EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
This Agreement is made and entered into this 8th day of December, 1995,
by and among Xxxxxxxxx Laboratories, Inc., a Delaware corporation ("Buyer"),
and Xxxxxxxxx Technologies, Inc., a Delaware corporation ("Seller"). Buyer
and Seller may be referred to herein collectively as "Parties".
WHEREAS, Seller owns one million seventy-nine thousand seven hundred
thirteen (1,079,713) shares of the issued and outstanding shares of Xxxxxxxxx
Laboratories, Inc. common stock, free and clear of all liens, encumbrances
and adverse claims other than a security interest granted in favor of Buyer
pursuant to the terms of that certain Agreement executed by and between the
Parties on the 1st day of May, 1991 (the "Intercompany Agreement");
WHEREAS, Seller is the major shareholder of Buyer and exercises voting
control of the Buyer through voting trusts, proxy arrangements or otherwise;
WHEREAS, Seller desires to sell, and Buyer desires to purchase, six
hundred forty-seven thousand two hundred thirty-eight (647,238) shares of the
issues and outstanding shares of Xxxxxxxxx Laboratories, Inc. common stock
which it owns and to reach agreements upon the other matters set forth below,
for the consideration and upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of these Recitals and the provisions
and the respective agreements hereinafter set forth, the Parties hereto hereby
agree as follows:
1. Purchase and Sale of Stock.
1.1 Agreement to Purchase and Sell. Upon the terms and subject to
the conditions set forth in this Agreement and upon the representations and
warranties made herein by each of the Parties to the other, on the
Closing Date (as such term is hereinafter defined), Seller shall sell,
grant, convey, assign, transfer and deliver to Buyer, and Buyer shall
purchase and acquire from Seller, six hundred forty-seven thousand two
hundred thirty-eight (647,238) shares of the issued and outstanding shares
of Xxxxxxxxx Laboratories, Inc. common stock which Seller owns (the
"Shares"). The Shares will be delivered to Buyer at Closing (as such term
is hereinafter defined) free and clear of all liens, encumbrances and
adverse claims.
1.2 Purchase Price. Upon the terms and subject to the conditions set
forth in this Agreement, in reliance upon the representations, warranties,
covenants and agreements of Seller contained herein, and in exchange for
the Shares, Buyer agrees to pay to Seller the sum of eight hundred nine
thousand forty-eight dollars ($809,048) (the "Purchase Price").
1.3 Payment of Purchase Price. The Purchase Price shall be
payable at Closing as follows: (i) by delivery of three hundred
thousand dollars ($300,000) in immediately available funds to Seller
in such bank accounts as Seller shall designate in writing to Buyer at
least 24 hours prior to the Closing Date; (ii) by cancellation at
Closing of unpaid principal owed by Seller to Buyer under the
intercompany Agreement in the amount of four hundred fifty-one
thousand nine hundred forty-five dollars ($451,945); and (iii) by
cancellation at Closing of accounts receivable due from Seller to
Buyer in the amount of fifty-seven thousand one hundred three
dollars ($57,103).
1.4 Closing. The closing of the purchase and sale of the Shares
provided herein (the "Closing") will be at the office of Xxxxxx Davies,
P.C. at 10:00 a.m., local time, on December 13, 1995, or at such other
place or at such other date and time as Seller and Buyer may mutually
agree. Such date and time of Closing is herein referred to as the
"Closing Date".
2. Representations and Warranties of Seller.
Seller represents and warrants, which representations and
warranties shall survive the Closing, to Buyer as follows:
2.1 Existence, Good Standing, Corporate Authority, and
Compliance With Law. Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation. Seller has all requisite corporate
power and authority to own and sell the Shares pursuant to the
terms and conditions of this Agreement. Seller is not (i) in default
with respect to any order of any court, governmental authority or
arbitration board or tribunal to which it is a party or is subject
which relates to the transfer of the Shares and/or Seller's execution
and performance of this Agreement, and (ii) in violation of any
laws, ordinances, governmental rules or regulations to which it is
subject and which relates to the transfer of the Shares and/or Seller's
execution and performance of this Agreement.
2.2 Validity and Effect of Agreements. This Agreement
constitutes, and all agreements and documents contemplated hereby when
executed and delivered pursuant hereto for value received will
constitute, the valid and legally binding obligations of Seller
enforceable in accordance with their terms, except that enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws of general
application now or hereafter in effect relating to the enforcement of
creditors' rights generally and except that the remedies of specific
performance, injunction and other forms of equitable relief are
subject to certain tests of equity jurisdiction, equitable defenses
and the discretion of the xxxx before which any proceeding therefor may
be brought. The execution and delivery of this Agreement does not and
the consummation of the transactions contemplated hereby will not
(i) require the consent of any third party, or (ii) result in the breach
of any terms or provision of, or constitute a default under, or result
in the acceleration of or entitle any party to accelerate (whether
after the giving of notice or the lapse of time or both) any obligation
under, or result in the creation or imposition of any lien, charge,
pledge, security interest or other encumbrance upon all or any part of
the Shares pursuant to any provision of, any order, judgment, arbitration
award, injunction, decree, indenture, mortgage, lease, license, lien or
other agreement or instrument to which Seller is a party or by which it
is bound, or violate or conflict with any provision of the by-laws or
articles/certificates of incorporation of Seller as amended to the date
of this Agreement, except which have been waived in writing prior to the
date hereof and copies of which have been supplied to Buyer prior to
closing.
2.3 Shares. Seller owns one million seventy-nine thousand
seven hundred thirteen (1,079,713) shares of the fully paid and
nonassessable issued and outstanding shares of Xxxxxxxxx Laboratories,
Inc. common stock free and clear of all liens, encumbrances and adverse
claims other than a security interest granted in favor of Buyer pursuant
to the terms of the Intercompany Agreement. Except for rights granted
pursuant to this Agreement, there are no outstanding rights, options,
contracts, agreements or commitments giving anyone any right to acquire
the Shares. The Shares are subject to no restrictions with respect to
transferability to Buyer in accordance with the terms of this Agreement.
Upon transfer of the Shares by Seller, Buyer will, as a result, receive
good and marketable title to all of the Shares, free and clear of all
security interests, liens, encumbrances, charges, assessments,
restrictions and adverse claims, except those granted to Buyer and,
except as otherwise provided herein, those created under applicable
securities laws.
2.4 Financial Statements. Buyer has furnished to Seller its
(i) audited balance sheet and notes thereto as of the end of the last
fiscal year (the "Audited Balance Sheet"), (ii) its audited statement
of operations for the last fiscal year, (iii) its unaudited balance
sheets and notes thereto for each month since its fiscal year end, and
(iv) its unaudited statement of operations for each month since its
fiscal year end.
2.5 Taxes. The Seller (i) has duly and timely filed or caused
to be filed all federal, state, local and foreign tax returns
(including, without limitation, consolidated and/or combined tax
returns) required to be filed by it prior to the date of this Agreement
with respect to which the Seller is liable or otherwise in any way
subject, and (ii) has paid or fully accrued for all taxes shown to be
due and payable on such returns (which taxes are all the taxes due and
payable under the laws and regulations pursuant to which such returns
were filed). No deficiency in payment of taxes for any period has been
asserted by any taxing body and remains unsettled at the date of this
Agreement.
2.6 Litigation. There are no actions, suits or proceedings
with respect to the Seller involving claims by or against Seller which
are pending or threatened against Seller, at law or in equity, or
before or by any federal , state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality
which affect the Shares or the Seller's ability to enter into or
perform its obligations hereunder. No basis for any action, suit or
proceeding exists, and there are no orders, judgments, injunctions or
decrees of any court or governmental agency with respect to which
Seller has been named or to which Seller is a party, which apply to or
restrict Seller's performance of this Agreement and the transaction
contemplated hereunder.
2.7 No Brokers. Seller has not entered into any contract,
arrangement or understanding with any person or firm which may result
in the obligation of Buyer to pay any finder's fees, brokerage or
agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby, and Seller is not aware of any claim
or basis for any claim for payment of any finder's fees, brokerage
or agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby.
2.8 Evaluation of Transaction. Seller has knowledge and
experience in financial and business matters and is capable of
evaluating the risk and merits of the transaction contemplated by this
Agreement. Seller has consulted with counsel and its other advisors,
to the extent deemed necessary, as to all matters covered by this
Agreement and has not relied upon Buyer to any extent in reaching its
decision to sell the Shares pursuant to this Agreement. In reaching
its decision to sell the Shares, Seller has investigated and is familiar
with the affairs, financial condition and prospects of Buyer, and has
been given sufficient access to and has acquired sufficient information
about Buyer to reach an informed and knowledgeable decision to sell
the Shares.
2.9 No Misrepresentation or Omission. No representation or
warranty by Seller in this Article 2 or in any other Article or Section
of this Agreement, or in any certificate or other document furnished
or, if to be furnished by Seller pursuant hereto upon delivery,
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the
statements contained therein not misleading or will omit to state
a material fact.
3. Representations and Warranties of Buyer.
Buyer represents and warrants, which representations and
warranties shall survive the Closing, to Seller as follows:
3.1 Existence, Good Standing, Corporate Authority, Compliance
with Law, Validity and Effect of Agreements. Buyer represents and
warrants to Seller that Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, that the execution and delivery of this
Agreement and all agreements and documents contemplated hereby by
Buyer, and the consummation by it of the transactions contemplated
hereby, have been duly authorized by the disinterested members of the
Board of Directors of the Buyer. This Agreement constitutes, and all
agreements and documents contemplated hereby when executed and
delivered pursuant hereto for value received will constitute, the valid
and legally binding obligations of Buyer enforceable in accordance with
their terms, except that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or other similar laws of general application now or thereafter in effect
relating to the enforcement of creditors' rights generally and except
that the remedies of specific performance, injunction and other forms
of equitable relief are subject to certain tests of equity
jurisdiction, equitable defenses and the discretion of the court before
which any proceeding therefor may be brought. The execution and
delivery of this Agreement does not and the consummation of the
transactions contemplated hereby will not require the consent of any
third party (except as set forth in Section 5.1 of this Agreement), and
(ii) violate or conflict with any provision of the by-laws or
certificate of incorporation of Buyer as amended to the date of this
Agreement.
3.2 Litigation. There are no actions, suits or proceedings
with respect to the Buyer involving claims by or against Buyer which
are pending or threatened against Buyer, at law or in equity, or before
or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which affect the
Shares or the Buyer's ability to enter into or perform its obligations
hereunder. There are no orders, judgments, injunctions or decrees of
any court or governmental agency with respect to which Buyer has been
named or to which Buyer is a party, which apply to or restrict Buyer's
performance of this Agreement and the transaction contemplated
hereunder.
3.3 No Brokers. Buyer has not entered into any contract,
arrangement or understanding with any person or firm which may result
in the obligation of Buyer to pay any finder's fees, brokerage or
agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby, and Buyer is not aware of any
claim or basis for any claim for payment of any finder's fees,
brokerage or agent's commissions or other like payments in connection
with the negotiations leading to this Agreement or the consummation
of the transactions contemplated hereby.
3.4 No Misrepresentation or Omission. No representation or
warranty by buyer in this Article 3 or in any other Article or Section
of this Agreement, or in any certificate or other document furnished
or, if to be furnished by Buyer pursuant hereto upon delivery, contains
or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements
contained therein not misleading or will omit to state a material fact.
4. Other Covenants and Agreements.
4.1 Termination of Intercompany Agreement. The Parties acknowledge
that at Closing, all outstanding monies due and owing under the
Intercompany Agreement shall have been paid in full. Consequently,
effective on the consummation of the transaction contemplated by this
Agreement at Closing the Intercompany Agreement and all Addenda thereto
shall be terminated and the parties shall have no further rights, duties
or obligations thereunder, except of the terms of Paragraph 3 of the
Intercompany Agreement. The Parties agree that Buyer shall retain and
continue to hold a perfected security interest in eighty-eight thousand
two hundred sixty (88,260) shares of the Xxxxxxxxx Laboratories, Inc.
common stock which Seller will continue to own after Closing, pursuant
to the terms and conditions of Paragraph 3 of the Intercompany Agreement
and the documents referred to therein, as collateral to secure any
obligation of Seller which might arise under Section 4.8.2 hereunder.
Buyer shall at Closing return all shares of Xxxxxxxxx Laboratories,
Inc. stock not purchased or held as collateral pursuant to the terms
of this Agreement, which it currently holds. All shares returned to
Seller shall be transferred free and clear of all liens, encumbrances
and adverse claims except those granted by Seller and, except as
otherwise provided herein, those created under applicable securities
laws.
4.2 Insurance Matters.
4.2.1 Health Insurance Benefits. To the extent
permitted by its health insurance carrier, Buyer shall allow
Seller to insure Seller's employees under Buyer's group health
insurance policy until the renewal date of the policy, upon
the terms and conditions set forth in this Agreement. Each
month Buyer shall invoice Seller for the estimated cost of
providing insurance to Seller's employees during the following
month. Seller shall remit such amount to Buyer within thirty
(30) days of the date of the invoice. If Seller fails to remit
the invoiced amount within such thirty-day period, Buyer shall
have no further obligation to make any payments respecting or
provide coverage to or for the benefit of Seller's employees.
4.2.2 General Liability and D&O Coverage. To the extent
permitted by its general liability and D&O insurance carriers,
Buyer shall be allowed to be an additional insured on Seller's
property, casualty and D&O insurance policies through the end
of each such policy period. Each Party shall pay its share
of the premiums directly to the insurer on a timely basis.
4.3 Termination of Voting Arrangements. Seller agrees to
terminate all voting trusts, proxy arrangements and all other
arrangements and agreements of any kind or nature to which it is a
party under which it or any other person or entity is authorized to
vote shares of Xxxxxxxxx Laboratories, Inc. stock, effective as of
the Closing Date. Further, for a period of twenty-four (24) months
following the Closing Date, Seller agrees that it will not enter into
any voting trusts, proxy arrangements or any other arrangement or
agreement of any kind or nature other than as required by any
customary pledge or hypothecation agreements to which Seller is a
party with any institutional lender under which it or any other
person or entity is authorized to vote shares of Xxxxxxxxx
Laboratories, Inc. stock, nor will it, during such period, vote any
shares of Xxxxxxxxx Laboratories, Inc. stock which it does not own.
4.4 Restriction on Transferability. Until January 2, 1997,
Seller agrees that it shall not, nor shall it have any right to,
sell, assign, transfer or otherwise dispose of any shares of
Xxxxxxxxx Laboratories, Inc. stock which Seller owns, without the
prior written consent of Buyer, which Buyer may grant or deny in
its sole and absolute discretion. Notwithstanding the foregoing
sentence, Seller shall have the right to encumber such shares of
Xxxxxxxxx Laboratories, Inc. stock owned by Seller, by written
agreement with any institutional lender and, transfer title to such
shares upon foreclosure of such shares held as collateral by any such
institutional lender; provided, however, Buyer shall be given the
right of first refusal for a period of forty-five (45) days following
receipt of foreclosure notice by such lender forwarded to Buyer from
Seller, with a price per share to be determined between the
institutional lender and Buyer which price per share shall not exceed
one dollar and twenty-five cents ($1.25). Seller shall promptly
transmit any such notice of foreclosure to Buyer. If this right of
first refusal is not exercised by written notice from Buyer to
Seller, it shall expire upon the end of said 45-day period. Nothing
under this Section shall prevent the Seller from participating with
any other shareholder of Xxxxxxxxx Laboratories, Inc. in the sale of
fifty percent (50%) (not including shares owned by Seller) or more of
the issued and outstanding shares of Xxxxxxxxx Laboratories, Inc. to
any purchaser. Any sale, assignment, transfer or other disposition of
shares of Buyer owned by Seller in contravention of the terms of this
Agreement shall be null and void.
4.5 Right of First Refusal. Until January 2, 1997, if Seller
receives a bona fide offer for the purchase of all or any part of
the shares of Xxxxxxxxx Laboratories, Inc. stock which it owns and
if it is desirous of selling said shares, Seller shall first offer
said shares for sale to Buyer, by letter addressed to Buyer's
President at its principal place of business, on the same terms and
price as the bona fide offer. Said offer shall remain open for a
period of thirty (30) days following its receipt by Buyer. Buyer
shall accept this offer by giving written notice to Seller within
the time provided. If not so accepted, the offer shall terminate
upon expiration of said 30-day period.
4.6 Termination of Restriction on Transferability and Right
of First Refusal. Section 4.4 and 4.5 above shall not apply to
restrict Seller's transferability of any shares of Xxxxxxxxx
Laboratories, Inc. stock upon the first to occur of (i) the closing
with respect to the sale, within any twelve (12) month period after
the date of this Agreement, of a number of the issued and outstanding
shares of Xxxxxxxxx Laboratories, Inc. which would be necessary to
give any one person or entity ownership of fifty percent (50%) or more
of issued and outstanding shares of Xxxxxxxxx Laboratories, Inc., or
(ii) the change of more than three (3) members of the Board of
Directors of Xxxxxxxxx Laboratories, Inc., other than a change
occasioned by the resignation of any one or more board members,
during any twelve-month period after the date of this Agreement.
4.7 Restrictive Legend. To effectuate the intent of the
Parties set forth in Sections 4.4 and 4.5 above, the Parties agree
that the stock certificates evidencing Seller's shares of Buyer's
stock will be endorsed as follows:
"The sale or transfer of this certificate is subject to the
restrictions on transferability set forth in the Stock Purchase
Agreement dated December 8, 1995, a copy of which is on file with
the Secretary of the Corporation."
4.8 Indemnification by Seller.
4.8.1 Seller agrees to indemnify and hold Buyer harmless
against, and will reimburse Buyer on demand for, any payment, loss,
cost or expense (including reasonable attorney's fees and reasonable
costs of investigation incurred in defending against such payment,
loss, cost or expense or claim therefor) made or incurred by or
asserted against Buyer at any time up to the third anniversary after
the Closing Date in respect of:
(a) any omission, misrepresentation, breach of
warranty, or nonfulfillment or breach of any terms, provision, covenant
or agreement on the part of Seller contained in this Agreement, or
from any misrepresentation in, or omission from, any certificate or
other instrument furnished or to be furnished to Buyer pursuant to
this Agreement; and
(b) the failure of the Seller to have and deliver
good and marketable title to the Shares.
4.8.2 On or before Closing Buyer will use its best
efforts to obtain a fairness opinion or other document pursuant to
Section 5.1.2 which will opine or state, in part, that the per share
value of common stock of Buyer is at least one dollar and ten cents
($1.20) but would be equal to or greater than the per share purchase
price which the Buyer is paying hereunder to acquire the Shares and
that the purchase of Seller's shares is fair, from a financial point
of view, to Buyer, if Buyer's income before income taxes for calendar
year 1996 as reported in the Consolidated Statements of Operations of
Buyer prepared in accordance with Generally Accepted Accounting
Principles were to be at lease one hundred thirteen percent (113%)
of Buyer's said income before income taxes for calendar year 1995 (the
"Target Earnings"). If Buyer's such income before taxes for calendar
year 1996 (the "Actual Earnings") is less than the Target Earnings,
Seller agrees to indemnify and hold Buyer harmless by transferring to
Buyer a number of the Xxxxxxxxx Laboratories, Inc. shares as to which
Buyer holds a security interest, determined by operation of this
Section. If Actual Earnings are greater than Target Earnings, all
eight-eight thousand two hundred sixty (88,260) shares are returned
to Seller, otherwise Seller's obligation to indemnify and hold Buyer
harmless shall be satisfied by transferring to Buyer the number of
shares equal to eighty-eight thousand two hundred sixty (88,260) times
(ii) a fraction, the numerator of which is the positive difference
between (y) Target Earnings and (z) Actual Earnings and the
denominator of which is the difference between (y) Target Earnings and
(z) buyer's Income before income taxes calendar year 1995 as determined
in accordance with GAAP ( the "!995 Earnings"). Notwithstanding the
preceding sentence, if 1995 Earnings exceed Actual Earnings, then
Seller's obligation to indemnity and hold Buyer harmless shall be
satisfied by transferring to Buyer all eighty eight thousand two
hundred sixty (88,260) shares. All of the Xxxxxxxxx Laboratories,
Inc. shares to be transferred to Buyer and/or Sell under this Section
shall be delivered to the appropriate party promptly after the
insurance of Buyer's Consolidated Financial Statements for the 1996
calendar year.
4.9 Indemnification by Buyer. Buyer agrees to indemnify and hold
Seller harmless against, and will reimburse Seller on demand for, any
payment, loss cost or expense (including reasonable attorney's fees and
reasonable costs of investigation incurred in defending against such
payment, loss, cost or expense or claim therefore) made or incurred by
or asserted against Seller at any time up to third anniversary after
the Closing Date in respect of any omission, misrepresentation, breach
of warranty, or nonfulfillment of any term, provision, covenant or
agreement on the part of Buyer contained in this Agreement, or from
any misrepresentation in, or omission from, any certificate or other
instrument furnished or to be furnished to Seller pursuant to this
Agreement.
4.10 Taxes and Expenses
4.10.1 Except as otherwise specifically provided for in
this Agreement, Seller shall be responsible for and shall pay all
costs, liabilities, taxes and other obligations incurred by Seller in
connection with the performance of and compliance with all transactions,
agreements and conditions contained in this Agreement to be performed
or complied with by Seller, including legal and accounting fees.
4.10.2 Except as otherwise specifically provided for in
this Agreement, Buyer will pay all costs, liabilities, taxes and
other obligations incurred by Buyer in connection with the performance
of and compliance with all transactions, agreements and conditions
contained in this Agreement to be performed or complied with Buyer,
including legal and accounting fees.
5. Conditions of Closing
5.1 Buyers Conditions of Closing. The obligation of Buyer to
purchase and pay for the Shares shall be subject to and conditioned
upon the satisfaction at the Closing of each of the following
conditions:
5.1.1 All representations and warranties of Seller
contained in this Agreement shall be true and correct in the
aggregate in all material respects at and as of the Closing
Date, Seller shall have performed in all material respects all
agreements and covenants and satisfied all conditions on its
part to be performed or satisfied by the Closing Date pursuant
to the terms of this Agreement, and Buyer shall have received a
certificate of the Seller dated the Closing Date to such effect,
unless such conditions shall have been waived by Buyer.
5.1.2 Buyer shall have received a "fairness opinion",
or other documents in form and substance satisfactory or Buyer and
to the disinterested members of its Board of Directors, which
opines or states that the per share value of Buyer is equal to or
greater than the per share purchase price which the Buyer is
paying hereunder to acquire the Shares and that the purchase of
Seller's shares is fair from a financial point of view, to Buyer.
5.1.3 Seller shall have delivered to Buyer s
Certificate of Secretary certifying as of a date reasonably
close to the Closing Date that the Seller as of such date is
in good standing and authorized to transact business as a
domestic corporation in its state of incorporation.
5.1.4 Seller shall have delivered to Buyer s
Certificate of its corporate Secretary's certifying:
(a) Resolutions of its Board of Director authorizing
execution of this Agreement and the execution, performance
and delivery of all agreements, documents and transactions
contemplated hereby; and
(b) The incumbency of its officers executing this
Agreement and all agreements and documents contemplated
hereby.
5.1.5 Seller shall have delivered to Buyer certificate
and other instruments representing all Shares, duly endorsed for
transfer or accompanied by appropriate stock powers (in either case
executed in blank or in favor of Buyer), together with all other
documents necessary or appropriate to validly transfer the Shares
to Buyers free and clear of all security interests, liens,
encumbrances and adverse claims.
5.1.6 Seller shall have delivered to Buyer copies of
the termination documents for all voting trusts, proxy
arrangements and all other arrangements and agreements of any
kind or nature to which to is a party under which it or any other
person or entity is authorized to vote shares of Buyer's stock,
effective as of the Closing Date.
5.1.7 The approval and all consents from third
parties and governmental agencies required to consummate the
transactions contemplated hereby shall have been obtained.
5.1.8 No suit, investigation, inquiry or other
proceeding by any governmental body or other person or legal
or administrative proceeding shall have been instituted or
threatened which questions the validity or legality of the
transactions contemplated hereby.
5.1.9 Seller shall have been delivered to Buyer the
waivers referred to in Section 2.2 above, which shall be in form
and substance satisfactory to Buyer.
5.1.10 As of the Closing, there shall be no effective
injunction, writ, preliminary restraining order or any order of
any nature issued by a court of competent jurisdiction directing
that the transactions provided for herein or any of them not be
consummated as so provided or imposing any conditions on the
consummation of the transactions contemplated hereby, which is
unduly burdensome on Buyer.
5.2 Seller's Conditions of Closing. The obligation of Seller
to sell Shares shall be subject to and conditioned upon the
satisfaction at the Closing of each of the following conditions:
5.2.1 All representations and warranties of Buyer
contained in this Agreement shall be true and correct in the
aggregate in all material respects at and as of the Closing
Date and Buyer shall have performed in all material respects
all agreements and covenants and satisfied all conditions on
its part to the performed or satisfied by the Closing Date
pursuant to the terms of this Agreement, and Seller shall have
received a certificate of Buyer dated Closing Date or such
effect.
5.2.2 Buyer shall have effected payment of the cash
portion of the Purchase Price in accordance with the prior
written instructions of Seller.
5.2.3 Buyer shall have executed such documents as
are necessary to release Buyer of all obligations under the
intercompany Agreement and the account receivable, to the
extent described above.
5.2.4 Buyer shall have delivered to Seller a
Certificate of its corporate Secretary certifying:
(a) Resolutions of its Board of Directors, in
accordance with Delaware law, including a resolution of
the disinterested directors, authorizing execution of
this Agreement and the execution, performance and
delivery of all agreements, documents and transactions
contemplated hereby; and
(b) The incumbency of its officers executing
Agreement and all agreements and documents contemplated
hereby.
5.2.5 The approval and all consents from third parties
and governmental agencies required to consummate the
transactions contemplated hereby shall have been obtained,
copies of which have been delivered to seller.
5.2.6 No suit, action, investigation, inquiry or other
proceeding by any governmental body of other person or legal
administrative proceeding shall have been instituted or
threatened which questions the validity or legality of the
transactions contemplated hereby.
5.2.7 As of the Closing; there shall be not effective
injunction, writ, preliminary restraining order or any order
of any nature issued by a count of competent jurisdiction
directing that the transactions provided for herein or any of
them not be consummated as so provided or imposing any
conditions on the consummation of the transactions contemplated
hereby, which is unduly burdensome on Seller.
6. Termination and Abandonment.
6.1. Methods of Termination. The transactions contemplated
herein may be terminated and/or abandoned at any time before or after
approval thereof by Seller and Buyer, but not later than Closing:
(i) By mutual consent of Buyer and Seller; or
(ii) By Buyer after December 13, 1995, if any of the
conditions provided for in Section 5.1 hereof shall not have
been met or waived in writing by Buyer prior to such date; or
(iii) By Seller after December 13, 1995, if any of
the conditions provided for in Section 5.2. hereof shall not
have been met or waived in writing by Seller prior to such
date.
6.2. Procedure Upon Termination. In the event of termination
and/or abandonment by Buyer or Seller, or both, pursuant to Section 6.1
hereof, written notice thereof shall forthwith be given to the other
party and the transactions contemplated by this Agreement shall be
terminated and/or abandoned, without further action Buyer or Seller.
If the transactions contemplated by this Agreement are terminated
and/or abandoned as provided herein:
(i) Each Party will redeliver all documents, work
papers and other material of any other Party relating to the
transactions contemplated hereby, whether so obtained before
or after the execution of this Agreement, to the Party
furnishing the same; and
(ii) No Party hereto shall have any liability or
further obligation to any other Party Agreement except as
stated in this Section 6.2, as the case may be; provided,
however, that if such termination and/or abandonment is a
result of the failure of any condition set forth in Section 5.1
or 5.2 hereof or as a result of the willful conduct or bad
faith of either Party, then the other Party shall be entitled
to recover from the Party whose willful conduct or bad faith
resulted in such termination or abandonment all out-of-pocket
costs which the other Party has incurred (including reasonable
attorney's fees, accounting fees and expenses).
7. Miscellaneous
7.1 Notice. Any notice required or permitted hereunder shall
be writing and shall be sufficiently given if personally delivered or mailed
by certified or registered mail, return receipt requested, addressed as follows:
If to Buyer: Xxxxxxxxx Laboratories, Inc.
00000 X. 0xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Copy to: Xxxx X. Xxxxxx, Esq.
Xxxxxx-Xxxxxx, P.C.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to Seller: Xxxxxxxxx Technologies, Inc.
000 X. Xxxxxx
Xxx Xxxxxxxxxx, XX 00000
Attention: President
(or to such other address as any party shall specify by written notice so
given), and shall be deemed to have been delivered as of date so personally
delivered or mailed.
7.2 Execution of Additional Documents. The Parties will at any
time, and from time to time after Closing Date, upon request of the other
party, execute, acknowledge and deliver all such further acts, deeds,
assignments, transfers, conveyances, power of attorney and assurances as
may be required to carry out the intent of this Agreement, and to transfer
and vest title to any Shares being transferred hereunder, and to protect the
right, title and interest in employment of all the Shares sold, granted,
assigned, transferred, delivered and conveyed pursuant to this Agreement;
provided, however, that this Agreement shall be effective regardless of
whether any such additional documents are executed.
7.3 Binding Effect: Benefits. This Agreement shall be binding
upon and shall inure to the benefit of the Parties hereto and their
respective heirs, successors, executors, administrators and assigns.
Notwithstanding any contained in this Agreement to the contrary, nothing
in this Agreement, expressed or implied, is intended to confer on any
person other than the Parties hereto or their respective heirs, successors,
executors, administrators and assigns any rights, remedies, obligations or
liabilities under or by reasons of this Agreement.
7.4 Entire Agreement. This Agreement, together with the other
documents contemplated hereby, constitute the final written expression of all
of the agreements between Parties, and is a complete and exclusive
statement of those terms. It supersedes all understandings and negotiations
concerning the matters specified herein. Any representations, promises,
warranties or statements made by either party that differ in any way
from the terms of this written Agreement and the other documents contemplated
hereby, shall be given no force or effect. The Parties specifically
represent, each to the other, that there are no additional or supplemental
agreements between them related in any way to the matters herein contained
unless specifically included or referred to herein. No addition to or
modification of any provision of this Agreement shall be binding upon any
party unless made in writing and signed by all Parties.
7.5 Governing Law. This Agreement and all matters and issues
collateral thereto shall be construed according to the laws of the State
of Colorado, except that issues governed by the state's corporate code,
including without limitation matters of corporate governance, shall be
governed by the laws of the Party's state of incorporation.
7.6 Mediation: Arbitration. Notwithstanding anything to the
contrary herein provided, the Parties, agree to submit disputes this
Agreement which they are unable to resolve to mediation under the
Commercial Mediation Rules of the American Arbitration Association.
Any dispute or controversy arising out of or relating to this Agreement,
which is not resolved through mediation shall be submitted and settled by
arbitration under the Rules of Conciliation and arbitration of the
International Chamber of Commerce (the "ICC") then in effect. There
shall be one arbitrator, and such arbitrator shall be chosen by mutual
agreement of the parties in accordance with ICC rules. The arbitration
proceedings shall take place at such location as the Parties shall
mutually agree upon, or if the Parties are unable to agree upon a
location, then Chicago, Illinois. The arbitrator shall apply the laws of
the applicable state of the issues in dispute, in accordance with Section
7.5. hereof. The findings of the arbitrator shall be final and binding
on the parties, and may be enforced any court of competent jurisdiction.
7.7 Survival. All of the terms, conditions, warranties and
representations contained in this Agreement shall survive, in accordance
with their terms, delivery by Buyer of the consideration to be given by it
hereunder and delivery by Seller of the consideration to be given by it
hereunder, and shall survive the execution hereof and the Closing hereunder
for the period provided herein.
7.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
7.9 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the Parties only, and shall be given
no substantive or interpretive effect whatsoever.
7.10 Waivers. Either Buyer or Seller may, by written notice to the
other, (i) extend the time for the performance of any of the obligations or
other actions of the other under this Agreement; (ii) waiver any
inaccuracies in the representations or warranties of the other contained in
this Agreement or in any document delivered pursuant to this Agreement;
(iii) waive compliance with any of the conditions or covenants of the other
Party contained in this Agreement; or (iv) waive performance of any of the
obligations of the other party under this Agreement. Except as provided
in the preceding sentence, no action taken pursuant to this Agreement,
including without limitation any investigation by or on behalf of any Party,
shall be deemed to constitute a waiver, by the Party taking such action,
of compliance with any representations, warranties, covenants or agreements
contained in this Agreement. The waiver by any Party hereto of a breach of
any provisions hereunder shall not operate to be construed as a waiver of
any prior or subsequent breach of the same or any other provision hereunder.
7.11 Merger of Documents. This Agreement and all agreements and
documents contemplated hereby constitute one agreement and are
interdependent upon each other in all respects.
7.12 Severability. If for any reason whatsoever, any one or more
of the provision of this Agreement shall be held or deemed to be
inoperative, unenforceable or invalid as applied to any particular case or
in all cases, such circumstances shall not have the effect of rendering
such provision invalid in any other case or of rendering any of the other
provisions of this Agreement inoperative, unenforceable or invalid.
7.13 Assignability. Neither this Agreement nor any of the Parties'
rights hereunder shall be assignable by any party hereto without the prior
written consent of the other parties hereto.
7.14 Interpretation of Agreement. The Parties hereto each
represent and acknowledge that they have reviewed this Agreement with the
assistance of their respective counsel. The Parties further acknowledge that
each shall bear co-extensive and identical responsibility for the language
of this Agreement, and that any ambiguity which may exist or purportedly
exist therein shall be attributed equally to the Parties.
7.15 Attorney's Fees. If any Party shall commence any action or
proceeding against another Party in order to enforce the provision hereof,
or to recover damages as the result of the alleged breach of any of the
provisions hereof, the prevailing party therein shall be entitled to
recover al reasonable costs incurred in connection therewith, including,
but not limited to, reasonable attorneys' fees.
IN WITNESS WHEREOF, the Parties have executed this Agreement and
caused the same to be duly delivered on behalf on the day and year herein
above first set forth.
SELLER
XXXXXXXXX TECHNOLOGIES, INC.
By: ___________________________
BUYER:
XXXXXXXXX LABORATORIES, INC.
By: ___________________________
