell, assign, transfer, convey and
deliver to the Purchaser, at the Closing (as defined below), good
and valid title to the Acquired Assets, subject to the asserted
liens, charges and encumbrances identified herein, on the terms and
subject to the conditions set forth in this Agreement. For
purposes of this Agreement, “Acquired
Assets” shall consist of:
(i)
341 umbilical cord blood samples as described in the
database to be provided to the Purchaser (the “Acquired
Inventory” );
(ii)
one (1) freezer, Model 742, ThermoFisher, for the storage
of umbilical cord blood samples (the “Acquired Fixed
Assets” );
(iii)
all rights of the Seller under and to the Acquired
Business Contracts with each of the clients with respect to the
Acquired Inventory;
(iv)
the Seller’s website, including without limitation,
its domain name (www.curesource.net) and all software codes,
licenses and documentation relating in any manner to the website;
and
(v)
all intellectual property and associated goodwill,
including but not limited to trademarks, copyrights, and trade
secrets such as customer lists and business knowhow.
(vi)
copies of all Records.
(b)
Notwithstanding anything herein to the contrary, all the
assets of the Seller not included in the Acquired Assets, (the
“Excluded Assets” ) shall not be sold or
transferred hereunder, shall be excluded from the definition of
Acquired Assets and shall remain the property of the Seller.
The Excluded Assets shall include, but are not limited to,
the following:
(i)
All cash and accounts receivable arising prior to the
Closing Date from the sale of goods or services;
(ii)
All revenues to be collected from 23 clients (Schedule 1)
on payment plan for processing services. Estimated remaining
revenue to be billed is $11,477 as of
May 5, 2007.
(c)
Notwithstanding anything herein to the contrary,
all liabilities of the Seller not included in the Assumed
Liabilites, (the “Excluded
Liabilities” ) shall not be transferred hereunder,
shall be excluded from the definition of Assumed Liabilities and
shall remain the liability of the Seller. The Excluded
Liabilities shall include, but are not limited to, the
following:
(i)
All liabilities specifically set forth in the
PharmaStem Agreement dated August 20, 2004 arising prior to the
Closing Date.
1.2
CONSIDERATION.
(a)
The purchase price for the Assets is One Hundred Six
Thousand Five Hundred Dollars ($106,500) (the “
Purchase Price ”). The Purchase Price shall be
paid as follows:
(i)
One Hundred Six Thousand Five Hundred Dollars ($106,500)
shall be paid at the Closing by wire transfer of immediately
available funds to the account of the Seller;
(ii)
Purchaser will deliver to Seller within five days of
Closing Date shares of Parent Common Stock as will total a
value of Ten Thousand Dollars ($10,000) on the Closing Date;
(b)
For purposes of this Agreement “Assumed
Liabilities” shall mean only the following
liabilities of the Seller:
(i)
the obligations of the Seller under the Acquired Business
Contracts, but only to the extent such obligations (A) arise
after the Closing Date, (B) do not arise from or relate to any
Breach by the Seller of any provision of any of such Acquired
Business Contracts prior to or as of the Closing Date, (C) do
not arise from or relate to any event, circumstance or condition
occurring or existing on or prior to the Closing Date that, with
notice or lapse of time, would constitute or result in a Breach of
any Acquired Business Contracts, and (D) do not arise from the
failure to obtain any required Consent from any third party, in
connection with the assignment and transfer of such Acquired
Business Contracts to the Purchaser pursuant to this Agreement;
and
(ii)
All liabilities specifically set forth in the PharmaStem
Agreement dated August 20, 2004 arising on or after the Closing
Date, including any liability arising out of the failure to obtain
the consent of PharmaStem to the transfer of assets as contemplated
herein. However, Assumed Liabilties shall not include royalties due
to PharmaStem prior to the Closing Date and any proceeds payable to
PharmaStem for non-family use of samples as described in the
PharmaStem Agreement.
(iii)
For purposes of this Agreement, all Liabilities not
expressly included in the definition of Assumed Liabilities are
referred to as “Excluded
Liabilities.”
1.3
Sales Taxes. The Seller shall bear and
pay (100%) of any sales taxes, use taxes, transfer taxes,
documentary charges, recording fees or similar taxes, charges, fees
or expenses that may become payable in connection with the sale and
transfer of the Acquired Assets to the Purchaser. The parties
hereto shall cooperate with each other and use commercially
reasonable efforts to minimize any Taxes, charges, fees or expenses
including but not limited to the transfer of all software by remote
electronic transmission.
1.4
Closing.
(a)
The closing of the transactions contemplated by this
Agreement (the “ Closing ”) shall be effective
and shall take place on July 31, 2007, unless extended by mutual
agreement of the parties hereto (the “ Closing Date
”), at 10:00 a.m. local time at the offices of Seller,
Charleston, SC, or such other time and place that are mutually
acceptable to the Seller and the Buyer.
(b)
At the Closing:
(i)
the Seller shall execute and deliver to the Purchaser a
Bill of Sale, in the form of Exhibit B attached
hereto;
(ii)
the Purchaser shall pay the Purchase Price; and
(iii)
the Purchaser shall execute and deliver to the Seller a
general Assignment and Assumption Agreement substantially in the
form of Exhibit C (the “Assignment
and Assumption Agreement” ).
(iv)
the Buyer and Seller shall execute and deliver a
Trademark Assignment Agreement in the form of Exhibit
D attached hereto (the “ Trademark Assignment
Agreement ”); and
1.5
Post-Closing Transfers . Following the
Closing: (i) the Purchaser shall deliver the Parent Common Stock to
the Seller within five (5) days, and (ii) the parties shall
cooperate with each other to identify any assets that were not
designated as part of the Acquired Assets at the Closing but which
are necessary to conduct the Acquired Business as currently being
conducted by the Seller (the “Nontransferred
Assets” ). To the extent any Nontransferred
Assets are identified and the Seller is legally and contractually
permitted to transfer such assets, the Seller shall, at no cost to
the Purchaser, promptly take all actions to transfer such
Nontransferred Assets to the Purchaser. In the event the
Seller is required to obtain the consent or approval of any Person
prior to the transfer of any Nontransferred Asset, then the Seller
shall, at its own expense, use its commercially reasonable efforts
to promptly obtain such approval or consent, and upon obtaining
such approval or consent, shall promptly transfer such
Nontransferred Asset to the Purchaser. In the event the
Seller is unable to obtain such approval or consent, then the
Seller and the Purchaser shall discuss in good faith an appropriate
resolution for the transfer of the economic benefit of such
Nontransferred Asset to the Purchaser.
1.6 Post-Closing Funds. If, following
the Closing, the Seller receives any payment or proceeds with
respect to any Acquired Asset sold hereunder, the Seller shall
promptly remit the proceeds or payments to the Purchaser.
Similarly, if following the Closing, the Purchaser receives
any payment or proceeds with respect to any Excluded Assets, the
Purchaser will promptly remit the proceeds or payment to the
Seller.
2.
REPRESENTATIONS AND WARRANTIES OF THE
SELLER.
The Seller represents and warrants as of the date
of this Agreement, to and for the benefit of the Purchaser
Indemnitees that each of the following representations and
warranties is true and correct, except as expressly set forth
otherwise in the Disclosure Schedule of even date herewith:
2.1
Due Organization. The Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the State of South Carolina. The Seller is
qualified, authorized, registered or licensed to do business as a
foreign corporation in any jurisdiction where its business requires
such qualification except where the failure to be so qualified,
authorized, registered or licensed would not have a Material
Adverse Effect on the Acquired Business.
2.2
Authority; Binding Nature of Agreements.
The Seller has the corporate power and authority to enter
into and to perform its obligations under each of the Transaction
Agreements; and the execution, delivery and performance by the
Seller of the Transaction Agreements have been duly authorized by
all necessary corporate action on the part of the Seller.
Each Transaction Agreement on the date hereof constitutes the
legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to
creditors’ rights generally or to general principles of
equity.
2.3
Non-Contravention; Consents. Purchaser
acknowledges that Seller has not obtained the consent of PharmaStem
to the transfer of certain of its assets and PharmaStem has a
security interest in certain of Seller’s assets as described
in the PharmaStem Agreement, a copy of which has been reviewed by
Purchaser. Except as described in the immediately preceding
sentence, the execution and delivery of any of the Transaction
Agreements by the Seller, nor the consummation or performance of
any of the Transactions by the Seller, will directly or indirectly
(with or without notice or lapse of time):
(a)
contravene, or result in a violation of, or give
any Governmental Body or other Person the right, on the part of
the Seller, to challenge any of the Transactions or to exercise
any remedy or obtain any relief under, any Legal Requirement or
any Order to which the Seller, or any of the Acquired Assets, is
subject;
(b)
contravene or result in a violation of the
certificate of incorporation or bylaws of the Seller;
(c)
contravene, or result in a violation of any of
the terms or requirements of, or give any Governmental Body the
right, on the part of the Seller, to revoke, withdraw, suspend,
cancel, terminate or modify, any Governmental Authorization that
is included in the Acquired Assets;
(d)
contravene, or result in a violation or breach
of, or result in a default under, (i) any provision of any
Acquired Business Contract, in any material respect or (ii) any
other Contract of the Seller, solely to the extent such
contravention, violation or breach could reasonably be expected
to prevent, enjoin, alter or delay the transactions contemplated
by any of the Transaction Agreements;
(e)
give any Person the right to (i) declare a
default or exercise any remedy under any Acquired Business
Contract, (ii) accelerate the maturity or performance of
any Acquired Business Contract, or (iii) cancel, terminate
or materially modify any Acquired Business Contract; or
(f)
result in the imposition or creation of any
Encumbrance upon or with respect to any of the Acquired
Assets.
Except as described above with respect to the
PharmaStem Agreement, no filing with or notice to, or Consent from,
any Person is or will be required in connection with the execution
and delivery of any of the Transaction Agreements or the
consummation or performance of any of the Transactions. The
favorable vote and approval by the stockholders of the Seller
required in connection with the execution and delivery of the
Transaction Agreements and the consummation or performance of any
of the Transaction has been obtained.
2.4
Absence Of Changes. Since June 30,
2007:
(a)
there has not been any change in, and no event
has occurred that could reasonably be expected to have a
Material Adverse Effect on the Acquired Business or that
adversely affects the Acquired Assets in any material
respect;
(b)
there has not been any loss, damage or
destruction to, or any interruption in the use of, any of the
Acquired Assets in any material respect;
(c)
the Seller has not sold or otherwise
transferred, or leased, or licensed, any material portion of the
assets used in the Acquired Business to any other Person; except
for non-exclusive, non-transferable licenses to software granted
in the Ordinary Course of Business and except for sales of
inventory in the Ordinary Course of Business;
(d)
no material Contract related to, or necessary to
the conduct of, the Acquired Business has been amended or
terminated;
(e)
the Seller has not caused any of the Acquired
Assets to become subject to any Encumbrances;
(f)
except as contemplated by the Transaction
Agreements, the Seller has not entered into any transaction or
taken any other action, in each case related to the Acquired
Business outside the Ordinary Course of Business; and
(g)
the Seller has not agreed (in writing or
otherwise) to take any of the actions referred to in clauses
“(c)” through “(f)” above.
2.5
Title To Assets.
(a)
None of the Acquired Assets is subject to any
Encumbrances (including tax-related Encumbrances), subject to the
requirement of the Seller to obtain third-party Consents required
for the assignment of the Acquired Business Contracts.
Purchaser acknowledges being advised of the right asserted by
PharmaStem under the terms of the PharmaStem Agreement. On
the date hereof, the Seller will transfer to the Purchaser good and
marketable title to all Acquired Assets, free and clear of any
Encumbrances except for the rights asserted by PharmaStem under the
terms of the PharmaStem Agreement.
(b)
As of the Closing Date, no Affiliate of the Seller owns,
controls or has custody of any Acquired Asset.
(c)
Except as contemplated by the Transaction Agreements,
neither the Seller nor any of its Affiliates has any agreement,
absolute or contingent, written or oral, with any other Person to
effect any Acquisition Transaction or to sell or otherwise transfer
any of the Acquired Assets, except for non-exclusive,
non-transferable licenses to software granted in the Ordinary
Course of Business.
2.6
Affiliate Transactions. No Affiliate
of the Seller: (a) has any direct or indirect interest
of any nature in any of the Acquired Assets; (b) has entered
into, or has any direct or indirect financial interest in, any
Acquired Business Contract; (c) is competing with the Acquired
Business; (d) has any claim or right against the Acquired
Assets. To the Knowledge of the Seller, no event has
occurred, and no condition or circumstance exists, that could (with
or without notice or lapse of time) give rise to or serve as a
basis for any claim or right in favor of any Affiliate of the
Seller against the Acquired Assets.
2.7
Inventory. Schedule 1 provides an
accurate and complete breakdown of all Acquired Inventory that is
part of the Acquired Business as of the date of this Agreement.
2.8
Equipment, Etc. Each Acquired Fixed
Asset: (i) is structurally sound, free of material
defects and material deficiencies and in good condition and repair
(ordinary wear and tear excepted); (ii) to Seller’s
Knowledge, has been used by Seller in full compliance with, all
applicable Legal Requirements; and (iii) is adequate and
appropriate for the uses to which the Seller has put it.
2.9
Contracts.
(a)
The Seller has delivered or made available to the
Purchaser accurate and complete copies of all Acquired Business
Contracts, including all amendments thereto. Each Acquired
Business Contract is valid and in full force and effect and is
enforceable in accordance with its terms.
(b)
To the Knowledge of the Seller, since June 30, 2007, no
Person has violated or breached, or declared or committed any
default under, any Acquired Business Contract; and no event has
occurred, and no circumstance or condition exists, that might (with
or without notice or lapse of time) (A) result in a violation
or breach of any of the provisions of any Acquired Business
Contract, (B) give any Person the right to declare a default
or exercise any remedy under any Acquired Business Contract,
(C) give any Person the right to accelerate the maturity or
performance of any Acquired Business Contract, or (D) give any
Person the right to cancel, terminate or materially modify any
Acquired Business Contract. The Seller has not received any
written notice or other written communication regarding any actual,
alleged, possible or potential violation or breach of, or default
under, any Acquired Business Contract and has not waived any
material right under any Acquired Business Contract.
(c)
The Seller has not received any written notice or other
written communication, or any other written information, or to the
Knowledge of the Seller, any oral notice, communication or other
information, in each case indicating that any party to any Acquired
Business Contract is insolvent or unable to satisfy all of such
Person’s current and future monetary obligations and other
obligations and Liabilities thereunder.
(d)
The performance of the Acquired Business Contracts by the
Seller has not resulted in any violation of or failure to comply
with any Legal Requirement in any material respect.
(e)
No party to an Acquired Business Contract is currently
renegotiating the terms of such Acquired Business Contract with the
Seller, and no such party has the contractual right to renegotiate,
any amount paid or payable to the Seller under any Acquired
Business Contract.
(f)
As of the date of this Agreement, the Seller has no
Knowledge of any express indication from any party to any Acquired
Business Contract based upon which the Seller could reasonably be
expected to conclude that such party may object to (i) the
assignment to the Purchaser of any right under such Acquired
Business Contract, or (ii) the delegation to or performance by
the Purchaser of any obligation under such Acquired Business
Contract.
2.10
Sufficiency of Acquired Assets . The
Acquired Assets, including the Acquired Business Contracts,
constitute all the assets, properties, and rights necessary to
carry on the Acquired Business as currently conducted by the
Seller.
2.11
Compliance with Legal Requirements.
The Seller is in substantial compliance with each Legal
Requirement that is applicable to it or to the conduct of the
Acquired Business or the ownership or use of any of the Acquired
Assets, except to the extent any such noncompliance could not
reasonably be expected to (1) have a Material Adverse Effect on the
Acquired Business or (2) result in an Assumed Liability. No
event has occurred, and no condition or circumstance exists, that
could (with or without notice or lapse of time) constitute or
result directly or indirectly in a violation by the Seller of, or a
failure on the part of the Seller to comply with, any Legal
Requirement, except to the extent any such noncompliance could not
reasonably be expected to (1) have a Material Adverse Effect on the
Acquired Business or (2) result in an Assumed Liability. The
Seller has not received any written notice or other written
communication, or any other written information, or to the
Knowledge of the Seller, any oral notice, communication or other
information, at any time, from any Governmental Body or any other
Person regarding (i) any actual, alleged, possible or
potential violation of, or failure to comply with, any Legal
Requirement, or (ii) any actual, alleged, possible or potential
obligation on the part of the Seller to undertake, or to bear all
or any portion of the cost of, any cleanup or any remedial,
corrective or response action of any nature. To the Knowledge
of the Seller, no Governmental Body has proposed or is considering
any Legal Requirement that, if adopted or otherwise put into
effect, (i) may have a Material Adverse Effect on the Acquired
Business, or (ii) may have the effect of preventing, delaying,
making illegal or otherwise interfering with any of the
Transactions.
2.12
Governmental Authorizations. Each
Governmental Authorization that is held by the Seller and is
related to the conduct of the Acquired Business is valid and in
full force and effect. The Seller is and has at all times
been in substantial compliance with all of the terms and
requirements of each Governmental Authorization, except to the
extent any such noncompliance could not reasonably be expected to
(1) have a Material Adverse Effect on the Seller or (2) result in
an Assumed Liability. To the Knowledge of the Seller, no
event has occurred, and no condition or circumstance exists, that
might (with or without notice or lapse of time) (A) constitute
or result directly or indirectly in a violation of or a failure to
comply with any term or requirement of any Governmental
Authorization, or (B) result directly or indirectly in the
revocation, withdrawal, suspension, cancellation, termination or
modification in any material respect of any Governmental
Authorization. The Seller has not received any written notice
or other written communication (from any Governmental Body or any
other Person regarding (A) any actual, alleged, possible or
potential violation of or failure to comply with any term or
requirement of any Governmental Authorization primarily related to
the Acquired Business, or (B) any actual, proposed, possible
or potential revocation, withdrawal, suspension, cancellation,
termination or modification in any material respect of any
Governmental Authorization primarily related to the Acquired
Business. The Governmental Authorizations constitute all of
the Governmental Authorizations necessary (i) to enable the
Seller to conduct the Acquired Business in the manner in which such
business is currently being conducted, and (ii) to permit the
Seller to own and use the assets related to the Acquired Business
in the manner in which they are currently owned or used.
2.13
Tax Matters. To the extent the
failure to do so would result in an Assumed Liability or would
adversely impact the Acquired Assets or the Purchaser’s
ownership of the Acquired Assets, the Seller (a) except for Federal
Income Taxes for the calendar year 2006, has paid all Taxes it is
required to pay to the appropriate Government Body and (b) has
filed all Tax Returns it is required to file. Upon receipt of
the consideration set forth in Section 1.2(a)(i) herein, Seller
shall use such funds to immediately pay the 2006 Federal Income
Taxes in the amount of approximately $6,250 disclosed in paragraph
2.5(a) of the Disclosure Schedule.
2.14
Labor Matters.
(a)
Since April 16, 2007, the Seller has not engaged in any
unfair labor practice of any nature with respect to the Acquired
Business. Since April 16, 2007, there has not been any
slowdown, work stoppage, labor dispute or union organizing
activity, or any similar activity or dispute, affecting the
Acquired Business. To the Knowledge of the Seller, no
officer, employee or consultant of the Seller is obligated under
any Contract or subject to any Order or Legal Requirement that
would interfere with the Acquired Business as currently conducted.
To Seller’s Knowledge, neither the execution nor
delivery of this Agreement, nor the carrying on of the
Seller’s business as presently conducted nor any activity of
such officers, employees or consultants in connection with the
carrying on of the Seller’s business as presently conducted,
will conflict with or result in a breach of the terms, conditions
or provisions of, constitute a default under, or trigger a
condition precedent to any rights under any Contract or other
agreement under which any of such officers, employees or
consultants is now bound.
2.15
Performance Of Services. There is no
Proceeding pending or, to the Knowledge of the Seller, being
threatened against the Seller relating to any services performed by
the Seller in connection with the Acquired Business, and, to the
Knowledge of the Seller, there is no reasonable basis for the
assertion of any such claim.
2.16
Proceedings; Orders. There is no
pending Proceeding, and no Person has threatened in writing to
commence any Proceeding against the Seller or any of its
Affiliates: (i) that could reasonably be expected to result in a
Material Adverse Effect on the Acquired Business; or (ii) that
challenges, or that could have the effect of preventing, delaying,
making illegal or otherwise interfering with, any of the
Transactions. To the Knowledge of the Seller, no event has
occurred, and no claim, dispute or other condition or circumstance
exists, that could reasonably be expected to give rise to or serve
as a basis for the commencement of any such Proceeding. There
is no Order to which the Seller, or any of the assets owned or used
by the Seller in connection with the Acquired Business, is subject;
and none of the Affiliates of the Seller is subject to any Order
that relates to the Acquired Business or the Acquired Assets.
2.17
Compliance . The Acquired
Inventory was processed and stored in compliance with all
applicable government regulations at the time of collection.
2.18
Bulk Transfer Laws . Seller
has satisfied all obligations pursuant to any bulk transfer law or
similar legal requirement in connection with any of the
Transactions.
3.
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER.
The Purchaser represents and warrants, to and for
the benefit of the Seller Indemnitees that each of the following
representations and warranties is true and correct:
3.1
Due Organization. The Purchaser is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Florida. The Purchaser is
qualified, authorized, registered or licensed to do business as a
foreign corporation in any jurisdiction where its business requires
such qualification except where the failure to be so qualified,
authorized, registered or licensed would not have a Material
Adverse Effect on the Purchaser.
3.2
Authority; Binding Nature Of Agreements.
The Purchaser has the corporate power and authority to enter
into and perform its obligations under each of the Transaction
Agreements to which it is a party, and the execution and delivery
and performance by the Purchaser of each Transaction Agreement to
which it is a party has been duly authorized by all necessary
corporate action on the part of the Purchaser. Each
Transaction Agreement to which it is a party on the date hereof
constitutes the legal, valid and binding obligation of the
Purchaser, enforceable against it in accordance with its terms,
subject to any applicable bankruptcy, insolvence, reorganization,
moratorium or similar laws now or hereinafter in effect relating to
creditors’ rights generally or to general principles of
equity.
3.3
Governmental and Other Authorizations.
The execution, delivery and performance by the Purchaser of
the Transaction Agreements, and the consummation by it of the
transactions contemplated hereby and thereby, require no approval
of any Governmental Authority on the part of Purchaser (
“Purchaser Governmental Approvals” ) or
any material consent, waiver or approval of any other Person, other
than a Governmental Entity, on the part of Purchaser (
“Purchaser Approvals” ), except where the
failure to obtain such permits, authorizations, consents or
approvals or to make such filings or give such notice would not
have a Material Adverse Effect on the Purchaser.
3.4
Non-Contravention. Neither the
execution and delivery of any of the Transaction Agreements by the
Purchaser, nor the consummation or performance of any of the
Transactions by the Purchaser, will directly or indirectly (with or
without notice or lapse of time):
(a)
contravene, or result in a violation of, or give any
Governmental Body or other Person the right to challenge any of the
Transactions or to exercise any remedy or obtain any relief under,
any Legal Requirement or any Order to which the Purchaser is
subject;
(b)
contravene or result in a violation of the certificate of
incorporation or bylaws of the Purchaser;
(c)
contravene or result in a violation or breach of any
Contract of the Purchaser, solely to the extent such contravention,
violation or breach could reasonably be expected to prevent,
enjoin, alter or delay the transactions contemplated by any of the
Transaction Agreements; or
(d)
contravene, or result in a violation of any of the terms
or requirements of, or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify, any
Governmental Authorization that is included in the Acquired
Assets.
No filing with or notice to, or Consent from, any Person is or will
be required in connection with the execution and delivery of any of
the Transaction Agreements by the Purchaser or the consummation or
performance of any of the Transactions by the Purchaser.
3.5
Litigation; Compliance with Legal
Requirements. There is no pending Proceeding, and no
Person has threatened in writing to commence any Proceeding against
the Purchaser or any of its Affiliates that challenges, or that
could have the effect of preventing, delaying, making illegal or
otherwise interfering with, any of the Transactions. No event
has occurred, and no claim, dispute or other condition or
circumstance exists, that could reasonably be expected to give rise
to or serve as a basis for the commencement of any Proceeding that
seeks to prevent, enjoin, alter or delay the transactions
contemplated by any of the Transaction Agreements.
4.
OTHER AGREEMENTS.
4.1
Noncompetition. The Seller
agrees that, in consideration of the consummation of the
Transactions by the Purchaser hereunder, it shall not and shall
cause its Affiliates not to, at any time between the Closing Date
and the third (3rd) anniversary of the Closing Date, directly or
through any other Person, anywhere in the United States compete,
directly or indirectly, or assist any other Person in competing,
directly or indirectly, with the Purchaser or otherwise engage in
any umbilical cord blood collection or storage business. The Seller
will not, directly or through any other Person, take any action
that is designed or intended or could reasonably be expected to
have the effect of discouraging any current customer, supplier,
lessor, licensor or other business associate of the Acquired
Business from maintaining the same business relationship with the
Acquired Business after the Closing Date as it maintained with the
Acquired Business as of the Closing Date. If the final
judgment of a court of competent jurisdiction declares that any
term or provision of this Section 4.1 is invalid or unenforceable,
the parties agree that the court making such determination of
invalidity or unenforceability shall have the power to reduce the
scope, duration or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the
expiration of the time within which the judgment may be appealed.
4.2
Public Announcements. The Purchaser
and the Seller will consult with each other as to the form,
substance and timing of the initial press release or other initial
public statement relating to this Agreement, or any of the
Transactions, and no such initial statement will be made by one
without the written consent of the other, which consent will not be
unreasonably withheld or delayed; provided that each may make such
disclosures as are necessary to comply with any Legal Requirement
or the request of any Governmental Body after making good faith
efforts under the circumstances to consult in advance with the
other. Notwithstanding the foregoing, the parties shall agree
to a joint press release upon the execution of this Agreement.
4.3
Health Insurance Portability and Accountability
Act. From and after the Closing Date, Purchaser and
Seller shall comply, where applicable, with the Health Insurance
Portability and Accountability Act law and any rules and
regulations adopted pursuant thereto putting the Purchaser in
possession and control of all the Acquired Assets.
4.4
Further Actions.
(a)
From and after the Closing Date, the Seller shall
cooperate with the Purchaser and the Purchaser’s Affiliates
and Representatives, and shall execute and deliver such documents
and take such other actions as the Purchaser may reasonably
request, for the purpose of evidencing the Transactions and putting
the Purchaser in possession and control of all of the Acquired
Assets.
(b)
From and after the Closing Date, the Seller shall, and
shall cause its Affiliates to, reasonably cooperate with the
Purchaser in its efforts to continue and maintain for the benefit
of the Purchaser those business relationships of Seller existing
prior to the Closing Date and part of the Acquired Business,
including relationships with lessors, licensors, customers,
suppliers, providers, payers, vendors and others. Except as
permitted herein, (i) neither the Seller nor any of its Affiliates
or its or their officers, employees or Representatives shall take
any action after the Closing Date which could reasonably be
expected to diminish the value of the Acquired Assets or interfere
with the customers or operations of the Acquired Business, and (ii)
neither the Seller nor any of its Affiliates will satisfy any of
the Excluded Liabilities in a manner reasonably likely to be
detrimental to such relationships, individually or as a whole.
(c)
The Seller and the Purchaser will cooperate in good faith
in connection with the filing of Tax Returns, any audit or
Proceeding with respect to Taxes and in connection with any other
Proceeding in each case relating to the Acquired Assets or the
Acquired Business, as and to the extent reasonably requested by the
Purchaser or the Seller. Such cooperation shall include
(1) the retention and (upon a party’s request) the
provision of records and information which are reasonably relevant
to the preparation of Tax Returns or to any such Proceeding and
(2) making relevant employees available on a mutually
convenient basis to provide additional information and explanation
of any material provided hereunder. The Seller and the
Purchaser shall (1) retain all Records with respect to Tax
matters pertinent to the Acquired Assets relating to any period
beginning before the Closing Date until the expiration of all
relevant statues of limitations (and, to the extent notified by the
Seller or the Purchaser, any extensions thereof), and abide by all
record retention agreements entered into with any Governmental
Authority with respect to Taxes (with respect to agreements of
another party, to the extent notified thereof) and (2) give
the other parties to this Agreement reasonable written notice prior
to transferring, destroying or discarding any such Records.
4.5
Confidentiality. Each party and their
respective Representatives will hold, and will cause its
consultants and advisers to hold, in confidence all Confidential
Information furnished to it by or on behalf of the other
party in connection with the transactions contemplated by this
Agreement as follows:
(a)
Except as permitted by Section 4.5(b) below, each party
agrees that it will not, without prior written consent of the other
party, disclose or use for its own benefit any Confidential
Information of the other party.
(b)
Notwithstanding the provisions of Section 4.5(a) above,
each of the parties shall be permitted to:
(i)
Disclose Confidential Information of the other party to
its officers, directors, employees, equity holders, lenders,
counsel, accountants and other agents, but only to the extent
reasonably necessary in order for such party to perform its
obligations and exercise its rights and remedies under the
Transaction Agreements, and such party shall take all such action
as shall be necessary or desirable in order to ensure that each of
such persons maintains the confidentiality of any Confidential
Information that is so disclosed; and
(ii)
Disclose Confidential Information of the other party to
the extent, but only to the extent, required by law; provided that
prior to making any disclosure pursuant to this Section 4.5(b)(ii),
the party required to make such disclosure (the “
Disclosing Party ”) shall notify the other
party (the “ Affected Party ”) of the
same, and the Affected Party shall have the right to participate
with the Disclosing Party in determining the amount and type of
Confidential Information of the Affected Party, if any, which must
be disclosed in order to comply with applicable laws.
(c)
The Buyer and the Seller acknowledge and agree that each
party would be irreparably damaged in the event that any of the
provisions of Section 4.5 are not performed by the other in
accordance with their specific terms or are otherwise breached.
Accordingly, it is agreed that each party shall be entitled
to an injunction or injunctions to prevent a Breach o
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