Delaware | 56-2590442 | |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification No.) | |
465 State Route 17, Ramsey, New Jersey
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07446
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(Address of principal executive offices)
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(Zip Code)
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Title of each class: | Name of each exchange on which registered: |
Common stock, par value $0.0001 per share | OTC Bulletin Board (OTCBB) and OTC Markets (OTCQB) |
¨ Large Accelerated Filer | o Accelerated Filer | o Non-Accelerated Filer | x Smaller Reporting Company |
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our plans to develop RI-002, including ongoing and planned clinical trials of RI-002, particularly the timing for initiation, enrollment and outcome;
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the expected timing of and our ability to obtain and maintain regulatory approvals for our product candidates;
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the expected timing of announcing Phase III data from our clinical study;
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the expected timing of obtaining a national listing for our common stock;
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our plans to increase our supplies of plasma;
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the potential indications for our product candidates;
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our intellectual property position;
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our manufacturing capabilities and strategy;
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our plans relating to manufacturing, supply and other collaborative agreements; and
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our estimates regarding expenses, capital requirements and needs for additional financing.
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Complete our pivotal Phase III trial and obtain FDA approval to manufacture and market RI-002 for the treatment of patients with PIDD;
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Establish a specialty sales force to commercialize RI-002;
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Explore other possible indications for RI-002;
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Develop additional plasma-derived products for the treatment of infectious diseases in immunecompromised patient populations; and
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Expand our network of ADMA BioCenters facilities, both to maintain control of a portion of our raw material supply and to generate additional revenue through the collection and sale of source plasma to third party customers.
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Obtain FDA approval of RI-002 as a treatment for PIDD
. We have completed patient enrollment in our pivotal Phase III clinical trial for RI-002 for the treatment of PIDD in accordance with the FDA Guidance for Industry. If the pivotal Phase III trial produces the anticipated safety and efficacy results, we would expect to file a BLA in the first half of 2015 and anticipate potential FDA approval within approximately a year of filing.
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Commercialize RI-002 as a treatment for PIDD
. We plan to hire a small, specialty sales force to market RI-002 to hospitals, physician offices/clinics, and other specialty treatment organizations. We anticipate staffing our company with additional personnel for patient support, medical affairs, quality assurance, regulatory affairs, scientific affairs, reimbursement, inventory and logistics, human resources, and financial and operational management. We may also use a network of national distributors to fulfill orders for RI-002.
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Expand RI-002’s FDA-approved uses
. If RI-002 is approved by the FDA as a treatment for PIDD, we plan to evaluate the clinical and regulatory paths to grow the RI-002 franchise through expanded FDA-approved uses. We believe that there may be patient populations beyond PIDD that would derive clinical benefit from RI-002. Previously marketed RSV IGIV product and RI-001 have historically been used in immune-compromised patient populations, including patients with cystic fibrosis, prematurely born infants, stem cell and solid organ transplant patients, oncology patients and other patients at risk for or requiring treatment for RSV. Currently, there are no approved treatments specifically for RSV infections in PIDD.
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Develop additional plasma-derived products
. Our core competency is in the development and commercialization of plasma-derived therapeutics. We believe there are a number of under addressed medical conditions for which plasma-derived therapeutics may be beneficial. Utilizing our proprietary assays and other technologies, we have identified potential new product candidates that we may advance into preclinical activities.
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Develop and expand ADMA BioCenters
. In order to generate revenues in advance of RI-002’s commercialization and to control a portion of our raw material plasma supply for RI-002, we formed ADMA BioCenters, a subsidiary that operates a plasma collection facility in Norcross, Georgia. The facility received its FDA license in August 2011 and GHA certification in June of 2013. Under FDA license, ADMA BioCenters can collect normal source plasma and high-titer RSV plasma. We sell a portion of our normal source plasma to buyers in the open “spot” market. We also plan to use the high-titer RSV plasma collected by ADMA BioCenters in the manufacturing of RI-002. We may initiate other hyperimmune plasma collection programs at the Norcross facility. These programs will be initiated during the normal course of business and are expected to cost less than $1 million to implement. We may also consider growth through the creation and licensing of additional ADMA BioCenters facilities in various regions of the United States. Additional ADMA BioCenters may allow us to cost-effectively secure additional high-titer RSV plasma for RI-002, and potentially increase revenues through the collection and sale of normal source plasma and other hyperimmune plasma to third parties. We have also begun the expansion of our ADMA BioCenters facilities by securing additional rented space to grow our donor and collection screening areas to meet an increase in market demand for source plasma. We have also entered into a new lease for a second collection center and we expect to commence construction during the first half of 2014.
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Antibody deficiency and recurrent bacterial infections;
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T-lymphocyte deficiency and opportunistic infections;
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Other lymphocyte defects causing opportunistic infections;
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Neutrophil defects causing immunodeficiency; and
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Complement deficiencies.
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Red blood cells – Used to carry oxygen from the lungs to the body;
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White blood cells – Used by the immune system to fight infection;
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Platelets – Used for blood clotting; and
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Plasma – Used to carry the aforementioned components throughout the body and provide support in clotting and immunity.
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1.
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completion of extensive preclinical laboratory tests, preclinical animal studies and formulation studies performed in accordance with the FDA’s good laboratory practice regulations and other regulations;
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2.
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submission to the FDA of an Investigational New Drug, or IND, application which must become effective before clinical trials may begin;
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3.
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performance of adequate and well-controlled clinical trials meeting FDA requirements to establish the safety and efficacy of the product candidate for each proposed indication;
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4.
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manufacturing (through an FDA-licensed contract manufacturing organization) of product in accordance with current Good Manufacturing Practices, or cGMP, to be used in the clinical trials and providing manufacturing information need in regulatory filings;
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5.
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submission of a BLA to the FDA;
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6.
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satisfactory completion of an FDA pre-approval inspection of the manufacturing facilities at which the product candidate is produced, and potentially other involved facilities as well, to assess compliance with cGMP regulations and other applicable regulations; and
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7.
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the FDA review and approval of the BLA prior to any commercial marketing, sale or shipment of the product.
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1.
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Phase I clinical trials are initially conducted in a limited population to test the product candidate for safety, dose tolerance, absorption, metabolism, distribution and excretion in healthy humans or, on occasion, in patients, such as cancer patients.
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2.
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Phase II clinical trials are generally conducted in a limited patient population to identify possible adverse effects and safety risks, to determine the efficacy of the product candidate for specific targeted indications and to determine tolerance and optimal dosage. Multiple Phase II clinical trials may be conducted by the sponsor to obtain information prior to beginning larger and more expensive Phase III clinical trials.
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3.
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Certain Phase III clinical trials are referred to as pivotal trials. When Phase II clinical trials demonstrate that a dose range of the product candidate is effective and has an acceptable safety profile, Phase III clinical trials are undertaken in large patient populations to provide substantial evidence of reproducibility of clinical efficacy results and to further test for safety in an expanded and diverse patient population at multiple, geographically dispersed clinical trial sites.
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successful completion of preclinical studies and clinical trials;
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receipt of marketing approvals from applicable regulatory authorities;
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obtaining and maintaining patent and trade secret protection and regulatory exclusivity for our product candidates;
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making arrangements with third-party manufacturers for, or establishing, commercial manufacturing capabilities;
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launching commercial sales of the products, if and when approved, whether alone or in collaboration with others;
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acceptance of the products, if and when approved, by patients, the medical community and third-party payors;
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effectively competing with other therapies;
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obtaining and maintaining healthcare coverage and adequate reimbursement;
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protecting our rights in our intellectual property portfolio; and
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maintaining a continued acceptable safety profile of the drugs following approval.
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continue the development and clinical trials for RI-002;
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seek regulatory approval(s);
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implement additional internal systems, controls and infrastructure;
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hire additional personnel; and
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expansion and build out of our plasma center network.
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undertaking product development and clinical trials;
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participating in regulatory approval processes;
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formulating and manufacturing products; and
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conducting sales and marketing activities once authorized.
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unforeseen safety issues;
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determination of dosing issues;
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lack of effectiveness during clinical trials;
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slower than expected rates of patient recruitment;
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inability to monitor patients adequately during or after treatment; and
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inability or unwillingness of medical investigators to follow our clinical protocols.
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delay commercialization of, and our ability to derive product revenues from, our product candidate;
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impose costly procedures on us; and
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diminish any competitive advantages that we may otherwise enjoy.
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our ability to sell our products at prices that are competitive with our competitors;
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our ability to maintain features and quality standards for our products sufficient to meet the expectations of our customers; and
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our ability to produce and deliver a sufficient quantity of our products in a timely manner to meet our customers’ requirements.
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we may be unable to identify manufacturers on acceptable terms or at all because the number of potential manufacturers is limited and the FDA must approve any replacement contractor. This approval would require new testing and compliance inspections. In addition, a new manufacturer would have to be educated in, or develop substantially equivalent processes for, production of our products after receipt of FDA approval, if any;
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third-party manufacturers might be unable to manufacture our products in the volume and of the quality required to meet our clinical and commercial needs, if any;
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contract manufacturers may not perform as agreed or may not remain in the contract manufacturing business for the time required to supply our clinical trials or to successfully produce, store and distribute our products;
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product manufacturers are subject to ongoing periodic unannounced inspection by the FDA, the Drug Enforcement Administration, and corresponding state agencies to ensure strict compliance with good manufacturing practice and other government regulations and corresponding foreign standards. We do not have control over third-party manufacturers’ compliance with these regulations and standards; and
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if any third-party manufacturer makes improvements in the manufacturing process for our products, we may not own, or may have to share, the intellectual property rights to the innovation. We may be required to pay fees or other costs for access to such improvements.
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perceptions by members of the health care community, including physicians, about the safety and effectiveness of our product;
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cost-effectiveness of our product relative to competing products;
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availability of reimbursement for our product from government or other healthcare payers; and
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effectiveness of marketing and distribution efforts by us and our licensees and distributors, if any.
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sales or potential sales of substantial amounts of our common stock;
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delay or failure in initiating or completing preclinical or clinical trials or unsatisfactory results of these trials;
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announcements about us or about our competitors, including clinical trial results, regulatory approvals or new product introductions;
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developments concerning our licensors or product manufacturers;
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litigation and other developments relating to our patents or other proprietary rights or those of our competitors;
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conditions in the pharmaceutical or biotechnology industries;
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governmental regulation and legislation;
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variations in our anticipated or actual operating results; and
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change in securities analysts’ estimates of our performance, or our failure to meet analysts’ expectations.
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the inability of stockholders to call special meetings; and
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the ability of our Board of Directors to designate the terms of and issue new series of preferred stock
without stockholder approval, which could include the right to approve an acquisition or other change
in our control or could be used to institute a rights plan, also known as a poison pill, that would work
to dilute the stock ownership of a potential hostile acquirer, likely preventing acquisitions that have not
been approved by our Board of Directors. The classification of our board of directors and limitation on filling of vacancies could make it more difficult for a third party to acquire, or discourage a third party from seeking to acquire, control of our company.
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limited release of the market price of our securities;
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limited news coverage;
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limited interest by investors in our securities;
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limited trading volume;
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volatility of our common stock price due to low trading volume;
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increased difficulty in selling our securities in certain states due to "blue sky" restrictions; and
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limited ability to issue additional securities or to secure additional financing.
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Fiscal Year 2013
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High
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Low
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Fourth Quarter
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$9.15
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$6.52
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Plan Category
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Number of securities
to be issued upon
exercise of
outstanding options,
warrants and rights
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Weighted-average
exercise price of
outstanding
options, warrants
and rights
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Number of securities
remaining available for
future issuance under
equity compensation
plans
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||
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Equity compensation plans approved by security holders
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826,995
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$ |
6.90
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76,229
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Equity compensation plans not approved by security holders
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-
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$ |
-
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-
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Total
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826,995
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$ |
6.90
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76,229
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Years Ended December
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||||||||
2013
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2012
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|||||||
Product revenue
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$ | 3,023,503 | $ | 1,118,118 | ||||
License revenue
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44,074 | - | ||||||
Total revenues
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3,067,577 | 1,118,118 | ||||||
Cost of product revenue
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2,023,441 | 669,056 | ||||||
Research and development
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9,303,077 | 3,469,078 | ||||||
Plasma center
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2,418,156 | 1,746,864 | ||||||
General and administrative
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4,365,334 | 3,142,289 | ||||||
Total operating expenses
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18,110,008 | 9,027,287 | ||||||
Loss from operations
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(15,042,431 | ) | (7,909,169 | ) | ||||
Interest income
|
7,623 | 20,924 | ||||||
Interest expense
|
(618,225 | ) | (30,683 | ) | ||||
Change in fair value of stock warrants
|
43,290 | - | ||||||
Other income
|
82,497 | - | ||||||
Loss before income taxes
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(15,527,246 | ) | (7,918,928 | ) | ||||
State income tax benefit
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- | 617,615 | ||||||
Net loss
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(15,527,246 | ) | (7,301,313 | ) | ||||
Loss before income taxes in plasma collection segment
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(1,425,676 | ) | (1,297,802 | ) | ||||
Loss before income taxes in research and development
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(9,303,077 | ) | (3,469,078 | ) |
Exhibit No.
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Description
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3.1
(1)
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Certificate of Incorporation, as amended
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3.2
(2)
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Certificate of Amendment of Certificate of Incorporation
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3.3
(3)
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Bylaws
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4.1
(4)
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Specimen Common Stock Certificate
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4.2
(1)
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Form of Placement Agent Warrant
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4.3
(5)
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Form of Warrant Agreement with Hercules Technology Growth Capital, Inc.
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4.4
(5)
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Form of Secured Term Loan Promissory Note issued to Hercules Technology Growth Capital, Inc.
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10.1†
(6)
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2007 Employee Stock Option Plan, as amended
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10.2
(1)
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Form of Securities Purchase Agreement, dated as of February 13, 2012
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10.3
(1)
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Form of Registration Rights Agreement, dated as of February 13, 2012
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10.4
(1)
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Amended and Restated Placement Agency Agreement, dated February 12, 2012, between ADMA Biologics, Inc. and the placement agent
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10.5
(4)
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Form of Lockup Agreement (February 13, 2012)
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10.6†
(1)
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Employment Agreement, dated February 13, 2012, by and between ADMA Biologics, Inc. and Adam Grossman
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10.7
(1)
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Investors’ Rights Agreement, dated July 17, 2007, by and among the ADMA Biologics, Inc. and each of the investors listed on Schedule A thereto
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10.8+
(7)
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Manufacturing Agreement, dated as of October 23, 2006, by and between Biotest Pharmaceuticals Corporation and ADMA Biologics, Inc., as amended as of October 23, 2011 and as of December 2, 2011
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10.9+
(7)
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Plasma Purchase Agreement, dated as of November 17, 2011, between Biotest Pharmaceuticals Corporation and ADMA Biologics, Inc., as amended as of December 1, 2011
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10.10
(4)
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Agreement for Services, dated July 23, 2007, between ADMA Biologics, LLC and Areth Inc.
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10.11
(1)
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Agreement of Lease between ADMA BioCenters Georgia, Inc. and ADMA Biologics, Inc. and C1VF I-GA1W15-W23, LLC (DCT Holdings), effective June 1, 2008 and confirmed on November 13, 2008, for the premises located in Norcross, Georgia, as amended
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10.12+*
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Agreement of Lease, dated as of January 20, 2014, between ADMA BioCenters Georgia, Inc. and U.S. Bank National Association, as trustee, effective February 1, 2014, for the premises located in Marietta, Georgia
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10.13
(1)
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Form of Indemnification Agreement
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10.14 †
(8)
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Employment Agreement, dated as of April 30, 2012, by and between ADMA Biologics, Inc. and Brian Lenz
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10.15
(9)
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Modification and Release Agreement, dated June 15, 2012, between ADMA Biologics, Inc. and the placement agent
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10.16+
(10)
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Testing Services Agreement, dated June 7, 2012, between ADMA Biologics, Inc. and Quest Diagnostics Clinical Laboratories, Inc.
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10.17+
(10)
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Plasma Supply Agreement, dated June 22, 2012, between ADMA Biologics, Inc. and Biotest Pharmaceuticals Corporation
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10.18+*
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Amendment No. 1, dated February 25, 2014, to the Plasma Supply Agreement, dated June 22, 2012, between ADMA Biologics, Inc. and Biotest Pharmaceuticals Corporation
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10.19†
(10)
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Employment Agreement, dated July 18, 2012, by and among the ADMA Biologics, Inc. and James Mond
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10.20
(5)
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Loan and Security Agreement, dated as of December 21, 2012, by and among ADMA Biologics, Inc., ADMA Plasma Biologics, Inc., ADMA Bio Centers Georgia Inc. and Hercules Technology Growth Capital, Inc.
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10.20.1*
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First Amendment to Loan and Security Agreement, dated as of February 24, 2014, by and among ADMA Biologics, Inc., ADMA Plasma Biologics, Inc., ADMA BioCenters Georiga Inc. and Hercules Technology Growth Capital, Inc.
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10.21
(5)
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Equity Rights Letter, dated December 21, 2012, from ADMA Biologics, Inc. to Hercules Technology Growth Capital, Inc.
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10.22+
(5)
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Manufacturing, Supply and License Agreement, dated as of December 31, 2012, by and between Biotest Pharmaceuticals Corporation and ADMA Biologics, Inc.
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10.23+
(5)
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License Agreement, dated December 31, 2012, by and between ADMA Biologics, Inc. and Biotest Aktiengesellschaft
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10.24
(11)
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Form of Underwriting Agreement
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16.1
(1)
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Letter from Sherb & Co, LLP regarding change in certifying accountants
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21.1
(4)
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Subsidiaries of Registrant
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23.1*
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CohnReznick LLP Consent
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24.1*
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Power of Attorney (included on signature page)
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31.1*
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Certification of Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
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31.2*
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Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
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32.1**
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Certification of Principal Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
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32.2**
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Certification of Principal Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
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101*
|
The following materials from ADMA Biologics, Inc. Form 10-K for the year ended December 31, 2013, formatted in Extensible Business Reporting Language (XBRL): (i) Balance Sheets at December 31, 2013 and December 31, 2012, (ii) Statements of Operations for the years ended December 31, 2013 and 2012 (iii) Statements of Changes in Stockholders’ Equity for the years ended December 31, 2013 and 2012, (iv) Statements of Cash Flows for the years ended December 31, 2013 and 2012 and (v) Notes to the Financial Statements
|
(1)
|
Incorporated herein by reference to the Company’s Current Report on Form 8-K (000-52120), filed with the Commission on February 13, 2012.
|
(2)
|
Incorporated herein by reference to the Company’s Current Report on Form 8-K (000-52120), filed with the Commission on August 26, 2013.
|
(3)
|
Incorporated herein by reference to the Company’s Registration Statement on Form 10-SB (000-52120), filed with the Commission on July 10, 2006.
|
(4)
|
Incorporated herein by reference to Amendment No. 1 to the Company’s Current Report on Form 8-K/A (000-52120), filed with the Commission on March 29, 2012.
|
(5)
|
Incorporated herein by reference to the Company’s Registration Statement on Form S-1 (333-186579), filed with the Commission on February 11, 2013.
|
(6)
|
Incorporated herein by reference to Exhibit A to the Information Statement on Schedule 14C (000-52120), filed with the Commission on October 29, 2012.
|
(7)
|
Incorporated herein by reference to Amendment No. 3 to the Company’s Current Report on Form 8-K/A (000-52120), filed with the Commission on June 22, 2012.
|
(8)
|
Incorporated herein by reference to the Company’s Current Report on Form 8-K (000-52120), filed with the Commission on May 3, 2012.
|
(9)
|
Incorporated herein by reference to the Company’s Current Report on Form 8-K (000-52120), filed with the Commission on June 21, 2012.
|
(10)
|
Incorporated herein by reference to Amendment No. 4 to the Company’s Registration Statement on Form S-1 (333-180449), filed with the Commission on August 10, 2012.
|
(11)
|
Incorporated herein by reference to Amendment No. 1 to the Company’s Registration Statement on Form S-1 (333-186579), filed with the Commission on April 8, 2013.
|
ADMA Biologics, Inc.
|
|||||||
By:
|
/s/ Adam S. Grossman
|
||||||
Name: Adam S. Grossman
|
|||||||
Title President and Chief Executive Officer
|
Signature
|
Title
|
Date
|
||
/s/ Adam S. Grossman
|
|
|||
Adam S. Grossman
|
President and Chief Executive Officer
(Principal Executive Officer)
|
March 28, 2014
|
||
/s/ Brian Lenz
|
||||
Brian Lenz
|
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
|
March 28, 2014
|
||
/s/ Steven A. Elms
|
||||
Steven A. Elms
|
Chairman of the Board of Directors
|
March 28, 2014
|
/s/ Dr. Jerrold B. Grossman
|
||||
Dr. Jerrold B. Grossman
|
Vice Chairman of the Board of Directors and Director
|
March 28, 2014
|
||
/s/ Bryant E. Fong
|
||||
Bryant E. Fong
|
Director
|
March 28, 2014
|
||
/s/ Dov A. Goldstein, M.D.
|
||||
Dov A. Goldstein, M.D.
|
Director
|
March 28, 2014
|
/s/ Lawrence P. Guiheen
|
||||
Lawrence P. Guiheen
|
Director
|
March 28, 2014
|
||
/s/ Eric I. Richman
|
||||
Eric I. Richman
|
Director
|
March 28, 2014
|
Page
|
|
Report of Independent Registered Public Accounting Firm
|
F-2
|
Consolidated Balance Sheets as of December 31, 2013 and 2012
|
F-3
|
Consolidated Statements of Operations for the years ended December 31, 2013 and 2012
|
F-4
|
Consolidated Statements of Changes in Stockholders’ Equity for the years ended December 31, 2013 and 2012
|
F-5
|
Consolidated Statements of Cash Flows for the years ended December 31, 2013 and 2012
|
F-6
|
Notes to Consolidated Financial Statements
|
F-7
|
2013
|
2012
|
|||||||
REVENUES:
|
||||||||
Product revenue
|
$ | 3,023,503 | $ | 1,118,118 | ||||
License revenue
|
44,074 | - | ||||||
Total Revenues
|
3,067,577 | 1,118,118 | ||||||
OPERATING EXPENSES:
|
||||||||
Cost of product revenue
|
2,023,441 | 669,056 | ||||||
Research and development
|
9,303,077 | 3,469,078 | ||||||
Plasma center
|
2,418,156 | 1,746,864 | ||||||
General and administrative
|
4,365,334 | 3,142,289 | ||||||
TOTAL OPERATING EXPENSES
|
18,110,008 | 9,027,287 | ||||||
LOSS FROM OPERATIONS
|
(15,042,431 | ) | (7,909,169 | ) | ||||
OTHER INCOME(EXPENSE):
|
||||||||
Interest income
|
7,623 | 20,924 | ||||||
Interest expense
|
(618,225 | ) | (30,683 | ) | ||||
Change in fair value of stock warrants
|
43,290 | - | ||||||
Other income
|
82,497 | - | ||||||
TOTAL OTHER INCOME(EXPENSE)
|
(484,815 | ) | (9,759 | ) | ||||
LOSS BEFOREINCOMETAXES
|
(15,527,246 | ) | (7,918,928 | ) | ||||
State income tax benefit
|
- | 617,615 | ||||||
NET LOSS
|
$ | (15,527,246 | ) | $ | (7,301,313 | ) | ||
NET LOSS PER COMMON SHARE,
|
||||||||
Basic and Diluted
|
$ | (2.38 | ) | $ | (1.39 | ) | ||
WEIGHTED AVERAGE SHARES
|
||||||||
OUTSTANDING, Basic and Diluted
|
6,531,029 | 5,265,771 |
Preferred Stock
|
Common Stock
|
Additional
|
Accumulated
|
|||||||||||||||||||||||||
Shares
|
Amount
|
Shares
|
Amount |
Paid-in Capital
|
Deficit
|
Total
|
||||||||||||||||||||||
Balance - January 1, 2012
|
8,221,678 | $ | 8,222 | 518,908 | $ | 519 | $ | 30,185,090 | $ | (29,808,015 | ) | $ | 385,816 | |||||||||||||||
Conversion of preferred shares
|
||||||||||||||||||||||||||||
and accumulated dividends
|
(8,221,678 | ) | (8,222 | ) | 3,002,988 | 3,003 | 5,219 | - | - | |||||||||||||||||||
Conversion of notes payable and
|
||||||||||||||||||||||||||||
accrued interest into common
|
||||||||||||||||||||||||||||
stock in private placement
|
- | - | 34,759 | 35 | 262,705 | - | 262,740 | |||||||||||||||||||||
Common stock sold in private
|
||||||||||||||||||||||||||||
placement, net of expenses
|
- | - | 2,286,964 | 2,287 | 15,597,429 | - | 15,599,716 | |||||||||||||||||||||
Common stock retained by
|
||||||||||||||||||||||||||||
stockholders of shell company
|
||||||||||||||||||||||||||||
as part of reverse merger
|
- | - | 67,352 | 67 | (67 | ) | - | - | ||||||||||||||||||||
Effects of change in par value
|
||||||||||||||||||||||||||||
from $0.001 to $0.0001 as a
|
||||||||||||||||||||||||||||
result of the reverse merger
|
- | - | - | (5,320 | ) | 5,320 | - | - | ||||||||||||||||||||
Repurchase of common stock
|
||||||||||||||||||||||||||||
from placement agent
|
- | - | (39,969 | ) | (4 | ) | (149,996 | ) | - | (150,000 | ) | |||||||||||||||||
Stock-based compensation
|
- | - | - | - | 626,787 | - | 626,787 | |||||||||||||||||||||
Net loss
|
- | - | - | - | - | (7,301,313 | ) | (7,301,313 | ) | |||||||||||||||||||
Balance - December 31, 2012
|
- | - | 5,871,002 | 587 | 46,532,487 | (37,109,328 | ) | 9,423,746 | ||||||||||||||||||||
Proceeds received from
|
||||||||||||||||||||||||||||
Initial Public Offering,
|
||||||||||||||||||||||||||||
net of equity issuance costs
|
- | - | 3,420,821 | 342 | 26,602,167 | - | 26,602,509 | |||||||||||||||||||||
Stock-based compensation
|
- | - | - | - | 888,295 | - | 888,295 | |||||||||||||||||||||
Elimination of warrant liability
|
- | - | - | - | 186,055 | 186,055 | ||||||||||||||||||||||
Net loss
|
- | - | - | - | - | (15,527,246 | ) | (15,527,246 | ) | |||||||||||||||||||
Balance - December 31, 2013
|
- | $ | - | 9,291,823 | $ | 929 | $ | 74,209,004 | $ | (52,636,574 | ) | $ | 21,573,359 |
2013
|
2012
|
|||||||
CASH FLOWS FROM OPERATING ACTIVITIES:
|
||||||||
Net loss
|
$ | (15,527,246 | ) | $ | (7,301,313 | ) | ||
Adjustments to reconcile net loss to net
|
||||||||
cash used in operating activities:
|
||||||||
Depreciation and amortization
|
210,633 | 182,089 | ||||||
Stock-based compensation
|
888,295 | 626,787 | ||||||
Warrant liability
|
(43,290 | ) | - | |||||
Amortization of debt discount
|
91,704 | 2,869 | ||||||
Amortization of deferred financing costs
|
99,238 | 2,644 | ||||||
Non-cash interest expense related to notes payable
|
- | 1,959 | ||||||
Loss on sale of equipment
|
- | 18,399 | ||||||
Amortization of license revenue
|
(44,074 | ) | - | |||||
Changes in operating assets and liabilities:
|
||||||||
Accounts receivable
|
39,112 | (39,112 | ) | |||||
Inventories
|
(403,465 | ) | (118,248 | ) | ||||
Prepaid expenses
|
(190,969 | ) | (48,517 | ) | ||||
Other assets
|
593,051 | (115,041 | ) | |||||
Accounts payable
|
1,608,980 | (244,743 | ) | |||||
Accrued expenses
|
76,471 | 150,622 | ||||||
Accrued interest
|
36,597 | - | ||||||
Deferred revenue
|
1,700,000 | - | ||||||
Deferred rent liability
|
(22,191 | ) | (22,190 | ) | ||||
Net cash used in operating activities
|
(10,887,154 | ) | (6,903,795 | ) | ||||
CASH FLOWS FROM INVESTING ACTIVITIES:
|
||||||||
Short-term investments
|
(2,935,184 | ) | - | |||||
Purchase of property and equipment
|
(196,635 | ) | (118,853 | ) | ||||
Net cash used in investing activities
|
(3,131,819 | ) | (118,853 | ) | ||||
CASH FLOWS FROM FINANCING ACTIVITIES:
|
||||||||
Net proceeds from issuance of common stock
|
27,030,820 | 17,287,288 | ||||||
Proceeds from Hercules note payable
|
1,000,000 | 3,906,000 | ||||||
Payment of equity issuance costs
|
(386,473 | ) | (1,338,009 | ) | ||||
Debt issuance costs
|
- | (25,000 | ) | |||||
Repurchase of common stock
|
- | (150,000 | ) | |||||
Repayments of notes payable
|
- | (200,000 | ) | |||||
Payments of leasehold improvement loan
|
(11,569 | ) | (9,730 | ) | ||||
Net cash provided by financing activities
|
27,632,778 | 19,470,549 | ||||||
NET INCREASEIN CASH AND
|
||||||||
CASH EQUIVALENTS
|
13,613,805 | 12,447,901 | ||||||
CASH AND CASH EQUIVALENTS - BEGINNING OF YEAR
|
12,535,672 | 87,771 | ||||||
CASH AND CASH EQUIVALENTS - END OF YEAR
|
$ | 26,149,477 | $ | 12,535,672 | ||||
SUPPLEMENTAL INFORMATION:
|
||||||||
Cash paid for interest
|
$ | 382,736 | $ | 1,085 | ||||
Supplemental Disclosure of Noncash Financing Activities:
|
||||||||
Conversion of notes payable and interest in private placement
|
$ | - | $ | 262,740 | ||||
Reclassification of equity issuance costs to additional paid-in capital
|
$ | 428,311 | $ | - | ||||
Accrued equity issuance costs
|
$ | 41,838 | $ | 69,533 | ||||
End of term liability for Hercules note payable
|
$ | 26,500 | $ | 106,000 | ||||
Warrants issued in connection with note payable
|
$ | - | $ | 229,345 | ||||
Elimination of warrant liability
|
$ | 186,055 | $ | - | ||||
Stock retained by stockholders of shell company
|
$ | - | $ | 67 |
Year Ended
|
||||
December 31, 2013
|
||||
Expected term
|
6.3 years
|
|||
Volatility
|
63% | |||
Dividend yield
|
0.0 | |||
Risk-free interest rate
|
1.24-2.25% |
Property and equipment consist of the following at December 31,
|
2013
|
2012
|
||||||
Lab and office equipment
|
$ | 674,885 | $ | 523,300 | ||||
Computer software
|
184,077 | 141,277 | ||||||
Leasehold improvements
|
942,353 | 940,103 | ||||||
1,801,315 | 1,604,680 | |||||||
Less: Accumulated depreciation and amortization
|
(1,036,016 | ) | (825,383 | ) | ||||
$ | 765,299 | $ | 779,297 |
2014
|
$ | 12,654 | ||
2015
|
13,841 | |||
2016
|
15,139 | |||
2017
|
16,559 | |||
2018
|
18,113 | |||
2019
|
1,584 | |||
$ | 77,890 |
2014
|
$ | 168,928 | ||
2015
|
330,176 | |||
2016
|
348,383 | |||
2017
|
353,059 | |||
2018
|
356,774 | |||
Thereafter
|
1,998,966 | |||
$ | 3,556,286 |
Year Ended
|
Year Ended
|
|||||||||||||||
December 31, 2013
|
December 31, 2012
|
|||||||||||||||
Weighted
|
Weighted
|
|||||||||||||||
Average
|
Average
|
|||||||||||||||
Exercise
|
Exercise
|
|||||||||||||||
Shares
|
Price
|
Shares
|
Price
|
|||||||||||||
Outstanding at beginning of year
|
749,211 | $ | 6.86 | 105,890 | $ | 2.62 | ||||||||||
Forfeited
|
(6,350 | ) | $ | 7.56 | - | $ | - | |||||||||
Granted
|
84,134 | $ | 7.56 | 643,321 | $ | 7.56 | ||||||||||
Outstanding at end of year and expected to vest
|
826,995 | $ | 6.90 | 749,211 | $ | 6.86 | ||||||||||
Options exercisable
|
391,822 | $ | 6.23 | 175,022 | $ | 6.67 | ||||||||||
Weighted average fair value of options
|
||||||||||||||||
granted during the period
|
$ | 4.35 | $ | 5.37 |
2013
|
2012
|
|||||||
Research and development
|
$ | 227,085 | $ | 101,606 | ||||
General and administrative
|
661,210 | 525,181 | ||||||
Total stock-based compensation expense
|
$ | 888,295 | $ | 626,787 |
Year Ended December 31,
|
||||||||
2013
|
2012
|
|||||||
Benefit at US federal statutory rate
|
$ | (5,279,264 | ) | $ | (2,692,436 | ) | ||
State taxes - deferred
|
(901,800 | ) | (395,946 | ) | ||||
Increase in valuation allowance, inclusive of true-ups
|
6,850,118 | 3,088,382 | ||||||
Research and development credits
|
(599,003 | ) | - | |||||
Sale of state net operating loss
|
- | (617,615 | ) | |||||
Other
|
(70,051 | ) | - | |||||
Benefit for income taxes
|
$ | - | $ | (617,615 | ) |
Year Ended December 31,
|
||||||||
2013
|
2012
|
|||||||
Federal and state net operating loss carryforwards
|
$ | 16,791,893 | $ | 11,602,301 | ||||
Federal and state research credits
|
2,846,245 | 1,938,664 | ||||||
Accrued expenses and other
|
752,945 | - | ||||||
Total gross deferred taxassets
|
20,391,083 | 13,540,965 | ||||||
Less: valuation allowance for deferred taxassets
|
(20,391,083 | ) | (13,540,965 | ) | ||||
Net deferred taxassets
|
$ | - | $ | - |
Year Ended December 31,
|
Plasma Collection
|
Research and
|
||||||||||||||
2013
|
Center
|
Development
|
Corporate
|
Consolidated
|
||||||||||||
Revenues
|
$ | 3,023,503 | $ | - | $ | 44,074 | $ | 3,067,577 | ||||||||
Cost of product revenue
|
2,023,441 | - | - | 2,023,441 | ||||||||||||
Gross profit
|
1,000,062 | - | 44,074 | 1,044,136 | ||||||||||||
Loss from operations
|
(1,418,094 | ) | (9,303,077 | ) | (4,321,260 | ) | (15,042,431 | ) | ||||||||
Other expense
|
(7,582 | ) | - | (477,233 | ) | (484,815 | ) | |||||||||
Loss before income taxes
|
(1,425,676 | ) | (9,303,077 | ) | (4,798,493 | ) | (15,527,246 | ) | ||||||||
Property and equipment, net
|
587,032 | 2,729 | 175,538 | 765,299 | ||||||||||||
Depreciation and
|
||||||||||||||||
amortization expense
|
168,686 | 3,238 | 38,709 | 210,633 |
Year Ended December 31,
|
Plasma Collection
|
Research and
|
||||||||||||||
2012
|
Center
|
Development
|
Corporate
|
Consolidated
|
||||||||||||
Revenues
|
$ | 1,118,118 | $ | - | $ | - | $ | 1,118,118 | ||||||||
Cost of product revenue
|
669,056 | - | - | 669,056 | ||||||||||||
Gross profit
|
449,062 | - | - | 449,062 | ||||||||||||
Loss from operations
|
(1,297,802 | ) | (3,469,078 | ) | (3,142,289 | ) | (7,909,169 | ) | ||||||||
Other income (expense)
|
- | - | (9,759 | ) | (9,759 | ) | ||||||||||
Loss before income taxes
|
(1,297,802 | ) | (3,469,078 | ) | (3,152,048 | ) | (7,918,928 | ) | ||||||||
Property and equipment, net
|
687,462 | 5,967 | 85,868 | 779,297 | ||||||||||||
Depreciation and
|
||||||||||||||||
amortization expense
|
164,514 | 4,558 | 13,017 | 182,089 |
Exhibit No.
|
Description
|
|
3.1
(1)
|
Certificate of Incorporation, as amended
|
|
3.2
(2)
|
Certificate of Amendment of Certificate of Incorporation
|
|
3.3
(3)
|
Bylaws
|
|
4.1
(4)
|
Specimen Common Stock Certificate
|
|
4.2
(1)
|
Form of Placement Agent Warrant
|
|
4.3
(5)
|
Form of Warrant Agreement with Hercules Technology Growth Capital, Inc.
|
|
4.4
(5)
|
Form of Secured Term Loan Promissory Note issued to Hercules Technology Growth Capital, Inc.
|
|
10.1†
(6)
|
2007 Employee Stock Option Plan, as amended
|
|
10.2
(1)
|
Form of Securities Purchase Agreement, dated as of February 13, 2012
|
|
10.3
(1)
|
Form of Registration Rights Agreement, dated as of February 13, 2012
|
|
10.4
(1)
|
Amended and Restated Placement Agency Agreement, dated February 12, 2012, between ADMA Biologics, Inc. and the placement agent
|
|
10.5
(4)
|
Form of Lockup Agreement (February 13, 2012)
|
|
10.6†
(1)
|
Employment Agreement, dated February 13, 2012, by and between ADMA Biologics, Inc. and Adam Grossman
|
|
10.7
(1)
|
Investors’ Rights Agreement, dated July 17, 2007, by and among the ADMA Biologics, Inc. and each of the investors listed on Schedule A thereto
|
|
10.8+
(7)
|
Manufacturing Agreement, dated as of October 23, 2006, by and between Biotest Pharmaceuticals Corporation and ADMA Biologics, Inc., as amended as of October 23, 2011 and as of December 2, 2011
|
|
10.9+
(7)
|
Plasma Purchase Agreement, dated as of November 17, 2011, between Biotest Pharmaceuticals Corporation and ADMA Biologics, Inc., as amended as of December 1, 2011
|
|
10.10
(4)
|
Agreement for Services, dated July 23, 2007, between ADMA Biologics, LLC and Areth Inc.
|
|
10.11
(1)
|
Agreement of Lease between ADMA BioCenters Georgia, Inc. and ADMA Biologics, Inc. and C1VF I-GA1W15-W23, LLC (DCT Holdings), effective June 1, 2008 and confirmed on November 13, 2008, for the premises located in Norcross, Georgia, as amended
|
|
10.12+*
|
Agreement of Lease, dated as of January 20, 2014, between ADMA BioCenters Georgia, Inc. and U.S. Bank National Association, as trustee, effective February 1, 2014, for the premises located in Marietta, Georgia
|
|
10.13
(1)
|
Form of Indemnification Agreement
|
|
10.14 †
(8)
|
Employment Agreement, dated as of April 30, 2012, by and between ADMA Biologics, Inc. and Brian Lenz
|
|
10.15
(9)
|
Modification and Release Agreement, dated June 15, 2012, between ADMA Biologics, Inc. and the placement agent
|
|
10.16+
(10)
|
Testing Services Agreement, dated June 7, 2012, between ADMA Biologics, Inc. and Quest Diagnostics Clinical Laboratories, Inc.
|
|
10.17+
(10)
|
Plasma Supply Agreement, dated June 22, 2012, between ADMA Biologics, Inc. and Biotest Pharmaceuticals Corporation
|
|
10.18+*
|
Amendment No. 1, dated February 25, 2014, to the Plasma Supply Agreement, dated June 22, 2012, between ADMA Biologics, Inc. and Biotest Pharmaceuticals Corporation
|
|
10.19†
(10)
|
Employment Agreement, dated July 18, 2012, by and among the ADMA Biologics, Inc. and James Mond
|
|
10.20
(5)
|
Loan and Security Agreement, dated as of December 21, 2012, by and among ADMA Biologics, Inc., ADMA Plasma Biologics, Inc., ADMA BioCenters Georgia Inc. and Hercules Technology Growth Capital, Inc.
|
|
10.20.1*
|
First Amendment to Loan and Security Agreement, dated as of February 24, 2014, by and among ADMA Biologics, Inc., ADMA Plasma Biologics, Inc., ADMA BioCenters Georiga Inc. and Hercules Technology Growth Capital, Inc.
|
|
10.21
(5)
|
Equity Rights Letter, dated December 21, 2012, from ADMA Biologics, Inc. to Hercules Technology Growth Capital, Inc.
|
10.22+
(5)
|
Manufacturing, Supply and License Agreement, dated as of December 31, 2012, by and between Biotest Pharmaceuticals Corporation and ADMA Biologics, Inc.
|
|
10.23+
(5)
|
License Agreement, dated December 31, 2012, by and between ADMA Biologics, Inc. and Biotest Aktiengesellschaft
|
|
10.24
(11)
|
Form of Underwriting Agreement
|
|
16.1
(1)
|
Letter from Sherb & Co, LLP regarding change in certifying accountants
|
|
21.1
(4)
|
Subsidiaries of Registrant
|
|
23.1*
|
CohnReznick LLP Consent
|
|
24.1*
|
Power of Attorney (included on signature page)
|
|
31.1*
|
Certification of Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
31.2*
|
Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
32.1**
|
Certification of Principal Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
32.2**
|
Certification of Principal Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
101*
|
The following materials from ADMA Biologics, Inc. Form 10-K for the year ended December 31, 2013, formatted in Extensible Business Reporting Language (XBRL): (i) Balance Sheets at December 31, 2013 and December 31, 2012, (ii) Statements of Operations for the years ended December 31, 2013 and 2012 (iii) Statements of Changes in Stockholders’ Equity for the years ended December 31, 2013 and 2012, (iv) Statements of Cash Flows for the years ended December 31, 2013 and 2012 and (v) Notes to the Financial Statements
|
(1)
|
Incorporated herein by reference to the Company’s Current Report on Form 8-K (000-52120), filed with the Commission on February 13, 2012.
|
(2)
|
Incorporated herein by reference to the Company’s Current Report on Form 8-K (000-52120), filed with the Commission on August 26, 2013.
|
(3)
|
Incorporated herein by reference to the Company’s Registration Statement on Form 10-SB (000-52120), filed with the Commission on July 10, 2006.
|
(4)
|
Incorporated herein by reference to Amendment No. 1 to the Company’s Current Report on Form 8-K/A (000-52120), filed with the Commission on March 29, 2012.
|
(5)
|
Incorporated herein by reference to the Company’s Registration Statement on Form S-1 (333-186579), filed with the Commission on February 11, 2013.
|
(6)
|
Incorporated herein by reference to Exhibit A to the Information Statement on Schedule 14C (000-52120), filed with the Commission on October 29, 2012.
|
(7)
|
Incorporated herein by reference to Amendment No. 3 to the Company’s Current Report on Form 8-K/A (000-52120), filed with the Commission on June 22, 2012.
|
(8)
|
Incorporated herein by reference to the Company’s Current Report on Form 8-K (000-52120), filed with the Commission on May 3, 2012.
|
(9)
|
Incorporated herein by reference to the Company’s Current Report on Form 8-K (000-52120), filed with the Commission on June 21, 2012.
|
(10)
|
Incorporated herein by reference to Amendment No. 4 to the Company’s Registration Statement on Form S-1 (333-180449), filed with the Commission on August 10, 2012.
|
(11)
|
Incorporated herein by reference to Amendment No. 1 to the Company’s Registration Statement on Form S-1 (333-186579), filed with the Commission on April 8, 2013.
|
1.
|
BASIC LEASE PROVISIONS:
|
1.1.
|
Property Name:
Address:
Premises’ Unit/Suite No.:
|
[***]
[***]
Marietta, Georgia 30067
Suites
[***]
and
[***]
|
1.2.
|
Area of Premises: Approximately
[***]
square feet of Net Rentable Area (for Suite
[***]
) and approximately
[***]
square feet of Net Rentable Area (for Suite
[***]
) as reflected on the site plan attached hereto as
Schedule 1
(and attachments thereto) (collectively, Suite
[***]
and Suite
[***]
are also called the “Premises”). Landlord contemplates that it shall tender the Premises in their “AS IS” condition; and Tenant agrees to accept the Premises in an “AS IS” condition and acknowledges that no representations with respect to the condition of the Premises have been made by Landlord.
|
1.3.
|
Tenant’s Percentage Share:
[***]
%
(for Suite
[***]
) and
[***]
% (for Suite
[***]
) (collectively,
[***]
%
as the “Tenant’s Percentage Share” hereunder) (said Percentage Share shall be adjusted in direct mathematical proportion to the change, in the event the rentable area of the Property is increased or decreased).
|
|
Based upon Premises of
[***]
square feet of Net Rentable Area (for Suite
[***]
) and based upon Premises of
[***]
square feet of Net Rentable Area (for Suite
[***]
) in a Property of
[***]
square feet of Net Rentable Area.
|
1.4.
|
Commencement Date of Lease: The date of initial tender of possession (also herein called the “
Tender Date
”), which Landlord advises should be:
February 1, 2014
(provided, the parties acknowledge that Landlord estimates it shall initially tender possession of the Premises on such date, but subject to the following). However, in the event initial tender of possession is delayed beyond such initially specified or expected date, to a later date (“
Later Date of Tender
”), then the Commencement Date of Lease shall be such actual date of initial tender and the Rent Commencement Date defined below, the Expiration Date of Lease, and the Abatement Period End Date, each as defined or set forth below, shall each be extended to a new date which is the same number of days thereafter (in each case), as the number of days that the Later Date of Tender falls after the date initially specified above;
provided, however
, in the event the Later Date of Tender is more than sixty (60) days past the Effective Date of this Lease, then Tenant may terminate this Lease by written notice to Landlord if such notice is given within ten (10) days after the conclusion of such sixty (60) day period, time being strictly of the essence; failing which no further right of termination under this Paragraph 1.4 provision shall exist.
|
|
Following the tender of possession of Premises to Tenant, Tenant and Landlord shall promptly execute and deliver to a written memorandum reflecting the date of initial occupancy and confirming the Commencement Date, Rent Commencement Date, Expiration Date of the Lease and the Abatement Period End Date and such other information as Landlord may reasonably request.
|
1.5.
|
Expiration Date of Lease:
January 31, 2024
.
|
1.6.
|
Rent Commencement:
February 1, 2014
(“
Rent Commencement Date
”).
Tenant agrees to accept the Premises in an “as is” condition and acknowledges that no representations with respect to the condition of the Premises have been made by Landlord.
Notwithstanding the foregoing, Landlord conditionally waives the obligation of Tenant to pay the installment of Basic Rent (“
Abated Rent
”) attributable to the period (“
Abatement Period
”) which commences upon the Rent Commencement Date and which concludes on
January 31, 2015
("
Abatement Period End Date
"), conditioned upon Tenant complying in good faith with its obligations under this Lease and remaining free of any Event of Default. The first month’s payable rent required by this Lease to be paid upon initial execution of this Lease shall be held in accordance with Section 24 of this Lease until such rents are applied toward rents hereunder due after the foregoing Abatement Period has transpired. Tenant’s obligation to pay all other charges including its Tenant’s Percentage Share of Operating Expenses and any other item of additional rent due under the Lease shall not be abated during the Abatement Period and shall be due and payable in full as otherwise specified in this Lease without reference to any such abatement.
|
1.7.
|
Basic Rent: Initially:
[***]
per annum, payable in equal monthly installments of
[***]
per month (subject to the above Abatement Period). Subject to adjustment(s) as provided in Section 1.16 below.
|
1.8.
|
Percentage Rent: Intentionally omitted.
|
1.9.
|
Security Deposit: Security Deposit:
[***]
. Payable upon execution and submission of the Lease to Landlord, together with the first month’s payable installment of Basic Rent of
[***]
plus applicable sales tax due thereon (if any) (such first month’s installment to be held by Landlord under the terms of Section 24 of this Lease until applied toward such rental obligation).
|
1.10.
|
Permitted Use: Tenant covenants and agrees to use, occupy and during normal business hours operate the Premises for the collection, storage, research and distribution of blood products and for general office use ancillary thereto, and for no other purposes and under no other name without the prior written consent of Landlord; and notwithstanding anything else herein, subject to and not in violation of, and Tenant shall abide by and not violate, the terms, conditions, restrictions, exclusives and limitations set out on
Schedule 5
attached and made a part hereof. Tenant agrees to use the Premises in a careful, safe and proper manner, and not to use or permit the Premises to be used for any purposes prohibited by applicable federal, state, county, municipal on other governmental laws, codes, rules and regulations. Tenant shall specifically provide by separate lawful service provider at Tenant’s sole cost and expense, for the disposal of all bio-hazardous waste products, none of which shall be placed into any of the Property trash or dumpster receptacles. Tenant shall not commit waste, or suffer or permit waste to be committed, or permit any nuisances on or in the Premises.
|
1.11.
|
Trade Name:
ADMA BioCenters
.
|
1.12.
|
Minimum Hours of Operation for the Property:
|
Monday - Friday:
Saturday:
Sunday:
|
10:00 AM to 9:00 PM*
10:00 AM to 9:00 PM*
Noon to 6:00 PM*
|
1.13.
|
Promotional Program Amount: None.
|
1.15.
|
Late Charges: The parties agree that late payment by Tenant to Landlord of rent will cause Landlord to incur costs not contemplated by this Lease, the amount of which is extremely difficult to ascertain. Therefore, the parties agree that if any installment of rent is not received by Landlord within 10 days after rent is due, Tenant will pay to Landlord a sum equal to 2% of the monthly rent as a late charge.
|
1.16.
|
Rental Adjustment(s) during initial term (all rents pro-rated based upon a 30-day month for any partial month):
FOR SUITE
[***]
:
|
Period*
|
Annual Basic Rent
|
Monthly Installment of Annual Basic Rent
|
1
|
[***]
**
|
[***]
**
|
2
|
[***]
|
[***]
|
3
|
[***]
|
[***]
|
4
|
[***]
|
[***]
|
5
|
[***]
|
[***]
|
6
|
[***]
|
[***]
|
7
|
[***]
|
[***]
|
8
|
[***]
|
[***]
|
9
|
[***]
|
[***]
|
10
|
[***]
|
[***]
|
1.17.
|
Options to Extend:
[***]
successive options to extend the Term; each option for
[***]
, subject expressly to the terms, timing, and conditions specified below. Each Option is in respect of the entirety of the Premises (Tenant may not exercise an Option in respect of less than all the aggregate Premises). Herein called the “
First Option Term
” and the “
Second Option Term
”, respectively.
|
1.18.
|
Rent for Option Period: Fair market rent and Stipulated Rent as specified in, and subject to and see
Schedule 2
and see any applicable additional terms and conditions therein.
|
1.19.
|
Option Exercise Deadline: Tenant shall (if at all) give Landlord written notice of the exercise of the option(s) set forth in Paragraph 1.17 above no fewer than 270 days prior to the date this Lease would terminate if such option were not exercised (in each case, an
“Option Exercise Deadline”
). Tenant’s exercise of the option(s) will only be effective if Tenant is not in default on the date on which Tenant exercises said option(s) and if Tenant is also not in default on the date on which the option period commences (but Landlord may in its sole and absolute discretion elect to waive any such default solely for purposes of avoiding nullification of the exercise of the option but without waiving its rights otherwise for collection and/or to demand cure). Exercise of an option is only effective if timely delivered in writing, time being strictly of the essence; and such exercise shall then irrevocably commit Tenant to the ensuing option term.
|
1.20.
|
Base Year for Operating Expenses and Taxes:
2014
.
|
1.21.
|
Calculation of Operating Expense Rent: See
Paragraph 6
.
|
1.22.
|
Guarantor:
ADMA BIOLOGICS, INC., a Delaware corporation
. See
Schedule 3
.
|
1.23.
|
Address for payment of rent and notices:
|
1.24.
|
Broker: The Broker is:
[***]
and Landlord will bear the cost of the commission payable to Broker in connection with this Lease through a separate written agreement. No broker is an intended third party beneficiary hereof nor a party hereto. Landlord and Tenant warrant and represent to each other that they have not consulted or negotiated with any broker or finder with regard to the Premises or this Lease other than Broker. If either party shall be in breach of the foregoing warranty, such party shall indemnify the other against any loss, liability and expense (including attorneys’ fees and court costs) arising out of claims for fees or commissions from anyone having dealt with such party in breach.
|
2.
|
DEFINITIONS:
Unless the context otherwise specifies or requires, the following terms will have the meanings set forth below:
|
2.1.
|
Common Areas
:
All areas and facilities outside the Premises and within the exterior boundaries of the Property that are not leased to other tenants and that are provided and designated by Landlord, in its sole discretion from time to time, for the general use and convenience of Tenant and other tenants of the Property and their authorized representatives, entities, invitees and the general public. Common Areas are areas within and outside of the buildings on the Property, such as pedestrian walkways, patios, landscaped areas, sidewalks, service corridors, elevators, restrooms, stairways, decorative walls, plazas, mall throughways, loading areas, parking areas and roads.
|
2.2.
|
Rent
: Basic Rent and Tenant’s share of Operating Expenses collectively constitute “Rent” hereunder.
|
2.3.
|
Lease Year
: Each
12
month period during the term of this Lease ending on December 31
st
, provided that the first Lease Year will commence upon the commencement of the term hereof and will end on the next succeeding December 31
st
and the last Lease Year will end upon the expiration of the term hereof.
|
2.4.
|
Net Rentable Area
: All floor area within the Premises measured at floor level from the midpoint of all demising walls to the exterior surface of all exterior walls and exterior glass separating the Premises from the Common Areas (without deduction for columns or projections necessary to the Property) plus Tenant’s proportionate share of the Common Areas. The Net Rentable Area of the Premises noted above, even if stated as “approximate”, is deemed and stipulated correct for all purposes under this Lease irrespective of what an actual measurement would find, including without limitation in respect of the computation of rents, any allowance and Tenant’s Percentage Share; the parties acknowledging that rents and value of the Premises derive from numerous factors beyond the exact measurement of the Premises.
|
2.5.
|
Operating Expenses
:
All costs of operating, servicing, administering, repairing and maintaining the Property (excluding costs paid directly by Tenant and other Tenants in the Property or otherwise reimbursed to Landlord), the landscaping of Common Areas of the Property and the parking lot contiguous to the Property if Tenant is not paying any parking fees. If the Property is less than ninety-five percent (95%) occupied throughout any calendar year of the Term, then the actual Operating Expenses for the calendar year in question shall be increased to the amount of Operating Expenses which Landlord reasonably determines would have been incurred during that calendar year if the Property had been fully occupied throughout such calendar year. The Base Year Amount shall likewise be adjusted for the calendar year on which it is based. All costs of operating, servicing, administering, repairing and maintaining the Property include any reasonable and necessary costs of operation, maintenance and repair, computed in accordance with generally accepted accounting principles applied on a consistent basis (“GAAP”), and will include by way of illustration, but not limitation:
|
|
(i)
|
all reasonably necessary costs of managing, operating and maintaining the Property, including, without limitation, wages, salaries, fringe benefits and payroll burden for employees on-site utilized in the day to day operation of the Property (and then only to the extent the cost of such personnel is allocated to the Property proportionately to the amount of time spent on the Property by such personnel); public liability, flood, property damage and all other competitive insurance premiums paid by Landlord with respect to the Property, including any amounts that would be charged as premiums if Landlord self-insures any of the insurance risks; liability disclaimers; water, sewer, heating, air conditioning, ventilating and all other utility charges (other than with respect to utilities separately metered and paid directly by Tenant or other tenants); the reasonable cost of contesting the validity or amount of real estate and personal property taxes; janitorial services; access control; window cleaning; elevator maintenance; fire detection and security services; gardening and landscape maintenance; all reasonable costs of snow and ice removal; trash, rubbish, garbage and other refuse removal; pest control; painting; facade maintenance; lighting; exterior and partition (demising) wall repairs; roof repairs; maintenance of all steam, water and other water retention and discharging piping, lakes, culverts, fountains, pumps, weirs, lift stations, catch basins and other areas and facilities, whether or not on-site; canal embankment and related maintenance; repair and repainting of sidewalks due to settlement and potholes and general resurfacing and maintenance of parking areas; sanitary control; depreciation of machinery and equipment used in any of such maintenance and repair activities; management fees; union increases; road sidewalk and driveway maintenance; and all other Property maintenance, repairs and insurance;
|
|
(ii)
|
the costs (evenly amortized over the useful life of each such capital improvement in accordance with GAAP, with interest on the unamortized amount at one percent (1%) per annum above the “prime rate” or “corporate base rate” announced from time to time by a major Georgia bank selected by Landlord (the “Prime Rate”) (but in no event at a rate which is more than the highest lawful rate allowable in the State of Georgia)) of any capital improvements: (A) made to the Property by Landlord primarily for the purpose of reducing Operating Expenses; or (B) made to the Property by Landlord primarily to comply with any governmental law or regulation that was not in force at the Commencement Date;
|
|
(iii)
|
the costs of supplies, materials and tools;
|
|
(iv)
|
all real and personal property taxes, assessments (whether they be general or special), sewer rents, rates and charges, transit taxes, taxes based upon the receipt of rent if ever imposed by governmental authority but excluding income taxes arising from such rents and any other federal, state or local government charge, general, special, ordinary or extraordinary (but not including income taxes), which may now or hereafter be levied or assessed against the land upon which the Property stands or the Property for such year or upon the fixtures, machinery, equipment, apparatus, systems and appurtenances used in connection with the Property for the operation thereof (the
“Taxes”
).
|
|
(a)
|
depreciation on the Property or any Common Areas;
|
|
(b)
|
costs of space planning, tenant improvements, marketing expenses, finders fees, real estate broker commissions, leasing commissions, tenant allowances, advertising and promotional expenses related to leasing, and legal fees for the preparation of leases;
|
|
(c)
|
any and all expenses for which Landlord is reimbursed (either by an insurer, condemnor or other person or entity), but only to the extent of such reimbursement (or would have received reimbursement had Landlord carried property insurance on the Property for 80% replacement costs value, as reasonably determined by Landlord, to the extent such insurance costs were includable by the terms of this Lease in these Operating Expenses and any and all expenses for which Landlord is reimbursed or entitled to reimbursement by a tenant in the Property pursuant to a lease provision in such tenant’s lease;
|
|
(d)
|
salaries for personnel above the grade of senior property manager, senior controller, senior accountant and senior engineer;
|
|
(e)
|
costs in connection with services or benefits of a type which are not provided to Tenant, but are provided to another tenant or occupant;
|
|
(f)
|
mark-ups on electricity and condenser cooling water for heat pumps in excess of Landlord’s costs therefor;
|
|
(g)
|
Landlord’s general overhead and administrative expenses not directly allocable to the operation of the Property;
|
|
(h)
|
cost of repair or other work necessitated by the gross negligence or willful misconduct of Landlord or Landlord’s employees, contractors or agents;
|
(i)
|
costs of capital improvements to any tenant's premises;
|
|
(j)
|
principal or interest payments on loans secured by mortgages or trust deeds on the Property or rent payable on any ground lease of the Land;
|
|
(k)
|
costs of capital improvements to the Property, except capital improvements expressly included as Operating Expenses in Section 2.5(ii) above;
|
|
(l)
|
costs of utilities and other services provided to and used in the operation of the other tenants' premises,
|
|
(m)
|
costs of initial improvements to, or alterations of, space leased to any tenant (other than costs for shared infrastructure, to the extent otherwise includable even if portions thereof traverse in or through or under or above a premises);
|
|
(n)
|
depreciation or amortization of any improvements except as specifically set forth in this Lease;
|
|
(o)
|
the cost of repairs, alterations or replacements required as the result of the exercise of any right of eminent domain to the extent Landlord receives net condemnation proceeds in reimbursement of such costs, as the result of such exercise;
|
|
(p)
|
any late fees, fines, penalties and interest on past due amounts incurred by Landlord due to Landlord's violation of any applicable law, rule or regulation;
|
|
(q)
|
costs incurred for relocating tenants within the Property;
|
|
(r)
|
costs and expenses (including legal and auditing fees) in connection with disputes with tenants (but costs of enforcing the Property’s rules and regulations shall be included in Operating Expenses);
|
|
(s)
|
costs of removing, encapsulating or otherwise abating any Hazardous Materials in or about the Property not placed there by Tenant;
|
|
(t)
|
costs of purchase of fine arts for display in public areas;
|
|
(u)
|
the costs of any service or utility (or level, amount or hours thereof) provided to any tenant or occupant in the Property in excess of that required by this Lease to be furnished by Landlord to Tenant free of separate or additional charge;
|
|
(v)
|
amounts paid to affiliates or subsidiaries of Landlord for services which are in excess of the competitive costs for such services;
|
|
(w)
|
lease takeover or takeback costs incurred by Landlord in connection with leases in the Property;
|
|
(x)
|
costs associated with the operation of the business of the ownership or entity which constitutes Landlord as the same are distinguished from the costs of operation of the Property, including, but not limited to, partnership accounting and legal matters and land trust fees, costs of defending any lawsuits with or claims by any mortgagee (except where the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Property, costs of any disputes between Landlord and its employees (if any) not engaged in Property operation, or disputes of Landlord with Property management;
|
|
(y)
|
Landlord’s political or charitable contributions; and
|
|
(z)
|
any compensation paid to clerks, attendants or other persons working or managing commercial concessions operated by Landlord.
|
3.1.
|
Lease of Premises
: Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, for the term and subject to the agreements, covenants, conditions and provisions set forth in this Lease, to which Landlord and Tenant hereby mutually agree, the premises (the
“Premises”
)
described in Paragraphs 1.1 and 1.2 above.
|
3.3.
|
Relocation
.
Intentionally omitted.
|
4.1.
|
Tenant’s Right to Use Common Areas
: Landlord grants Tenant and its authorized representatives and invitees the non-exclusive right to use the Common Areas with others who are entitled to use the Common Areas subject to Landlord’s rights as set forth in this Lease.
|
4.2.
|
Landlord’s Control
: Landlord has the right to:
|
|
(a)
|
establish and enforce reasonable rules and regulations applicable to all tenants concerning the maintenance, management, use and operation of the Common Areas, so long as such rules and regulations do not materially and adversely affect the rights of Tenant hereunder and do not conflict with any provision of this Lease;
|
|
(b)
|
close, if necessary, any of the Common Areas to prevent dedication of any of the Common Areas or the accrual of any rights of any person or of the public to the Common Areas;
|
|
(c)
|
subject to Section 3.2 above, close temporarily any of the Common Areas for maintenance purposes;
|
|
(d)
|
select a person, firm or corporation which may be an entity related to Landlord to maintain and operate any of the Common Areas; and
|
|
(e)
|
designate other lands outside the exterior boundaries of the Property to become part of the Common Areas; provided, however, such addition of other lands shall not materially increase Tenant's share of Operating Expenses hereunder.
|
5. l.
|
Base
: Tenant will pay to Landlord as rent for the use and occupancy of the Premises at the times and in the manner provided below, the following sums of money:
|
|
(a)
|
Basic Rent: Tenant will pay to Landlord Basic Rent in the amount specified in Paragraph 1 above payable in advance on the commencement of the term of this Lease and, on or before the first day of each and every successive calendar month during the term hereof, except during the Abatement Period, without notice, demand, setoff or deduction, unless expressly permitted herein.
|
|
(b)
|
Percentage Rent: Intentionally omitted.
|
5.2.
|
Monthly Statements
: Intentionally omitted.
|
5.3.
|
Books and Records of Sales
: Intentionally omitted.
|
5.4.
|
Retention of Records
: Intentionally omitted.
|
5.5.
|
Yearly Statement/Adjustment
: Intentionally omitted.
|
5.6.
|
Sales Tax; Additional Rent
: If now or in the future ever applicable: In addition to the Basic Rent, Tenant agrees to pay Landlord monthly all sales or use taxes or excise taxes imposed or levied by the State in which the Property is located or any other governmental body or agency against any rent or any other charge or payment required hereunder to be made by Tenant to Landlord. All sums of money as shall become due and payable by Tenant to Landlord under this Lease, including, without limitation, sales tax and Tenant’s percentage share of Operating Expenses, shall be additional rent which Tenant shall be obligated to pay. Landlord shall have the same remedies for default in the payment of additional rent as are available to Landlord in the case of a default in the payment of Basic Rent.
|
6.1.
|
Operating Expenses Rent
: In addition to Basic Rent, Tenant shall pay Tenant’s Percentage Share, as specified in Paragraph 1 above, of the Operating Expenses paid or incurred by Landlord in such year in excess of the Operating Expenses for the Base Year (“
Operating Expenses Rent
”). In addition to Operating Expenses Rent, Tenant shall also pay to Landlord an administrative charge equal to
[***]
of the Operating Expenses Rent (after excluding therefrom all taxes and special assessments, insurance premiums and utilities), to be paid concurrently with Tenant’s payment of Operating Expenses Rent;
provided, however
, Landlord shall not include such administrative fee or any other management type fee as an Operating Expense.
|
6.2.
|
Payment
: During December of each calendar year or as soon thereafter as practicable, Landlord will give Tenant written notice of its estimate (line item and detailed support included) of Operating Expenses Rent for the ensuing calendar year. On or before the first day of each month during the ensuing calendar year, Tenant will pay to Landlord 1/12th of such estimated amounts, provided that if such notice is not given in December, Tenant will continue to pay on the basis of the prior year’s estimate until the month after such notice is given (whereupon any deficiency in what was paid for the preceding months of such year, shall also be due and such notice shall be retroactively effective accordingly). If at any time or times it appears to Landlord that the amounts payable for Operating Expenses Rent for the current calendar year will vary from its estimate by more than
[***]
, Landlord, by written notice to Tenant, will revise its estimate for such year, and subsequent payments by Tenant for such year will be in an amount so that by the end of such year Tenant will have paid a total sum equal to such revised estimate. Landlord will indicate in its notice to Tenant the reasons Landlord believes its estimate is low by more than
[***]
.
|
6.3.
|
Statement
: Within 180 days after the close of each calendar year or as soon after such 180 day period as practicable, Landlord will deliver to Tenant a statement of amounts of Operating Expenses Rent payable under this Lease for such calendar year. If such statement shows an amount owing by Tenant that is more than the estimated payments for such calendar year previously made by Tenant, Tenant will pay the deficiency to Landlord within 30 days after delivery of the statement. If the total of the estimated monthly installments paid by Tenant during any Calendar Year exceeds the actual amount due from Tenant for such Calendar Year and provided Tenant is not in default hereunder, such excess shall, at Landlord’s option, be either credited against payments next due hereunder or refunded by Landlord to Tenant (such refund made to Tenant if the Lease has expired without default then pending). Tenant has the right, exercisable no more than once each calendar year on reasonable notice and at a time reasonably acceptable to Landlord, to cause an audit to be performed but only by a professional who is not compensated on a contingency basis at Tenant’s sole cost and expense of Landlord’s operations and/or books and records pertaining to Operating Expenses for the preceding two (2) calendar years. Landlord, at Landlord’s sole discretion, may provide an audit prepared by a certified public accountant in lieu of allowing Tenant to audit Landlord’s operations and/or books. In the event Landlord has overstated Operating Expenses by more than
[***]
, within 30 days after demand therefor by Tenant accompanied by Tenant’s verification of such overcharges and paid invoices, Landlord will reimburse Tenant for all overcharges and the costs of such audit and verification incurred by Tenant (but such costs of such audit and verification shall be in an amount not to exceed
[***]
and limited to actual professional fees incurred, and thus excluding such additional costs as travel, meals, lodging and materials).
|
6.4.
|
Proration
: If for any reason other than the default of Tenant, this Lease terminates on a day other than the last day of a calendar year, the amount of Operating Expenses Rent payable by Tenant applicable to the calendar year in which such termination occurs will be prorated on the basis which the number of days from the commencement of such calendar year to and including such termination date bears to 365.
|
6.5.
|
Computation
: Tenant’s Percentage Share of the Operating Expenses is the proportion that the rentable square footage occupied by Tenant bears to the total rentable square footage of the Property, as determined from time to time by Landlord.
|
6.6.
|
Taxes Payable by Tenant
: Tenant shall be directly responsible for taxes upon, measured by or reasonably attributable to the cost or value of Tenant’s equipment, furniture, fixtures and other personal property located in the Premises or by the cost or value of any leasehold improvements made in or to the Premises by or for Tenant other than the initial improvements to be installed at Landlord’s expense regardless of whether title to such improvements is in Tenant or Landlord.
|
7.1.
|
Effect on Insurance
: Tenant shall not use any portion of the Premises for purposes other than those specified in Paragraph 1 and no other use shall be made or permitted to be made upon the Premises, nor acts done, which will increase the existing rate of insurance upon the Property, or cause cancellation of insurance policies covering said Property.
|
7.2.
|
Intentionally Deleted
:
|
7.3.
|
Miscellaneous Restrictions
: Tenant will operate from the Premises using the Trade Name set forth in Paragraph 1. Tenant will not use the Premises for or permit in the Premises any nuisance, or dangerous trade, business, manufacture or occupation or materially interfere with the business of any other tenant in the Property or permit any auction, liquidation, fire or bankruptcy sale to be held or conducted in or about the Premises. Tenant agrees not to cause, permit or suffer any waste or damage, disfigurement or injury to the Premises or the fixtures or equipment thereof or the Common Areas. Tenant will not use the Premises for washing clothes or cooking (except for normal employee designated breakroom heating and cooking activities) and nothing will be prepared, manufactured or mixed in the Premises which might emit any offensive odor into the Property. Tenant will not keep, display or sell any merchandise outside of the Premises or otherwise obstruct the sidewalks, mall or Common Areas in the Property or use the same for business operations or advertising. Tenant will not install, maintain, use or allow in or upon the Premises any pinball machines, coin operated music machines, video game machines or any other coin operated amusement device of any kind. Tenant will at all times comply with the rules and regulations of the Property attached hereto as
Schedule 4
and with such additional rules and regulations as may be adopted by Landlord from time to time,
so long as such rules and regulations do not materially and adversely affect the rights of Tenant hereunder and do not conflict with any provision of this Lease
.
|
8.1.
|
Tenant’s Parking Rights
: Within the Common Areas, Landlord will provide parking areas with necessary access. Only automobiles, delivery vans and pickup trucks will be permitted on the parking areas.
|
8.2.
|
Landlord’s Control Over Parking
: Tenant and its authorized representatives will park their cars only in areas specifically designated for that purpose by Landlord; provided, however such parking areas shall be reasonably close to the Leased Premises. In the event Tenant determines such parking area is not reasonably close or safe for its authorized representatives, Landlord shall reasonably cooperate with Tenant to designate a mutually agreed upon parking area for Tenant and its authorized representatives. Within 5 days after written request by Landlord, Tenant will furnish to Landlord the license numbers assigned to its cars and the cars of all of its authorized representatives. Tenant will not park or permit the parking of any vehicles adjacent to loading areas so as to interfere in any way with the use of such areas. Landlord shall have the right, in Landlord’s sole discretion, to designate parking spaces for the exclusive use of a particular tenant or particular tenants. Landlord will have the right to institute reasonable procedures and/or methods to enforce the terms of this Subparagraph,
so long as such procedures do not materially and adversely affect the rights of Tenant hereunder and do not conflict with any provision of this Lease
.
|
9.
|
SIGNS:
Tenant, at Tenant’s sole cost and expense, will install and maintain on the exterior of the Premises adjacent to entrances to the Premises and above the entrances to the Premises such sign or signs as have first received the written approval of the Landlord, which approval shall not be unreasonably withheld, conditioned or delayed, as to type, size, color, location, copy nature and display qualities. Landlord may withhold said approval in Landlord’s reasonable discretion. Landlord must also approve Tenant’s signage contractor, which approval will not be unreasonably withheld. The installation and maintenance of any signs or other advertising matter will at all times be in strict compliance with any and all laws. If at any time Tenant’s signs are not in compliance with any and all laws, Landlord shall have the right to remove or otherwise cause such signs to be in compliance. Tenant shall promptly upon demand by Landlord pay Landlord for all of Landlord’s reasonable third party out-of-pocket costs and expenses incurred in such removal or other action, which such costs and expenses shall constitute additional rent hereunder. Upon expiration or the termination of this Lease, Tenant, at Landlord’s election but at Tenant’s expense, will remove any and all signs and restore the exterior of the Premises or wherever Tenant has installed signs in a manner satisfactory to Landlord.
|
l0.
|
ASSIGNMENT AND SUBLETTING; ENCUMBRANCE:
Tenant shall not assign this Lease or sublet any portion of the Premises without prior written consent of the Landlord, which will not be unreasonably withheld, conditioned or delayed, it being understood that it shall be reasonable for Landlord, among other things, to withhold consent if Landlord is not satisfied with the financial responsibility, identity, reputation or business character of the proposed assignee or sublessee. Except for a Permitted Transfer (as defined below), any change in the ownership of Tenant, if Tenant is a corporation or partnership, shall constitute an assignment for purposes of this Paragraph. Notwithstanding any consent by Landlord, Tenant and Guarantor(s), if any, shall remain jointly and severally liable (along with each approved assignee and sublessee, which shall automatically become liable for all obligations of Tenant hereunder with respect to that portion of the Premises so transferred), and Landlord shall be permitted to enforce the provisions of this Lease directly against Tenant or any assignee or sublessee without proceeding in any way against any other party. In the event of an assignment, contemporaneously with the granting of Landlord’s consent, Tenant shall cause the assignee to expressly assume in writing and agree to perform all of the covenants, duties and obligations of Tenant hereunder and such assignee shall be jointly and severally liable therefore along with Tenant. No usage of the Premises different from the usage provided for in Paragraph 1 above shall be permitted, and all other terms and provisions of the Lease shall continue to apply after such assignment or sublease. Tenant shall not make or consent to any conditional, contingent or deferred assignment of some or all of Tenant’s interest in this Lease without the prior written consent of Landlord, which Landlord may withhold in its sole and absolute discretion. Tenant shall not enter into, execute or deliver any financing or security agreement that can be given priority over any mortgage given by Landlord or its successors, and, in the event Tenant does so execute or deliver such financing or security agreement, such action on the part of Tenant shall be considered a breach of the terms and conditions of this Lease and a default by Tenant entitling Landlord to such remedies as are provided for in this Lease. Landlord shall have the right to assign or transfer, in whole or in part, Landlord’s rights and obligations hereunder and in the Property and the Premises. Notwithstanding any provision herein to the contrary, Tenant may, without Landlord's consent or other condition (other than herein expressly provided), assign this Lease or sublet the Premises to: (a) any parent, subsidiary, or affiliate of Tenant or any subsidiary or affiliate of any parent of Tenant, or (b) Tenant's successor by merger, consolidation, acquisition of all of Tenant’s assets for all of its operations or of all of the stock of Tenant (herein each a “Permitted Transfer”) provided written notice of such event shall be given to Landlord within a reasonable period of time thereafter (not to exceed 30 days) and provided the principals with continued management / operating responsibilities will either remain the same or such management and operating responsibilities shall remain vested in duly qualified, competent and experienced personnel (the “Competent Control Condition”); and provided that no such circumstance shall in any way diminish, impair, reduce, or otherwise negatively affect the full force and effect of this Lease and any guaranties of this Lease (and in case of any guaranties of this Lease, the guarantors thereunder shall in writing confirm that their guaranty remains in full force and effect). Notwithstanding anything in this Lease to the contrary, the following shall not be deemed an assignment, sublease or transfer for purposes of this Lease so long as Tenant remains in compliance with the Competent Control Condition: Tenant or any parent, subsidiary, or affiliate of Tenant going from a publicly held corporation to a privately held corporation; any public or private offering of Tenant’s or Tenant’s parent’s, subsidiary’s or affiliate’s stock or American Depository Receipts; any transfer of corporate shares or American Depository Receipts by gift, bequest or inheritance by and between or among present shareholders of Tenant or any parent, subsidiary, or affiliate of Tenant or to their immediate family (i.e. spouses, parents, siblings, children or grandchildren); the sale, issuance or transfer of any capital stock or American Depository Receipts of Tenant or any parent, subsidiary, or affiliate of Tenant traded on any stock exchange or over the counter market or any exchange subject to the Securities and Exchange Act of 1934.
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ll.
|
ORDINANCES AND STATUTES:
At Tenant’s sole cost, Tenant will comply with all statutes, ordinances and requirements of all municipal, state and federal authorities now in force, or which may hereafter be in
force, pertaining to the Premises, occasioned by or affecting the use thereof by Tenant, including, but not limited to, the Americans With Disabilities Act (“ADA”). The commencement or pendency of any state or federal court abatement proceeding affecting the use of the Premises shall, at the option of the Landlord, be deemed a breach thereof. Tenant hereby indemnifies and holds harmless Landlord from and against any and all claims, damages, suits, liabilities and attorneys' fees (including but not limited to appellate attorneys' fees) asserted against or suffered by Landlord in any way relating to or arising from in whole or in part, an actual or asserted claim that the Premises, or any portion thereof, is in violation of the ADA or the regulations promulgated pursuant thereto.
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12.
|
MAINTENANCE, REPAIRS, ALTERATIONS:
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12.1.
|
Tenant’s Obligations
: Tenant acknowledges that the Premises are in good order and repair, unless otherwise indicated herein. Tenant shall, at its own expense and at all times, maintain the Premises in good and safe condition, including plate glass, electrical wiring, plumbing and HVAC installations exclusively serving the Premises and any other system or equipment exclusively serving the Premises and shall surrender the same, at termination hereof, in as good condition as received, normal wear and tear excepted. As part of its air conditioning maintenance obligation, Tenant shall enter into an annual contract with an air conditioning repair firm which is fully licensed to repair air conditioning units in the State in which the Property is located. No later than 10 days after the Commencement Date, Tenant shall deliver to Landlord a copy of the air conditioning maintenance contract and proof that the annual premium for such contract has been paid. Such air conditioning maintenance firm shall (i) regularly service the air conditioning unit(s) (including the timely changing of filters), (ii) perform necessary repairs, and (iii) keep a reasonable record of all services performed and make same available to Landlord upon request. Tenant, at Tenant’s expense, shall be responsible for all repairs required, excepting the roof, exterior walls, structural foundations, parking areas and other Common Areas, which shall be repaired by Landlord and included in Operating Expenses. Tenant's obligation hereunder shall exclude any maintenance, repair and replacement required because of the wrongful act or breach or violation of the Lease by Landlord, its employees, contractors or agents, which in such cases only instead shall be the responsibility of Landlord.
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12.2.
|
Limits on Alterations / Tenant’s Work
: Tenant may not make any structural improvement or alteration to the Premises without the prior written consent of Landlord, which consent for non-structural matters shall not be unreasonably withheld, conditioned or delayed. Tenant may not make any nonstructural improvement or alteration of the Premises costing in excess of
[***]
without the prior written consent of the Landlord. Prior to the commencement of any repair, improvement, or alteration, Tenant shall give Landlord at least 2 days written notice in order that Landlord may post appropriate notices to avoid any liability for liens. All alterations will be made by a licensed contractor reasonably consented to by Landlord and performed in a good and workmanlike manner. All materials used shall be of a quality comparable to or better than those in the Premises and shall be in accordance with plans and specifications, if applicable, approved by Landlord. In any event, no work may be prosecuted by Tenant except after first securing Landlord’s written approval of plans and specifications therefor in such form as Landlord shall reasonably require and same shall then be prosecuted continuously in a good and workman-like manner to lien free completion without causing interference to other tenants or occupants of the Property, performed in compliance with such approved plans and specifications and other writings or directions generated by Landlord and required, including if applicable a work letter, and otherwise in compliance with all law and “code”. Changes to any such plans and/or work letter shall not be permitted absent written advance approval from Landlord, not to be unreasonably withheld, conditioned or delayed as to all items which are non-structural and which do not impact load bearing walls and which do not impact mechanical, electrical, HVAC and plumbing systems. For further clarity, no such alterations or improvements shall be permitted to impact building infrastructure or structural components. At inception of this Lease, Tenant shall determine what alterations or improvements are required (“Tenant’s Work”) and Tenant shall submit plans and specifications therefor in accordance herewith, and prosecute same diligently strictly in accordance with such plans and specifications having been approved in writing by Landlord, to lien-free completion as herein provided and in compliance with all law and “code”. Tenant shall within ten (10) days of securing same, supply to Landlord a copy of its building permit and Tenant shall supply to Landlord final releases of lien and final contractor’s affidavit, all duly executed in proper legal form, and all in form and with such content reasonably required by Landlord, within thirty (30) days of completion of Tenant’s Work. Tenant shall complete all Tenant’s Work by the date which is sixty (60) days following the Rent Commencement Date.
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12.3.
|
Liens
: Tenant will pay all costs of construction done by it or caused to be done by it on the Premises as permitted by this Lease. Tenant will keep the Property free and clear of all construction, mechanic’s, materialman’s, laborer’s and supplier’s liens, resulting from construction done by or for Tenant. The interest of Landlord in the Premises and the Property shall not be subject to liens for improvements made by Tenant. Any lien filed by any contractor, materialman, laborer or supplier performing work for Tenant shall attach only to Tenant’s interest in the Premises. Tenant agrees to indemnify, defend and hold harmless Landlord from and against any and all costs and liabilities (including attorneys’ fees and expenses) and any and all construction, mechanic’s, materialman’s, laborer’s or supplier’s liens arising out of or pertaining to any improvements or construction done by Tenant. All persons and entities contracting or otherwise dealing with Tenant relative to the Premises or the Property are hereby placed on notice of the provisions of this Paragraph, and Tenant shall further notify in writing such persons or entities of the provisions of this Paragraph prior to commencement of any Tenant work in the Premises. If any construction, mechanic’s, materialman’s, laborer’s or supplier’s lien is ever claimed, fixed or asserted against the Premises or any other portion of the Property in connection with any such Tenant work, Tenant shall, within 10 days after receipt by Tenant of notice of such lien, discharge same as a lien either by payment or by posting of any bond as permitted by law. If Tenant shall fail to discharge or bond over any such lien, whether valid or not, within 10 days after receipt of notice from Landlord, Landlord shall have the right, but not the obligation, to discharge such lien on behalf of Tenant and all costs and expenses incurred by Landlord associated with the discharge of the lien, including, without limitation, attorneys’ fees, shall constitute additional rent hereunder and shall be immediately due and payable by Tenant.
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12.4.
|
Surrender of Premises
: On the last day of the term hereof or on any sooner termination, Tenant shall surrender the Premises to Landlord in the same condition as when received, ordinary wear and tear excepted, clear and free of debris. Tenant shall repair any damage to the Premises occasioned by the installation or removal of Tenant’s trade fixtures, furnishings and equipment.
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12.5
|
Landlord's Obligations
: Landlord shall, at its own cost and expense, maintain in good condition and repair the foundation, the floor slab load bearing walls, members supporting the roof and all other structural components of the Building (including the Premises) (collectively, the “Core and Structural Items”). Landlord shall further maintain in good order, condition and repair the roof of the building housing the Premises including all gutters and downspouts, the exterior of the Premises including all exterior walls, all utility and mechanical systems serving the Premises to the point of entry into the Premises and all utility and mechanical systems in but not exclusively serving the Premises. Landlord's obligation shall exclude the cost of any maintenance or repair required because of the intentional act or negligence of Tenant or any of Tenant's subsidiaries or affiliates, or any of Tenant’s or such subsidiaries’ or affiliates’ agents, contractors, employees, vendors, licensees or invitees or cause by or growing out of work, additions, alterations, improvements or changes made by Tenant or such parties to any such Core and Structural Items (collectively, "Tenant's Affiliates"), the cost of which shall be the responsibility of Tenant.
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13.
|
ENTRY AND INSPECTION:
Tenant shall permit Landlord or Landlord’s agents to enter upon the Premises at reasonable times and upon two (2) days prior written notice for the purpose of inspecting the same, performing any services required of Landlord hereunder and showing the Premises to potential and existing mortgagees and purchasers and prospective tenants of other space in the Property. The foregoing notwithstanding, Landlord is not required to give notice to Tenant if Landlord must enter the Premises because of an emergency. Tenant will permit Landlord, with 24 hours prior written notice, and within 270 days
prior to the expiration of this Lease, to show potential tenants the Premises.
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14.
|
INDEMNIFICATION:
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15.
|
POSSESSION:
If Landlord is unable to deliver possession of the Premises at the commencement hereof, Landlord shall not be liable for any damage caused thereby, nor shall this Lease be void or voidable, but Tenant shall not be liable for any rent until possession is delivered, at which time the term shall commence and the Expiration Date shall be extended so as to give effect to the full stated term; provided, however, Tenant may terminate this Lease if possession is not tendered in accordance with Section 1.4 hereof.
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16.
|
TENANT’S INSURANCE:
At all times during the term of this Lease, Tenant shall, at its sole expense, procure and maintain the following types of insurance coverage:
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16.1.
|
Commercial General Liability
: Commercial General Liability insurance, including Bodily Injury and Property Damage Liability, Products and Completed Operations, Personal and Advertising Injury Liability, and Fire Damage Liability against any and all damages and liability, including attorneys’ fees and expenses, on account of or arising out of injuries to or the death of any person or damage to property, however occasioned, in, on or about the Premises in amounts not less than
[***]
;
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16.2.
|
Plate Glass
: Insurance on all plate or tempered glass in or enclosing the Premises, for the replacement cost of such glass;
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16.3.
|
Personal Property
: Insurance on an All Risks basis covering 100% of the Replacement Cost value of property at the Premises including, without limitation, leasehold improvements, trade fixtures, merchandise, furnishings, equipment, goods and inventory;
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16.4.
|
Boiler & Machinery
: Where applicable, insurance covering central heating, air conditioning and ventilating systems, refrigeration equipment, machinery and electrical equipment, boilers and other high pressure piping and machinery, and other similar apparatus installed in the Premises, including Business Income loss;
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16.5.
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Business Income
: a) Business Interruption insurance for a period of not less than 12 months from the date of fire or casualty; b) Loss of Rents insurance to cover rental loss of Landlord for a period of not less than 12 months from the date of fire or casualty, naming Landlord as Loss Payee;
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16.6.
|
Employer’s Liability/Workers’ Compensation
: Employer’s Liability insurance with limits not less than
[***]
, and Workers’ Compensation insurance providing statutory state benefits for all persons employed by Tenant in connection with the Premises as required by applicable law;
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16.7.
|
Sprinkler Leakage
: Insurance covering damage from leakage of sprinkler systems now or hereafter installed in the Premises in an amount not less than the current replacement cost covering Tenant’s merchandise, Tenant’s improvements and Tenant’s trade fixtures; and
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16.8.
|
Other Insurance
: Such other insurance and in such amounts as may be required by Landlord against other insurable hazards as at the time are commonly insured against by prudent owners of comparable Properties in the area in which the Property is located.
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16.9.
|
Form of Insurance/Companies
: All insurance provided for in Section 16 hereof shall be in a form satisfactory to Landlord and carried with insurance companies reasonably acceptable to Landlord that are licensed or authorized to do business in the State in which the Property is located, are in good standing with the Department of Insurance in the State in which the Property is located, have a current rating issued by A.M. Best Company of not less than A-:VII, and/or whose claim paying ability is rated no lower than A by Standard & Poor’s Ratings Service and A2 by Moody’s Investors Service. Insurance coverage shall be written as primary policy coverage and not contributing with or excess of any coverage which Landlord may carry, and LNR Partners, Inc., Landlord, and Landlord’s managing agent shall be named as Additional Insureds with respect to Commercial General Liability and Automobile Liability, including any Umbrella or Excess policies. Tenant shall furnish Landlord at the inception of this Lease (i) a Certificate of Insurance evidencing that all such insurance is in effect and that Landlord will be given at least 30 days prior written notice of cancellation or non-renewal, and (ii) proof that premiums have been paid by Tenant. Not later than 15 days prior to the expiration of any insurance policy, evidence of renewals or replacements of such policy shall be delivered to Landlord, together with proof of payment of the associated premiums. In the event Tenant shall fail to procure any contract of insurance required under the terms hereof or any renewal of or replacement for any contract of insurance that is expiring or has been canceled, Landlord may, but shall not be obligated to, procure such insurance on behalf of Tenant and the cost thereof shall be payable to Landlord as additional rent within 10 days following written demand therefor.
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16.10.
|
Subrogation
: Landlord and Tenant shall each obtain from their respective insurers under all policies of property insurance maintained by either of them at any time during the term hereof insuring or covering the Premises, a waiver of all rights of subrogation which the insurer of one party might otherwise have, if at all, against the other party.
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17.
|
UTILITIES:
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17.1.
|
Tenant’s Responsibility
: Tenant agrees that it shall be responsible for the payment of all utilities, including water, gas, electricity, heat and other services delivered to the Premises. If any such services are not separately metered to the Premises, Tenant shall pay a reasonable proportion, as determined by Landlord, of all charges jointly metered with other premises. Tenant shall also be responsible for its own janitorial services in its Premises.
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17.2.
|
Landlord’s Responsibility
: Landlord shall not be liable for failure to furnish any of the utilities described in Paragraph 17 and Tenant shall have no right to abatement of rental hereunder or to termination of this Lease with respect to any such interruption nor shall such failure constitute an eviction, nor shall Landlord be liable under any circumstances for loss of or injury to property, however occurring through or in connection with or incidental to the furnishing of any of the services enumerated above. Provided, however, Landlord shall use commercially reasonable efforts to avoid and remedy any material interference with Tenant’s operations due to any failure, variation or interruption of any utilities services and, to the extent practicable, Landlord will conduct any necessary restoration work within the Premises outside Tenant’s normal business hours. Notwithstanding the foregoing to the contrary, in the event (a) the need for any such repairs or alterations is due to the gross negligence or willful misconduct of Landlord, its agents, employees or contractors or Landlord is not using its commercially reasonable efforts to diligently pursue the cure of such interruption and (b) during the course of such interruption Tenant is prevented from operating the Premises for the Permitted Use (and in fact Tenant for such reason reasonably ceases operations or use in all of the Premises) for a period in excess of two (2) days, then, provided the utility at issue is limited to electricity, water and sewer interruption, and provided written notice is promptly given to Landlord (in any case within three (3) days of such event), all Rent shall abate commencing on the third (3rd) such day and continuing until Tenant is again able to operate the Premises for the Permitted Use due to restoration of such interrupted utility service; provided further, utility interruptions arising from events exterior to the Property (such as a community or area-wide power outage) shall not under any circumstances give rise to Tenant remedies such as abatement of rent.
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18.
|
CONDEMNATION:
If thirty (30%) percent of the land area of the Property shall be taken or condemned for public use, either party hereto may elect to terminate this Lease effective on the date of taking; otherwise this Lease will remain in full force and effect. If there is a taking of all of the Premises or a part thereof so that the remaining part of the Premises is not suited for Tenant’s continued use, either party may elect to terminate this Lease effective on the date of taking. If there is a taking of a portion of the Premises and a part remains which is suitable for Tenant’s use, this Lease shall, as to the part taken, terminate as of the date the condemnor acquires possession, and thereafter Tenant shall be required to pay such proportion of the rent for the remaining term as the value of the Premises remaining bears to the total value of the Premises at the date of condemnation. The election to terminate this Lease as provided herein must be exercised, if at all, within 60 days after the nature and extent of the taking is determined, otherwise, this Lease will remain in full force and effect. All sums which may be payable on account of any condemnation shall belong solely to the Landlord, and Tenant shall not be entitled to any part thereof, provided however, that Tenant shall be entitled to retain any amount awarded to it for its trade fixtures or moving expenses.
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19.
|
TRADE FIXTURES:
Any and all improvements made to the Premises during the term hereof shall, unless Landlord requests their removal at the time of installation, belong to the Landlord without compensation, allowance or credit to Tenant, except movable trade fixtures of the Tenant which can be removed without defacing the Premises or the Property.
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20.
|
DESTRUCTION OF PREMISES:
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20.1.
|
Partial Destruction
: In the event of a partial destruction of the Premises during the term hereof, from any cause covered by insurance, Landlord must repair the same to the extent insurance proceeds are received by Landlord for such repairs, and within 60 days from receipt of such proceeds under then existing governmental laws and regulations. Such partial destruction shall not terminate this Lease and Tenant shall be entitled to a proportionate reduction of rent while such repairs are being made, based upon the extent to which the making of such repairs shall interfere with the business of Tenant on the Premises. If such repairs cannot be made within said 60 day period, Landlord, at its option, may make the repairs within a reasonable time. If Landlord elects to make said repairs, this Lease will continue in effect and the rent will be proportionately abated as stated above. If the repairs cannot be made within 60 days
from receipt of insurance proceeds by Landlord, and Landlord elects not to make said repairs, this Lease may be terminated at the option of either party.
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20.2.
|
Material/Total Destruction
: If the Building in which the Premises are situated or the Property sustains damage of more than 1/3 of the replacement cost thereof, Landlord may elect to terminate this Lease whether the Premises are injured or not. A total destruction of the Building in which the Premises are situated or the Property shall terminate this Lease.
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20.3
|
Major Renovation
. Notwithstanding anything contained in this Lease to the contrary, in the event the Premises, is damaged or destroyed and this Lease has not been terminated as elsewhere provided herein, and Landlord does not complete the reconstruction of the Premises and the building the Premises are located in, within two hundred seventy (270) days after such damage or destruction, Tenant, at its option, may terminate this Lease effective upon written notice thereof to Landlord given at any time prior to the substantial completion of such reconstruction.
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21.1.
|
Definitions
: For the purposes of this Agreement, the following terms have the following meanings:
|
|
(a)
|
“Environmental Law”
means any law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environment including, without limitation,
CERCLA
(Comprehensive Environmental Response, Compensation and Liability Act of 1980),
RCRA
(Resources Conservation and Recovery Act of 1976) and
SARA
(Superfund Amendments and Reauthorization Act of 1986).
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|
(b)
|
“Hazardous Substance”
means any substance, material or waste which is or becomes designated, classified or regulated as being “toxic” or “hazardous” or a “pollutant” or which is or becomes similarly designated, classified or regulated, under any Environmental Law, including asbestos, petroleum and petroleum products.
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21.2.
|
Tenant’s Responsibilities
: At its own expense, Tenant will procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for Tenant’s use of the Premises. Except in the ordinary course of Tenant's business and in accordance with Environmental Laws, Tenant will not cause or permit any Hazardous Substance to be brought upon, kept or used in or about the Property by Tenant, its agents, employees, contractors or invitees without the prior written consent of Landlord. Tenant will cause any and all Hazardous Substances brought upon the Premises or Property by Tenant to be removed from the Premises and Property and transported in accordance with Environmental Laws. Tenant will, in all respects, handle, treat, deal with and manage any and all Hazardous Substances in, on, under or about the Premises or Property in total conformity with all applicable Environmental Laws and prudent industry practices regarding management of such Hazardous Substances. Upon expiration or earlier termination of the term of the Lease, Tenant will cause all Hazardous Substances placed on, under or about the Premises or Property by Tenant or at Tenant’s direction (expressly including without limitation as may arise by reason of the operation of the Generator noted below in this Lease) to be removed and transported for use, storage or disposal in accordance and compliance with all applicable Environmental Laws. Tenant will not take any remedial action in response to the presence of any Hazardous Substances in or about the Premises or the Property, nor enter into any settlement agreement, consent decree or other compromise in respect to any claims relating to any Hazardous Substances in any way connected with the Premises or Property without first notifying Landlord of Tenant’s intention to do so and affording Landlord ample opportunity to appear, intervene or otherwise appropriately assert and protect Landlord’s interests with respect thereto.
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21.3.
|
Indemnification
: If the Premises or the Property become contaminated in any manner for which Tenant is legally liable or otherwise become contaminated by any release or discharge of a Hazardous Substance, Tenant shall immediately notify Landlord of the release or discharge of the Hazardous Substance, and Tenant shall indemnify, defend and hold harmless Landlord from and against any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, a decrease in value of the Property or the Premises, damages caused by loss or restriction of rentable or usable space, or any damages caused by adverse impact on marketing of the space, and any and all sums paid for settlement of claims, attorneys’ fees and expenses, consultant fees and expert fees) arising during or after the term of this Lease and arising as a result of such contamination, release or discharge. This indemnification includes, without limitation, any and all costs incurred because of any investigation of the site or any cleanup, removal or restoration mandated by federal, state or local agency or political subdivision.
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21.4
|
Landlord Representations
. Landlord represents and warrants that Landlord (commencing as of its period of stewardship of the Property through the date of execution of this Lease) has not treated, stored or disposed of any Hazardous Substances upon or within the Premises (other than minor uses of ordinary commercially standard and lawfully employed cleaning and similar typical operational activities to the extent employing chemical agents and the like which comply with law), nor, to the best of Landlord's actual knowledge, has any predecessor owner of the Premises provided, Landlord does not have ordinary diligence information or knowledge about any predecessor’s conduct due to the circumstances by which Landlord succeeded to its position in control of the Property. Landlord has not investigated the Premises nor tested it to determine the inclusion of any asbestos (friable or otherwise) or other Hazardous Substances whether or not beyond thresholds which violate law and/or require remediation and Tenant has been given ample opportunity to perform such diligence prior to executing this Lease. Landlord further represents and warrants the following to the best of Landlord’s actual knowledge only:
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22.
|
EVENTS OF DEFAULT:
If one or more of the following events
(“Event of Default”)
occurs, such occurrence constitutes a breach of this Lease by Tenant:
|
22.1.
|
Intentionally Omitted
:
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22.2.
|
Rent
: Tenant fails to pay any monthly Basic Rent or Operating Expenses Rent, if applicable, as and when the same becomes due and payable, and such failure continues for more than five (5) days after written notice thereof is given
;
or
|
22.3.
|
Other Sums
: Tenant fails to pay any other sum or charge payable by Tenant hereunder as and when the same becomes due and payable, and such failure continues for more than ten (10) days after written notice thereof is given; or
|
22.4.
|
Other Provisions
: Tenant fails to perform or observe any other agreement, covenant, condition or provision of this Lease to be performed or observed by Tenant as and when performance or observance is due, and such failure continues for more than 30 days after Landlord gives written notice thereof to Tenant, or if the default cannot be cured within said 30 day period and Tenant fails promptly to commence with due diligence and dispatch the curing of such default or, having so commenced, thereafter fails to prosecute or complete with due diligence and dispatch the curing of such default; or
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22.5.
|
Insolvency
: Tenant (a) files or consents by answer or otherwise to the filing against it of a petition for relief or reorganization or arrangement or any other petition in bankruptcy or liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction; (b) makes an assignment for the benefit of its creditors; or (c) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers of itself or of any substantial part of its property; or
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22.6.
|
Receiver
: A court or governmental authority of competent jurisdiction, without consent by Tenant, enters an order appointing a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial power of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding up or liquidation of Tenant, or if any such petition is filed against Tenant and such petition is not dismissed within 45 days; or
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22.7.
|
Attachments
: This Lease or any estate of Tenant hereunder is levied upon under any attachment or execution and such attachment or execution is not vacated within 60 days; or
|
22.8.
|
Assignment/Sublease
: Tenant assigns this Lease or subleases all or any portion of the Premises in violation of Section 10 hereof.
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23.
|
REMEDIES OF LANDLORD ON DEFAULT:
|
23.1.
|
Termination
: In the event of any breach of this Lease by Tenant, Landlord may, at its option, terminate the Lease and repossess the Premises pursuant to the laws of the State in which the Property is located and recover from Tenant as damages:
|
|
(a)
|
the unpaid rent and other amounts due at the time of termination plus statutory interest from the date such debts arose plus statutory interest upon any judgments then secured, all at the State’s statutory rate for such amounts; and
|
|
(b)
|
the present value of the balance of the rent for the remainder of the term after termination less the present value of the fair market value rental of the Premises for said period (both determined by applying a discount rate of
1½%
below the Wall Street Journal Prime Rate); and
|
|
(c)
|
A damage value computed as a portion of half (1/2) of all Abated Rent (“
Abated Rent Damage Recovery
”), calculated as follows: (i) In case of such a termination properly so arising by reason of a Tenant Event of Default during Period 1 of the initial Term of this Lease, the Abated Rent Damage Recovery amount shall be an amount equal to half (1/2) of all Abated Rent having accrued prior to such date of termination. (ii) In case of such a termination properly so arising by reason of a Tenant Event of Default during Periods 2, 3, 4, or 5 of the initial Term of this Lease, or during Period 6 (being the first Period of the First Option Term), the Abated Rent Damage Recovery amount shall be the then unamortized value of half (1/2) of all Abated Rent, computing same over a five (5) year assumed amortization period which is deemed to have commenced on the first day of Period 2 of the initial Term, deemed to have an initial balance for purposes of amortizing which is equal to the full amount half (1/2) of all Abated Rent accrued through all of Period 1 of the initial Term, and computing same utilizing a standard continuously “self-liquidating” (to zero at end of such five [5] year period) straight-line constantly declining amortization schedule.
|
23.2.
|
Landlord’s Options
: Landlord may, in the alternative, (i) continue this Lease in effect, as long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all its rights and remedies under the Lease, including the right to recover the rent as it becomes due under the Lease; or (ii) terminate Tenant’s right of possession (but not this Lease) and repossess the Premises pursuant to the laws of the State in which the Property is located, without demand or notice of any kind to Tenant, in which event Landlord shall use commercially reasonable efforts to relet the Premises for the account of Tenant for such rent and upon such terms as shall be satisfactory to Landlord. For purpose of such reletting Landlord is authorized by Tenant to decorate or to make any repairs, changes, alterations or additions in or to the Premises that may be necessary or convenient, at Tenant’s expense. Tenant shall also be responsible for rent for the period that the Premises are vacant and all costs of re-letting, including, without limitation, reasonable brokerage commissions and attorneys’ fees. Tenant shall be liable for any deficiency of such rental below the total rental and all other payments herein provided for the unexpired balance of the term of this Lease. If said breach of the Lease continues, Landlord may, at any time thereafter, elect to terminate the Lease; or (iii) exercise any and all other rights and remedies available to Landlord at law or in equity.
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24.
|
SECURlTY DEPOSIT:
The Security Deposit set forth in Paragraph 1, if any, and any other sums collected by Landlord until same are applied by Landlord shall secure the performance of the Tenant’s obligations hereunder. Landlord may, but shall not be obligated to, apply all or portions of the Security Deposit on account of Tenant’s obligations hereunder. In the event that Landlord applies all or a portion of the Security Deposit to Tenant’s obligations hereunder, Tenant shall be obligated, within 10 days of receipt of notice from Landlord, to deposit cash with Landlord in an amount sufficient to restore the Security Deposit to the full amount stated in Paragraph 1.9 above. Failure to deposit such cash shall be a default under the terms of this Lease. Provided Tenant is not in default, any balance remaining upon termination shall be returned to Tenant. Tenant shall not have the right to apply the Security Deposit in payment of the last month’s rent. No interest shall be paid by Landlord on the Security Deposit. In the event of a sale of the Property, Landlord shall have the right to transfer the Security Deposit to the purchaser, upon such transfer Landlord shall have no further liability with respect thereto, and Tenant agrees to look solely to such purchaser for the return of the Security Deposit. Landlord shall not be required to keep the Security Deposit in a segregated account, and the Security Deposit may be commingled with other funds of Landlord.
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25.
|
LIEN FOR RENT:
Intentionally deleted.
|
26.
|
ERISA:
Intentionally deleted.
|
27.
|
LANDLORD DEFAULT
: Landlord shall be in default under this Lease (herein "Landlord's Default") upon the failure or refusal of Landlord, at any time during the Term, to fulfill or perform any covenant, agreement or obligation of Landlord hereunder if such failure or refusal shall continue without correction for a period of thirty (30) days (or such shorter period of time as reasonable in an emergency or such longer period as reasonably necessary as provided below) after written notice thereof to Landlord, provided that if such covenant, agreement or obligation shall be of such a nature that it cannot be reasonably fulfilled or performed within such thirty (30) days exercising due diligence and if Landlord in good faith commences to fulfill or perform same within said thirty (30) day period, a Landlord’s Default shall not be deemed to have occurred if Landlord is then diligently pursuing the fulfillment or performance of the covenant, agreement or obligation and shall thereafter continuously and diligently proceed therewith until completion. Tenant shall have all remedies at law and in equity upon any such Landlord Default, subject to the following. Notwithstanding anything else contained in this Lease, should Landlord breach any of its duties or obligations to Tenant in respect of any Landlord-required repair actions within or to the Premises itself only, and if Tenant reasonably concludes that an emergency situation exists in or to the Premises which materially jeopardizes Tenant’s ability to operate business (including imminent harm to person or property), Tenant shall provide such written notice and time for Landlord to cure as may be practicable under the circumstances and Tenant in such circumstances only, where Landlord does not timely then commence the cure and prosecute same with reasonable diligence toward completion, may take such action as is reasonably necessary to begin to remedy such emergency situation so as to mitigate damages and losses, pending Landlord’s undertaking action as required under this Lease, but taking same to completion where (if) Landlord does not undertake the effort in a reasonable time under the circumstances (and the parties acknowledge that under emergency circumstances it is possible to reasonably conclude that very little notice is sufficient due to such exigency). In connection therewith, provided Tenant is not in default or violation of this Lease of which written notice has been given (and if so, not until such default or violation has been cured), Landlord shall promptly thereafter reimburse Tenant following submission of reasonable documentation evidencing the reasonable actual expenses reasonably so incurred by Tenant (including paid receipts therefor so as to assure Landlord of repairs having been performed in a good and workman-like manner to lien-free completion) in taking only such action herein permitted which was otherwise required of Landlord; provided further, however, notwithstanding this sentence, no such action may be taken by Tenant in respect of the roof except Tenant may take certain reasonable non-structural non-invasive non-damaging measures to mitigate its losses, such as having a tarp or other covering or similar temporary protection installed or placed but only while exercising commercially reasonable care in good faith to try to avoid further damaging the roof or voiding any roof warranty or bond; and provided further under no circumstances may Tenant take a rental off-set or abatement in respect of any cost, expense or reimbursement so incurred or otherwise due Tenant hereunder, Tenant’s sole and exclusive remedy for Landlord’s failure to reimburse same being limited to an action for damages against Landlord (and the prevailing party shall be entitled to recover from the non-prevailing party, such prevailing party’s reasonable attorneys’ fees and costs reasonably incurred in the prosecution or defense of such an action (as applicable), through and including appellate levels). Under no circumstances shall any provision of this Lease be deemed or construed to consent to or otherwise permit Tenant to take any such actions outside of its Premises (other than as to the roof as aforesaid and other than against the immediate exterior if the situation qualifies otherwise hereunder for such self-help attention).
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28.
|
LIMITATION ON LANDLORD’S PERSONAL LIABILITY:
Tenant specifically agrees to look solely to Landlord’s interest in the Property including income therefrom (such as but not limited to rent) and all net proceeds of sale on execution of the interest of Landlord in the Property, for the recovery of any judgment from Landlord, it being agreed that Landlord (and any officers, shareholders, directors or employees of Landlord) shall never be personally liable for any such judgment. In event of a sale or conveyance by Landlord of the Property, the same shall operate to release Landlord from any future liability upon any of the covenants or conditions, expressed or implied, contained in this Lease in favor of Tenant, and in such event Tenant agrees to look solely to the responsibility of the successor in interest of Landlord in and to this Lease. Except as set forth in this Article, this Lease shall not be affected by any such sale and Tenant agrees to attorn to the purchaser or assignee. If any security has been given by Tenant to secure the faithful performance of any of the covenants of this Lease, Landlord shall transfer or deliver (including by means of a closing credit in connection with a sale so as to cause the successor to be deemed to take a transfer of) said security, as such, to Landlord's successor in interest and, thereupon Landlord shall be discharged from any further liability with regard to said security.
|
29.
|
ATTORNEYS’ FEES:
In the event Tenant defaults in the performance of any of the terms, covenants, agreements or conditions contained in this Lease and Landlord places the enforcement of this Lease or the collection of any rent due or to become due hereunder or recovery of the possession of the Premises in the hands of an attorney, Tenant agrees to pay Landlord reasonable attorneys’ fees and costs. If there is any legal action or proceeding between Landlord and Tenant to enforce any provision of this Lease or to protect or establish any right or remedy of either Landlord or Tenant hereunder, the unsuccessful party to such action or proceeding will pay to the prevailing party all costs and expenses, including reasonable attorneys’ fees (including allocated costs of Landlord’s in-house attorney), incurred by such prevailing party in such action or proceeding and in any appearance in connection therewith, and if such prevailing party recovers a judgment in any such action, proceeding or appeal, such costs, expenses and attorneys’ fees will be determined by the court handling the proceeding and will be included in and as a part of such judgment.
|
29.
|
WAIVER:
No failure of Landlord to enforce any term hereof shall be deemed to be a waiver.
|
30.
|
SEVERABILITY:
If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the term hereof, then it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of both parties that in lieu of each clause or provision that is illegal, invalid or unenforceable, there shall be added as a part of this Lease, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.
|
31.
|
NOTICES:
All notices or other communications required or permitted hereunder must be in writing, and be (i) personally delivered (including by means of professional messenger service), (ii) sent by overnight courier, with request for next Business Day delivery, or (iii) sent by registered or certified mail, postage prepaid, return receipt requested, to the addresses set forth in Paragraph 1. All notices sent by mail will be deemed received 2 days after the date of mailing or upon delivery or refusal of delivery.
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32.
|
HOLDING OVER:
Any holding over after the expiration or termination of this Lease shall be construed as a month-to-month tenancy at a rental of
200%
(but, same shall be
150%
for the first thirty (30) days of any such holding over if the parties are then in good faith engaged in negotiations to finalize a term extension) of the rent for the month of the Lease preceding the month in which the expiration or termination occurred, and otherwise in accordance with the terms hereof, as applicable. In the event Tenant shall be or become a holdover tenant, Tenant shall also indemnify Landlord against all claims for damages against Landlord as a result of Tenant’s possession of the Premises, including, without limitation, claims for damages by any tenant to whom Landlord may have leased the Premises, or any portion thereof, for a term commencing after the expiration or termination of this Lease.
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33.
|
TIME:
Time is of the essence of this Lease.
|
34.
|
HEIRS, ASSIGNS, SUCCESSORS:
This Lease is binding upon and inures to the benefit of the assigns and successors in interest of Landlord and is binding upon and inures to the benefit of Tenant and Tenant’s heirs and successors and, to the extent assignment may be approved by Landlord hereunder, Tenant’s assigns.
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35.
|
SUBORDINATION:
This Lease is and shall always be subject and subordinate to the lien of any mortgages which are now or shall at any future time be placed upon the Property, the Premises or Landlord’s rights hereunder, and to any renewals, extensions, modifications or consolidations of any such mortgage. This clause shall be self-operative and no further instrument of subordination need be required by any mortgagee. In confirmation of such subordination, however, Tenant, at Landlord’s request, shall execute promptly any appropriate certificate or instrument that Landlord may reasonably request. If there currently (as of the date of execution of this Lease) exists a mortgage or other encumbrance of the Property securing debt of Landlord, then, Tenant and Landlord's mortgagee shall enter into the lender’s form of subordination, nondisturbance and attornment agreement in recordable form reasonably acceptable to Tenant and Landlord's mortgagee, which provides that in any event of foreclosure, sale under power of sale, ground or master lease termination or transfer in lieu of any the foregoing or exercise of any other remedy pursuant to such mortgage: (a) Tenant’s use, possession and enjoyment of the Premises shall not be disturbed and this Lease shall continue in full force and effect so long as Tenant is not in default hereunder beyond any applicable notice and cure period and so long as Tenant attorns to such successor and agrees to and in fact does pay rents and charges hereunder due Landlord, to such successor, and (b) this Lease shall automatically and unconditionally become a direct lease between any successor to Landlord’s interest, as landlord, and Tenant as if such successor was the Landlord originally named hereunder.
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36.
|
ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS:
|
36.1.
|
Content
: Tenant shall at any time upon not less than 10 days prior written notice from Landlord execute, acknowledge and deliver to Landlord a statement in writing:
|
|
(a)
|
certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect), the amount of any security deposit, and the date to which the rent and other charges are paid in advance, if any; and
|
|
(b)
|
acknowledging that there are not, to Tenant’s knowledge, any uncured defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by a prospective purchaser or encumbrancer to the Premises.
|
36.2.
|
Failure to Deliver
: At Landlord’s option, Tenant’s failure to deliver such statement within such time shall be a material breach of this Lease or shall be conclusive upon Tenant:
|
|
(a)
|
that this Lease is in full force and effect, without modification, except as may be represented by Landlord;
|
|
(b)
|
that there are no uncured defaults in Landlord’s performance; and
|
|
(c)
|
that not more than one month’s rent has been paid in advance or such failure may be considered by Lessor as a default by Tenant under this Lease.
|
36.3.
|
Financial Statements
: No more often than once every two (2) years during the Term and in case of an Event of Default and in case of a pending sale, financing or refinancing of the Property, Tenant shall deliver to Landlord, Tenant’s reasonable financial statements and financial information provided same are held by Landlord and its lender as applicable in confidence and provided no such obligation shall arise where Tenant is a public company (meaning, a company whose shares are regularly traded on a US national SEC-regulated securities exchange). Provided, however, so long as Tenant consolidates its financial statements with a public company then Tenant shall have no obligation to deliver financial statements as provided in this Section 36.3.
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37.
|
AUTHORIZATION:
If Tenant executes this Lease as a corporation or partnership, then Tenant and the person(s) executing this Lease on behalf of Tenant, represent and warrant that such entity is duly qualified to do business in the State in which the Property is located and that the individuals executing this Lease on Tenant’s behalf are duly authorized to execute and deliver this Lease on Tenant’s behalf.
|
38.
|
JOINT AND SEVERAL LIABILITY:
In the event that more than one person or entity executes the Lease as Tenant, all such persons and entities shall be jointly and severally liable for all of Tenant’s obligations hereunder.
|
39.
|
FORCE MAJEURE:
Each party hereto shall be excused for the period of any delay in the performance of any non-monetary obligations hereunder when prevented from doing so by cause or causes beyond such party's reasonable control which shall include, without limitation, all labor disputes, civil commotion, civil disorder, riot, civil disturbance, war, war-like operations, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulations, orders, moratoriums or controls, fire or other casualty, inability to obtain any material, or services, or Acts of God.
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40.
|
RECORDING:
Tenant shall not record this Lease, or any memorandum or short form thereof, without the written consent and joinder of Landlord, which may be unreasonably withheld.
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41.
|
RIDER:
A Rider portion of this Lease, captioned “Rider Provisions (Additional Terms)” appears above the signature blocks at the end of the body of this Lease (below); and includes additional terms and provisions to which the parties agree unless no such Rider portion appears, in which case none is deemed included.
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42.
|
ENTIRE AGREEMENT:
The foregoing constitutes the entire agreement between the parties and may be modified only by a writing signed by both parties.
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43.
|
GOVERNING LAW:
This Lease shall be construed in accordance with the laws of the State in which the Property is located.
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44.
|
RADON GAS:
|
Intentionally omitted; not applicable to a non-Florida property.
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45.
|
RADIUS:
Intentionally omitted.
|
46.
|
PROMOTIONAL PROGRAM:
Intentionally omitted.
|
47.
|
WAIVER OF THE RIGHT TO TRIAL BY JURY: LANDLORD AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT LANDLORD OR TENANT MAY HEREINAFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS LEASE OR THE LEASED PREMISES.
THE PARTIES FURTHER HEREBY WAIVE THE RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE FOREGOING WAIVERS ARE IRREVOCABLE AND MUTUALLY, KNOWINGLY, WILLINGLY, INTENTIONALLY AND VOLUNTARILY MADE AFTER EACH PARTY HAS HAD THE BENEFIT OF, OR AMPLE OPPORTUNITY, TO GAIN LEGAL ADVICE AND COUNSEL.
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48.
|
NO CONSEQUENTIAL OR PUNITIVE DAMAGES
. NOTWITHSTANDING ANY PROVISION IN THIS LEASE TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES.
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49.
|
SPECIAL STIPULATIONS
:
|
(i)
|
Within thirty (30) days after receipt of Tenant’s notice to exercise its option to extend the Term, Landlord will deliver to Tenant a written statement of Landlord’s determination of the fair market rental value of the Premises (the "Market Rental Rate"). If Tenant objects to Landlord’s determination of the Market Rental Rate for the Premises, then Tenant shall, within ten (10) business days after receipt of Landlord’s notice, notify Landlord in writing that Tenant disagrees with Landlord’s determination, whereupon Landlord and Tenant shall meet and endeavor in good faith to agree upon the Market Rental Rate for the applicable option term. If Landlord and Tenant fail to reach agreement within twenty (20) business days after Tenant’s notice, then, within twenty (20) days thereafter, each party, at its own cost and by giving notice to the other party, shall appoint a licensed commercial real estate broker with at least seven (7) years full-time experience as a real estate broker active in the leasing of commercial space or appraising properties in the City of Marietta and surrounding areas. Market Rental Rate shall be based on prevailing rates for leases of retail space similar to and in the vicinity of the Premises, including any savings to Landlord by virtue of Landlord's not having to pay additional tenant improvement or inducement costs, or pay additional brokers’ commissions and any savings to Tenant by not having to pay so-called “key money” if then a fair market term, but shall not reflect the value added to the Premises by virtue of tenant improvements made by Tenant at its expense. If a party does not appoint a broker within the aforementioned period, the single broker appointed shall determine the Market Rental Rate for the applicable option term. If there are two (2) brokers appointed by the parties as stated above, the brokers shall meet within twenty (20) days after the second agent has been appointed and attempt to determine the Market Rental Rate for the applicable option term. If they are unable to agree on such Market Rental Rate within twenty (20) days after the second broker has been appointed, they shall, within ten (10) days: (i) notify all of the parties in writing as to their respective Market Rental Rate determinations, and (ii) select a third broker who shall be a licensed commercial real estate agent meeting the qualifications stated above. If Landlord’s broker and Tenant’s broker are unable to agree on the third broker within such ten (10) day period, then either Landlord or Tenant may request the President of the BOMA Chapter including the area of the Project to select a third broker meeting the qualifications stated in this subsection. Each of the parties shall bear one-half (1/2) of the cost of appointing the third broker and the third broker’s fee.
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(ii)
|
Within ten (10) business days after the selection of the third broker, the third broker shall notify both parties in writing as to which of the two determinations is closest to the Market Rental Rate for the applicable option term, and the Market Rental Rate determination so selected by the third broker shall be the Market Rental Rate for the first year of the applicable option term.
|
(iii)
|
Each broker shall consider such information as Landlord and Tenant timely presents regarding the determination of Market Rental Rate for the first year of the applicable option term, and each broker shall be given access to the information used by each other broker.
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I.
|
If Tenant shall default in the performance of any of the covenants and obligations of said Lease on Tenant’s part to be performed (including payment of all amounts due thereunder), then Guarantor will on demand perform the covenants and obligations of the Lease on Tenant’s part to be performed and will on demand pay to Landlord any and all sums due to Landlord, including all damages and expenses that may arise in consequence of Tenant’s default, and Guarantor does hereby waive all requirements of notice of the acceptance of this Guaranty and all requirements of notice of breach or nonperformance by Tenant.
|
II.
|
This Guaranty is a guaranty of payment, and not of collection, for any sum of money owing from Tenant to Landlord.
|
III.
|
Guarantor hereby waives:
|
|
A.
|
any right to require that any prior action be brought against Tenant;
|
|
B.
|
any right to require that resort be had to any security or to any other credit in favor of Tenant; and
|
|
C.
|
all suretyship defenses generally, and the right to petition for the marshaling of assets.
|
IV.
|
This Guaranty shall remain and continue in full force and effect:
|
|
A.
|
as to any renewal, extension, holdover, modification or amendment of the Lease (including any expansion of the Premises and any increase in Tenant’s obligations to Landlord) and this Guaranty shall remain and continue in full force and effect as to the Lease even though Tenant may have subleased all or any portion of the Premises or assigned all or any portion of Tenant’s interest in the Lease. Guarantor waives notice of any and all such renewals, extensions, holdovers, modifications, amendments, subleases or assignments;
|
|
B.
|
even though Landlord may have waived one or more defaults by Tenant, extended the time of performance by Tenant, released, returned or misapplied other collateral given as additional security (including other guaranties) or released Tenant from the performance of its obligation under the Lease;
|
|
C.
|
notwithstanding the institution by or against Tenant of bankruptcy, reorganization, readjustment, receivership or insolvency proceeding of any nature, or the disaffirmance of the Lease in any such proceedings or otherwise; and
|
|
D.
|
until such time as Landlord has executed and delivered to Guarantor an instrument specifically releasing Guarantor
,
Guarantor may not be released by any actions or oral statements of Landlord or by implication.
|
V.
|
If the Lease shall be terminated due to a default by Tenant, Guarantor shall (without in any way limiting its liability under any other provision of this Guaranty), at the request of and within the complete discretion of Landlord, enter into a new Lease with Landlord on the same terms and conditions as contained in the Lease immediately prior to its termination, commencing on the termination date of said Lease and ending on the expiration date of said Lease; this provision shall not, however, vest Guarantor with any right to demand or require such a new Lease from Landlord. Landlord shall have sole and absolute discretion as to whether or not such a new lease shall be required.
|
VI.
|
Guarantor shall submit to Landlord annually, or at such other times as Landlord shall request, financial statements and such other financial information as Landlord shall require, which shall be audited by a certified public accountant if required by Landlord;
provided no such obligation shall arise where Guarantor is a public company (meaning, a company whose shares are regularly traded on a US national SEC-regulated securities exchange).
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VII.
|
If Guarantor is a corporation, Guarantor represents and warrants that this Guaranty has been duly authorized by all necessary corporate action on Guarantor’s part, has been duly executed and delivered by a duly authorized officer, and constitutes Guarantor’s valid and legally binding agreement in accordance with its terms.
|
VIII.
|
This Guaranty shall be applicable to and inure to the benefit of Landlord, its successors and assigns and shall be binding upon the heirs, representatives, successors and assigns of Guarantor.
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IX.
|
Guarantor may, at Landlord’s option, be joined in any action or proceeding commenced by Landlord against Tenant in connection with and based upon any covenants and obligations in the Lease and/or this Guaranty, and Guarantor waives any demand by Landlord and/or prior action by Landlord of any nature whatsoever against Guarantor.
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X.
|
If this Guaranty is signed by more than one party, their obligations shall be joint and several and the release of one of such Guarantors shall not release any other such Guarantors.
|
XI.
|
The liability of Guarantor is co-extensive with that of Tenant and also joint and several; an action may be brought against Guarantor and carried to final judgment either with or without making Tenant a party thereto.
|
XII.
|
Until all of Tenant’s obligations under said Lease are fully performed, Guarantor (1) waives any rights that Guarantor may have against Tenant by reason of any one or more payments or acts in compliance with the obligation of Guarantor under this Guaranty, and (2) subordinates any liability or indebtedness of Tenant held by Guarantor to the obligations of Tenant to Landlord under said Lease.
|
XIII.
|
This Guaranty and the Lease shall be governed by, interpreted under the laws of, and enforced in the courts of the State in which the Premises are located.
|
XIV.
|
Guarantor hereby waives the benefit of any statute of limitations affecting Guarantor’s liability under this Guaranty and any plea or claim of lack of personal jurisdiction or improper venue in any action, suit or proceeding brought to enforce this Guaranty or any of the obligations arising hereunder. Guarantor specifically authorizes any such action to be instituted and prosecuted in any Circuit Court in the State in which the Premises are located or United States District Court of the State in which the Premises are located, at the election of Landlord, where venue would lie and be proper. Guarantor irrevocably appoints Tenant as its agent for service of process.
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XV.
|
Guarantor will pay to Landlord all of Landlord’s expenses incurred in enforcing this Guaranty, including, but not limited to, attorneys’ fees and costs at the trial level and at all levels of appeal and in connection with any bankruptcy or administrative proceedings and proceedings for the determination of attorneys’ fees at any level.
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XVI.
|
LANDLORD AND GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRLAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY AND ANY AGREEMENTS CONTEMPLATED HEREBY TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE PARTIES HERETO. THE PARTIES FURTHER HEREBY WAIVE THE RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED.THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LANDLORD’S ACCEPTANCE OF THIS GUARANTY. THE FOREGOING WAIVERS ARE IRREVOCABLE AND MUTUALLY, KNOWINGLY, WILLINGLY, INTENTIONALLY AND VOLUNTARILY MADE AFTER EACH PARTY HAS HAD THE BENEFIT OF OR OPPORTUNITY TO GAIN LEGAL ADVICE AND COUNSEL. LANDLORD IS DEEMED TO HAVE JOINED IN THE WAIVERS OF JURY TRIAL AND RELATED PROVISIONS OF THIS CAPITALIZED PARAGRAPH BY ITS ACCEPTANCE OF THIS GUARANTY. NOTWITHSTANDING THE FOREGOING IN THE EVENT ANY PROVISION OF THIS GUARANTY IS PROHIBITED, UNENFORCEABLE OR INVALID UNDER THE LAWS OF ANY JURISDICTION, INCLUDING THOSE OF THE STATE INDICATED ABOVE, SUCH PROHIBITION, UNENFORCEABLE OR INVALID PROVISION SHALL NOT IN ANY FASHION AFFECT THE ENFORCEABILITY OR VALIDITY OF THE REMAINING PROVISIONS HEREOF.
|
1.
|
In the event of any conflict between the terms of these rules and regulations and the express provisions of the Lease, the express, applicable provisions of the Lease shall control. Landlord reserves the right, without the approval of Tenant, to rescind, add to and amend any rules or regulations, to add new reasonable rules or regulations and to waive any rules or regulations with respect to any tenant or tenants. Tenant shall provide a copy of these rules and regulations to each of its employees to facilitate compliance with these standards.
|
2.
|
The sidewalks, walks, plaza entries, corridors, ramps, staircases and elevators of the Property shall not be obstructed, and shall not be used by Tenant, or the employees, agents, servants, visitors or invitees of Tenant, for any purpose other than ingress and egress to and from the Premises. No skateboards, roller skates, roller blades or similar items shall be used in or about the Property.
|
3.
|
No freight, furniture or other large or bulky merchandise or equipment of any description will be received into the Property or carried into the elevators, if any, except in such a manner, during such hours and using such elevators and passageways as may be approved or designated by Landlord, and then only upon having been scheduled in advance. Any hand trucks, carryalls, or similar equipment used for the delivery or receipt of merchandise or equipment shall be equipped with rubber tires, side guards and such other safeguards as Landlord shall reasonably require. Although Landlord or its personnel may participate or assist in the supervision of such movement, Tenant assumes financial responsibility for all risks as to damage to articles moved and injury to persons or public engaged or not engaged in such movement, including any equipment, property or personnel of Landlord damaged or injured in connection with carrying out this service for Tenant.
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4.
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Landlord shall have the right to prescribe the weight, position and manner of installation of safes or other heavy equipment which shall, if considered necessary by Landlord, be installed in a manner which shall insure satisfactory weight distribution. All damage done to the Property by reason of a safe or any other article of Tenant’s equipment being on the Premises shall be repaired at the expense of Tenant. The time, routing and manner of moving safes or other heavy equipment shall be subject
to prior approval by Landlord.
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5.
|
Only persons authorized by Landlord will be permitted to furnish newspapers, ice, drinking water, towels, barbering, shoe shining, janitorial services, floor polishing and other similar services and concessions in the Property, and only at hours and under regulations fixed by Landlord.
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6.
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Tenant, or the employees, agents, servants, visitors or invitees of Tenant, shall not at any time place, leave or discard any rubbish, paper, articles or object of any kind whatsoever outside the doors of the Premises or in the corridors or passageways of the Property.
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7.
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Tenant shall not place, or cause or allow to be placed, any sign, placard, picture, advertisement, notice or lettering whatsoever, in, about or on the exterior of the Premises, Building or Property, except in and at such places as may be designated by Landlord and consented to by Landlord in writing. Any such sign, placard, advertisement, picture, notice or lettering so placed without such consent may be removed by Landlord without notice to and at the expense of Tenant. All lettering and graphics on doors and windows shall conform to the building standard prescribed by Landlord.
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8.
|
Except as expressly permitted in its Lease. Tenant shall not place, or cause or allow to be placed, any satellite dish, communications equipment, computer or microwave receiving equipment, antennae or other similar equipment about or on the exterior of the Premises, Building or Property. Any such equipment so placed may be removed by Landlord without notice to and at the expense of Tenant.
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9.
|
Canvassing, soliciting or peddling in the Property is prohibited and Tenant shall cooperate reasonably to prevent same.
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10.
|
Landlord shall
have the right to exclude any person from the Property, and any person in the Property will be subject to identification by employees and agents of Landlord. If Tenant desires additional security service for the Premises, Tenant shall have the right (with advance written consent of Landlord) to obtain such additional service at Tenant’s sole cost and expense. Tenant shall keep doors to unattended areas locked and shall otherwise exercise reasonable precautions to protect property from theft, loss or damage. Landlord shall not be responsible for the theft, loss or damage of any property or for any error with regard to the exclusion from or admission to the Property of any person. In case of invasion, mob, riot or public incitement, the Landlord reserves the right to prevent access to the Property during the continuance of same by taking measures for the safety of the tenants and protection of the Property and property or persons therein.
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11.
|
Only workmen employed, designated or approved by Landlord may be employed for repairs, installations, alterations, painting, material moving and other similar work that may be done in or on the Property.
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12.
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Tenant shall not bring or permit to be brought or kept in or on the Premises or Property any inflammable, combustible, corrosive, caustic, poisonous, or explosive substance, or firearms, or cause or permit any odors to permeate in or emanate from the Premises, or permit or suffer the Property to be occupied or used in a manner offensive or objectionable to Landlord or other occupants of the Property by reason of light, radiation, magnetism, noise, odors and/or vibrations.
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13.
|
Tenant shall not mark, paint, drill into, or in any way deface any part of the Property or the Premises. No boring, driving of nails or screws, cutting or stringing of wires shall be permitted, except with the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. Tenant shall not install any resilient tile or similar floor covering in the Premises, except with the prior approval of Landlord, which approval shall not be unreasonably withheld or delayed.
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14.
|
No additional locks or bolts of any kind shall be placed on any door in the Premises and no lock on any door therein shall be changed or altered in any respect. Tenant shall not make duplicate keys. All keys shall be returned to Landlord upon the termination of this Lease and Tenant shall give to Landlord the explanations of the combinations of all safes, vaults and combination locks remaining with the Premises. Landlord may at all times keep a pass key to the Premises. All entrance doors to the Premises shall be left closed at all times and left locked when the Premises are not in use.
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15.
|
Tenant shall give immediate notice to Landlord in case of known theft, unauthorized solicitation or accident in the Premises or in the Property, or of known defects therein or in any fixtures or equipment, or of any known emergency in the Property.
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16.
|
Tenant shall not use the Premises or permit the Premises to be used for photographic, multilith or multigraph reproductions, except in connection with its own business and not as a service for others without Landlord’s prior written permission.
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17.
|
No animals or birds shall be brought or kept in or about the Property, with the exception of guide dogs accompanying visually handicapped persons.
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18.
|
No awnings, draperies, shutters or other interior or exterior window coverings that are visible from the exterior of the Premises may be installed by Tenant without Landlord’s prior written consent.
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19.
|
Tenant shall not place, install or operate within the Premises or any other part of the Property any engine, stove, or machinery, or conduct mechanical operations therein, without the written consent of Landlord.
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20.
|
No portion of the Premises or any other part of the Property shall at any time be used or occupied as sleeping or lodging quarters.
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21.
|
Tenant shall at all times keep the Premises neat and orderly.
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22.
|
The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed and no foreign substance of any kind whatsoever shall be thrown therein. The expenses of any breakage, stoppage or damage, resulting from the violation of this rule shall be borne by the Tenant who (or whose employees or invitees) shall have caused such damage.
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23.
|
All tenant modifications resulting from alterations or physical additions in or to the Premises must conform to all applicable building and fire codes. Tenant shall obtain written approval from the management office prior to commencement of any such modifications and shall deliver as built plans to the management office upon completion.
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24.
|
Tenant agrees to place all indoor potted plants requiring water within a container capable of collecting any water overflow, such containers to be approved and/or supplied by Landlord, at Tenant’s sole expense. Tenant agrees to use caution so that indoor plants do not damage or soil the Premises.
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25.
|
Tenant shall not park (and shall insure that Tenant’s employees, agents, and invitees do not park) in any reserved parking space other than those reserved parking spaces, if any, specifically assigned to Tenant. Any vehicle improperly parked, or parked in any unauthorized parking area in the Property, shall be towed at the vehicle owner’s expense and without further or additional notice.
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26.
|
Persons using the Parking Areas do so at their own risk. Landlord specifically disclaims all liability, except when caused solely by its gross negligence or willful misconduct, for any personal injury incurred by users of the Parking Areas, their agents, employees, family, friends, guests or invitees, or as a result of damage to, theft of, or destruction of any vehicle or any contents thereof, as a result of the operation or parking of vehicles in the Parking Areas.
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1.
|
Section A(1) of the Agreement, entitled “Term of Agreement,” is hereby amended by deleting the last two sentences of the paragraph and replacing them with the following:
“The Parties hereto agree to extend the Agreement for an additional [***] period such that Agreement shall continue until [***]. The Agreement may be renewed for an additional [***] term upon the mutual consent of the Parties. Each Party agrees to notify the other of its intention to renew or not to renew the Agreement no less than [***] prior to the expiration of the term of this Agreement.”
|
2.
|
Section A(2) of the Agreement, entitled “Prices and Volumes” is hereby amended by adding the following: [***]
1
ADMA must offer all of its available Plasma produced at the ADMA BioCenter located at 6290 Jimmy Carter Boulevard, Suite 208, Norcross, Georgia, [***], during each year for the term of the Agreement to BPC for purchase. BPC must notify ADMA no later than thirty (30) calendar days after receipt of such notice, whether it wishes to purchase such [***]. ADMA and BPC may mutually agree from time to time to increase the minimum purchase volume quantity to adjust for increased Normal Source Plasma collections during the term and extensions of this agreement. If BPC fails to respond or specifically responds in the negative, ADMA may then offer and sell its [***] to any other party.
2
Both ADMA and BPC agree that at such time that ADMA notifies BPC of the execution of a lease for a second plasma facility (“Second ADMA Center”), BPC shall have the option to purchase Plasma which amount shall not be less than [***] annually, pursuant to the terms and conditions of the Agreement, provided the Plasma meets BPC’s specifications and is [***]. BPC will, within [***] from receipt of notification by ADMA of the execution of a lease for Second ADMA Center, inform ADMA of its desired minimum purchase quantity of Plasma from this Second ADMA Center (“Proposal”). If BPC fails to provide ADMA with a Proposal within [***] from receipt of notice, ADMA shall have the right, in its sole discretion, to sell such future rights to purchase the plasma to any third party on any terms it deems to be in its best interest.
|
3.
|
Section A(2)(b) of the Agreement, is hereby deleted and replaced with the following:
“Beginning in [***], the pricing for Plasma will be the price per liter in effect as of [***].”
|
ADMA Biologics, Inc.
By:
/s/ Adam Grossman
Name: Adam Grossman
Title: President and Chief Executive Officer
Date: February 25, 2014
|
Biotest Pharmaceuticals Corporation
By:
/s/ Jordan Siegel
Name: Jordan Siegel
Title: Chief Executive Officer
Date: February 25, 2014
|
|
vii.
|
The definition of “Warrant” is hereby amended and restated in its entirety as follows:
|
BORROWER:
ADMA BIOLOGICS, INC.
|
||
Signature: | /s/ Adam Grossman | |
Print Name: | Adam Grossman | |
Title: |
President and Chief Executive Officer
|
ADMA PLASMA
BIOLOGICS, INC.
|
||
Signature: | /s/ Adam Grossman | |
Print Name: | Adam Grossman | |
Title: |
President and Chief Executive Officer
|
ADMA
BIO CENTERS GEORGIA INC.
|
||
Signature: | /s/ Adam Grossman | |
Print Name: | Adam Grossman | |
Title: |
President and Chief Executive Officer
|
LENDER:
HERCULES TECHNOLOGY GROWTH CAPITAL, INC.,
a Maryland corporation
|
||
By:
|
/s/ Ben Bang | |
Name: | Ben Bang | |
Its:
|
Senior Counsel |
1.
|
I have reviewed this annual report on Form 10-K of ADMA Biologics, Inc. for the year ended December 31, 2013;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
March 28, 2014
|
/s/ Adam S. Grossman
|
||
Name:
|
Adam S. Grossman
|
||
Title:
|
President and Chief Executive Officer
(Principal Executive Officer)
|
1.
|
I have reviewed this annual report on Form 10-K of ADMA Biologics, Inc. for the year ended December 31, 2013;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
March 28, 2014
|
/s/ Brian Lenz
|
||
Name:
|
Brian Lenz
|
||
Title:
|
Chief Financial Officer
(Principal Financial Officer)
|
|
(1)
|
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
|
(2)
|
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
March 28, 2014
|
/s/ Adam S. Grossman
|
||
Name:
|
Adam S. Grossman
|
||
Title:
|
President and Chief Executive Officer
(Principal Executive Officer)
|
|
(1)
|
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
|
(2)
|
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
March 28, 2014
|
/s/ Brian Lenz
|
||
Name:
|
Brian Lenz
|
||
Title:
|
Chief Financial Officer
(Principal Financial Officer)
|
||