Exhibit 2.1
ASSET PURCHASE AGREEMENT
dated effective December 28, 2000
between
ANCHOR PACIFIC UNDERWRITERS, INC.
as the Purchaser
and
NOVAEON, INC.
SCHEDULES
1.1(a) Accounts Receivable
1.1(b) Debtor's D.I.P. Bank Accounts
1.1(d) Partial List of Assumed Executory Contracts
1.1(h) Partial List of Equipment, Furniture, Fixtures and Other Chattels
3 Assumed Liabilities
6 Novaeon Customers
EXHIBITS
A Anchor Promissory Note
B Allocation of the Purchase Price
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into
this 28th day of December, 2000, by and among ANCHOR PACIFIC UNDERWRITERS, INC.,
a Delaware corporation (hereinafter called the "Purchaser"), and NOVAEON, INC.,
a Delaware corporation (hereinafter called the "Novaeon"), as debtor and debtor-
in-possession under certain Chapter 11 proceedings for reorganization pending in
the United States Bankruptcy Court for the Eastern District of Pennsylvania (the
"Seller").
W I T N E S S E T H:
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WHEREAS, Novaeon owns and operates a national worker's compensation and
disability managed-care company (hereinafter called the "Business") which
provides services to insurance companies and self-insured employers and
arrangements, and the Purchaser is a subsidiary of a company that owns and
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operates a similar business; and
WHEREAS, Novaeon has filed a Voluntary Petition for Relief and currently is
carrying on the Business under the protection of Chapter 11 of the U.S.
Bankruptcy Code (hereinafter called the "Bankruptcy Code") in a proceeding
pending in the United States Bankruptcy Court for the Eastern District of
Pennsylvania (hereinafter called the "Bankruptcy Court") styled In re Novaeon,
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Inc., Debtor, and known as Bankruptcy Case Number 00-18821-B1F (hereinafter
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called the "Bankruptcy Case"); and
WHEREAS, the Purchaser desires to purchase certain of the assets of the
Seller that are used in the Business, free and clear of all liens, claims and
encumbrances other than the certain limited liabilities specified in this
Agreement (pursuant, with respect to the assets of Novaeon, to applicable
provisions of the Bankruptcy Code), and the Seller is agreeable to the sale, in
accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, which are deemed to be
incorporated into this Agreement as an integral part hereof and are not mere
recitals hereto, and the mutual covenants contained herein, and intending to be
legally bound hereby, the parties to this Agreement agree as follows:
1. Purchase and Sale of Assets, Excluded Assets, Treatment of Sellers'
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Liabilities.
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1.1 Purchase and Sale, Assets Acquired. Subject to and in accordance
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with the terms and conditions herein contained, on the Closing Date (as defined
hereinafter), the Seller hereby agrees to sell, assign, transfer, convey and set
over unto the Purchaser, free and clear of all security interests, liens and
encumbrances, and the Purchaser does hereby agree to purchase all of the assets
of the Seller used in its conduct of the Business, excluding the Excluded
Assets, as specified in Section 1.2 below but including without limitation the
following described assets (hereinafter collectively called the "Assets"):
(a) Accounts receivable, work-in-process and unbilled services
as of the Closing Date (the aggregate amount of the accounts receivable shall
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not be materially less than that shown on Schedule 1.1(a) attached hereto);
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(b) Operating cash shall be defined as cash on account at the
Debtor's D.I.P. account at First Union National Bank as listed on Schedule
1.1(b) and all cash received into the P.N.C. Bank, N.A. Lock Box Account
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maintained by D.V.I. Financial Services, Inc., on the Closing Date;
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(c) Books, records, files and papers stored in any form on any
media, including drawings, computer applications and programs (including source
code), manuals and data, marketing information, sales and advertising materials,
trade association files, account records, research and development records, list
of present, prospective and former customers, affiliated service providers,
suppliers, and personnel, employment and other records. Seller agrees that upon
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reasonable notice from Purchaser following the Closing Date it shall remove from
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Purchaser's premises at Seller's expense those books, records and other
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materials identified by Purchaser as not relevant to Purchaser's continuing
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operation of the Business;
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(d) Rights under all pending and/or executory service contracts
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or agreements with customers of the Business as of the Closing Date including
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those listed on Schedule 1.1(d);
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(e) Intangible and intellectual property including without
limitation: (i) business and trade names, corporate names, brand names and
slogans; (ii) copyrights, trade names, trade marks, and service marks and all
derivatives thereof (including the goodwill attaching to such trade names, trade
marks, and service marks), registrations and applications for trade names, trade
marks, service marks and copyrights (and all future income from such trade
names, trade marks, service marks and copyrights); (iii) business processes,
data, trade secrets, designs, know-how, product and service concepts and
information, research and development reports, agency or consulting agreements,
technical information, and any similar materials recording or evidencing
expertise or information; (iv) all licenses regarding any items listed above;
and (v) all future income and proceeds from any items;
(f) Going concern value, trade know-how and goodwill, including
the present telephone numbers, internet addresses and other communications
numbers;
(g) Causes of action and similar claims (except those relating
to the Notes Receivable and sums due from Harleysville National Bank shown on
Novaeon's bankruptcy schedules and except avoidance actions under Sections 546-
549 of the Bankruptcy Code);
(h) All equipment, furniture, fixtures and other chattels
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wherever situated including that listed on Schedule 1.1(h);
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(i) Inventory, materials and supplies;
(j) Prepaid insurance and deposits;
(k) Novaeon's rights under all premises leases, agreements to
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lease, subleases, license agreements and occupancy or other agreements relating
to the office premises of Novaeon, including rights to all deposits, except,
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however, Purchaser does not assume any liabilities of Novaeon under any such
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leases, agreements to lease, subleases, etc., except liabilities accruing after
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the Closing Date under the occupancy arrangements with Speciality Risk Services
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in connection
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with Novaeon's service agreement with Spherion Corporation identified on
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Schedule 3 attached hereto (hereinafter "Assumed Occupancy Arrangements");
(l) Novaeon's rights under all equipment leases, chattel leases,
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conditional sales contracts, rental agreements, and other similar contracts and
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agreements, except, however, Purchaser does not assume any liabilities of
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Novaeon under any such equipment leases, chattel leases, conditional sales
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contracts, rental agreements or similar contracts and agreements;
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(m) Licenses, permits, certificates, filings, authorizations,
and other similar items relating to the conduct of the Business.
1.2 Excluded Assets. The Seller shall retain, and does not by this
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Agreement sell to the Purchaser, and there is excluded from the Assets to be
conveyed by the Seller to the Purchaser enumerated above, the following assets
(hereinafter collectively called the "Excluded Assets"):
(a) Rights of Recovery. Notes receivable on the books and
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records of Seller.
(b) Causes of Action. The full and total amount due and owing
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to Seller by Harleysville National Bank shown on Novaeon's bankruptcy schedules
and any avoidance actions under Sections 546-549 of the Bankruptcy Code.
(c) Purchase Price. The consideration delivered by the
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Purchaser to the Seller pursuant to Section 2 of this Agreement.
(d) Lock Box Account. Any interest in funds remaining on
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deposit in the Lock Box account maintained by P.N.C. Bank, by N.A, D.V.I.
Business Credit Corp. and the Debtor through the close of business on the last
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business day preceeding the Closing Date.
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2. Purchase Price and Purchase Price Allocation. In consideration of the
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sale, transfer and delivery of the Acquired Assets, Purchaser shall pay Novaeon
a purchase price in the amount of up to five million dollars ($5,000,000) (the
"Purchase Price"). The Purchase Price shall be allocated among the Acquired
Assets in accordance with an allocation statement (the "Allocation Statement")
to be prepared by Purchaser and delivered to Novaeon at or prior to the Closing.
The parties agree to file their respective income tax returns in a manner
consistent with such Allocation Statement. The Purchase Price shall be subject
to reduction following the Closing in accordance with the terms described in
Section 6 herein. Any reduction in the Purchase Price pursuant to Section 6
below shall be made by a reduction in the principal amount of the Promissory
Note as described herein.
3. Assumption of Certain Liabilities. Subject to the terms and
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conditions hereof, Purchaser shall assume as of the Closing Date, agree to pay
when due, and perform and discharge Novaeon's obligations for the future
performance of, the liabilities referred to as the Assumed Occupancy
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Arrangements as generally identified in Schedule 3 (such liabilities are,
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collectively, the "Assumed Liabilities").
4. Payment Terms. A cash down payment in the amount of one million five
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hundred thousand dollars ($1,500,000) shall be payable at the Closing. The
balance of the Purchase Price in
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the amount of three million five hundred thousand dollars ($3,500,000)
("Contingency Balance") shall be evidenced by and payable pursuant to the terms
of a promissory note in favor of Novaeon (the "Promissory Note"). The principal
amount of the Promissory Note shall bear interest from the Closing Date until
paid at the rate of eight percent (8%) per annum. The principal balance and all
accrued interest under the Promissory Note shall be due and payable in one lump
sum on April 30, 2002 following the determination of the Novaeon 2001 Revenue by
Purchaser's auditors as described herein. In the event the Purchaser voluntarily
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makes payment to Novaeon's creditors in order to maintain telephone, data, or
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other services reasonably necessary to continue the operation of the Business
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without interruption following the Closing, all such amounts paid by Purchaser
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shall be credited against the outstanding balance of principal and accrued
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interest under the Promissory Note payable to the Seller on the above due date.
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5. Closing. The parties agree to exert their best efforts to cause the
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Closing to occur on or prior to January 5, 2001. At the Closing, Novaeon shall
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deliver all of the Assets in exchange for the payment of the Purchase Price by
Purchaser. The date the Closing occurs shall be referred to as the Closing
Date.
6. Potential Purchase Price Adjustment for Post-Closing Net Revenue
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Shortfall. The Purchase Price is based on the expectation that the "Net
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Revenue" to be derived by Purchaser from the "Novaeon Customers" during the
calendar year 2001 (referred to as "Novaeon 2001 Revenue") will exceed the
amount of ten million dollars ($10,000,000) ("minimum Net Revenue"). For
purposes of this Agreement, "Net Revenue" means gross service fees for field and
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telephonic medical case management services, medical and hospital xxxx review
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and repricing services, and medical provider utilization and pre-authorization
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services, less rebilled expenses and other deductions determined in a manner
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consistent with Purchaser's customary accounting and revenue recognition
policies. "Novaeon Customers" shall mean those entities that were invoiced by
Novaeon during calendar year 2000 through the date of the Closing as identified
on Schedule 6 attached hereto. The Novaeon 2001 Revenue will be determined by
audited financial statements prepared by Purchaser's auditors in accordance with
generally accepted accounting principles ("GAAP") and Purchaser's customary
revenue recognition principles. In the event the Novaeon 2001 Revenue is less
than the minimum Net Revenue, the Purchase Price shall be reduced by an amount
equal to the shortfall. The resulting adjustment in the Purchase Price shall be
made through a reduction in the principal balance of the Promissory Note
effective as of the Closing Date. In no event, however, shall the Purchase
Price be reduced below the sum of two million dollars ($2,000,000).
7. Conditions Precedent. The obligations of Purchaser to consummate the
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sale of assets contemplated in this Agreement (the "Transaction") will be
subject to customary and reasonable closing conditions including:
(a) Receipt by Purchaser of a certified copy of a final order of the
Bankruptcy Court approving the sale of the Assets to Purchaser free and clear of
all liens, claims and encumbrances other than the Assumed Liabilities specified
in this Agreement; and
(b) The completion of all disclosures, filings, and other acts as
deemed necessary by Purchaser's legal counsel to comply with all applicable
state and federal securities laws and regulations.
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8. Actions Following. The actions set forth below shall be taken by the
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parties upon the execution of this Agreement and the following covenants shall
continue in effect until the consummation of the Transaction.
(a) Except as may otherwise be ordered by the Bankruptcy Court,
Novaeon and its representatives, agents, officers, directors, shareholders,
affiliates, partners, or employees (collectively the "Novaeon Parties") will
negotiate and work with Purchaser to complete the consummation of the
Transaction on or before January 5, 2001.
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(b) Novaeon will grant Purchaser (and its representatives and
advisors) access to its personnel, accountants, customers, vendors, landlords,
properties, business and personnel records, financial statements and all other
documents and other information concerning its business and operations as
Purchaser may reasonably request; and
9. Break-up Fee. In the event that the Bankruptcy Court approves the
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Transaction, but the Transaction is not consummated pursuant to the terms hereof
for any reason other than a default by Purchaser (including a successful overbid
by another party or other similar event in the Chapter 11 bankruptcy
proceedings) Novaeon shall pay Purchaser a break-up fee in the amount of
$200,000 as consideration for the personnel costs and expenses incurred by
Purchaser in connection with the negotiation and consummation of the
Transaction. Such break-up fee shall be payable to Purchaser upon its written
demand; but no later than fifteen days after the Transaction has been
terminated.
10. Conditions Precedent to Obligations of the Purchaser.
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The Purchaser shall not be obligated to pay any of the Purchase Price or
otherwise to perform its obligations hereunder unless all of the following
conditions have either been fulfilled or performed to the Purchaser's
satisfaction, on or before the Closing, or have been waived by the Purchaser:
10.1 Continuing Validity of and Compliance with Representations,
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Warranties and Covenants. The Purchaser shall receive a certificate from an
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authorized officer of the Seller, in form reasonably satisfactory to the
Purchaser, to the effect that: (a) the representations and warranties of the
Seller contained in this Agreement were true and correct on the Execution Date
and continue to be true and correct as of the Closing Date, and (b) the Seller
has complied with all covenants and conditions required by this Agreement to be
complied with and performed by it at or prior to the Closing.
10.2 Approval by the Bankruptcy Court. The Purchaser shall have
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received from Novaeon written notice and a certified copy of the Final Order
pursuant to which the Bankruptcy Court has: (a) approved the sale of the Assets
to the Purchaser free and clear of all liens, claims and encumbrances other than
the certain limited liabilities specified in this Agreement.
10.3 Assignment of all Licenses and Regulatory Permits. The Purchaser
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shall have received from Novaeon the assignment of any and all licenses that may
be assigned to it by Novaeon for the operation of the Business by the Purchaser
hereafter.
11. Conditions Precedent to Obligations of the Seller.
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The Seller shall not be obligated to perform any of its obligations
hereunder unless all of the following conditions have either been fulfilled or
performed to the satisfaction of the Seller on or before the Closing, or have
been waived by the Seller:
11.1 Continuing Validity of and Compliance with Representations,
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Warranties and Covenants. The Seller shall receive a certificate from an
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authorized officer of the Purchaser, in form reasonably satisfactory to the
Seller, to the effect that: (a) the representations and warranties of the
Purchaser contained in this Agreement were true and correct on the Execution
Date and continue to be true and correct as of the Closing Date, and (b) the
Purchaser has complied with all covenants and conditions required by this
Agreement to be complied with and performed by it at or prior to the Closing.
11.2 Approval by the Bankruptcy Court. Novaeon shall have received a
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certified copy of the final order pursuant to which the Bankruptcy Court has
approved the sale of the Assets to the Purchaser ("Final Order") free and clear
of all liens, claims and encumbrances other than the certain limited liabilities
specified in this Agreement.
12. Representations and Warranties of the Seller.
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The Seller warrants and represents to the Purchaser as follows:
12.1 Legal Status. Novaeon is a corporation validly existing and with
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active status under the laws of the State of Delaware. Subject to the
applicable provisions of the Bankruptcy Code, Seller has all necessary corporate
power and authority to own and operate the Assets and to conduct the Business.
12.2 Approval of Transaction, No Violations. Subject to entry of the
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Final Order, the execution and delivery of this Agreement on the part of the
Seller, and the performance by the Seller of all of its covenants and
obligations under this Agreement, have been duly and properly authorized and
approved by the Seller. Subject to entry of the Final Order, the Seller
possesses full and unrestricted power, authority and capacity to execute,
deliver and enter into this Agreement and to carry out and perform all of the
covenants and obligations under this Agreement in accordance with its terms.
The execution and delivery of this Agreement and the transactions contemplated
under this Agreement do not and will not violate or conflict with any provisions
of the Certificate of Incorporation or Bylaws of the Seller. Other than the
approval of the Bankruptcy Court, no governmental approval or authorization is
necessary for the Seller to execute and deliver this Agreement or to perform its
obligations under this Agreement. Subject to entry of the Final Order, this
Agreement has been duly executed and delivered by and on behalf of the Seller
and constitutes the valid and legally binding obligation of that entity,
enforceable in accordance with its terms.
12.3 Enforceability. This Agreement is enforceable against the Seller
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in accordance with its terms, except as such enforceability may be limited by
(i) bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally and (ii) general principles of equity relating to
the availability of equitable remedies.
12.4 Title to the Assets. Seller has, and at the Closing Seller will
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convey and transfer to the Purchaser, good, complete and marketable title to all
of the Assets, free and clear of all mortgages, liens, security interests,
encumbrances, pledges, leases, equities, claims, charges,
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restrictions, conditions, conditional sale contracts and any other adverse
interests. Subject to the applicable provisions of the Bankruptcy Code, all of
the Assets are in the exclusive possession and control of Seller and Seller has
the right to use and sell to the Purchaser all of the Assets without
interference from others; provided however, that D.V.I. Financial Services, Inc.
and D.V.I. Business Credit Corporation have liens on the Assets. The Assets and
the Excluded Assets constitute all the assets, properties, rights, privileges
and interests necessary for the Purchaser to own and operate the Business
substantially in the same manner as it has been conducted by Seller during the
period immediately preceding the execution of this Agreement.
13. Representations and Warranties of the Purchaser.
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The Purchaser warrants and represents to the Seller as follows:
13.1 Legal Status. Purchaser is a corporation validly existing and
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with active status under the laws of the State of Delaware. Purchaser has all
necessary corporate power and authority to acquire the Assets.
13.2 Authority; No Violations. Purchaser possesses full and
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unrestricted power, authority and capacity to execute, deliver and enter into
this Agreement and to carry out and perform all of the covenants and obligations
under this Agreement in accordance with its terms. The execution and delivery
of this Agreement and the transactions contemplated under this Agreement do not
and will not violate or conflict with any provisions of the Articles of
Incorporation or Bylaws of the Purchaser. No governmental approval or
authorization is necessary for the Purchaser to execute and deliver this
Agreement or to perform its obligations under this Agreement. This Agreement
has been duly executed and delivered by and on behalf of the Purchaser and
constitutes the valid and legally binding obligation of that entity, enforceable
in accordance with its terms.
13.3 Enforceability. This Agreement is enforceable against the
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Purchaser in accordance with its terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights generally and (ii) general principles of equity
relating to the availability of equitable remedies.
14. Covenants of the Seller.
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The Seller hereby covenants to the Purchaser as follows:
14.1 Compliance with the Bankruptcy Code. The Seller shall comply
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with the Bankruptcy Code, including any local rules, regarding this Agreement.
14.2 Ordinary Business. The Seller shall not change its Business from
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the date hereof until the Closing hereof.
15. Covenants of Purchaser.
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15.1 Access to Records. Following the Closing, after reasonable
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notice, the Purchaser will provide to the Seller and its counsel, accountants
and other representatives full access during normal business hours for
inspection of the Assets and the personnel, books, contracts, commitments and
records of the Business, to the extent reasonably required by Seller in
connection
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with legal or tax proceedings.
16. Miscellaneous.
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16.1 Survival of Warranties, Representations and Covenants. The
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warranties, representations and covenants of the Purchaser and the Seller set
forth in this Agreement shall not survive the Closing and the consummation of
all of the transactions herein contemplated.
16.2 Notices. All notices, approvals or other communications that the
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Purchaser or the Seller may desire or be required to give to each other under
the terms of this Agreement shall be in writing and shall be deemed to have been
properly given: (a) if delivered by messenger, when delivered, (b) if mailed in
the United States certified or registered mail, postage prepaid, return receipt
requested, when received (and refusal of receipt shall be deemed receipt), (c)
if telexed, telegraphed or telecopied, six (6) hours after being dispatched by
telex, telegram or telecopy if such sixth (6th) hour falls on a business day
within the hours of 8:00 a.m. through 5:00 p.m. at the time in effect at the
place of receipt, or at 8:00 a.m. on the next business day thereafter if such
hour is later than 5:00 p.m., or (d) if delivered by reputable express carrier,
freight prepaid, the next business day after delivery to such carrier, addressed
to such party as follows:
If to the Purchaser: Anchor Pacific Underwriters, Inc.
000 X. Xxx Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
If to the Seller Novaeon, Inc.
Xxxxx & Associates, LLC
0 Xxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
with copies to:
Xxxx X. Xxxxxxxxxxxx
Xxxxxxxx and Xxxxxxxxxxxx, P.C.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
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Phone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxx X. Xxxxxx
Xxxx Xxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Any party may change the address or party to which notices may be sent by notice
to the other party or parties as provided herein.
16.3 Entire Agreement, Amendment. This Agreement, together with the
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Schedules and Exhibits attached hereto (which are hereby incorporated herein by
reference by their entirety as if fully set forth in this Agreement at the point
where first mentioned herein) and written instruments referenced herein,
constitutes the entire agreement by and among the parties hereto with respect to
the subject matter hereof, and this Agreement supersedes all prior agreements,
correspondence and understandings and all prior and contemporaneous oral
agreements and understandings, among the parties hereto with regard to the
subject matter hereof. This Agreement may be amended only by a written
instrument setting forth the amendment with specificity, which is executed by
all of the parties hereto.
16.4 Assignment. Neither the Purchaser nor the Seller shall assign,
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directly or indirectly, any rights, duties or obligations under this Agreement
in whole or in part without the prior written consent of the other party.
16.5 Successors and Assigns. The terms and provisions of this
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Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, permitted assigns, personal representatives,
legatees, devisees and heirs.
16.6 Governing Law. This Agreement shall be governed by and
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interpreted in accordance with the laws of the State of California and the
Bankruptcy Code, if applicable.
16.7 Waiver. No failure or delay on the part of any party hereto in
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the exercise of any power or right, and no course of dealing between the
Purchaser and the Seller shall operate as a waiver of such power or right, nor
shall any single or partial exercise of any power or right preclude other or
further exercise thereof or the exercise of any other power or right. No waiver
by a party hereto of any condition or of any breach of any term contained in
this Agreement shall be effective unless in writing, and no waiver in any one or
more instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term.
16.8 Severability. If any provision of this Agreement is held to be
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invalid, illegal
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or unenforceable, then that provision shall be reformed to the maximum extent
permitted to preserve the parties' original intent as agreed by the parties;
failing which, such provision shall be severed from this Agreement with the
balance of the Agreement continuing in full force and effect. Such occurrence
shall not have the effect of rendering the provision in question invalid in any
other jurisdiction or in any other case or circumstance, or of rendering invalid
any other provisions of this Agreement to the extent that such other provisions
are not themselves actually in conflict with any applicable law.
16.9 Confidential Information and Publicity. In connection with the
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negotiation of this Agreement and the preparation for the consummation of the
transactions contemplated hereby, each party acknowledges that it will have
access to confidential information relating to the other party. Each party
shall treat such information as confidential, preserve the confidentiality
thereof and not duplicate, use or disclose such information, except to advisors,
consultants and affiliates in connection with the transactions contemplated
hereby, and except as required to comply with any law or any provision of this
Agreement. In the event of termination of this Agreement, each party shall
return to the other party all documents and other materials provided to such
party hereunder.
16.10 Expenses of Transaction. The Purchaser and the Seller each
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shall bear its own costs and expenses, including legal and accounting fees,
incurred in negotiating this Agreement, in preparing this Agreement and the
other documents and instruments referred to herein and in consummating the
Transaction contemplated hereunder.
16.11 Costs of Enforcement. In any dispute arising under or relating
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to this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' and paralegals' fees and expenses incurred. For this purpose, the
term "prevailing party" shall mean the party whose position is substantially
sustained in the settlement or in the final judgement rendered in any
litigation.
16.12 Further Assurances. From time to time after the Closing, at
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the request of the Purchaser, the Seller or its successor in interest will
execute and deliver to the Purchaser such other instruments of conveyance and
transfer and take such other actions as the Purchaser may reasonably require to
more effectively convey, transfer to, and vest in the Purchaser, and to put the
Purchaser in possession of, any and all of the Assets.
16.13 Brokers. Each party represents and warrants that it has not
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utilized the services of, and that it does not and will not have any liability
to, any broker or finder in connection with this Agreement or the transactions
contemplated hereby, except that Seller shall pay a fee approved by the
Bankruptcy Court to Xxxxx X. Xxxxx.
16.14 Captions. The captions in this Agreement are included for
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convenience only and shall not be considered in the interpretation or
construction of this Agreement.
16.15 Counterparts. This Agreement may be executed in any number of
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counterparts, and by each of the undersigned on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
put together shall constitute but one and the same Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have each duly executed and
delivered this Agreement as of the date first above written.
PURCHASER: ANCHOR PACIFIC UNDERWRITERS, INC.
By:
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Xxxxxxx X. Xxxx, Chief Executive Officer
SELLER: NOVAEON, INC.
By: ________________________________________
Its: ________________________________________
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