STOCK PURCHASE AGREEMENT
Exhibit
2.1
Agreement
made the _____ day of March, 2000, among Xxxxxx Xxxxxxxxx (“Xxxxxxxxx”),
Xxxx
Xxxxx (“Xxxxx”),
Xxxxxxx Xxxxxx (“Xxxxxx”),
Xxxxxxxx Xxxxxx (“Xxxxxx”)
(together herein referred to as the “Sellers”)
and
Bio-Lok International, Inc., a Delaware corporation (the “Buyer”).
WHEREAS,
Sellers are the owners of One Hundred Five (105) shares of common stock,
representing 100% of the common shares issued and outstanding, of Orthogen
Corporation, a New Jersey corporation (the “Company”),
which
common stock of the Sellers is herein called the “Shares”;
and
ARTICLE
I
All
of
the recitals set forth above are incorporated herein by reference.
ARTICLE
II
The
following terms, as used herein, have the following meanings:
"Affiliate"
of a Person means a Person, who directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
such person.
"Agreement"
has the meaning set forth in the introductory paragraph.
"Financial
Statements" has the meaning set forth in Section 4.10.
"Buyer"
means Bio-Lok International, Inc.
"Buyer
Shares" has the meaning set forth in Section 3.2.
"Closing"
has the meaning set forth in Section 3.5.
"Closing
Date" has the meaning set forth in Section 3.5.
"Common
Stock" means the voting common stock of the Company.
"Company"
means Orthogen Corporation.
"Environmental
Permits" means federal, state and local governmental liens, permits and other
authorizations and approvals, whether foreign or domestic, which relate to
the
business of a Person as it may be affected by the environment or to public
health and safety or worker health and safety as they may be affected by the
environment.
"ERISA"
means the Employment Retirement Income Security Act of 1974, as
amended.
"Evaluation
Material" has the meaning set forth in Section 7.4.
"Financial
Statements" has the meaning set forth in Section 4.10.
"Handling
Hazardous Substances" has the meaning set forth in Section 4.5.
"Hazardous
Emissions" has the meaning set forth in Section 4.5.
"Internal
Revenue Code" means the Internal Revenue Code of 1986, as amended.
"Intellectual
Property" has the meaning set forth in Section 4.16.
"Inventory"
has the meaning set forth in Section 4.6.
"Leases"
and "Lease" have the meanings set forth in Section 4.15.
"Licenses
and Permits" has the meaning set forth in Section 4.8.
"Material
Contract" means each contract, agreement or commitment of a Person other than
Leases:
(a) upon
which any substantial part of such Person's business is dependent or which,
if
breached, could reasonably be expected to affect, materially and adversely,
the
earnings, assets, financial condition or operations o the business of such
Person;
(b) which
provides for aggregate future payments of more than $5,000, except for purchase
orders or sale orders arising in the ordinary and usual course of business,
in
which case they are listed only if any party thereto is obligated to make
payments pursuant thereto aggregating more than $10,000;
(c) which
extends for more than one year from the date hereof and is not cancelable by
either party on 30 days' notice;
(d) which
provides for the sale, after the date hereof and other than in the ordinary
course of business, of any of its assets;
(e) which
relates to the employment, retirement or termination of the services of any
officer of former officer; or
(f) which
contains covenants pursuant to which any other Person has agreed not to compete
with any business conducted by such Person or not to disclose to other
information concerning such Person.
Collectively,
the material contracts of such Person are referred to as "Material
Contracts."
"PBGC"
means the Pension Benefit Guaranty Corporation.
"Pension
Plans" means all employee benefit plans and programs including, without
limitation, all retirement, savings and other pension plans.
"Permitted
Exceptions" has the meaning set forth in Section 4.14.
"Person"
means an individual, a corporation, a partnership, an association, a trust
or
any other entity or organization, including a governmental or political
subdivision or an agency of instrumentality thereof.
"Real
Property" means all of the real property, together with the fixtures and other
improvements located thereon and the appurtenances thereto, owned by a
Person.
"Securities
Act" means the Securities Act of 1933, as amended.
"Sellers"
means Xxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxxx Xxxxxx and Xxxxxxxx
Xxxxxx.
"Tax"
or
"Taxes" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Internal Revenue Code
section 59A), customs duties, capital stock, franchise profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alterative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not.
"Tax
Return" means any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or attachment
thereto, and including any amendment thereof.
"Welfare
Plans" means all health, severance, insurance, disability and other employee
welfare plans.
ARTICLE
III
a. At
Closing, the Sellers shall deliver to Buyer (i)certificates representing the
Shares, with stock powers endorsed in blank with Medallion signature guarantees,
and with all necessary transfer tax stamps attached; (ii) the stock books,
stock
ledgers, minute books and seals of the Company; (iii) a current certificate
of
good standing for the Company issued by the New Jersey Secretary of State;
and
(iv) all other items required to be delivered by Sellers to Buyer at or prior
to
Closing under this Agreement, including, without limitation, a legal opinion
reasonably satisfactory to Buyer, containing limitations and qualifications
typically associated with opinion letters delivered in transactions of the
nature described in this Agreement, to the effect that:
(1) The
Company is duly incorporated and a validly existing corporation in good standing
under the laws of the State of New Jersey, and is duly qualified to carry on
its
business and is in good standing in any state in which it does
business;
(2) Sellers
have the requisite capacity, power and authority to execute and deliver, this
Agreement and the other documents and the transactions contemplated herein.
(3) The
execution and delivery by the Sellers of this Agreement, the performance by
the
Sellers of their obligations hereunder, and the consummation of the transactions
contemplated herein will not result in the breach of or violate any term or
provision of the articles or by-laws of the Company, or any contract, agreement,
judgment, order, decree or award, to which the Company or either of the Sellers
is subject, nor, to the best of knowledge of the Sellers, any law, rule, or
regulation, to which the Company is subject.
(4) The
Shares have been duly issued to the Sellers and are fully paid and
non-assessable.
(5) The
Agreement has been duly executed and delivered by Sellers; and the Agreement
and
all documents delivered pursuant to the terms hereof are valid and binding
on
Sellers and are enforceable in accordance with their respective terms, subject
to any applicable bankruptcy, insolvency, reorganization or other laws of
general application affecting the enforcement of creditors' rights generally
and
general principles of equity.
(6) To
the
best of their knowledge, no consent of any party other than the Sellers, and,
to
the best of Sellers' knowledge, no consent, license, approval or authorization
of, or registration or declaration with, any governmental bureau or agency
is
required in connection with the execution, delivery, performance, validity
and
enforceability of this Agreement.
(7) Sellers'
sale and assignment of the Shares and the delivery of the shares to Buyer shall
vest in Buyer good and valid title to the Shares free and clear of any lien,
encumbrance, or adverse claim.
(8)
Such
other matters as are customary in connection with transactions of this
kind.
x. Xxxxxxx
shall also deliver to Buyer at Closing:
(1)
Sellers' executed non-competition, non-solicitation and confidentiality
agreement in the form of Exhibit 3.6(b)(1) hereto.
(2) A
certificate of Sellers that the representations, warranties, covenants and
agreements of Sellers in this Agreement shall be true, accurate and complete
both on the date of the Agreement and at Closing and that the Sellers have
conformed and complied with all agreements, covenants and conditions required
by
this Agreement on their part to be performed or complied with prior to or at
Closing.
At
Closing, the Buyer shall deliver to Sellers:
a. Buyer's
certificate or certificates for the Buyer Shares issued in the names of Sellers
individually, allocated in proportion to their respective holdings of issued
and
outstanding common stock of the Company.
b. An
opinion of counsel to Buyer, reasonably satisfactory to Sellers, to the effect
that:
(1) Buyer
is
duly incorporated and a validly existing corporation in good standing with
the
laws of the State of Delaware, and is duly qualified to carry on its business
and is in good standing in any state in which it does business and is required
to qualify;
(2) Buyer
has
the requisite power and authority to execute and deliver, and has taken all
necessary corporate action to authorize the execution and delivery of, this
Agreement and the other documents in the transactions contemplated herein;
(3) The
execution and delivery by the Buyer of this Agreement, the performance by the
Buyer of its obligations hereunder, and the consummation of the transactions
contemplated herein will not result in the breach of or violate any term of
provision of the articles or by-laws of the Buyer nor, to the best knowledge
of
counsel, any contract, agreement, law, rule, regulation, judgment, order, decree
or award to which the Buyer is subject;
(4) When
issued to the Sellers, the Buyer Shares shall be duly issued, full-paid and
non-assessable;
(5) The
Agreement has been duly executed and delivered by Buyer;
(6) The
Agreement and all documents delivered pursuant to the terms hereof are valid
and
binding on Buyer and are enforceable in accordance with their respective terms,
subject to any applicable bankruptcy, insolvency, reorganization or other laws
of general application affecting the enforcement of creditors' rights generally
and general principles of equity. To the best knowledge of counsel, no consent
of any party other than the Buyer, and no consent, license, approval or
authorization of, registration or declaration with, any governmental bureau
or
agency is required in connection with the execution, delivery, performance,
validity and enforceability of this Agreement.
(7) Buyer's
sale and assignment of the Buyer Shares and the delivery of the Buyer Shares
to
Sellers shall vest in Sellers good and valid title to the Buyer Shares which,
to
the best knowledge of counsel, shall be free and clear of any lien, encumbrance
or adverse claim; and
(8) Such
other matters that are
customary in connection with transactions of this kind.
The
opinion of Buyer's counsel shall contain such limitations and qualifications
as
are typically associated with opinion letters delivered in transactions of
the
nature described in this Agreement.
ARTICLE
IV
Sellers
jointly and severally represent and warrant the following:
4.12 Absence
of Changes. Except as set forth in Schedule 4.12, since December 31, 1999,
there
has not been:
a. any
damage, destruction or loss (whether or not covered by insurance) which to
the
knowledge of the Sellers can reasonably be expected to affect, materially and
adversely, the earnings, assets, financial condition or operations of the
business of the Company;
b. any
obligation or liability involving more than $10,000 (whether matured, absolute,
accrued, contingent, or otherwise) incurred by the Company;
c. any
general uniform increase in the compensation of the employees of the Company
(including, without limitation, any increase pursuant to any bonus, pension,
profit sharing or other plan);
d. any
increase (other than normal increases consistent with past practices and those
required by law or collective bargaining agreements) in the compensation payable
to any employee (including officers) of the Company;
e. any
amendment to any employment agreement to which any employee of the Company
is a
party;
f. any
sale
of assets by the Company other than in the ordinary course of
business;
g. any
material deterioration of relations between the Company and its suppliers,
financial institutions, or customers;
h. any
direct or indirect redemption, purchase or other acquisition of any shares
of
the capital stock of the Company;
i. any
declaration, setting aside or payment of any dividend (whether in cash, capital
stock or property) with respect to the Company's common stock; or
j. any
issuance by the Company of any shares of its capital stock, or any securities
or
obligations convertible into or exchangeable for, or giving any person the
right
to acquire from it, any shares of its capital stock.
Since
December 31, 1999, except as set forth in Schedule 4.12, the Company has not
operated its business other than in the ordinary and usual course and in a
manner consistent with past practices.
4.13 No
Undisclosed Liabilities. Except as set forth in Schedule 4.13, the Company
does
not have any material liabilities or obligations, whether absolute, accrued,
contingent or otherwise, including, without limitation, any uninsured
liabilities which were not accrued or reserved against in the Financial
Statements other than those incurred after December 31, 1998, in the ordinary
course of business of which in the aggregate do not or cannot reasonably be
expected to have a material adverse effect upon the earnings, assets, financial
condition or operations of the Company.
4.15 Leases.
Schedule 4.15 sets forth a complete and correct list of each agreement to lease
into which the Company has entered, whether as a lessor or lessee, which relates
to either real or personal property, other than monthly leases of personal
property which may be canceled upon not more than 60 days notice or require
the
payment of not more than $100 per month. The agreements listed in Schedule
4.15
are referred to herein as the "Leases" (each a "Lease"). Except as set forth
in
Schedule 4.15, neither the Company nor, to the knowledge of the Sellers, any
other party hereto has breached any such Lease and, to the knowledge of the
Sellers, no event has occurred which, with the giving of notice or the passage
of time or both, would cause a default under, or permit the termination,
modification or acceleration of any such Lease by any party thereto. Complete
copies of all of the Leases have been delivered to the Buyer.
a.
Schedule 4.21 lists all Pension Plans, all Welfare Plans of the Company, and
all
incentive, vacation and other similar plans that are maintained by the Company
with respect to its employees or to which the Company has contributed or is
now
contributing on behalf of its employees.
b. As
to
each of the Pension Plans, the Company has complied, in all material respects,
with all applicable laws and regulations in administering such plans, including
specifically the provisions of ERISA and the qualification provisions of Section
401 of the Internal Revenue Code. No prohibited transaction, as defined in
Section 4975 of the Internal Revenue Code, has occurred with respect to any
of
such Pension Plans and none of the Pension Plans has incurred any accumulated
funding deficiency, as defined in Section 412 of the Internal Revenue Code,
whether or not waived.
c. As
to
each of the Welfare Plans and other Company employee benefit plans and programs
(including, without limitation, the plans listed on Schedule 4.21), the Company
has complied, in all material respects, with all applicable laws and regulations
in the administration thereof including, without limitation, the provisions
of
ERISA when applicable.
d. The
Company has not terminated any of its Pension Plans of incurred any material
liability to the PBGC under Section 4001, et seq. of ERISA and, to the knowledge
of Sellers, no condition exists that could reasonably be expected to cause
the
Company to incur any such liability. All premiums payable to the PBGC have
been
paid when due.
4.22 Tax
Matters.
a.
The
provisions made for taxes in the Financial Statements are sufficient for the
payment of all Taxes of the Company, whether or not disputed, which are properly
accruable. There are no agreements by the Company for the extension of time,
or
waiver of any statute of limitations, for the assessment of any taxes, and
all
taxes due and payable by the Company on or before the date of this Agreement
have been paid or provided for, and are not delinquent, except as otherwise
provided in Schedule 4.22.
b. The
Company has filed all Tax Returns that it was required to file. All such Tax
Returns were correct and complete in all respects. No claim has ever been made
by an authority in a jurisdiction where the Company does not file Tax Returns
that it is or may be subject to taxation by that jurisdiction. There are no
liens on any of the assets of the Company that arose in connection with any
failure (or alleged failure) to pay any Tax.
c. The
Company has withheld and paid all Taxes required to have been withheld and
paid
through March 31, 2000, in connection with the amounts paid or owing to any
employee, independent contractor, creditor, stockholder or other third party.
d. Neither
of the Sellers expects any authority to assess any additional Taxes for any
period for which Tax Returns have been filed. Except as set forth in Schedule
4.22, there is no dispute or claim concerning any Tax liability of the Company
either (i) claimed or raised by any authority in writing or (ii) as to which
either of the Sellers has knowledged based upon personal contact with any agent
of such authority. The Sellers have delivered to the Buyer correct and complete
copies of all federal income Tax Returns, examination reports, and statements
of
deficiencies assessed against or agreed to by the Company since December 31,
1999.
4.30 Bank
and
Safe Deposit Arrangements. Schedule 4.30 sets forth a correct and complete
list
of each bank account and safe deposit box maintained by the Company, and the
names of all persons authorized to deal with such accounts and safe deposit
boxes.
ARTICLE
V
Buyer
represents and warrants as of the date of execution of this Agreement and as
of
Closing as follows:
5.7 Current
Information. The Buyer has previously delivered to Sellers (a) a true and
complete copy of Buyer’s
Statement of Operations and Statement of Cash Flows for the years ended October
31, 1997, 1998, and 1999, and unaudited financial statements for the three
months ended January 31, 2000, which have been prepared according to generally
accepted accounting principles; (b) Form 10-KSB filed by the Buyer with the
Securities and Exchange Commission for the year ended October 31, 1999; (c)
Form
10-QSB filed by the Buyer with the Securities and Exchange Commission for the
period ended January 31, 2000; and (d) certain other non-public information
relating to the business and affairs of the Buyer, and will continue to furnish
such information to the Sellers until the Closing. The financial information
with respect to Buyer included in the aforementioned documents fairly represent
the financial condition of the Buyer and the results of its operations and
changes in financial position for the periods for which they were prepared.
At
the time of mailing or delivery thereof to the Sellers, none of such documents
or information contained or will contain an untrue statement of a material
fact
or omitted or will omit to stated material fact necessary in order to make
the
statements made therein, in light of the circumstances under which they were
made, not misleading.
5.17 Absence
of Certain Changes. Since January 31, 2000, there has not been any material
adverse change in the financial condition, results of operations or business
of
Buyer.
ARTICLE
VI
Sellers
hereby jointly and severally represent, warrant, acknowledge and covenant to
Buyer and its officers, directors, agents and professional advisors, as
follows:
6.2 No
Presentations as to Profit or Loss. No representation or warranty of any kind
has been made to Sellers with respect to the percentage of profit and/or amount
or type of consideration, profit or loss that are to be realized, if any, as
a
result of the acquisition of the Buyer's shares and that in entering into this
transaction Sellers are not relying upon any information other than that derived
from the results of their own independent investigation, or the investigation
of
their counsel and other professional advisors, or from information furnished
in
writing by the Buyer to them.
ARTICLE
VII
a. The
Sellers warrant and represent that from the date hereof until the Closing,
the
Company will (a) conduct its business only in the ordinary and usual course
and
in a manner consistent with past practices, (b) maintain in good repair, at
its
expense, all of its properties, and (c) use its best efforts to preserve its
relationship with suppliers, customers, dealers and others having business
relationships with the Company. The Sellers will cause the Company to notify
Buyer of any emergency or material change in the normal conduct of the business
or operations of the Company, the threat of or initiation of any material
litigation against the Company, and the initiation of any investigation of
the
Company by any party, whether private or governmental.
b. The
Buyer
warrants and represents that from the date hereof until the Closing, the Buyer
will (a) conduct its business only in the ordinary and usual course and in
a
manner consistent with past practices, (b) maintain in good repair, at its
expense, all of its properties, and (c) use its best efforts to preserve its
relationship with suppliers, customers, dealers and others having business
relationships with the Buyer. The Buyer will notify Sellers of any emergency
or
material change in the normal conduct of the business or operations of the
Buyer, the threat or initiation of any material litigation against the Buyer,
and the initiation of any investigation of the Buyer by any party, whether
private or governmental.
7.2 Investigation
of Business and Properties; Additional Data. From the date hereof until the
Closing, the Sellers should cause the Company to afford Buyer and its attorneys,
accountants, financial advisors and other representatives complete access at
all
reasonable times to its offices, and to the officers, employees, properties,
contracts, and books and records of the Company. In addition, the Sellers and
Buyer shall furnish to each other such financial, operating and additional
data
as the Sellers or Buyer may reasonably request concerning the business,
operations, properties and personnel of the Company or the Buyer.
7.7 Bankruptcy
Protection. In the event Buyer should file a Petition in the Bankruptcy Court
or
should a claim of bankruptcy be made against Buyer by any of its creditors;
should there be the appointment of a Receiver (voluntary or involuntary); should
there be an insolvency, a request for Reorganization, an Assignment for the
benefit of creditors or any other act, voluntary or involuntary, evidencing
an
inability by Buyer to remain solvent and pay its creditors; then and in that
event, and upon the happening of same, Orthogen, upon 10 work days written
notice, tender to Bio-Lok all common stock shares of Bio-Lok acquired as a
result of the Stock Purchase Agreement as well as any other shares which signers
to this Agreement, or any of their affiliates or related parties may have
acquired from the date of closing, up through the date of the aforesaid notice.
At such time, Bio-Lok agrees to accept all of the shares being tendered and
in
consideration thereof, will simultaneously tender all shares of Orthogen
acquired at the closing of this Agreement to all Parties who tendered their
shares of Orthogen at the closing of this Agreement. Upon this exchange of
stock
Orthogen will cease to be a subsidiary of Bio-Lok. This provision will expire
and become null and void as of 36 months from the date of consummation of this
Agreement.
7.9 Sellers’
Indemnification. Sellers hereby agree to jointly and severally indemnify and
hold harmless Buyer from and against any and all debts, suits, controversies,
claims, or obligations of any kind arising from, relating to, or pertaining
to
any grant, contract, or other obligation of the Company except those grants,
contracts or obligations specifically disclosed by Sellers to Buyer in this
Agreement.
ARTICLE
VIII
The
following are certain conditions precedent to Buyer's obligation to purchase
the
Shares. Notwithstanding these or any other conditions or any other provision
of
this Agreement, Buyer shall have no obligation to purchase the Shares if it
notifies the Sellers orally or in writing at or prior to Closing that it will
not purchase the Shares. In the event that the Buyer notifies Sellers that
it
will not purchase the Shares, Buyer shall have no obligation to Sellers and
this
Agreement shall be null and void.
8.3 Absence
of Material Damage to or Expropriation of Property. Between the date of this
Agreement and the Closing, there shall not have occurred (1) any material
casualty to any facility, property, equipment or inventory owned by the Company,
or (2) any material condemnation, seizure, expropriation or liquidation by
any
governmental authority or any officer or instrumentality thereof of facilities,
property, equipment or inventory owned by the Company.
8.8
Satisfaction with Respect to Financial Condition and Performance. Buyer must
be
satisfied that each and every representation made by Sellers regarding the
Financial Statements and the financial condition of the Company shall be true,
complete and accurate in all material respects as of Closing. Without limiting
the foregoing, Buyer must be satisfied that: (i) the Financial Statements shall
have been prepared on an accrual basis of accounting, consistent with prior
years, and in accordance with generally accepted accounting principles; and
(ii)
except as specifically disclosed in the Financial Statements, there has been
no
distribution to shareholders or others or bonuses made to employees.
ARTICLE
IX
The
following are certain conditions precedent to Sellers' obligation to sell the
Shares and purchase the Buyer Shares. Notwithstanding these or any other
conditions or any other provision of this Agreement, Sellers shall have no
obligation to sell the Shares and purchase the Buyer Shares if they so notify
Buyer orally or in writing at or prior to Closing. In the event that the Sellers
notify Buyer that they will not complete closing of the transactions described
herein, Sellers shall have no obligation to Buyer and this Agreement shall
be
null and void.
9.3 Absence
of Material Damage to or Expropriation of Property. Between the date of this
Agreement and the Closing, there shall not have occurred (1) any material
casualty to any facility, property, equipment or inventory owned by the Buyer,
or (2) any material condemnation, seizure, expropriation or liquidation by
any
governmental authority or any officer or instrumentality thereof of facilities,
property, equipment or inventory owned by the Buyer.
9.7
Satisfaction with Respect to Financial Condition and Performance. Sellers must
be satisfied that each and every representation made by Sellers regarding the
financial condition of the Buyer shall be true, complete and accurate in all
material respects as of Closing.
ARTICLE
X
10.3
Procedure. If any claim or proceeding covered by the foregoing agreements to
indemnify and hold harmless shall arise, the party who seeks indemnification
(the "Indemnified Party") shall given written notice thereof to the other party
(the "Indemnitor") promptly (but in no event more than ten (10) days) after
it
learns of the existence of such claim or proceeding. Any claim for
indemnification hereunder shall be accompanied by evidence demonstrating the
Indemnified Party's right or possible right to indemnification, including a
copy
of all supporting documents relevant thereto. The Indemnitor shall have the
right to employ counsel reasonably acceptable to the Indemnified Party to defend
against any such claim or proceeding, or to compromise, settle or otherwise
dispose of the same; provided,
however,
that no
settlement or compromise shall be effected without the consent of the
Indemnified Party, which consent shall not be unreasonably withheld, and
provided further
that in
the event the Indemnified Party does not consent to a bona fide
offer of
settlement made by a third party and the settlement involves only the payment
of
money, then the Indemnitor may, in lieu of payment of such settlement to such
third party, pay such amount to the Indemnified Party. After the payment to
the
Indemnified Party, the Indemnitor shall have no further liability with respect
to such claim or proceeding and the Indemnified Party shall assume full
responsibility to defend the same. After notice from the Indemnitor to the
Indemnified Party of its election to assume the defense of such claim or
proceeding, the Indemnitor shall not be liable to the Indemnified Party under
this paragraph for any legal or other expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof; provided,
however,
that
the Indemnified Party shall have the right to employ counsel to represent it
if,
in the Indemnified Party's reasonable judgment, it is advisable for the
Indemnified Party to be represented by separate counsel, and in that event
the
fees and expenses of such separate counsel shall be paid by the Indemnified
Party. The parties will fully cooperate in any such action, making available
to
each other books or records for the defense of any such claim or proceeding.
If
the Indemnitor fails to acknowledge in writing its obligation to defend against
or settle such claim or proceeding within ten (10) days after receiving notice
of the claim or proceeding from the Indemnified Party (or such shorter time
specified in the notice as the circumstances of the matter may dictate), the
Indemnified Party shall be free to dispose of the matter, at the expense of
the
Indemnitor (but subject to the Indemnitor's right subsequently to contest
through appropriate proceedings its obligation to provide indemnification),
in
any way which the Indemnified Party deems in its best interest.
ARTICLE
XI
(a)
|
To: Sellers: |
Mr.
Xxxxxx Xxxxxxxxx
Mr.
Xxxx Xxxxx
000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX
00000
|
Xx.
Xxxxxxx Xxxxxx
000
Xxxxxxxxx Xxxxxxx
Xxxxxxxxx,
XX 00000
|
||
Ms.
Xxxxxxxx Xxxxxx
0000
Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
||
With
a copy to:
|
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx
and Xxxxxxx
000
Xxxxxxxxxx Xxxxxx
X.X.
Xxx 000
Xxxxxxxxxx,
XX 00000
|
|
(b)
|
To
Buyer:
|
Bio-Lok International, Inc.
000
X. Xxxxxxxx Xxxxx
Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attn:
Xxxxx Xxxxxxxxx, President
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With a copy to: | Siegel,
Lipman, Xxxxx & Xxxxxxx
0000
Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000
Attn:
Xxxxxxxx X. Xxxxxxx,
Esquire
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Either
party may change its address for notices by written notice to the other given
pursuant to this paragraph.
11.3 Certain
Breaches.
Neither
party shall have any liability to the other party with respect to a breach
by a
party of which the other party has received written notice at or prior to
Closing.
11.12
Choice of Laws. This Agreement is to be construed and governed by the laws
of
the State of Florida, except for the choice of law rules utilized in that
jurisdiction.
11.13
Arbitration. Any dispute arising under or related to this Agreement that the
parties are unable to resolve by themselves shall be settled by arbitration
in
Fort Lauderdale, Florida, by a panel of three arbitrators. Sellers together
with
Buyer shall each designate one disinterested arbitrator and the two arbitrators
so designated shall select the third arbitrator. The persons selected as
arbitrators need not be professional arbitrators, and persons such as
accountants, appraisers and bankers shall be acceptable. Before undertaking
to
resolve the dispute, each arbitrator shall be duly sworn faithfully and fairly
to hear and examine the matters in controversy and to make a just award
according to the best of his or her understanding. The arbitration hearing
shall
be conducted in accordance with the rules of the American Arbitration
Association. The written decision of a majority of the arbitrators shall be
final and binding on the parties. Costs and expenses of the arbitration
proceeding shall be assessed between the parties in a manner to be decided
by a
majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. No action at law or suit in equity based
upon any claim arising out of or relating to this Agreement shall be instituted
in any court by a party against another except an action to compel arbitration
pursuant to this paragraph, an action to enforce the award of the arbitration
panel rendered in accordance with this paragraph, or a suit for specific
performance as may be specifically provided herein.
WITNESS/ATTEST: |
SELLERS:
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/s/
Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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/s/
Xxxx Xxxxx
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Xxxx
Xxxxx
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
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/s/
Xxxxxxxx Xxxxxx
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Xxxxxxxx
Xxxxxx
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ORTHOGEN CORPORATION, a
New Jersey corporation
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By:
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(Title)
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BUYER:
BIO-LOK INTERNATIONAL, INC., a
Delaware corporation
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By:
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/s/
Xxxxx Xxxxxxxxx
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Xxxxx
Xxxxxxxxx, President
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