Asset Purchase Agreement
This Asset Purchase Agreement is made on December ______, 1997,
between Neogen Corporation, a Michigan corporation whose address is 000
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("the Buyer"), and VETOQUINOL U.S.A.,
Inc., a Delaware corporation, whose address is 0000 X Xxxxxxxxxxxx, Xxxxx,
Xxxxxxx 00000 ("the Seller") ("the Agreement").
Recitals
A. Seller is engaged in the animal biologics and wound care business
and specifically uses the identification of EqStim(R) , ImmunoRegulin(R) and
MycAseptic(R) in the business of manufacturing and marketing various products
to improve the health and performance of animals ("the Business").
B. Buyer desires to purchase, and Seller desires to sell, those
assets of Seller hereinafter described upon the terms, conditions, and
covenants contained in this Agreement.
The parties agree as follows:
1. Purchase and Sale of Assets. Based upon the representations,
warranties and agreements contained in this Agreement and subject to the
terms and conditions set forth in this Agreement, at the Closing Date, as
defined in Paragraph 4, Seller shall sell, transfer and deliver to Buyer, and
Buyer shall purchase and accept from Seller, the following assets used or
employed by Seller in the conduct of the Business (collectively referred to
as the "Purchased Assets"):
(a) Machinery and Equipment. All manufacturing, laboratory,
and office machinery and equipment, furniture, fixtures, supplies, fixed
assets and other tangible personal property located at 0000 X Xxxxxxxxxxxx,
Xxxxx, Xxxxxxx, including, but not limited to, the equipment listed on
attached Exhibit 1.a ("Machinery and Equipment");
(b) Intangible Property. All of the intangible property of
Seller related to the P. acnes and MycAseptic products (collectively
"Products"), patents, trademarks, trade names, copyrights and applications
thereof, trade secrets and secret information process, permits and licenses
used or employed by Seller to the extent assignable, all as listed on
attached Exhibit 1.b., but expressly excluding all rights to use of P. acnes
products as a production enhancer feed additive for food producing animals
for sale and distribution throughout the world (including marketing,
registration, manufacturing, and further development rights) and the patents
and patent applications relating to those products;
(c) Additional Assets. The name "EqStim, ImmunoRegulin,
MycAseptic, and ImmunoVet" and all derivations thereof, and the goodwill
associated therewith throughout the world, formulas, designs, research and
development, production, sales, and credit reports, data, models, catalogs,
technical specifications, files, business records, customer lists, budgets,
forecasts, telephone numbers, facsimile numbers and all other business
documents and information and information contained on computer programs
which relate primarily to the Business, but excluding tax and accounting
records.
Section 1(b) and (c) are collectively referred to as
"Intangible Property".
(d) Accounts Receivable. All receivables generated from sales
of Products in the ordinary course of the Business before the Closing Date,
including those listed on attached Exhibit 1.d, which are less than 90 days
old on the Closing Date ("the Receivables");
(e) Inventories. All inventories, including, but not limited
to, merchandise, materials, component parts, manufacturing supplies, work in
process and finished goods, currently offered as part of the Products,
CothiVet and AluSpray, including, but not limited to, the inventories listed
on attached Exhibit 1.e, recorded at the lower of cost or average current
selling price ("Inventories"). Buyer shall receive the inventories of all
products described in this Paragraph, but shall only pay for quantities of
inventory of any product that are not in excess of sales of the product
during the 12 months preceding the month of the Closing Date;
(f) Contract Rights. To the extent assignable, all rights,
benefits and causes of action in favor of Seller resulting or arising from
contracts, purchase orders, sales orders, service agreements, commission
agreements, dealership or distribution agreements, marketing agreements,
licensing agreements, warranties, guaranties or otherwise, which relate
primarily to the Business and Products ("Contract Rights") and that are
listed on Exhibit 1.f. Buyer agrees to pay Seller Seven Thousand and 00/100
Dollars ($7,000.00) for 35 days of consulting time under the term of the
Consulting Agreement between Seller and Xx. Xxxxx Xxxxxxx. Seller assumes no
responsibility for Xx. Xxxxxxx' performance as to the Consulting Agreement;
(g) Other Current Assets. All prepaid insurance, deposits,
prepaid expenses and other current assets related to Products including, but
not limited to, those listed on Exhibit 1.g. ("Other Current Assets").
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(h) Related Agreement. Buyer and Seller's parent company,
VETOQUINOL, S.A., a French corporation ("Parent"), are contemporaneously
entering into a Cross-License and Non-Competition Agreement ("Rights
Agreement") by which each party will grant certain rights to the other. The
Rights Agreement is attached as Exhibit 16. Provisions of the Rights
Agreement and any amendments thereto shall be construed to be a part of this
Agreement. If there should be an assertion of ambiguity between this
Agreement and the Rights Agreement, terms of this Agreement shall take
precedence.
(i) Excluded Assets. The Purchased Assets do not include the
following: (i) cash, cash equivalents, or securities, (ii) vehicles, (iii)
diagnostic products, (iv) patents or patent applications except those related
to Ionone, (v) rights or contracts pertaining to Actidine, Stomadhex, or
ABCheck, pili technology, or (vi) rights to use of P. acnes products as a
production enhancer feed additive for food producing animals for sale and
distribution throughout the world (including marketing, registration,
manufacturing, and further development rights).
2. Liabilities.
(a) General Non-Assumption of Liabilities. Except to the
extent provided in this Agreement, Buyer shall not assume, expressly or
implicitly, pay, perform or discharge any debts, liabilities or obligations
of any nature of Seller, whether or not related to the Business, other than
obligations of Seller occurring after the Closing Date pursuant to the Tampa
building lease specifically listed in Exhibit 2.a ("Assumed Liabilities").
Except to the extent provided in this Agreement, all the debts, liabilities
and obligations of Seller, whether fixed or contingent, accrued or unaccrued,
known or unknown, shall continue to be the responsibility of Seller, which
shall pay, perform and discharge them in accordance with their terms, and
nothing contained in this Agreement shall be construed in any fashion as
imposing, directly or indirectly, responsibility for any such debt, liability
and obligation on Buyer.
(b) Product Liabilities: Warranty Claims. Seller shall be
responsible for Product Claims (as defined below) arising from sales invoiced
before the Closing Date. Buyer shall be responsible for Product Claims
arising from sales invoiced on or after the Closing Date. The term "Product
Claims" means liabilities, obligations, or claims for losses, damages,
liabilities, costs or expenses based on, or arising from, any claim alleging
defect or negligence in the assembly, processing, manufacture or sale of
products, goods, or services, including, but not limited to, negligence,
product liability (tort or contract), and warranty claims.
(c) Additional Assumed Liabilities. Notwithstanding the
provisions of Subparagraph 2(a) above to the contrary, and as an express
exception thereto,
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Buyer shall assume, perform and discharge Seller's liability, existing as of
the Closing Date, with respect to all duties and obligations of Seller with
respect to the distribution and sales agreements and other Contract Rights
listed in Exhibit 1.(f), the assumption of which Buyer expressly and
separately acknowledges to Seller on the Closing Date.
(d) Assets Free of Liens. The Purchased Assets shall be
transferred to Buyer free and clear of any and all claims, liens, mortgages,
security interests, encumbrances, charges or other restrictions of title or
ownership, except for such matters that are related to the Contract Rights or
the Assumed Liabilities, that do not materially impair the use of the
Purchased Assets for their intended purposes, or as otherwise specifically
provided in this Agreement.
3. Purchase Price and Method of Payments. The purchase price to be
paid by Buyer to Seller for the Purchased Assets shall be computed and paid
as provided in this Paragraph 3.
(a) Buyer shall pay Seller an initial payment of One Million
Six Hundred Forty-Seven Thousand Dollars ($1,647,000.00) for the Purchased
Assets, except Receivables and Inventories ("Main Price"). The Main Price
shall be paid by bank wire transfer at Closing, less the amount of the One
Hundred Thousand Dollars ($100,000.00) that Buyer has deposited with Seller
as an indication of good faith, which Seller may retain as partial payment of
the Main Price.
(b) Buyer shall pay Seller by bank wire transfer at Closing an
amount equal to seventy percent (70%) of Two Hundred Sixty-Nine Thousand
Seven Hundred Forty-Seven and 72/100 Dollars ($269,747.72) ("Preliminary
Receivables Price") as the estimated value of the Receivables determined by
mutual agreement of the parties. A final adjustment in payment or refund
shall take place at a post closing on the one hundredth day after Closing
("Post Closing"). Buyer shall present at the Post Closing a statement
certifying the amount of the Receivables that have been collected through
that date and include an accounting of collected and uncollected Receivables.
To the extent that the amount collected by Buyer from the Receivables between
Closing and Post Closing exceeds the Preliminary Receivables Price, Buyer
shall pay this amount to Seller in cash. To the extent that the amount
collected by Buyer between Closing and Post Closing is less than the
Preliminary Receivables Price, Seller shall refund this amount to Buyer in
cash. Buyer shall concurrently transfer to Seller any uncollected
Receivables.
(c) Buyer shall pay Seller an amount equal to seventy percent
(70%) of Two Hundred Eighty-Four Thousand Six Hundred Seventy-One and 47/100
Dollars ($284,671.47) ("Preliminary Inventories Price") as the estimated
value of the Inventories determined by mutual agreement of the parties by
bank
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wire transfer at Closing. A final adjustment in payment or refund shall take
place at Post Closing. Buyer shall present at the Post Closing a statement
certifying the amount of the Inventories determined pursuant to Section 1(e)
("Inventories Price"). To the extent that the Inventories Price exceeds the
Preliminary Inventories Price, Buyer shall pay this amount to Seller in cash.
To the extent that the Inventories Price is less than the Preliminary
Receivables Price, Seller shall refund this amount to Buyer in cash.
Adjustment of Inventories will be limited to correction of physical counts,
recording the amount at the lower of cost or average current selling price or
mathematical errors ("Changes"). Buyer shall give Seller a list of all
Changes and any defects in the condition of the inventions within fourteen
(14) days of the Closing Date.
(d) Within thirty (30) days following the first anniversary
after Closing, Buyer will pay a secondary payment to Seller of up to One
Hundred Thousand Dollars ($100,000.00) as to the Purchased Assets except
Receivables and Inventories. This secondary payment shall be calculated as
follows: Net Sales of all P. acnes products from January 1, 1998 through
December 31, 1998 shall be used as a base ("Base"). One Million Two Hundred
Thousand Dollars ($1,200,000.00) shall be subtracted from the Base ("Net
Amount"). The Net Amount shall be multiplied by ten percent (10%) and shall
constitute the second payment; provided the second payment shall not be less
than zero ($0) nor greater than One Hundred Thousand Dollars ($100,000.00).
(e) Within thirty (30) days following the second anniversary
after Closing, Buyer will pay a third payment to Seller of up to One Hundred
Thousand Dollars ($100,000.00) as to the Purchased Assets except Receivables
and Inventories. This third payment shall be calculated as follows: Net Sales
of all P. acnes products from January 1, 1999 through December 31, 1999 shall
be used as a Base. One Million Two Hundred Thousand Dollars ($1,200,000.00)
shall be subtracted from the Base. The Net Amount shall be multiplied by ten
percent (10%) and shall constitute the third payment; provided such payment
shall not be less than zero ($0) nor greater than One Hundred Thousand
Dollars ($100,000.00).
(f) The term "Net Sales" shall mean the total of the aggregate
gross invoice prices of P. acnes products of Buyer, less the sum of (i) cash,
trade or quantity discounts; (ii) sales, use, tariff, import/export duties or
other excise taxes imposed upon particular sales; (iii) transportation
charges; and (iv) allowances or credits to customers because of rejections or
returns. Concurrently with its delivery of payment, Buyer shall furnish to
Seller a certificate of its chief financial officer with respect to Net Sales
amounts for the relevant period. Buyer shall furnish to Seller a quarterly
report regarding Net Sales during the previous quarter and on a cumulative
basis.
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(g) An amount equal to Twenty Thousand Dollars ($20,000) of
the payment made at Closing shall be assigned to a Covenant Not To Compete
from Seller pursuant to paragraph 23.
(h) The purchase price to be paid by Buyer shall be allocated
in the manner required by Section 1060 of the Internal Revenue Code of 1986,
as amended ("Code"), and the Treasury Regulations promulgated thereunder. In
making the allocation, Buyer and Seller shall apply the fair market values
set forth on the Certificate of Allocation substantially in the form of
attached Exhibit 3.h. This allocation shall be conclusive and binding on the
Buyer and Seller for all purposes, including the reporting and disclosure
requirements of the Code.
(i) Buyer agrees to maintain books and records to permit the
calculation of the amounts due Seller pursuant to this Section and to give
Seller and its independent accountants reasonable access at reasonable times
to review the records. At Seller's request and its expense, Buyer shall
furnish to Seller a certificate of its independent certified public
accountants, verifying the Net Sales and other financial accounting amounts
specified in this section. Also, Buyer agrees to use its best efforts and
sound business judgment to generate Net Sales.
4. The Closing. The parties agree that the effective date of closing
shall be as the close of business on the 30th day of December, 1997. All
assets, liabilities and income generated after December 30, 1997 shall be for
the credit of Buyer. The closing of the purchase and sale provided for in
this Agreement shall be held at the offices of Seller, or at such other place
as may be fixed by mutual agreement of Buyer and Seller, concurrently with
the execution of this Agreement by Seller. The date and event of closing are
respectively referred to in this Agreement as the "Closing Date" and
"Closing." At the Closing:
(a) Seller shall deliver to Buyer a Warranty Xxxx of Sale,
substantially in the form of attached Exhibit 4.a.-1, Assignment and
Assumption of Contracts, substantially in the form of Exhibit 4.a-2, and the
certificates, opinions and other matters required by Paragraph 7; and
(b) Buyer shall deliver to Seller the purchase price required
by paragraph 3. and the other matters required by Paragraph 8.
5. Representations and Warranties of Seller. In order to induce Buyer
to enter into this Agreement, Seller makes the following representations and
warranties, each of which shall be deemed to be independently relied upon by
Buyer, regardless of any investigation made by, or information known to,
Buyer:
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(a) Organization and Qualification. Seller is validly existing
and in good standing under the laws of the State of Florida. No failure on
the part of Seller to be qualified as a foreign corporation in any
jurisdiction materially and adversely affects the Business or financial
position or results of the operation of the properties of Seller by reason of
any disability affecting its right to own property, collect receivables,
enforce contracts or otherwise. Seller has the requisite corporate power and
authority to own all of the Purchased Assets and to carry on the Business as
it is now being conducted.
(b) No Violation. Except as disclosed in Exhibit 5.b, the
execution and delivery of this Agreement by Seller and the consummation of
the transactions contemplated hereby will not violate any provision of law,
order, or regulation of any governmental authority, the corporate charter or
by-laws of Seller or constitute a default under any judgment, order or decree
of any court of governmental agency or instrumentality, or conflict or
constitute a breach or a default under any material agreement to which the
Seller is a party or by which it is bound.
(c) Financial Information. Seller has provided in Exhibit 5.c
its (i) unaudited balance sheet and statements of income, stockholders equity
and cash flows as of and for the period ended December 31, 1996 ("Financial
Statements"); and (ii) interim financial statements for the periods ending
November 30, 1997 ("Interim Financial Statements"). The Financial Statements:
(1) Have been prepared in accordance with the books of
account and records of Seller.
(2) Fairly present Seller's financial condition and the
results of its operation as of and for the periods therein specified, subject
to normal year end adjustments for the interim Financial Statements, prepared
on a consistent basis.
(d) Title to Assets. Seller owns and has corporate power to
own, and has good and marketable title to all of the Purchased Assets free
and clear of liens, security interests, mortgages, pledges, claims or
encumbrances of any kind whatsoever, except as shown in Exhibit 5.d.i. Seller
has delivered to Buyer true and complete copies of all leases, contracts,
agreements, options and commitments relating to the Purchased Assets that are
listed on Exhibit 1(f). All such leases, contracts, agreements, options and
commitments are legally valid and binding and in full force and effect, and
there are no defaults or breaches by Seller thereunder or counterclaims or
defenses against it. Seller has received no notice of any default, breach,
counterclaim or offset by any other party to such leases, contracts,
agreements, options and commitments, nor does Seller have any knowledge
thereof.
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(e) Condition of Assets. Notwithstanding anything to the
contrary in this Agreement, Seller does not warrant to Buyer the physical
condition of the Machinery and Equipment, and Buyer shall accept the
Machinery and Equipment "as is" on the Closing Date in their then-current
physical condition. Seller makes no warranties or representations, either
express or implied, as to any matter whatsoever relating to the condition of
the Machinery and Equipment, including without limitation, the design and
condition of the Machinery and Equipment, their merchantability, quality,
suitability, or fitness for any particular purposes and without limiting the
generality of the foregoing, Seller shall not be liable for any deft, either
latent or patent, in the condition of the Machinery and Equipment or for any
direct or consequential damages therefrom.
(f) Trade Rights. To Seller's knowledge, no Products
manufactured and sold by any manufacturing process employed by Seller
conflicts with or infringes on any United States or foreign patent of others
and Seller has not received any notice of such a claim. The parties
acknowledge that the Intangible Property consists of know-how that is not
protected by patents or other legally enforceable claim (except as set forth
in any confidentiality agreements with employees or independent contractors).
To Seller's knowledge, no trade secret associated with the Products has been
misappropriated or has been challenged or threatened in any way.
(g) Receivables. The list of Receivables attached as Exhibit
1.d is a complete and accurate list of all the Receivables as of December 30,
1997. All of the Receivables listed on Exhibit 1.d arose from bona fide sales
transactions of Seller, and no portion of the Receivables is subject to
counterclaim or offset or is otherwise subject to a notice of dispute.
(h) Inventories. The Inventories are reflected on the
Financial Statements and the Inventories are recorded at the lower of cost or
average selling price. No Inventories have been consigned to others.
(i) Contracts. Exhibit 5.d.ii describes all material Contract
Rights to which Seller is a party or to which it is bound and which arose out
of, or relate to, the Purchased Assets, which extend beyond the Closing Date.
True and correct copies of all such documents evidencing the Contract Rights
have been delivered by Seller to Buyer.
(j) Litigation. Except as disclosed in Exhibit 5.(j), there
are no actions, suits, proceedings or investigations pending or to Seller's
knowledge, threatened against Seller at law or in equity, or before any
federal, state or municipal or other governmental department, commission,
board, agency or
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instrumentality, domestic or foreign, which involves a demand for any
judgment or liability and which could materially adversely affect the
Business, the Purchased Assets or the transactions contemplated by this
Agreement. Seller is not in material default with respect to any order, writ,
injunction or decree of any court of federal, state, or municipal or other
governmental department, commission, board, agency or instrumentality,
domestic or foreign, and there are no such orders, decrees, injunctions or
regulations issued specifically against Seller which may materially adversely
affect, limit or control the method or manner of the Business, the Purchased
Assets or any transactions contemplated by this Agreement.
(k) Compliance with Law. Seller has complied in all material
respects with all applicable laws, orders and regulations of any federal,
state or municipal or other governmental department, commission, board,
agency or instrumentality, domestic or foreign, having jurisdiction,
including, but not limited to, laws, orders and regulations thereof relating
to antitrust, wage, hours, collective bargaining, environmental protection,
employee safety, or legislation pertaining to illegal bribes or kickbacks.
Seller owns or has adequate licenses to conduct the Business as currently
conducted in compliance with all material provisions of applicable law.
(l) Payment of Taxes. Other than those payroll taxes
specifically listed in Exhibit 5.l, Seller has timely filed all required
declarations, returns, and reports with foreign, federal, state and local
taxing authorities, and all taxes, interest and penalties required to be paid
pursuant to those returns have been or are being paid before the imposition
of interest, penalty, or assessment. There is no tax audit or examination now
pending or to Seller's knowledge, threatened with respect to the Business.
(m) No Adverse Changes. Since November 30, 1997, there has
been no material adverse change in the condition, financial or otherwise, of
the Seller or in the Business other than changes (not in the aggregate
adverse) occurring in the ordinary course of business.
(n) Warranties and Product Liability. Seller has previously
delivered to Buyer copies of all outstanding standard product warranties and
guaranties given by Seller with respect to the Business and copies of all
other product warranties and guaranties now in effect with respect to
products manufactured or sold by Seller concerning the Business. Except as
fully described in Exhibit 5.n, there are no pending claims or actions
against the Seller for breach of warranty or based upon product liability
(whether based on tort or contract principles) and, to Seller's knowledge, no
such claims or actions are threatened. Seller knows of no defects in
craftsmanship, design or engineering with respect to any product now or
heretofore
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sold or manufactured by Seller in the Business which may constitute the basis
for any such claim against Seller or Buyer.
(o) Contingent and Undisclosed Liabilities. Seller has no
material debts, obligations or liabilities, whether known or unknown, fixed
or contingent, of any nature whatsoever, relating to the Business or the
Purchased Assets before the Closing Date not disclosed in writing to Buyer
and Seller knows of no basis for any assertion of any material claim against
the Seller or Buyer for any material liability relating to the Business or
Purchased Assets except those disclosed in Exhibit 5.o.
(p) Performance of Contracts. Except as disclosed in Exhibit
5.p., Seller is not in material default, nor has it breached any material
provision of, any contract, agreement, lease, obligation, license or permit
with regard to all agreements relating to the Business to which it is a party
or by which it is bound and that is material to the business.
(q) Events Subsequent to November 30, 1997. Except as
disclosed in Exhibit 5.q., Seller has not, since November 30, 1997:
(1) Incurred Liabilities. Incurred any obligation or
liability (absolute, contingent, accrued or otherwise) or guaranteed or
become a surety of any debt, except in connection with the performance of
this Agreement or in the ordinary course of business;
(2) Discharged Debt. Discharged or satisfied any lien
or encumbrance, pertaining to the Purchased Assets or the Business, or paid
or satisfied any obligation or liability (absolute, contingent, accrued or
otherwise) other than liabilities incurred since the date thereof in the
ordinary course of the Business;
(3) Encumbrances. Mortgaged, pledged or subjected to
any lien, charge, security interest or other encumbrance any of the Purchased
Assets;
(4) Disposition of Assets. Sold or transferred any of
the Purchased Assets, or canceled any debts or claims or waived any rights,
except in the ordinary course of the Business;
(5) Sale of Business. Entered into any contract for the
sale of the Business or the Purchased Assets, or any part thereof, or for the
purchase of another business, whether by merger, consolidation, exchange of
capital stock or otherwise (other than negotiations with respect to this
Agreement);
(6) Accounting Procedure. Changed or modified the
accounting methods or practices relating to the Business; or
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(7) Capital Expenditure. Purchased or made a commitment
for the purchase of capital assets for use or employment in the Business.
(r) Customer Relations. Seller knows of no communications that
have been made to it which would indicate that (i) any current customer of
Seller which accounted for more than 5% of Seller's sales relative to the
Business for the most recent fiscal year ending, or (ii) any current supplier
of Seller (if such supplier could not be replaced by Seller at comparable
cost), will terminate its business relations with Seller.
(s) Brokerage. Seller has made no commitments for a brokerage
fee in connection with the transactions contemplated by this Agreement,
except for bonuses payable by Seller.
(t) Intentionally Left Blank.
(u) Reserve for Taxes. Seller shall reserve from the proceeds
to be received at Closing an amount sufficient to pay unpaid federal and
state taxes that are due and payable.
(v) Binding Effect. The Agreement and all related documents
have been duly executed, made and delivered by Seller and constitute a legal,
valid and binding obligation of Seller enforceable against it in accordance
with their respective terms, subject to the laws of general application
affecting creditors' rights.
(w) Authorization. The execution and delivery of this
Agreement and the transactions contemplated hereby have been duly authorized
by the sole shareholder and the Board of Directors of Seller and on the
Closing Date all of the necessary corporate action to authorize the execution
and delivery of this Agreement and the purchase hereby will have been taken.
(x) Employee Relations. Exhibit 5.x. sets forth a list of all
of the officers, employees and agents of Seller and, for each individual,
indicates his or her position, salary or wage rate and respective fringe
benefits and any other remuneration paid or payable. Except as disclosed on
Exhibit 5.x.:
(1) There is not now in existence or pending, nor has
there been within the last three years, any grievance, arbitration,
administrative hearing, claim of unfair labor practice, wrongful discharge,
employment discrimination or sexual harassment or other employment dispute of
any nature pending or, to Seller's knowledge, threatened against Seller.
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(2) Seller is, and during all applicable limitation
periods has been, in material compliance with all applicable Federal, state,
local or foreign laws, executive orders and regulations respecting employment
and employment practice, terms and conditions of employment, occupational
safety, wages and hours.
(3) Seller has no collective bargaining agreements and
is not a party to any written or oral, express or implied, other contract,
agreement or arrangement with any labor union or any other similar
arrangement that is not terminable at will by Seller without cost, liability
or penalty.
(4) Seller is not a party to any written or oral
contract, agreement or arrangement with any of its present or former
directors, officers, employees or agents that is not terminable at will by
Seller with respect to length, duration or conditions of employment (or the
termination thereof), salaries, bonuses, percentage compensation, deferred
compensation or any other form of remuneration, or with respect to any matter
not disclosed on Exhibit 5.x.(4).
(5) There is no pending claim or, to Seller's
knowledge, threatened or claim, against Seller for violation of any contract,
agreement or arrangement described in Exhibit 5.x.(5).
(6) Upon termination of the employment of any of the
Seller's employees by Seller, Buyer shall not incur any liability for
severance or termination pay or any other obligation to Seller's employees or
to any person, entity or government.
(y) Employee Benefit Plans.
(1) Exhibit 5.y. sets forth all "employee pension
benefit plans", "employee welfare benefit plans" and "multi-employer plans"
within the respective meanings of Sections 3(1) and 3(2() and 3(37) of the
Employment Retirement Income Security Act of 1974, as amended ("ERISA"), all
incentive compensation plans, benefit plans for retired employees and all
other employee benefit plans maintained by Seller, or to which Seller has
made payments or contributions on behalf of its employees since 1974,
including, without limitation, all plans or contracts providing for bonuses,
pensions, profit-sharing, stock options, stock purchase rights, deferred
compensation, insurance and retirement benefits of any nature, whether formal
or informal (each such plan is referred to individually as a "Plan",
collectively as the Plans").
(2) To Seller's knowledge, and except for any
multi-employer plans, all Plans covered by the Code and ERISA are, and during
all applicable
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limitation periods have been, in material compliance with the Code and ERISA,
and all retirement or pension Plans and welfare benefit plans are qualified
plans under the Code and each Plan is in material compliance with the
applicable provisions of the Code.
(3) There has been no transaction in connection with
which Seller or any of its directors, agents, officers, or employees could be
subject to either a civil penalty assessed pursuant to Section 502(i) of
ERISA or a tax imposed by Section 4975 of the Code or any similar provision
of foreign law.
(4) No Plan that is a qualified plan under Section
401(a) of the Code and no trust created thereunder has been terminated,
partially terminated, curtailed, discontinued or merged into another plan or
trust, except in compliance with notice and disclosure to the Internal
Revenue Service (the "IRS"), the Department of Labor and the Pension Benefit
Guaranty Corporation (the "PBGC"); and any such termination, partial
termination, curtailment, discontinuance or merger has been accompanied by
the issuance of a current favorable determination letter by the IRS and,
where applicable, has been accompanied by plan termination proceedings with
and through the PBGC.
(5) To Seller's knowledge, there are no payments that
have become due from any Plan, the trusts created thereunder, or from Seller
which have not been paid through normal administrative procedures to the Plan
participants or beneficiaries entitled thereto.
(6) Seller has made full and timely payment of all
required and discretionary contributions to the Plans, and no unfunded
liability exists with respect to any Plan.
(7) There has been no "reportable event" as defined in
Section 4043 of ERISA with respect to any Plan or any trust created
thereunder.
(8) None of the Plans is a "defined benefit plan"
within the meaning of Section 3(35) of ERISA and none is subject to Title IV
of ERISA.
(9) Neither Seller nor any of its directors, officers,
employees, or agents have any outstanding liabilities of any nature to the
PBGC, the IRS, or the Department of Labor in any way relating to the Plans.
(10) Seller is not a party to or otherwise subject to
any express or implied agreement or plan to provide health coverage or other
benefits to retired or current employees except as set forth in Exhibit 5.y.
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(11) Seller is not a party to or otherwise subject to
any express or implied agreement or plan to provide any employee benefits,
wages, deferral compensation, or any other form of benefit or remuneration
beyond the date of Closing.
(12) With respect to all of its employees, former
employees and qualified beneficiaries as of the Closing Date, Seller has or
will comply with all applicable health care continuation requirements under
the Code and ERISA. Seller agrees to use its best efforts expeditiously to
provide Buyer with all information that Buyer deems necessary to determine
whether there have been any failures to comply with the continuation health
care requirements of section 162(k)/4980B of the Code and sections 601
through 609 of ERISA as such requirements have applied to any group health
plan maintained by or for Seller which failure occurred with respect to any
current or former employee of Seller or any spouse, former spouse, dependent
child, or former dependent child of any such employee, on or prior to the
Closing Date. Seller further agrees to use its best efforts expeditiously to
provide to Buyer all information that Buyer deems necessary to correct any
failures to comply with such continuation health care coverage requirements.
Such information shall include, without limitation, the identification of all
covered employees (as defined in section 162(k)(7)(B)/4980B(f)(7) of the
Code) and their qualified beneficiaries (as defined in section
162(k)(7)(B)/4980B(g)(1) of the Code), the identification of all qualifying
events with respect to such covered employees or qualified beneficiaries (as
defined in section 162(k)(3)/4980B(f)(3) of the Code, and information
otherwise demonstrating compliance with all of the continuation health care
coverage requirements of section 162(k)/4980B of the Code and sections 601
through 608 of ERISA. For purposes of this provision, references to the Code
and ERISA shall include references to any provisions of such statutes as they
may be amended from time to time.
(z) Environmental Matters. Except as disclosed on Exhibit
5.z.(1):
(1) No Hazardous Substances have been or are currently
generated, stored, transported, utilized, disposed of, managed, released or
located on, under or from 0000-X Xxxxxxxxxxxx, Xxxxx, Xxxxxxx or any other
premises Seller has occupied ("the Premises") (whether or not in reportable
quantities) by Seller or its agents or invitees, or in any manner introduced
onto the Premises by Seller or its agents or invitees, including, without
limitation, the septic, sewage or other waste disposal systems serving the
Premises except in accordance with all applicable Environmental Laws.
(2) Seller has no knowledge of any threat of release of
any Hazardous Substances on, under or from the Premises.
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(3) Seller has not received any notice from the United
States Environmental Protection Agency or any other Governmental Authority
(as defined below) claiming that (i) the Premises or any use thereof violates
any of the Environmental Laws (as defined below), or (ii) Seller or any of
its employees or agents have violated any of the Environmental Laws.
(4) Seller has not incurred any liability to the State
of Florida, the United States of America or any other Governmental Authority
under any of the Environmental Laws.
(5) There are no Environmental Enforcement Actions
pending or threatened to the best of Seller's knowledge.
(6) To the best of Seller's knowledge, there are no
underground storage tanks on or under the Premises.
(7) The following definitions apply to this paragraph.
(i) "Environmental Enforcement Actions" means
actions or orders instituted, threatened, required or completed by any
Governmental Authority and all claims made or threatened by any person
against Seller or the Premises, arising out of or in connection with any of
the Environmental Laws or the assessment, monitoring, clean-up, containment,
re-mediation or removal of, or damages caused or alleged to be caused by, any
Hazardous Substances (i) located on or under the Premises, (ii) emanating
from the Premises, or (iii) generated, stored, transported, utilized,
disposed of, managed or released by Seller.
(ii) "Environmental Laws" means federal, state
and local laws, statutes, ordinances, rules, regulations, codes, orders,
judgments, orders and the like applicable to (i) environmental conditions on,
under or emanating from the Premises including, but not limited to, (a) laws
of the State of Florida; and the associated rules and regulations promulgated
in connection with any of these laws, and (b) laws of the federal government
commonly known as the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, the Resource Conservation and Recovery Act, as
amended, the Toxic Substance Control Act, as amended, the Federal Water
Pollution Control Act, as amended, and the Federal Clean Air Act; and the
associated rules and regulations promulgated in connection with any of these
laws; and (ii) the generation, storage, transportation, utilization,
disposal, management or release (whether or not on, under or from the
Premises) of Hazardous Substances by Seller.
(iii) "Governmental Authority" means agencies,
authorities, bodies, boards, commissions, courts, instrumentalities,
legislatures and
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offices of any nature whatsoever for any government unit or political
subdivision, whether federal, state, county, district, municipal, city or
otherwise, and whether now or later in existence.
(iv) "Hazardous Substances" shall mean,
collectively, (i) any "hazardous material," "hazardous substance," "hazardous
waste," "oil," "regulated substance," "toxic substance," "restricted
hazardous waste," "special waste" or words of similar import as defined under
any of the Environmental Laws; (ii) asbestos in any form; (iii) urea
formaldehyde foam insulation; (iv) polychlorinated biphenyls; (v) radon gas;
(vi) flammable explosives; (vii) radioactive materials; (viii) any chemical,
contaminant, solvent, material, pollutant or substance that may be dangerous
or detrimental to the Premises, the environment, or the health and safety of
occupants of the Premises or of the owners or occupants of any other real
property nearby the Premises, and (ix) any substance, the generation,
storage, transportation, utilization, disposal, management, release or
location of which on, under or from the Premises is prohibited or otherwise
regulated pursuant to any of the Environmental Laws.
(aa) Shareholder List. Parent owns all of the issued and
outstanding stock of Seller.
(bb) Insurance. Exhibit 5.(bb) lists all policies of
liability, property damage, fire, workers' compensation/employer's liability,
title or other forms of insurance owned or carried by Seller (the "Policies")
and insurance agents or brokers providing such insurance coverage. Seller has
received no notice from any insurance carrier regarding the possible
cancellation of or premium increase with respect to the Policies.
(cc) Technology Agreements; Ownership of Master Seed. Exhibit
5.(cc) lists all agreements (collectively, the "Technology Agreements") by
which Seller either acquired or granted rights to any technology relating to
P.acnes, including the Immunostimulant Technology License Agreement dated
January 19, 1995, between Seller and Immunomed Corporation, as amended
pursuant to a First Amendment to the Immunostimulant Technology License
Agreement dated April 6, 1995 (the "License Agreement"). Exhibit 5.(cc) also
lists the agreements known to Seller pursuant to which the foregoing
technology has been further licensed or transferred. Complete copies of these
agreements have been furnished to Buyer. Seller has the right to assign all
of its interests in the License Agreement to the Buyer and after the
assignment, Buyer will have all of the rights of Seller in and to the License
Agreement. The Technology Agreements to which Seller is a party are in full
force and effect. No modification has been made to the Technology Agreements
to which Seller is a party, except as set forth in Schedule 5.(cc). To
Seller's knowledge, no party to the Technology Agreements to which Seller is
a
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party, with or without the giving of notice, is in default under those
agreements and Seller knows of no basis for any default by it or by any other
party to the Technology Agreements. Exhibit 5.(cc) lists all parties to which
any aspect of the technology used in connection with P.acnes has been
disclosed by Seller, Parent, and to Seller's knowledge, all other third
parties. To Seller's knowledge, only Seller, Buyer, and The Xxx Xxxxxx Group,
Inc. (or its affiliate, Delft Pharma International, a Utah corporation) are
the only persons that have in their possession master seed for P.acnes. After
the transaction contemplated by this Agreement, Buyer will own master seed
for P.acnes.
6. Representations and Warranties of Buyer. In order to induce Seller
to enter into this Agreement, Buyer makes the following representations and
warranties, each of which shall be deemed to be independent materially and
relied upon by Seller, regardless of any investigation made by, or
information known to, Seller:
(a) Organization. Buyer is, and on the Closing Date shall be,
a corporation validly existing and in good standing under the laws of the
State of Michigan.
(b) Authorization. The execution and delivery of this
Agreement and the transactions contemplated hereby have been duly authorized
by the Board of Directors of Buyer and on the Closing Date all of the
necessary corporate action to authorize the execution and delivery of this
Agreement and the purchase hereby will have been taken.
(c) No Violation. The execution and delivery of this Agreement
by the Buyer and the consummation of the transactions contemplated hereby
will not violate any law, order or regulation of any governmental authority,
or corporate charter or bylaws of Buyer or constitute a default under any
judgment, order or decree of any court or governmental agency or
instrumentality, or conflict with or constitute a breach or default under any
agreement to which Buyer is a party or by which it is bound.
(d) Brokerage. Buyer has not made a commitment for a
brokerage, finders or similar fees in connection with the transactions
contemplated by this Agreement.
(e) Binding Effect. The Agreement and all related documents
have been duly executed, made and delivered by Buyer, as appropriate, and
constitute a legal, valid and binding obligation of Buyer enforceable against
Buyer in accordance
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with their respective terms, subject to the laws of general application
affecting creditors' rights.
(f) Representations and Warranties True and Correct. The
representations and warranties contained herein do not include any untrue
statement or material fact nor omit to state a material fact required to be
stated herein or therein or necessary in order to make the statements herein
or therein, in light of the circumstances under which they are made, not
misleading.
7. Conditions of Buyer's Obligation To Close. The obligations of
Buyer pursuant to this Agreement are subject to the following conditions
having been met, or waived in writing by Buyer, at or prior to the Closing
Date:
(a) Representations and Warranties. The representations and
warranties made by Seller in Paragraph 5 shall be true and correct in all
material respects on and as of the Closing Date.
(b) Approvals and Consents. All necessary approvals and
consents with respect to the transactions contemplated hereby, the absence of
which would have a material and adverse effect on Buyer's rights under this
Agreement, or which would result in the forfeiture or breach of any material
rights acquired by Buyer pursuant to the provision of any material contract
or agreement assumed by and hereunder, or without which the Buyer would be
precluded or materially impeded from conducting the Business, shall have been
received by Buyer, including the assignment of lease and sub-lease.
(c) Delivery of Instruments of Conveyance of the Purchased
Assets. Seller shall have delivered to Buyer, satisfactory to Buyer in form
and substance, conveyancing documents to transfer title to the Purchased
Assets to Buyer.
(d) No Litigation. No investigation, suit, action or other
proceedings shall be threatened or pending before any court or governmental
agency in which it is sought to restrain, prohibit or obtain damages or other
relief in connection with this Agreement or the consummation of the
transactions contemplated hereby.
(e) No Adverse Change. There shall have been no change or
development related to the Business, the Purchased Assets, results of
operations or in the condition, financial or otherwise, of the Business,
which has had or may reasonably be expected to have a material adverse effect
on the condition, financial or otherwise, of the operation of the Business or
ownership of the Purchased Assets.
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(f) Related Documents. All of the related documents are
executed at or prior to closing, including the Title Transfer Documents.
(g) Additional Agreements. Buyer shall have received an
executed copy of the Rights Agreement and the Performance Agreement between
Buyer and Parent, substantially in the form of Exhibit 7.(g) ("Performance
Agreement").
8. Conditions to Seller's Obligation to Close. The obligations of
Seller, under this Agreement are subject to the following conditions having
been met, or waived in writing by Seller, at or prior to the Closing Date:
(a) Representations and Warranties. The representations and
warranties of Buyer in Paragraph 6 shall be correct in all material respects
on and as of the Closing Date.
(b) Payment of Purchase Price. Buyer shall have delivered to
Seller the Main Price, Receivables Price and Inventories Price as provided in
Paragraph 3.
(c) No Litigation. No investigation, suit, action or other
proceedings shall be threatened or pending before any court or governmental
agency in which it is sought to restrain, prohibit or obtain damages or other
relief in connection with this Agreement or the consummation of the
transactions contemplated hereby.
(d) Additional Agreements. Seller shall have received executed
copies of the Rights Agreement, Performance Agreement and Assignment and
Assumption Agreement.
(e) Approvals and Consents. All necessary approvals and
consents with respect to the transactions contemplated hereby, the absence of
which would have a material and adverse effect on Seller's rights under this
Agreement.
9. Survival of Representations and Indemnification.
(a) Survival of Representations. Buyer and Seller agree that
all representations, warranties and covenants of Seller ("the
Representations") shall survive the execution and delivery of this Agreement,
the Closing Date and any investigation or audit made by Buyer. The
Representations given in Paragraphs 5.(a), (d), (j), (k), (l), (o), (v), (w),
(z), and (cc) shall continue for two (2) years after the expiration of any
statute of limitations under which a claim may be made and all others shall
expire upon the second anniversary of the Closing Date.
(b) Indemnification.
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(1) Generally. Seller agrees to defend, indemnify and
hold Buyer harmless from and against any and all loss, damage, claims and
expenses (including accountants' and attorneys' fees) incurred by Buyer which
Buyer may sustain at any time by reason of (i) the breach of any of the
Representations (including all items disclosed in the Exhibits) made by
Seller herein or any agreement or document delivered in connection with this
Agreement or with the closing of the transactions contemplated hereby, (ii) a
Product Claim arising from Seller's sales before the Closing Date; or (iii)
Buyer being deemed to be a "successor" employer to Seller for purpose of
COBRA obligations ("Indemnifiable Damage"). Buyer shall have the right to set
off any Indemnifiable Damage it may incur against the amount it owes Seller
("Disputed Amount"); provided the Disputed Amount is placed in escrow until
resolved according to the terms of the Agreement. This right of set off shall
be in addition to any other rights Buyer may have against Seller. Buyer
agrees to defend, indemnify, and hold harmless Seller from and against any
and all loss, damage, claims, and expenses (including accountants' and
attorney's fees) incurred by Seller that Seller may sustain by reason of (i)
the breach of any of the Representations (including all of the items
disclosed in the Exhibits) made by Buyer herein or in any agreement or
document delivered in connection with this Agreement or with the closing of
the transactions contemplated by this Agreement; or (ii) any liability
assumed by Buyer pursuant to this Agreement or the other documents delivered
in connection with this Agreement; or (iii) otherwise arising out of the
ownership by Buyer of the Purchased Assets or the operation of the Business
on or after the Closing Date (including, without limitation, Product Claims
arising from Buyer's sales following the Closing Date). Buyer shall be
entitled to indemnification only if its claim is made within the applicable
time period specified in Section 9.(a).
(2) Procedure for Indemnity. On the occurrence of any
event that could give rise to a claim against, or to a right of defense and
indemnity by, Buyer or Seller pursuant to this Agreement, or in the event
that any suit, action, investigation, claim or proceeding is begun, made or
instituted against Buyer or Seller as a result of which the other may become
obligated under this Agreement, the party claiming indemnification (the
"Indemnified Party") shall so notify the other party (the "Indemnifying
Party"). The Indemnifying Party will be relieved from any obligation to
provide indemnity to the extent its ability to defend the claims is
materially prejudiced by a notice delay. After receipt of the notice, the
Indemnifying Party shall have the right to promptly undertake to defend,
contest, or otherwise protect against any such event or any suit, action,
investigation, claim or proceeding arising thereform, using counsel of its
choice. The Indemnified Party, at its own cost, may elect to participate in
the defense using counsel of its choice. Buyer and Seller shall cooperate in
defending against any claim to which indemnity obligations apply, and in
minimizing the costs, losses and damage involved in such claim. Neither party
will compromise, settle, or admit liability in any claim to which
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the other party's indemnity obligations apply, and will not incur significant
costs or expenses with respect to any such claim, without the consent of the
other party, which shall not be unreasonably withheld.
(3) Limit of Liability. Anything in Section 9 to the
contrary notwithstanding, Seller's maximum amount of Indemnifiable Damages
shall be limited to the total purchase price paid to it pursuant to Section 3
of the Agreement as to Section 2, Section 5.d., j., k., l., o., v., w., z.,
and (cc), Section 15, and any knowing misrepresentation. Seller shall not
have any liability for the remaining warranties in Section 5 after the
aggregate amount of Indemnifiable Damages paid by Seller exceeds $250,000.
The sole recourse of either party for a breach of any representation or
warranty shall be pursuant to this section.
10. Collection of Receivables:
(a) Buyer shall use its best efforts to collect the
Receivables as promptly as possible following the Closing. Buyer shall first
consult with and obtain Seller's consent to any compromise of any of the
Receivables that results in collection of less than 90% of its face value or
that defers payment for more than thirty days. Buyer shall have no duty to
undertake collection steps, other than routine billing.
(b) Any Receivables acquired as part of the Purchased Assets
which remain uncollected on the one hundredth day after the Closing Date
shall be reassigned to Seller and an amount equal to such uncollected
Receivables shall be deducted from the amount owed Seller at the Post
Closing. In its internal accounting, Seller shall assign funds received from
a customer first to those invoices designated for payment by the customer,
and if not designated, to the oldest invoice of the customer.
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11. Employees.
(a) Seller agrees to terminate the employment of those
individuals shown in Exhibit 11 on or the day before the Closing Date.
(b) Buyer shall use its best efforts to hire the employees
listed in Exhibit 11.
12. Transactions Subsequent to Closing.
(a) Further Assurances. Buyer and Seller agree that, from time
to time after Closing, and upon reasonable request, they shall execute,
acknowledge and deliver such other instruments as reasonably may be required
to more effectively transfer and vest in Buyer the Purchased Assets or to
otherwise carry out the terms and conditions of this Agreement.
(b) Maintenance of Seller. Until the Federal, state and local
income tax liabilities of Seller attributable for all periods ending on or
prior to the Closing have been examined and reported on by the Internal
Revenue Service (or closed by applicable statute of limitations) and finally
determined, Seller's legal existence shall be maintained and Seller shall
maintain at all times sufficient working capital to insure Seller's ability
to pay its tax obligations on a punctual basis.
(c) Temporary Use of Vetoquinol Name. Buyer and Seller
acknowledge that some components of the Inventories bear Vetoquinol labels.
Seller grants to Buyer permission to sell these Inventories bearing the
Vetoquinol labels for up to twelve (12) months after the Closing. Buyer shall
use its best efforts to sell the Inventories that bear Seller's label as soon
as reasonably possible.
13. Proper Notices. All notices and other communications required or
permitted under this Agreement shall be deemed to have been given upon actual
receipt by registered or certified mail, postage prepaid, or otherwise
delivered by hand or messenger, fax or telegram, to the parties at the
address listed on page 1, attention President and Vetoquinol, S.A., whose
address is Magny-Vernois, X.X. 000, 00000, Xxxx Xxxxx, Xxxxxx, attention
President, or to such other changed address as such party may have given by
notice.
14. Applicable Law. This Agreement and its validity, construction and
performance shall be governed in all respects by the laws of the State of
Florida.
15. Bulk Transfer. Buyer agrees to waive compliance with the
provisions of any applicable bulk sale or transfer of law in exchange for
Seller's covenant to
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indemnify and hold Buyer harmless from and against all liabilities Buyer may
incur arising from such non-compliance.
16. Integration. This Agreement and all schedules, exhibits and
agreements attached hereto set forth the entire agreements and understanding
between the parties as to the subject matter hereof, and supersedes all prior
discussions, representations, amendments or understandings of every kind and
nature between them including but not limited to the Confidentiality
Agreement entered into on September 26, 1997.
17. Amendments. Any amendment, alteration, supplement, modification
or waiver shall be invalid unless it is set forth in writing, signed by the
party intending to be bound thereby.
18. Severability. If any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without the
provision(s).
19. Assignability. This Agreement may be assigned by Buyer without
the prior written consent of Seller; provided, Buyer shall continue to be
liable for the performance of all obligations pursuant to the Agreement.
20. Benefit. This Agreement shall be binding upon and inure to the
benefit of Buyer and Seller and their successors and permitted assigns.
21. Captions. Captions contained in this Agreement are inserted for
reference and in no way define, limit, extend or describe the Agreement or
the intent of any provision herein.
22. Pronouns. All pronouns and any variation thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural as the
identity of the parties may require.
23. Covenant Not to Compete. Without prior written consent of Buyer,
Seller and Parent agree that, for a ten (10) year period from and after the
Closing Date, they shall not market register or develop P.acnes products for
sale and distribution in those territories or for those product applications
as to which Buyer has the exclusive rights to market, register, manufacture,
and further develop particular product applications of P.acnes, except as
specifically licensed to Parent in the Rights Agreement. Seller and Parent
acknowledge that this non-compete applies to them whether they act
individually or jointly, alone, or as an officer, agent, employee, director,
or shareholder of any other corporation, university, or other entity. While
the restrictions set forth above are considered by the parties to
-23-
be reasonable in all circumstances, it is recognized that restrictions of the
nature in question may fail for technical reasons unforeseen and accordingly
it is hereby agreed and declared that if any of such restrictions shall be
adjudged to be void as going beyond what is reasonable in all the
circumstances for the protection of the interests of the Buyer but would be
valid if part of the wording thereof were deleted or the periods if any
thereof reduced or the range of activities or area dealt with thereby reduced
in scope, these restrictions shall be applied with such modifications as may
be necessary to make it valid and effective.
As consideration for this agreement not to compete, Twenty Thousand
Dollars ($20,000.00) as a part of the Main Price described in Paragraph 3.(a)
shall be deemed as payment for this covenant not to compete. No additional
consideration shall be paid by Buyer.
24. Confidential Information. It is agreed that the products and
information relating to the Business and anticipated improvements relating to
them constitute confidential information ("Confidential Information"). Seller
and Parent agree not to individually or jointly disclose to any person any
Confidential Information regardless of nature, type or physical manifestation
or any other information concerning the business affairs of Buyer and the
Business, including, but not limited to, information related to the products
identified in Item B of the Recitals and improvements made thereto, except as
specifically permitted in the Rights Agreement. This restriction shall
include information imparted or divulged to, gained or developed by, or
otherwise discovered by Seller in executing this Agreement. Anything in this
Agreement to the contrary notwithstanding, Seller and Parent shall not be
bound by this Paragraph 24 to the extent that the information they desire to
divulge is or becomes publicly known, other than through a breach of their
obligations hereunder or required by law.
25. Construction of Agreement. The parties agree that this Agreement
has been jointly drafted and that neither party may assert an ambiguity in
the construction of this Agreement against another party because the other
party allegedly drafted the allegedly ambiguous provision.
26. Venue. The parties agree that any action shall be brought in the
court of appropriate jurisdiction in Hillsborough County, Florida or U.S.
District Court for the Middle District located in Tampa, Florida. The parties
consent to jurisdiction and waive all claims of improper venue and forum non
conveniens.
27. Enforcement of Agreement. Each party agrees to pay all of the
other party's costs and expenses, including actual attorney's fees, in
enforcing the terms of this Agreement, including collection of amount owed to
a party.
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28. Seller's Knowledge. For purposes of this Agreement, the term
"knowledge" when applied to Seller means the actual knowledge of Xxxxxxx
Xxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxxxxxx, and Xxxxx Xxxxxxx.
29. Dispute Resolution.
(a) Demand for Arbitration. Except regarding a claim for
fraud, rescission of the Agreement or violation of Sections 23 or 24, any
controversy, dispute or claim arising out of, in connection with, or in
relation to, the construction, performance or breach of this Agreement,
including without limitation, the validity, scope and enforceability of this
Section 29, shall be adjudicated by arbitration conducted in accordance with
the then existing rules for commercial arbitration of the American
Arbitration Association ("AAA"), or any successor organization by a single
arbitrator. The demand for arbitration shall be delivered in accordance with
the Notice provisions of this Agreement.
(b) Selection of Arbitrators. Within five (5) days after
receipt of such demand, the parties shall jointly request a list of
arbitrators from the AAA from the greater Tampa, Florida area. Upon receipt
of the list of arbitrators, each party shall xxxx selections and/or
rejections and resubmit the list to the AAA. The selections and rejections
shall take place within seven (7) days after receipt of the proposed
arbitrators from the AAA. The parties shall cooperate with the AAA and the
appointed arbitrator for the purpose of setting an expeditious hearing, which
shall be conducted in Tampa, Florida.
(c) Costs and Expenses. The costs of the arbitration, the fees
and expenses of the arbitrator, hearing room, and court reporter shall be
borne by the nonprevailing party. Each party may be represented by counsel if
it so chooses.
(d) Binding Nature of Decision. The parties intend this
agreement to arbitrate to be valid, enforceable and irrevocable. The decision
of the arbitrator with respect to all matters except the validity of this
Agreement, which shall be rendered no later than six (6) months after the
date the hearing begins, shall be final and binding upon the parties and
judgment on such award may be entered by either party in any court having
jurisdiction over the person or properly of the party against whom such award
is sought to be enforced. The parties stipulate that these arbitration
provisions shall be a complete defense to any suit, action or proceeding
instituted in any federal, state or local court, or before any administrative
tribunal with respect to any dispute, controversy or alleged breach of this
Agreement. The arbitration provisions of this Agreement shall survive any
termination or expiration of this Agreement.
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The parties have caused this Agreement to be executed as of the date
and year first above written.
Seller: Buyer:
VETOQUINOL, U.S.A., Inc. Neogen Corporation
By:___________________________ By:_____________________________
Xxxxx X. Xxxxxxx, President
Its:___________________________
