1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
AUTOCYTE, INC.
TRILOGY ACQUISITION CORPORATION,
AND
NEOPATH, INC.
-----------------------------
Dated as of June 4, 1999
-----------------------------
2
TABLE OF CONTENTS
PAGE
SECTION 1 - THE MERGER...........................................................................................2
1.1 The Merger.....................................................................................2
1.2 Effective Time.................................................................................2
1.3 Effects of the Merger..........................................................................2
1.4 Certificate of Incorporation and Bylaws........................................................2
1.5 Officers and Directors.........................................................................3
1.6 Effect on Capital Stock........................................................................3
1.7 Closing of NeoPath Transfer Books..............................................................4
1.8 NeoPath Dissenting Shares......................................................................4
1.9 Issuance of AutoCyte Certificates..............................................................5
1.10 Lost, Stolen or Destroyed Certificates.........................................................6
1.11 No Further Ownership Rights in NeoPath Common Stock............................................6
1.12 Tax and Accounting Consequences................................................................6
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF NEOPATH............................................................6
2.1 Organization and Qualification.................................................................6
2.2 Capitalization.................................................................................7
2.3 Authority to Execute and Perform Agreements....................................................7
2.4 Subsidiaries and Other Affiliates..............................................................8
2.5 Charter and Bylaws; Books and Records..........................................................8
2.6 SEC Reports....................................................................................8
2.7 Financial Statements...........................................................................8
2.8 Absence of Undisclosed Liabilities.............................................................9
2.9 No Material Adverse Change.....................................................................9
2.10 Tax Matters...................................................................................10
2.11 Compliance with Laws..........................................................................11
2.12 Consents; No Breach...........................................................................12
2.13 Actions and Proceedings.......................................................................13
2.14 Contracts and Other Agreements................................................................13
2.15 Real Property; Leases.........................................................................14
2.16 Tangible Property.............................................................................15
3
TABLE OF CONTENTS
(CONTINUED)
PAGE
2.17 Intellectual Property.........................................................................15
2.18 Title to Assets; Liens........................................................................15
2.19 Employee Benefit Plans........................................................................16
2.20 Employee Relations............................................................................17
2.21 Relationships with Affiliates.................................................................17
2.22 Insurance.....................................................................................17
2.23 Brokerage.....................................................................................18
2.24 Hazardous Materials...........................................................................18
2.25 Registration Statement; Proxy Statement.......................................................18
2.26 Opinion of Financial Adviser..................................................................19
2.27 Accounting Matters............................................................................19
2.28 Full Disclosure...............................................................................19
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF AUTOCYTE..........................................................19
3.1 Organization and Qualification................................................................19
3.2 Capitalization................................................................................19
3.3 Authority to Execute and Perform Agreements...................................................20
3.4 Subsidiaries and Other Affiliates.............................................................21
3.5 Charter and By-laws; Books and Records........................................................21
3.6 SEC Reports...................................................................................21
3.7 Financial Statements..........................................................................21
3.8 Absence of Undisclosed Liabilities............................................................21
3.9 No Material Adverse Change....................................................................22
3.10 Tax Matters...................................................................................23
3.11 Compliance with Laws..........................................................................24
3.12 Consents; No Breach...........................................................................25
3.13 Actions and Proceedings.......................................................................25
3.14 Contracts and Other Agreements................................................................25
3.15 Real Property; Leases.........................................................................27
3.16 Tangible Property.............................................................................28
3.17 Intellectual Property.........................................................................28
-ii-
4
TABLE OF CONTENTS
(CONTINUED)
PAGE
3.18 Title to Assets; Liens........................................................................28
3.19 Employee Benefit Plans........................................................................28
3.20 Employee Relations............................................................................30
3.21 Relationships with Affiliates.................................................................30
3.22 Insurance.....................................................................................30
3.23 Brokerage.....................................................................................30
3.24 Hazardous Materials...........................................................................30
3.25 Registration Statement; Proxy Statement.......................................................31
3.26 Opinion of Financial Adviser..................................................................31
3.27 Accounting Matters............................................................................31
3.28 Full Disclosure...............................................................................32
SECTION 4 - COVENANTS AND AGREEMENTS............................................................................32
4.1 Conduct of NeoPath Business...................................................................32
4.2 Conduct of AutoCyte Business..................................................................33
4.3 Nasdaq Listing................................................................................35
4.4 Corporate Examinations and Investigations.....................................................35
4.5 Agreement not to Entertain Other Offers.......................................................35
4.6 Authorization from Others.....................................................................36
4.7 Consummation of Agreement.....................................................................36
4.8 Further Assurances............................................................................37
4.9 Joint Proxy Statement/Prospectus; Registration Statement......................................37
4.10 NeoPath Stockholder Meeting...................................................................37
4.11 AutoCyte Stockholder Meeting..................................................................38
4.12 Public Announcements and Confidentiality......................................................38
4.13 NeoPath Affiliate Agreements..................................................................38
4.14 AutoCyte Affiliate Agreements.................................................................39
4.15 AutoCyte SEC Filings..........................................................................39
4.16 NeoPath SEC Filings...........................................................................39
4.17 Stock Options; Employee Stock Purchase Plan...................................................39
4.18 AutoCyte Form S-8.............................................................................40
-iii-
5
TABLE OF CONTENTS
(CONTINUED)
PAGE
4.19 FIRPTA........................................................................................40
4.20 Notification of Certain Matters...............................................................40
4.21 Tax-Free Reorganization.......................................................................41
4.22 Indemnification...............................................................................41
4.23 Pooling of Interests..........................................................................41
4.24 Letters of AutoCyte's and NeoPath's Accountants...............................................42
4.25 Employee Benefit Plans; Existing Agreement....................................................42
SECTION 5 - CONDITIONS PRECEDENT TO THE OBLIGATIONS OF EACH PARTY TO CONSUMMATE THE MERGER......................43
5.1 Stockholder Approvals.........................................................................43
5.2 Government Approvals..........................................................................43
5.3 Absence of Restraints.........................................................................43
5.4 Nasdaq Listing................................................................................43
5.5 Effectiveness of Registration Statement.......................................................43
5.6 Tax Opinions..................................................................................43
5.7 Pooling Letters...............................................................................43
SECTION 6 - CONDITIONS PRECEDENT TO THE OBLIGATION OF AUTOCYTE TO CONSUMMATE THE MERGER.........................44
6.1 Representations, Warranties and Covenants.....................................................44
6.2 NeoPath Affiliate Agreements..................................................................44
6.3 Voting Agreement..............................................................................44
6.4 Opinion of Counsel to NeoPath.................................................................44
6.5 Merger Documents..............................................................................44
6.6 Consents......................................................................................44
6.7 Dissenting Shares.............................................................................44
6.8 Certificates..................................................................................44
SECTION 7 - CONDITIONS PRECEDENT TO THE OBLIGATION OF NEOPATH TO CONSUMMATE THE MERGER..........................45
7.1 Representations, Warranties and Covenants.....................................................45
7.2 AutoCyte Affiliate Agreements.................................................................45
7.3 Voting Agreement..............................................................................45
-iv-
6
TABLE OF CONTENTS
(CONTINUED)
PAGE
7.4 Consents......................................................................................45
7.5 Opinion of Counsel to AutoCyte................................................................45
7.6 Certificates..................................................................................45
SECTION 8 - TERMINATION.........................................................................................45
8.1 Termination...................................................................................45
8.2 Notice of Termination; Effect of Termination..................................................47
8.3 Fees and Expenses.............................................................................48
SECTION 9 - MISCELLANEOUS.......................................................................................50
9.1 Notices.......................................................................................50
9.2 Amendment.....................................................................................51
9.3 Waiver........................................................................................51
9.4 Entire Agreement..............................................................................51
9.5 Governing Law.................................................................................52
9.6 Binding Effect; No Assignment.................................................................52
9.7 Variations in Pronouns........................................................................52
9.8 Counterparts..................................................................................52
9.9 Exhibits and Disclosure Schedules.............................................................52
v
7
INDEX OF SCHEDULES AND EXHIBITS
Schedule 1 Officers of AutoCyte Immediately after the Effective Time.
Schedule 2 Board of Directors of AutoCyte Immediately After the Effective Time
AutoCyte Disclosure Schedule
NeoPath Disclosure Schedule
Exhibit A - Form of NeoPath Voting Agreement
Exhibit B - Form of AutoCyte Voting Agreement
Exhibit C - Form of NeoPath Affiliate Agreement
Exhibit D - Form of AutoCyte Affiliate Agreement
Exhibit E - Form of Opinion of Xxxxxxx Coie LLP
Exhibit F - Form of Opinion of Xxxxxx & Dodge LLP
-vi-
8
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of June 4, 1999 (this
"Agreement") is among AutoCyte, Inc. ("AutoCyte"), a Delaware corporation,
Trilogy Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of AutoCyte ("Merger Sub") and NeoPath, Inc. ("NeoPath"), a
Washington corporation. The parties wish to effect the combination of NeoPath
and AutoCyte through a merger of Merger Sub into NeoPath on the terms and
conditions hereof. This Agreement is intended to be a "plan of reorganization"
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code").
RECITALS
A. Upon the terms and subject to the conditions of this Agreement and
in accordance with the Delaware General Corporation Law (the "DGCL") and the
Washington Business Corporation Act (the "WBCA"), AutoCyte, Merger Sub and
NeoPath will enter into a business combination transaction pursuant to which
Merger Sub will merge with and into NeoPath (the "Merger").
B. The Board of Directors of AutoCyte (i) has determined that the
Merger is consistent with and in furtherance of the long-term business strategy
of AutoCyte and fair to, and in the best interests of, AutoCyte and its
stockholders, (ii) has approved this Agreement, the Merger and the other
transactions contemplated by this Agreement, and (iii) has recommended approval
of this Agreement by the stockholders of AutoCyte.
C. The Board of Directors of NeoPath (i) has determined that the merger
is consistent with and in furtherance of the long-term business strategy of
NeoPath and fair to, and in the best interest of, NeoPath and its stockholders,
(ii) has approved this Agreement, the Merger and the other transactions
contemplated by this Agreement and (iii) has recommended the approval of this
Agreement by the stockholders of NeoPath.
D. Concurrently with the execution of this Agreement, and as a
condition and inducement to AutoCyte's willingness to enter into this Agreement,
certain affiliates of NeoPath shall each enter into a Voting Agreement in the
form attached hereto as Exhibit A (the "NeoPath Voting Agreements").
E. Concurrently with the execution of this Agreement, and as a
condition and inducement to NeoPath's willingness to enter into this Agreement,
certain affiliates of AutoCyte shall each enter into a Voting Agreement in the
form attached hereto as Exhibit B (the "AutoCyte Voting Agreements").
F. AutoCyte, Merger Sub and NeoPath desire to make certain
representations and warranties and other agreements in connection with the
Merger.
G. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning on Section 368 of the Code.
9
Accordingly, in consideration of the mutual representations, warranties
and covenants contained herein, the parties hereto agree as follows:
SECTION 1 - THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions hereof,
and in accordance with the DGCL and the WBCA, Merger Sub shall be merged with
and into NeoPath. The Merger shall occur at the Effective Time (as defined
herein). Following the Merger, NeoPath shall continue as the surviving
corporation (the "Surviving Corporation") and the separate corporate existence
of Merger Sub shall cease.
1.2 Effective Time. As soon as practicable after satisfaction or waiver
of all conditions to the Merger, the parties shall cause merger documents to be
filed in accordance with Section 23B.11.070 of the WBCA and a Certificate of
Merger to be filed in accordance with Section 252 of the DGCL (the Washington
merger documents and the Certificate of Merger are referred to collectively
herein as the "Merger Documents") and shall take all such further actions as may
be required by law to make the Merger effective. The Merger shall be effective
at such time as the Merger Documents are filed, as appropriate, with the
Secretary of State of the State of Washington in accordance with the WBCA and
with the Secretary of State of the State of Delaware in accordance with the DGCL
or at such later time as is specified in such documents (the "Effective Time").
Immediately prior to the filing of the Merger Documents, a closing (the
"Closing") will be held at the offices of Xxxxxx & Dodge LLP, Xxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx (or such other place as the parties may agree) for the
purpose of confirming satisfaction or waiver of all conditions to the Merger.
Subject to satisfaction or waiver of each of the conditions specified in
Sections 5, 6 and 7 hereof, the Closing shall take place within three business
days after the last to occur of:
(a) the day the Merger is approved by the stockholders of NeoPath
pursuant to Section 4.10; or
(b) the day the issuance of the AutoCyte Common Stock (as defined
below) is approved by the stockholders of AutoCyte pursuant to Section 4.11;
or on such other date as the parties may agree, but not later than November 30,
1999. The date on which the Closing occurs is referred to herein as the "Closing
Date".
1.3 Effects of the Merger. The Merger shall have the effects set forth
in Section 23B.11.060 of the WBCA and Sections 259, 260 and 261 of the DGCL.
1.4 Certificate of Incorporation and Bylaws. The Articles of
Incorporation (the "Articles of Incorporation") and Bylaws (the "Bylaws") of
NeoPath, in each case as in effect immediately prior to the Effective Time,
shall be the Articles of Incorporation and Bylaws of the Surviving Corporation
immediately after the Effective Time, until duly amended in accordance with
applicable law and such Articles of Incorporation.
2
10
1.5 Officers and Directors.
(a) Officers. Immediately prior to the Effective Time, the persons
listed on Schedule 1 attached hereto shall be the officers of AutoCyte and such
persons shall be the initial officers of the Surviving Corporation, each person
to hold the office set forth opposite each such person's name in accordance with
the Certificate of Incorporation and Bylaws of AutoCyte and the Articles of
Incorporation and Bylaws of the Surviving Corporation, respectively.
(b) Directors. Prior to the Effective Time, AutoCyte shall (i)
increase the number of the members of the Board of Directors of AutoCyte to
seven (7) and (ii) take such action as may be necessary to ensure that the Board
of Directors of AutoCyte, immediately after the Effective Time, is comprised of
the persons listed on Schedule 2 attached hereto. The initial directors of the
Surviving Corporation shall be the persons listed on Schedule 2.
1.6 Effect on Capital Stock.
(a) Conversion of NeoPath Common Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of AutoCyte or NeoPath:
(i) each share of Common Stock, $.01 par value, of NeoPath (the
"NeoPath Common Stock") issued and outstanding immediately prior to the
Effective Time (other than any shares of NeoPath Common Stock to be cancelled
pursuant to Section 1.6(a)(iii) and other than Dissenting Shares (as defined in
Section 1.8)) will be cancelled and extinguished and automatically be converted
(subject to Section 1.6(b) and (c)) into the right to receive 0.7903 (the
"Exchange Ratio") shares of Common Stock, $.01 par value, of AutoCyte (the
"AutoCyte Common Stock") upon surrender of the certificate representing such
share of NeoPath Common Stock in the manner provided in Section 1.9 (or in the
case of a lost, stolen or destroyed certificate, upon delivery of an affidavit
(and bond, if required) in the manner provided in Section 1.10);
(ii) subject to and in accordance with Section 4.17, all
options and warrants to purchase NeoPath Stock outstanding immediately prior to
the Effective Time, shall be exchanged for options of AutoCyte exercisable for
that number of shares of AutoCyte Common Stock which such option or warrant
holder would have been entitled to receive if the underlying NeoPath Common
Stock had converted in the Merger, at an exercise price per share equal to the
aggregate exercise price of the NeoPath option or warrant exchanged divided by
the number of shares of AutoCyte Common Stock subject to the new option or
warrant, and otherwise having the same terms and conditions as the NeoPath
option or warrant and otherwise;
(iii) all shares of NeoPath Common Stock held at the Effective
Time by NeoPath as treasury stock, by AutoCyte or by a subsidiary of either
NeoPath or AutoCyte shall be canceled and no payment shall be made with respect
thereto; and
(iv) all Dissenting Shares shall be dealt with in accordance
with Section 1.8;
(b) Adjustments to Exchange Ratio. The Exchange Ratio shall be
adjusted to reflect fully the effect of any stock split, reverse stock split,
stock dividend (including any
3
11
dividend or distribution of securities convertible into AutoCyte Common Stock or
NeoPath Common Stock), recapitalization or other like change without receipt of
consideration with respect to AutoCyte Common Stock or NeoPath Common Stock
occurring on or after the date hereof and prior to the Effective Time. In
addition, during the period from the date of this Agreement and continuing until
the earlier of the termination of the Agreement or the Effective Time, AutoCyte
shall not, without the prior written consent of NeoPath, declare or pay any
dividend or distribution on the AutoCyte Common Stock (other than ordinary cash
dividends) unless prior thereto either (i) AutoCyte shall have provided that
holders of NeoPath Common Stock, upon the Effective Time, shall receive such
dividend or distribution to the same extent they would have if their shares of
NeoPath Common Stock had been converted to AutoCyte Common Stock immediately
prior to the record date of any such dividend or distribution or (ii) AutoCyte
and NeoPath shall mutually have agreed upon an adjustment of the Exchange Ratio
to fully reflect the effect of any such dividend or distribution.
(c) Fractional Shares. No fraction of a share of AutoCyte Common
Stock will be issued by virtue of the Merger, but in lieu thereof each holder of
shares of NeoPath Common Stock who would otherwise be entitled to a fraction of
a share of AutoCyte Common Stock (after aggregating all fractional shares of
AutoCyte Common Stock to be received by such holder) shall receive from AutoCyte
an amount of cash (rounded to the nearest whole cent) equal to the product of
(i) such fraction, multiplied by (ii) the average closing price of a share of
AutoCyte Common Stock for the ten most recent days that AutoCyte Common Stock
has traded ending on the trading day immediately prior to the Effective Time, as
reported on the Nasdaq National Market.
1.7 Closing of NeoPath Transfer Books. At the Effective Time, the stock
transfer books of NeoPath shall be closed and no transfer of NeoPath Common
Stock shall thereafter be made. If, after the Effective Time, certificates
representing shares of NeoPath Common Stock are presented to the Exchange Agent
(as defined in Section 1.9), they shall be canceled and exchanged for
certificates representing AutoCyte Common Stock as provided in this Section 1.
1.8 NeoPath Dissenting Shares. Shares of NeoPath Common Stock held by a
stockholder who has properly exercised appraisal rights with respect thereto in
accordance with Section 23B.13.020 of the WBCA are referred to herein as
"Dissenting Shares". Shares of NeoPath Common Stock that constitute Dissenting
Shares shall not be converted into shares of AutoCyte Common Stock and shares of
AutoCyte Common Stock shall not be issued pursuant to Section 1.6(a) in exchange
therefor. From and after the Effective Time, a stockholder who has properly
exercised such appraisal rights shall no longer retain any rights of a
stockholder of NeoPath or the Surviving Corporation, except those provided under
the WBCA. NeoPath shall give AutoCyte (i) prompt notice of any written notices
and demands under Section 23B.13.210 of the WBCA with respect to any shares of
capital stock of NeoPath, any withdrawal of any such demands and any other
instruments served pursuant to the WBCA and (ii) the right to participate in all
negotiations and proceedings with respect to any demands under Section
23B.13.020 of the WBCA with respect to any shares of capital stock of NeoPath.
NeoPath shall cooperate with AutoCyte concerning, and shall not, except with the
prior written consent of AutoCyte, voluntarily make any payment with respect to,
or offer to settle or settle, any such demands.
4
12
1.9 Issuance of AutoCyte Certificates.
(a) Exchange Agent. Prior to the Effective Time, AutoCyte shall
authorize one or more persons to act as Exchange Agent hereunder (the "Exchange
Agent") and shall deposit with or for the account of the Exchange Agent
certificates representing the number of shares of AutoCyte Common Stock issuable
pursuant to Section 1.6 and cash in lieu of fractional shares of AutoCyte Common
Stock.
(b) Exchange Procedures. As soon as practicable after the Effective
Time, (i) NeoPath shall deliver to AutoCyte a list of all record holders of
NeoPath Common Stock immediately prior to the Effective Time (the "Record
Holders"), setting forth each stockholder's name, address and number of shares
of NeoPath Common Stock held prior to the Effective Time and such other
information as may be reasonably requested by the Exchange Agent, certified by
the Chief Executive Officer of NeoPath (the "Stockholder List") and (ii) the
Exchange Agent shall be instructed to mail to each Record Holder a form of
letter of transmittal which shall specify instructions for use in effecting the
surrender of NeoPath Common Stock certificates in exchange for AutoCyte Common
Stock certificates and cash in lieu of fractional shares. Upon the Exchange
Agent's receipt of the letter of transmittal and any certificate held by a
stockholder, each stockholder shall be entitled to receive a certificate
representing that number of whole shares of AutoCyte Common Stock into which the
shares of NeoPath Common Stock as set forth on the Stockholder List shall have
been converted pursuant to the provisions of this Agreement. The shares of
NeoPath Common Stock outstanding immediately prior to the Effective Time (and
any certificates representing such shares) shall be deemed canceled as of the
Effective Time. AutoCyte Common Stock into which NeoPath Common Stock shall be
converted in the Merger shall be deemed to have been issued at the Effective
Time. If any AutoCyte Common Stock certificates are to be issued in a name other
than that in which the NeoPath Common Stock was registered immediately prior to
the Effective Time, it shall be a condition of such issuance that the person
requesting such issuance shall deliver to the Exchange Agent all documents
necessary to evidence and effect such transfer and shall pay to the Exchange
Agent any transfer or other taxes required by reason of the issuance of
certificates for such shares of AutoCyte Common Stock in a name other than that
of the registered holder of the certificate or surrendered or establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. Neither AutoCyte nor NeoPath shall be liable to any stockholder for
shares of stock or any cash in lieu of fractional interests delivered to a
public official pursuant to applicable escheat or abandoned property laws.
(c) Distributions of NeoPath Common Stock. No dividends or other
distributions declared or made after the date of this Agreement with respect to
AutoCyte Common Stock with a record date after the Effective Time will be paid
to the holder of any unsurrendered certificate of NeoPath Common Stock with
respect to the shares of AutoCyte Common Stock represented thereby until the
holder of record of such certificate shall surrender such certificate. Subject
to applicable law, following surrender of any such certificate, there shall be
paid to the record holder thereof certificates representing whole shares of
AutoCyte Common Stock issued in exchange therefor, without interest, along with
the amount of dividends or other distributions with a record date after the
Effective Time payable with respect to such whole shares of AutoCyte Common
Stock and cash in lieu of any fractional shares in accordance with Section
1.6(c).
5
13
1.10 Lost, Stolen or Destroyed Certificates. In the event any NeoPath
Common Stock certificates shall have been lost, stolen or destroyed, the
Exchange Agent shall issue in exchange for such lost, stolen or destroyed
certificates, upon the making of an affidavit of that fact by the holder
thereof, such shares of AutoCyte Common Stock, cash for fractional shares, if
any, as may be required pursuant to Section 1.6(c) and any dividends or
distributions payable pursuant to Section 1.9(c); provided, however, that
AutoCyte may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificates to
deliver a bond in such sum as it may reasonably direct as indemnity against any
claim that may be made against AutoCyte or the Exchange Agent with respect to
the certificates alleged to have been lost, stolen or destroyed.
1.11 No Further Ownership Rights in NeoPath Common Stock. All shares of
AutoCyte Common Stock issued upon the surrender for exchange of shares of
NeoPath Common Stock in accordance with the terms hereof (including any cash
paid in respect thereof pursuant to Sections 1.6(c) and 1.9) shall be deemed to
have been issued in full satisfaction of all rights pertaining to such shares of
NeoPath Common Stock, and there shall be no further registration of transfers on
the records of AutoCyte of shares of NeoPath Common Stock that were outstanding
immediately prior to the Effective Time.
1.12 Tax and Accounting Consequences. It is intended by the parties
hereto that the Merger shall constitute a reorganization within the meaning of
Section 368 of the Code. It is also intended by the parties hereto that the
Merger shall be treated as a "pooling of interests" for accounting purposes.
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF NEOPATH
Except as set forth on the disclosure schedule (the "NeoPath Disclosure
Schedule") delivered to AutoCyte on the date hereof (regardless of whether the
NeoPath Disclosure Schedule is referenced in any particular subsection of this
Section 2), the subsection numbers of which are numbered to correspond to the
subsection numbers of this Agreement to which they refer, NeoPath represents and
warrants to AutoCyte as set forth below:
2.1 Organization and Qualification. NeoPath is a corporation duly
organized, validly existing and in good standing under the laws of the state or
other jurisdiction of its incorporation and has full corporate power and
authority to own, lease and operate its assets, properties and business and to
carry on its business as now being and as heretofore conducted. NeoPath is
qualified or is otherwise authorized to transact business as a foreign
corporation in each jurisdiction (in the United States and outside of the United
States) in which the failure to so qualify would have a NeoPath Material Adverse
Effect, all of which jurisdictions are identified in Section 2.1 of the NeoPath
Disclosure Schedule. A "Material Adverse Effect" on NeoPath or AutoCyte, as the
case may be, means (unless otherwise specified) any condition or event that (i)
materially adversely affects the assets, business, financial condition,
operations or prospects of such party, other than any condition or event (A)
relating to the economy in general, (B) relating to the industries in which such
party operates in general, (C) arising out of or resulting from actions
contemplated by the parties in connection with, or which is attributable to, the
announcement of this Agreement and the transactions contemplated hereby
(including loss of personnel, customers or suppliers or the delay or
cancellation of orders for products) or (D)
6
14
litigation brought or threatened against such party or any member of their
respective Boards of Directors in respect of this Agreement, (ii) materially
impairs the ability of such party to perform its obligations under this
Agreement or (iii) prevents or materially delays the consummation of the
transactions contemplated under this Agreement.
2.2 Capitalization.
(a) Outstanding Capital Stock. NeoPath's authorized capital stock
consists of 40,000,000 shares of Common Stock, $.01 par value per share, of
which 17,414,230 shares are issued and outstanding as of June 4, 1999, and
10,000,000 shares of Preferred Stock, $.01 par value per share, of which no
shares are issued and outstanding. Except as disclosed in NeoPath's proxy
statement for its annual meeting of stockholders held on May 20, 1999, NeoPath
is not aware of any record or beneficial holder of more than five percent (5%)
of the outstanding shares of NeoPath Common Stock. The outstanding shares of
NeoPath Common Stock are duly authorized, validly issued, fully paid and
nonassessable and have been issued in compliance with all charter documents of
NeoPath and all applicable federal and state laws. Except as set forth in this
Section 2.2(a), no other capital stock of NeoPath is authorized or outstanding.
(b) Options or Other Rights. Section 2.2(b) of the NeoPath
Disclosure Schedule lists each outstanding option to acquire shares of NeoPath
Common Stock under the NeoPath, Inc. 1989 Stock Option Plan (Amended and
Restated on February 26, 1998), the NeoPath, Inc. Stock Option Plan for
Nonemployee Directors (Amended and Restated on February 27, 1997 or the NeoPath,
Inc. 1999 Stock Incentive Compensation Plan (together, the "NeoPath Stock Option
Plans") as of the date hereof, the name of the holder of such option, the number
of shares subject to such option, the exercise price of such option, the number
of shares as to which such option will have vested at such date and whether the
exercisability of such option will be accelerated in any way by the transactions
contemplated by this Agreement or for any other reason, and indicates the extent
of acceleration, if any. Except as set forth in the NeoPath Disclosure Schedule,
(i) no subscription, warrant, option, preemptive right, convertible security or
other right (contingent or otherwise) to purchase or acquire any shares of
capital stock or other security of NeoPath issued by NeoPath is authorized or
outstanding, (ii) there is no commitment or offer by NeoPath to issue or provide
any such subscription, warrant, option, preemptive right, convertible security
or other right or to issue or distribute to holders of any shares of its capital
stock any evidences of indebtedness or assets of NeoPath, (iii) NeoPath has no
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any shares of its capital stock or any interest therein or to pay any dividend
or make any other distribution in respect thereof, (iv) there are no
restrictions on the transfer of NeoPath's capital stock other than those arising
from securities laws, and (v) there are no voting trusts, proxies or other
agreements, instruments or understandings with respect to outstanding shares of
NeoPath's capital stock to which NeoPath is a party.
2.3 Authority to Execute and Perform Agreements. NeoPath has the
requisite corporate power and authority to execute and deliver this Agreement
and each agreement, document and instrument contemplated by this Agreement to
which it is a party and, subject to the requirement to obtain stockholder
approval under the WBCA, to consummate the transactions contemplated hereby and
thereby and to perform fully its respective obligations hereunder and
thereunder. The execution, delivery and performance of this Agreement and each
7
15
such other agreement, document and instrument to which it is a party and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of NeoPath, subject, in
the case of the Merger, to the requirement to obtain stockholder approval under
the WBCA. This Agreement and each agreement, document and instrument executed
and delivered by NeoPath pursuant to this Agreement constitutes, or when
executed and delivered will constitute, valid and binding obligations of
NeoPath, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity.
2.4 Subsidiaries and Other Affiliates. NeoPath does not have any
subsidiary or directly or indirectly own or have any investment in any of the
capital stock of, or any other interest in, any other person or entity
2.5 Charter and Bylaws; Books and Records. NeoPath has heretofore
delivered or made available to AutoCyte true and complete copies of the Articles
of Incorporation (certified by the Secretary of State or comparable authority of
its jurisdiction of incorporation) and Bylaws as in effect on the date hereof,
and corporate minute books. NeoPath is not in default in the performance,
observation or fulfillment of either its charter or Bylaws. The minute books of
NeoPath contain true and complete records of all meetings and consents in lieu
of meetings of the Board of Directors and of the stockholders prior to the date
hereof, and accurately reflect all transactions referred to in such minutes and
consents in lieu of meetings.
2.6 SEC Reports. NeoPath has previously delivered to AutoCyte its (i)
Annual Report on Form 10-K for the years ended December 31, 1998 (the "NeoPath
10-K") and 1997, as filed with the Securities and Exchange Commission (the
"SEC"), (ii) the proxy statement relating to NeoPath's annual meeting of
stockholders held on May 20, 1999 and (iii) all other reports filed by NeoPath
with the SEC under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since January 1, 1998 (the "NeoPath SEC Documents"). As of
their respective dates, the NeoPath SEC Documents complied as to form in all
material respects with applicable SEC requirements and, except to the extent
that information contained in any NeoPath SEC Document has been revised and
superseded by a later filed NeoPath SEC Document, did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. NeoPath has timely
filed with the SEC all reports required to be filed under Sections 13, 14 or
15(d) of the Exchange Act since January 1, 1998.
2.7 Financial Statements. The financial statements contained in the
NeoPath 10-K and in NeoPath's quarterly report on Form 10-Q for the quarter
ended March 31, 1999 (the "NeoPath 10-Q") have been prepared from, and are in
accordance with, the books and records of NeoPath and fairly present the
financial condition, results of operations and cash flows of NeoPath as of the
dates and for the periods presented therein, all in accordance with generally
accepted accounting principles applied on a consistent basis, except as
otherwise indicated therein and subject (in the case of the unaudited financial
statements included in the NeoPath 10-Q) to normal period-end and audit
adjustments and footnote disclosures, which in the aggregate are not material.
8
16
2.8 Absence of Undisclosed Liabilities. Except as set forth in the
NeoPath Disclosure Schedule, at December 31, 1998, NeoPath had no material
liabilities of any nature, whether accrued, absolute, contingent or otherwise
(including without limitation, liabilities as guarantor or otherwise with
respect to obligations of others or liabilities for taxes due or then accrued or
to become due), required to be reflected or disclosed in the balance sheet dated
December 31, 1998 (or the notes thereto) included in the NeoPath 10-K (the
"NeoPath Balance Sheet") that were not adequately reflected or reserved against
on such balance sheet. Except as set forth in the NeoPath Disclosure Schedule,
NeoPath has no such liabilities, except as and to the extent (i) adequately
reflected and reserved against in the NeoPath Balance Sheet, (ii) adequately
reflected and reserved against in the NeoPath unaudited balance sheet dated
March 31, 1999 included in the NeoPath 10-Q (the "NeoPath Interim Balance
Sheet"), or (iii) incurred since March 31, 1999 in the ordinary course of
business.
2.9 No Material Adverse Change. Except as set forth in the NeoPath
Disclosure Schedule, since March 31, 1999, there has not been:
(a) any event or occurrence that could reasonably be expected to
have a NeoPath Material Adverse Effect;
(b) any material change in the method of operating the business of
NeoPath, in the manner of keeping the books, accounts or records of, or in any
accounting method or practice of NeoPath;
(c) any sale, lease, mortgage, pledge, encumber, abandonment or
disposition of, or agreement to sell, lease, mortgage, pledge, encumber, abandon
or dispose of, any material assets or properties of NeoPath, other than in the
usual and ordinary course of business;
(d) any material transaction, commitment, contract or agreement
entered into by NeoPath, or any relinquishment or abandonment by NeoPath of any
material contract or right, or any modification, waiver, amendment, release,
recision, or termination of any material term, condition or provision of any
contract to which NeoPath is a party and is or should be set forth on the
NeoPath Disclosure Schedule in accordance with Section 2.14 (other than any
satisfaction by performance in accordance with the terms thereof), other than in
the usual and ordinary course of business;
(e) any adverse relationships or conditions with employees,
suppliers, lenders, customers or governmental agencies that could reasonably be
anticipated to have a NeoPath Material Adverse Effect;
(f) any acquisition by NeoPath (other than property or interests
therein acquired in the ordinary course of its business) of all or any part of
the assets, properties, capital stock or business of any other person or entity;
(g) any redemption or other acquisition by NeoPath of any of its
capital stock or any declaration, setting aside or payment of any dividend or
distribution of any kind with respect to shares of its capital stock;
9
17
(h) any loan or advance by NeoPath to any stockholder, officer,
director or consultant, or any other loan or advance other than in the ordinary
course of business;
(i) any cancellation, nonrenewal, material reduction in limits or
coverage or material premium increase for all insurance policies maintained by
NeoPath;
(j) except as set forth in the NeoPath Disclosure Schedule, any new
employment or consulting agreement, any increase in compensation, bonus or other
benefits payable or to become payable by NeoPath to any director, officer or
employee, other than regularly scheduled increases consistent with past practice
in the ordinary course of business, or any new grant of severance or termination
rights, or increase in rights or benefits payable under existing severance or
termination policies or agreements, to any director, officer or employee of
NeoPath; or
(k) commitment, understanding or agreement of NeoPath or any
officer or employee thereof to do any of the things described in the preceding
clauses (a) through (i) (other than this Agreement).
2.10 Tax Matters.
(a) Definition of Taxes. For the purposes of this Agreement, "Tax"
or, collectively, "Taxes", means any and all federal, state, local and foreign
taxes, assessments and other governmental charges, duties, impositions and
liabilities in the nature of a tax including taxes based upon or measured by
gross receipts, income, profits, sales, use and occupation, and value added, ad
valorem, transfer, franchise, withholding, payroll, recapture, employment,
excise and property taxes, together with all interest, penalties and additions
imposed with respect to such amounts and any obligations under any agreements or
arrangements with any other person with respect to such amounts and including
any liability for taxes of a predecessor entity.
(b) Tax Returns and Audits. Except as set forth in the NeoPath
Disclosure Schedule:
(i) NeoPath has prepared and filed (or received an appropriate
extension of time to file) all federal, state, local and foreign returns, forms,
estimates, information statements, reports and other documents ("Returns")
required to be filed relating to any and all Taxes concerning or attributable to
NeoPath or its operations and such Returns are true and correct in all material
respects and have been completed in all material respects in accordance with
applicable law.
(ii) NeoPath (A) has paid all Taxes set forth and shown as due
on its Returns and (B) has withheld and paid (or will pay at the time required)
all Taxes required to be withheld, including with respect to its employees all
federal and state income taxes, FICA, FUTA and other Taxes required to be
withheld.
(iii) NeoPath is not delinquent in any material respect in the
payment of any Tax nor is there any material Tax deficiency outstanding,
proposed or assessed against NeoPath, nor has NeoPath executed any waiver of any
statute of limitations on, or any consent extending, the period for the
assessment or collection of any Tax.
10
18
(iv) No audit or other examination of any Return of NeoPath is
currently in progress, nor has NeoPath been notified of any request for such an
audit or other examination.
(v) NeoPath did not have, as of March 31, 1999, any
liabilities, whether asserted or unasserted, contingent or otherwise, for unpaid
federal, state, local and foreign Taxes which have not been accrued or reserved
against in accordance with GAAP on the NeoPath Interim Balance Sheet, and
NeoPath has not incurred any such liabilities since such date except in the
ordinary course of business and consistent with past practices.
(vi) There are (and as of immediately following the Effective
Date there will be) no liens, pledges, charges, claims, security interests or
other encumbrances of any sort ("Liens") of a material nature on the assets of
NeoPath relating to or attributable to Taxes, except for Liens for Taxes not yet
due and payable or that are being contested in good faith by appropriate
proceedings.
(vii) NeoPath has not received written or oral notice of any
claim relating or attributable to Taxes that, if adversely determined, would
result in any Lien on the assets of NeoPath.
(viii) None of NeoPath's assets are treated as "tax-exempt use
property" within the meaning of Section 168(h) of the Code.
(ix) As of the Effective Time, there will not be any contract,
agreement, plan or arrangement, including but not limited to the provisions of
this Agreement, covering any employee or former employee of NeoPath that,
individually or collectively, could give rise to the payment of any amount that
would not be deductible pursuant to Section 280G of the Code or the limitations
in Section 162(m) of the Code.
(x) NeoPath has not filed any consent agreement under Section
341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any
disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the
Code) owned by NeoPath.
(xi) NeoPath is not a party to any tax sharing or allocation
agreements, arrangements or practices nor does NeoPath owe any amount under any
such agreement, arrangement or practice.
(xii) NeoPath is not nor has been at any time during the
period specified in Section 897(c)(1)(A)(ii) of the Code, a "United States real
property holding corporation" within the meaning of Section 897(c)(2) of the
Code.
(xiii) NeoPath has not agreed to, or is required to, make any
adjustments under Section 481(c) of the Code by reason of a change in accounting
method or otherwise.
2.11 Compliance with Laws.
(a) NeoPath is not in violation in any material respect of any
order, judgment, injunction, award or decree, or any federal, state, local or
foreign law, ordinance or regulation or
11
19
any other requirement of any governmental or regulatory body, court or
arbitrator, and is in compliance in all material respects with all of the
foregoing that are applicable to it, its business or its assets. NeoPath has not
received notice of, and there has not been any citation, fine or penalty imposed
or asserted against any of them for, any such violation or alleged violation
that has not been favorably and fully resolved.
(b) NeoPath holds all licenses, permits, certificates, franchises,
orders or approvals of any federal, state, local or foreign governmental or
regulatory body, that are material to the conduct of NeoPath's business and the
uses of its assets necessary to operate its business as presently conducted,
other than those (i) which are ministerial in nature and which NeoPath has no
reason to believe would not be issued in due course and (ii) which, the failure
of NeoPath to possess, would not result in a NeoPath Material Adverse Effect
(the "NeoPath Permits"). The NeoPath Disclosure Schedule contains a true and
complete list of all such NeoPath Permits as of the date hereof. Such NeoPath
Permits are in full force and effect and the validity and effectiveness of such
NeoPath Permits will not be affected by the transactions contemplated hereby. No
violations are or have been recorded with any governmental or regulatory body in
respect of any NeoPath Permit, no proceeding is pending or, to the best
knowledge of NeoPath, threatened to revoke or limit any NeoPath Permit, and
NeoPath knows of no grounds for any such revocation or limitation.
2.12 Consents; No Breach. All consents, permits, authorizations and
approvals from any person or entity that are required pursuant to applicable
law, or agreement or otherwise in connection with the execution, delivery and
performance of this Agreement by NeoPath are set forth in Section 2.12 of the
NeoPath Disclosure Schedule, other than those which the failure to obtain would
reasonably be expected to have a NeoPath Material Adverse Effect. Subject to any
prior approval requirements set forth in Section 2.12 of the NeoPath Disclosure
Schedule, the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not (i) violate any
provision of the Articles of Incorporation or Bylaws of NeoPath; (ii) violate,
conflict with or result in the breach of any of the terms or conditions of,
result in a material modification of, or otherwise give any other contracting
party the right to terminate, or constitute (or with notice or lapse of time or
both constitute) a default under, any material instrument, contract or other
agreement to which NeoPath is a party or to which NeoPath or any of their assets
or properties is bound or subject; (iii) violate any statute, law or regulation
of any jurisdiction or any order, judgment, injunction, award or decree of any
court, arbitrator or governmental or regulatory body applicable to or binding
upon NeoPath or any of their securities, properties, assets or business; (iv)
violate any material Permit; (v) require any filing with, notice to, or approval
or consent of any foreign, federal, state, local or other governmental or
regulatory body or any other person or entity; (vi) give rise to any obligation
to make any material payment; or (vii) result in the creation of any material
lien or encumbrance on the assets or properties of NeoPath, excluding from the
foregoing clauses (ii), (iii), (iv) and (v) any exceptions to the foregoing
that, in the aggregate, would not reasonably be expected to have a NeoPath
Material Adverse and the following: (y) the filing of the Merger Documents with
the Secretary of State of the State of Washington and the Secretary of State of
the State of Delaware and (z) the filing with the SEC of (A) the Proxy Statement
(as defined in Section 4.9 below) and (B) such reports under Section 13(a),
13(d), 15(d) or 16(a) of the Exchange Act as may be required in connection with
this Agreement and the transactions contemplated hereby and thereby.
12
20
2.13 Actions and Proceedings. There are no outstanding orders,
judgments, injunctions, awards or decrees of any court, governmental or
regulatory body or arbitration tribunal against or involving NeoPath or any of
its securities, assets, or properties. Except as set forth in the NeoPath
Disclosure Schedule, there are no actions, suits or claims or legal, judicial,
administrative or arbitral proceedings or investigations (whether or not the
defense thereof or liabilities in respect thereof are covered by insurance)
pending or, to the best knowledge of NeoPath, threatened against or involving
NeoPath or any of its securities, assets or properties, that if determined
adverse to NeoPath, would have a NeoPath Material Adverse Effect.
2.14 Contracts and Other Agreements. Section 2.14 of the NeoPath
Disclosure Schedule sets forth a correct and complete list all of the following
currently effective contracts:
(a) written contracts and other agreements with or for the benefit
of any current or former officer, director, stockholder or employee of NeoPath
involving more than $25,000 (provided, in the case of a loan by NeoPath to any
such person, the NeoPath Disclosure Schedule shall list all such loan
arrangements, whether or not in writing, involving at least $1,000), and
contracts and other agreements for the payment of fees or other consideration to
any entity in which NeoPath has an interest;
(b) contracts and other agreements with any labor union or
association representing any employee of NeoPath or otherwise providing for any
form of collective bargaining;
(c) contracts and other agreements for the purchase or sale of
materials, supplies, equipment, merchandise or services that contain an
escalation, renegotiation or redetermination clause or that obligate NeoPath to
purchase all or substantially all of its requirements of a particular product
from a supplier, or for periodic minimum purchases of a particular product from
a supplier;
(d) contracts and other agreements for the sale of any of the
assets or properties of NeoPath other than in the ordinary course of business or
for the grant to any person of any options, rights of first refusal, or
preferential or similar rights to purchase any of such assets or properties;
(e) partnership or joint venture agreements;
(f) contracts with agents or foreign representatives regarding the
sales or marketing of the services or products of NeoPath;
(g) contracts or other agreements under which NeoPath agrees to
act as surety or guarantor for or to indemnify any party (other than required
indemnification provisions in customer contracts) or to share the tax liability
of any party;
(h) contracts, options, outstanding purchase orders and other
agreements for the purchase of any material asset, tangible or intangible;
13
21
(i) contracts and other agreements with customers, suppliers or
other parties for the sharing of fees, the rebating of charges or other similar
arrangements other than such contracts entered into in the normal course of
business;
(j) contracts and other agreements containing obligations or
liabilities of any kind to holders of the securities of NeoPath as such
(including, without limitation, an obligation to register any of such securities
under any federal or state securities laws) and contracts obligating NeoPath to
issue or repurchase any securities;
(k) contracts and other agreements containing covenants of NeoPath
not to compete in any line of business or with any person or entity or covenants
of any other person or entity not to compete with NeoPath in any line of
business;
(l) contracts and other agreements relating to the acquisition by
NeoPath of any operating business or the capital stock of any other person or
entity;
(m) contracts and other agreements requiring the payment to any
party of a brokerage or sales commission or a finder's or referral fee;
(n) contracts, indentures, mortgages, promissory notes, debentures
loan agreements, guaranties, security agreements, pledge agreements, and other
agreements and instruments relating to the borrowing or lending of money or
securing any such liability in an amount greater than $50,000;
(o) any agreement or series of related agreements requiring
aggregate payments by or to NeoPath of more than $50,000;
(p) contracts under which NeoPath will acquire or has acquired
ownership of, or license to, intangible property, including software other than
commercially available end-user licenses; and
(q) any other contract or other agreement whether or not made in
the ordinary course of business, the absence of which would have a NeoPath
Material Adverse Effect.
There have been delivered or made available to AutoCyte true and
complete copies of all of the contracts and other agreements (and all
amendments, waivers or other modifications thereto) set forth in Section 2.14 of
the NeoPath Disclosure Schedule. All of such contracts and other agreements are
valid, subsisting, in full force and effect, binding upon NeoPath (as the case
may be), and to the best knowledge of NeoPath, binding upon the other parties
thereto in accordance with their terms. Other than defaults which would not,
either singly or in the aggregate, have a NeoPath Material Adverse Effect,
NeoPath is not in default under any of such scheduled contracts, nor, to the
best knowledge of NeoPath, is any other party to any such contract or other
agreement in default thereunder, nor does any condition exist that constitutes
or with notice or lapse of time or both would constitute a default thereunder.
2.15 Real Property; Leases. NeoPath does not own any real property or
any buildings or other structures or has any options or any contractual
obligations to purchase or acquire any interest in real property. Section 2.15
of the NeoPath Disclosure Schedule sets forth a correct
14
22
and complete list of all leases of real property to which NeoPath is a party
(collectively, the "NeoPath Leases"). True and complete copies of the NeoPath
Leases and all amendments, modifications and supplemental agreements thereto
have been delivered by NeoPath to AutoCyte. The NeoPath Leases are in full force
and effect and, to the best knowledge of NeoPath, are binding and enforceable
against each of the parties thereto in accordance with their respective terms.
To the best knowledge of NeoPath, no party to any NeoPath Lease has given notice
to any other party thereto claiming the existence or occurrence of a breach or
default thereunder and there has not occurred any event or circumstances which
constitutes, or with the passage of time or the giving of notice or both would
constitute, a breach or default thereunder, other than defaults which would not,
either singly or in the aggregate, have a NeoPath Material Adverse Effect.
2.16 Tangible Property. NeoPath has good and marketable title to, free
and clear of all encumbrances, or otherwise has the unrestricted right to use,
each item of equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, any related capitalized items and other tangible property material
to the business of NeoPath ("NeoPath Tangible Property"). All such NeoPath
Tangible Property is in good and sufficient operating condition and repair,
ordinary wear and tear excepted, and, to the best knowledge of NeoPath, NeoPath
has not received notice that any of the NeoPath Tangible Property is in
violation of any existing law or any building, zoning, health, safety or other
ordinance, code or regulation.
2.17 Intellectual Property.
(a) NeoPath owns, or is licensed to use, or otherwise has the
right to use all patents, trademarks, service marks, trade names, trade secrets,
logos, franchises, and copyrights, and all applications for any of the
foregoing, and all technology, inventions, trade secrets, know-how, computer
software and processes that are material in the conduct of its business as now
conducted (collectively, the "NeoPath Proprietary Rights"). NeoPath has
previously delivered to AutoCyte a list of all such patents and registered
copyrights and trademarks, and all applications therefor (the "NeoPath
Registered Rights"). All of the NeoPath Registered Rights owned by NeoPath, and
to the best knowledge of NeoPath, all NeoPath Registered Rights licensed to
NeoPath have been registered in, filed in or issued by the United States Patent
and Trademark Office, the United States Register of Copyrights, or the
corresponding offices of other jurisdictions as identified in Section 2.17 of
the NeoPath Disclosure Schedule, and have been properly maintained and renewed
in accordance with all applicable provisions of law and administrative
regulations in the United States and in each such other jurisdiction.
(b) To the best knowledge of NeoPath, (i) the businesses of
NeoPath as currently conducted does not infringe upon the proprietary rights of
others, nor has NeoPath received any notice or claim from any third party of
such infringement by NeoPath, (ii) there is not any material unlicensed
infringement by any third party on, or any issued competing claim of right to
use or own any of, the NeoPath Proprietary Rights and (iii) none of the
activities of the employees of NeoPath on behalf of NeoPath violates any
agreements or arrangements that any such employees have with former employers.
2.18 Title to Assets; Liens. NeoPath owns outright, leases or rents,
and has good title to all of its material assets and properties, including,
without limitation, all of the assets and
15
23
properties reflected on the NeoPath Interim Balance Sheet, free and clear of any
encumbrance, except for (i) assets and properties disposed of in the ordinary
course of business and as disclosed on the NeoPath Disclosure Schedule, (ii)
encumbrances securing the claims of materialmen, carriers, landlords and like
persons, all of which are not yet due and payable, (iii) liens for taxes not yet
due and payable or for taxes being contested in good faith by appropriate
proceedings or (iv) encumbrances reflected on the NeoPath Interim Balance Sheet.
2.19 Employee Benefit Plans. Section 2.19 of the NeoPath Disclosure
Schedule sets forth a correct and complete list of all pension, profit sharing,
retirement, deferred compensation, welfare, insurance, disability, bonus,
vacation pay, severance pay and similar plans, programs or arrangements,
including without limitation all employee benefit plans as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") with respect to which NeoPath is the "Plan Sponsor" within the meaning
of Section 3(16)(B) of ERISA, or in which NeoPath participates (the "NeoPath
Plans"). Each NeoPath Plan which is intended to be qualified under Section
401(a) or 501(c)(9) of the Internal Revenue Code of 1986, as amended (the
"Code"), has received a favorable determination letter from the Internal Revenue
Service that remains in effect. Each NeoPath Plan has been maintained, operated,
funded and administered in all material respects in accordance with the terms of
such NeoPath Plan and the provisions of any and all applicable statutes, orders
or governmental rules and regulations, including without limitation ERISA and
the Code. To the best knowledge of NeoPath, nothing has occurred or failed to
occur with respect to any NeoPath Plan which is intended to comply with Section
401(a) or 501(c)(9) of the Code that would adversely affect the qualified status
of such NeoPath Plan or result in any material liability on the part of NeoPath
including, without limitation, under Title I of ERISA or Section 4975 of the
Code (other than changes in applicable law for which the remedial amendment
period has not yet expired). All material reports, returns, notices and
documents required to be filed with respect to all NeoPath Plans, including
without limitation annual reports on Form 5500, have been timely filed, except
for any failures as could not reasonably be expected to result in a material
liability (either individually or in the aggregate) to NeoPath. All
contributions required by law or the terms of any NeoPath Plan have been made.
All claims for welfare benefits incurred by employees of NeoPath on or before
the Closing are or will be fully covered by third-party insurance policies or
programs. Neither NeoPath nor any of its ERISA Affiliates maintains or
contributes to, or has ever maintained or contributed to (or been obligated to
contribute to), any multiemployer plan as defined in Section 4001(a)(3) of
ERISA, any employee benefit plan that is subject to Section 412 of the Code or
Section 302 of ERISA or any employee benefit plan that is subject to Title IV of
ERISA. Neither NeoPath nor any NeoPath Plan provides or has any obligation to
provide (or contribute toward the cost of) health benefits with respect to any
current or former, officer, employee, agent, director or independent contractor
of NeoPath or any other entity beyond such individual's retirement or other
termination of service, other than as required by applicable law, including
without limitation, Section 4980B(f) of the Code and Sections 601 through 608 of
ERISA. There are no actions, suits or claims (other than routine claims for
benefits) pending or, to the best knowledge of NeoPath, threatened with respect
to (or against the assets of) any NeoPath Plan, nor, to the best knowledge of
NeoPath, is there a reasonable basis for any such action, suit or claim. No
NeoPath Plan is currently under investigation, audit or review, directly or
indirectly, by the IRS, the Department of Labor (the "DOL") or any other
governmental entity or agency, and, to the best knowledge of NeoPath, no such
action is contemplated or under consideration by the IRS, the DOL or any other
governmental entity or agency. Complete copies
16
24
of the following documents with respect to each NeoPath Plan (as applicable)
have been delivered to AutoCyte: (i) each relevant NeoPath Plan document, as
currently in effect, and subsequent amendment thereto; (ii) each trust
agreement, group annuity contract, insurance policy or contract, as currently in
effect; (iii) each Form 5500 series annual report with each required schedule
and attachment for each of the three (3) most recent plan years; (iv) the most
recent IRS determination letter; and (v) the most recent summary plan
description and each summary of material modification thereto. An "ERISA
Affiliate" of NeoPath means any corporation, trade, business or other entity
(whether or not incorporated) that together with NeoPath would have been deemed
a "single employer" within the meaning of Section 414(b), (c), (m) or (o) of the
Code at any time within the five-year period ending on the Closing Date.
2.20 Employee Relations. NeoPath has approximately 150 full-time
equivalent employees and generally enjoys good employer-employee relations.
NeoPath's employees are not represented by any labor union. NeoPath is not
delinquent in payments to any of its employees or consultants for any wages,
salaries, commissions, bonuses or other direct compensation for any services
performed by them to the date hereof or amounts required to be reimbursed to
such employees or consultants. Neither NeoPath, AutoCyte nor the Surviving
Corporation will by reason of the Merger or anything done prior to the Closing
be liable to any NeoPath employee for severance pay or any other payments (other
than accrued salary, vacation or sick pay in accordance with NeoPath's normal
policies) in the event any such employees are terminated. Each employee of
NeoPath has executed NeoPath's standard form of Confidential Information,
Inventions and Noncompetition Agreement. Correct and complete information as to
all current directors, officers, employees or consultants of NeoPath including,
in each case, name, current job title and annual rate of compensation has been
provided by NeoPath to AutoCyte.
2.21 Relationships with Affiliates. To the best knowledge of NeoPath,
no officer or director of NeoPath has directly or indirectly any interest in (i)
any property or assets of NeoPath (except as a stockholder of NeoPath), (ii) any
competitor or customer of NeoPath, (iii) any supplier or lender to NeoPath or
(iv) any party to any material contract or agreement with NeoPath.
2.22 Insurance. Section 2.22 of the NeoPath Disclosure Schedule sets
forth a correct and complete list of all policies or binders of fire, liability,
product liability, workmen's compensation, vehicular, directors' and officers'
and other insurance held by or on behalf of NeoPath specifying in each case the
type and scope of coverage, the amount of coverage, the premium, the insurer,
the expiration date and all claims made thereunder within the past three years.
Such policies and binders are in full force and effect, are reasonably believed
to be adequate for the businesses engaged in by NeoPath, are in conformity with
the requirements of all leases or other agreements to which NeoPath is a party
and are valid and enforceable in accordance with their terms. All premiums due
under such policies and binders have been paid, and NeoPath is not in default
with respect to any provision contained in any such policy or binder nor has
NeoPath failed to give any notice or present any claim under any such policy or
binder in due and timely fashion. There are no outstanding unpaid claims under
any such policy or binder. NeoPath has not received notice of cancellation or
non-renewal of, or any material amendment to, or any material increase in
deductibles or premiums under, any such policy or
17
25
binder. Correct and complete copies of certificates of insurance with respect to
all such policies and binders have been provided by NeoPath to AutoCyte.
2.23 Brokerage. Except as set forth in the NeoPath Disclosure Schedule,
no broker, finder, agent or similar intermediary has acted on behalf of NeoPath
in connection with this Agreement or the transactions contemplated hereby, and
there are no brokerage commissions, finders fees or similar fees or commissions
payable in connection therewith based on any agreement, arrangement or
understanding with, or any action taken by NeoPath.
2.24 Hazardous Materials. NeoPath has not generated, used or handled
any Hazardous Materials (as defined below), nor has NeoPath treated, stored or
disposed of any Hazardous Materials at any site owned or leased at any time by
NeoPath or shipped any Hazardous Materials for treatment, storage or disposal at
any other site or facility, except in compliance with all applicable laws. To
the best knowledge of NeoPath, no other person has generated, used, handled,
stored or disposed of any Hazardous Materials at any site owned or premises
leased by NeoPath at any time or at any site in which NeoPath presently holds a
mortgage or similar interest, nor has there been or is there threatened any
release of any Hazardous Materials on or at any such site or premises. NeoPath
does not presently operate or lease, nor has it operated or leased, any site on
which underground storage tanks are or were located and which tanks are the
responsibility of NeoPath to operate. To the best knowledge of NeoPath, without
investigation, no lien has been imposed by any governmental agency in connection
with the presence of any Hazardous Materials on any property, facility,
machinery, or equipment operated or leased by NeoPath or in which NeoPath holds
any mortgage, lien, or similar interest. For purposes of this Section 2.24,
"Hazardous Materials" shall mean and include any "hazardous waste" as defined in
either the United States Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, or regulations adopted pursuant to said Act, and also any
"hazardous substances" or "hazardous materials" as defined in the United States
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601, but excludes ordinary and customary materials in quantities
reasonably required to be used by NeoPath in the ordinary course of NeoPath's
business.
2.25 Registration Statement; Proxy Statement. The information supplied
or to be supplied by NeoPath specifically for inclusion or incorporation by
reference in (i) the Registration Statement (as defined in Section 4.9 below) to
be filed with the SEC by AutoCyte in connection with the issuance of AutoCyte
Common Stock in the Merger will not, at the time the Registration Statement
becomes effective under the Securities Act of 1933, as amended (the "Securities
Act"), contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) the Proxy Statement (as defined in Section 4.9
below) will not, at the date it is first mailed to the stockholders of NeoPath
and at the time of the special meeting of stockholders of NeoPath held pursuant
to Section 4.10 hereof, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The Proxy Statement will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
thereunder. Notwithstanding this Section 2.25, no representation or warranty is
made by NeoPath with respect to statements made or incorporated by reference
18
26
therein based on information supplied by AutoCyte specifically for inclusion or
incorporation by reference in the Proxy Statement.
2.26 Opinion of Financial Adviser. NeoPath has received the opinion of
Credit Suisse First Boston Corporation, dated the date of this Agreement, to the
effect that, as of such date and based upon and subject to the matters set forth
therein, the Exchange Ratio is fair from a financial point of view to the
holders of NeoPath Common Stock (other than AutoCyte and its Subsidiaries), a
signed copy of which opinion has been or will promptly be delivered to AutoCyte.
2.27 Accounting Matters. To the best knowledge of NeoPath, neither
NeoPath nor any of its affiliates has taken or agreed to take any action that
would prevent the business combination to be effected by the Merger to be
accounted for as a pooling of interests.
2.28 Full Disclosure. No representation, warranty or statement of
NeoPath made in this Agreement or in any Exhibit or the NeoPath Disclosure
Schedule attached hereto or in any document, statement or certificate furnished
to AutoCyte pursuant to this Agreement, when taken as a whole, contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements made, in light of the
circumstance under which they were made, not false or misleading.
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF AUTOCYTE
Except as set forth on the disclosure schedule (the "AutoCyte
Disclosure Schedule") delivered to NeoPath on the date hereof (regardless of
whether the AutoCyte Disclosure Schedule is referenced in any particular
subsection of this Section 3), the subsection numbers of which are numbered to
correspond to the subsection numbers of this Agreement to which they refer,
AutoCyte and Merger Sub represent and warrant to NeoPath as set forth below:
3.1 Organization and Qualification. Each of AutoCyte and Merger Sub is
a corporation duly organized, validly existing and in good standing under the
laws of the state or other jurisdiction of its incorporation and has full
corporate power and authority to own, lease and operate its assets, properties
and business and to carry on its business as now being and as heretofore
conducted. AutoCyte is qualified or is otherwise authorized to transact business
as a foreign corporation in each jurisdiction (in the United States and outside
of the United States) in which the failure to so qualify would have an AutoCyte
Material Adverse Effect, all of which jurisdictions are identified in Section
3.1 of the AutoCyte Disclosure Schedule.
3.2 Capitalization.
(a) Outstanding Capital Stock. AutoCyte's authorized capital stock
consists of 20,650,000 shares of Common Stock, $.01 par value per share, of
which 14,282,676 shares are issued and outstanding as of June 3, 1999, and
1,000,000 shares of Preferred Stock, $.01 par value per share, of which no
shares are issued and outstanding. Merger Sub's authorized capital stock
consists of 1,000 shares of Common Stock, $.01 par value per share, all of which
are issued and outstanding as of June 3, 1999. All of the outstanding shares of
Merger Sub are owned by AutoCyte. Except as disclosed in AutoCyte's proxy
statement for its annual meeting of stockholders held on May 26, 1999, AutoCyte
is not aware of any record or beneficial holder
19
27
of more than five percent (5%) of the outstanding shares of AutoCyte Stock. The
outstanding shares of AutoCyte Stock and Merger Sub capital stock are duly
authorized, validly issued, fully paid, and nonassessable and have been issued
in compliance with all charter documents of AutoCyte and Merger Sub,
respectively, and all applicable federal and state laws. Except as set forth in
this Section 4.2(a), no other capital stock of AutoCyte or Merger Sub is
authorized or outstanding.
(b) Options or Other Rights. Section 3.2(b) of the AutoCyte
Disclosure Schedule lists each outstanding option to acquire shares of AutoCyte
Common Stock under the AutoCyte, Inc. Amended and Restated 1996 Equity Incentive
Plan or the AutoCyte, Inc. 1997 Director Stock Option Plan as of the date
hereof, the name of the holder of such option, the number of shares subject to
such option, the exercise price of such option, the number of shares as to which
such option will have vested at such date and whether the exercisability of such
option will be accelerated in any way by the transactions contemplated by this
Agreement or for any other reason, and indicates the extent of acceleration, if
any. Except as set forth in the AutoCyte Disclosure Schedule, (i) no
subscription, warrant, option, preemptive right, convertible security or other
right (contingent or otherwise) to purchase or acquire any shares of capital
stock or other security of AutoCyte or Merger Sub issued by AutoCyte or Merger
Sub is authorized or outstanding, (ii) there is no commitment or offer by
AutoCyte or Merger Sub to issue or provide any such subscription, warrant,
option, preemptive right, convertible security or other right or to issue or
distribute to holders of any shares of its capital stock any evidences of
indebtedness or assets of AutoCyte or Merger Sub, (iii) neither AutoCyte nor
Merger Sub has any obligation (contingent or otherwise) to purchase, redeem or
otherwise acquire any shares of its capital stock or any interest therein or to
pay any dividend or make any other distribution in respect thereof, (iv) there
are no restrictions on the transfer of capital stock of AutoCyte or Merger Sub
other than those arising from securities laws, and (v) there are no voting
trusts, proxies or other agreements, instruments or understandings with respect
to outstanding shares of AutoCyte's or Merger Sub's capital stock to which
AutoCyte or Merger Sub is a party.
3.3 Authority to Execute and Perform Agreements. Each of AutoCyte and
Merger Sub has the requisite corporate power and authority to execute and
deliver this Agreement and each agreement, document and instrument contemplated
by this Agreement to which it is a party and, subject to the requirement to
obtain stockholder approval under the DGCL and the Marketplace Rules of the
Nasdaq Stock Market, to consummate the transactions contemplated hereby and
thereby and to perform fully its respective obligations hereunder and
thereunder. The execution, delivery and performance of this Agreement and each
such other agreement, document and instrument to which it is a party and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of AutoCyte and Merger
Sub, as appropriate, subject, in the case of the Merger, to the requirement to
obtain stockholder approval under the DGCL and the Marketplace Rules of the
Nasdaq Stock Market. This Agreement and each agreement, document and instrument
executed and delivered by AutoCyte and Merger Sub pursuant to this Agreement
constitutes, or when executed and delivered will constitute, valid and binding
obligations of AutoCyte and Merger Sub, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
20
28
3.4 Subsidiaries and Other Affiliates. Except as set forth in the
AutoCyte Disclosure Schedule, AutoCyte does not have any subsidiary or directly
or indirectly own or have any investment in any of the capital stock of, or any
other interest in, any other person or entity other than Merger Sub.
3.5 Charter and By-laws; Books and Records. Each of AutoCyte and Merger
Sub has heretofore delivered or made available to NeoPath true and complete
copies of its Certificate of Incorporation (certified by the Secretary of State
or comparable authority of its jurisdiction of incorporation) and Bylaws as in
effect on the date hereof, and corporate minute books. Neither AutoCyte nor
Merger Sub is in default in the performance, observation or fulfillment of
either its charter or Bylaws. The minute books of AutoCyte and Merger Sub
contain true and complete records of all meetings and consents in lieu of
meetings of the Board of Directors and of the stockholders of AutoCyte and
Merger Sub, respectively, prior to the date hereof, and accurately reflect all
transactions referred to in such minutes and consents in lieu of meetings.
3.6 SEC Reports. AutoCyte has previously delivered to NeoPath its (i)
Annual Report on Form 10-K for the year ended December 31, 1998 (the "AutoCyte
10-K") and 1997, as filed with SEC, (ii) the proxy statement relating to
AutoCyte's annual meeting of stockholders held on May 26, 1999 and (iii) all
other reports filed by AutoCyte with the SEC under the Exchange Act, since
January 1, 1998 (the "AutoCyte SEC Documents"). As of their respective dates,
the AutoCyte SEC Documents complied as to form in all material respects with
applicable SEC requirements and, except to the extent that information contained
in the AutoCyte SEC Documents has been revised and superseded by a later filed
AutoCyte SEC Document, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. AutoCyte has timely filed with the SEC all reports
required to be filed under Sections 13, 14 or 15(d) of the Exchange Act since
January 1, 1998.
3.7 Financial Statements. The consolidated financial statements
contained in the AutoCyte 10-K and in AutoCyte's quarterly report on Form 10-Q
for the quarter ended March 31, 1999 (the "AutoCyte 10-Q") have been prepared
from, and are in accordance with, the books and records of AutoCyte and fairly
present the consolidated financial condition, results of operations and cash
flows of AutoCyte as of the dates and for the periods presented therein, all in
accordance with generally accepted accounting principles applied on a consistent
basis, except as otherwise indicated therein and subject (in the case of the
unaudited financial statements included in the AutoCyte 10-Q) to normal
period-end and audit adjustments and footnote disclosures, which in the
aggregate are not material.
3.8 Absence of Undisclosed Liabilities. Except as set forth in the
AutoCyte Disclosure Schedule, at December 31, 1998, AutoCyte had no material
liabilities of any nature, whether accrued, absolute, contingent or otherwise
(including without limitation, liabilities as guarantor or otherwise with
respect to obligations of others or liabilities for taxes due or then accrued or
to become due), required to be reflected or disclosed in the balance sheet dated
December 31, 1998 (or the notes thereto) included in the AutoCyte 10-K (the
"AutoCyte Balance Sheet") that were not adequately reflected or reserved against
on such balance sheet. Except as set forth in the AutoCyte Disclosure Schedule,
AutoCyte has no such liabilities, except as and to the extent (i) adequately
reflected and reserved against in the AutoCyte Balance Sheet, (ii)
21
29
adequately reflected and reserved against in the AutoCyte unaudited balance
sheet dated March 31, 1999 included in the AutoCyte 10-Q (the "AutoCyte Interim
Balance Sheet") or (iii) incurred since December 31, 1998 in the ordinary course
of business.
3.9 No Material Adverse Change. Except as set forth in the AutoCyte
Disclosure Schedule, since March 31, 1999, except as set forth in the AutoCyte
Disclosure Schedule, there has not been:
(a) any event or occurrence that could reasonably be expected to
have an AutoCyte Material Adverse Effect;
(b) any material change in the method of operating the business of
AutoCyte or Merger Sub, in the manner of keeping the books, accounts or records
of AutoCyte or Merger Sub, or in any accounting method or practice of AutoCyte
or Merger Sub;
(c) any sale, lease, mortgage, pledge, encumber, abandonment or
disposition of, or agreement to sell, lease, mortgage, pledge, encumber, abandon
or dispose of, any material assets or properties of AutoCyte or Merger Sub,
other than in the usual and ordinary course of business;
(d) any material transaction, commitment, contract or agreement
entered into by AutoCyte or Merger Sub, or any relinquishment or abandonment by
AutoCyte or Merger Sub of any material contract or right, or any modification,
waiver, amendment, release, recision, or termination of any material term,
condition or provision of any contract to which AutoCyte or Merger Sub is a
party and is or should be set forth on the AutoCyte Disclosure Schedule in
accordance with Section 3.14 (other than any satisfaction by performance in
accordance with the terms thereof), other than in the usual and ordinary course
of business;
(e) any adverse relationships or conditions with employees,
suppliers, lenders, customers or governmental agencies that could reasonably be
anticipated to have an AutoCyte Material Adverse Effect;
(f) any acquisition by AutoCyte or Merger Sub (other than property
or interests therein acquired in the ordinary course of its lending business) of
all or any part of the assets, properties, capital stock or business of any
other person or entity;
(g) any redemption or other acquisition by AutoCyte or Merger Sub
of any of its capital stock or any declaration, setting aside or payment of any
dividend or distribution of any kind with respect to shares of its capital
stock;
(h) any loan or advance by AutoCyte or Merger Sub to any
stockholder, officer, director or consultant, or any other loan or advance other
than in the ordinary course of business;
(i) any cancellation, nonrenewal, material reduction in limits or
coverage or material premium increase for all insurance policies maintained by
AutoCyte;
22
30
(j) except as set forth in the AutoCyte Disclosure Schedule, any
new employment or consulting agreement, any increase in compensation, bonus or
other benefits payable or to become payable by AutoCyte or Merger Sub to any
director, officer or employee, other than regularly scheduled increases
consistent with past practice in the ordinary course of business, or any new
grant of severance or termination rights, or increase in rights or benefits
payable under existing severance or termination policies or agreements, to any
director, officer or employee of AutoCyte or Merger Sub; or
(k) commitment, understanding or agreement by AutoCyte nor Merger
Sub or any of its officers or employees to do any of the things described in the
preceding classes (a) through (i) (other than this Agreement).
3.10 Tax Matters. Except as set forth in the AutoCyte Disclosure
Schedule:
(a) AutoCyte has prepared and filed (or received an appropriate
extension of time to file) all Returns required to be filed relating to any and
all Taxes concerning or attributable to AutoCyte or its operations and such
Returns are true and correct in all material respects and have been completed in
all material respects in accordance with applicable law.
(b) AutoCyte (i) has paid all Taxes shown as due on its Returns
and (ii) has withheld and paid (or will pay at the time required) all Taxes
required to be withheld, including with respect to its employees all federal and
state income taxes, FICA, FUTA and other Taxes required to be withheld.
(c) AutoCyte is not delinquent in any material respect in the
payment of any Tax nor is there any material Tax deficiency outstanding,
proposed or assessed against AutoCyte, nor has AutoCyte executed any waiver of
any statute of limitations on, or any consent extending, the period for the
assessment or collection of any Tax.
(d) No audit or other examination of any Return of AutoCyte is
currently in progress, nor has AutoCyte been notified of any request for such an
audit or other examination.
(e) AutoCyte did not have, as of March 31, 1999, any liabilities,
whether asserted or unasserted, contingent or otherwise, for unpaid federal,
state, local and foreign Taxes which have not been accrued or reserved against
in accordance with GAAP on the AutoCyte Interim Balance Sheet, and AutoCyte has
not incurred any such liabilities since such date except in the ordinary course
of business and consistent with past practices.
(f) There are (and as of immediately following the Effective Date
there will be) no Liens of a material nature on the assets of AutoCyte relating
to or attributable to Taxes, except for Liens for Taxes not yet due and payable
or that are being contested in good faith by appropriate proceedings.
(g) AutoCyte has not received written or oral notice of any claim
relating or attributable to Taxes that, if adversely determined, would result in
any Lien on the assets of AutoCyte.
23
31
(h) None of AutoCyte's assets are treated as "tax-exempt use
property" within the meaning of Section 168(h) of the Code.
(i) As of the Effective Time, there will not be any contract,
agreement, plan or arrangement, including but not limited to the provisions of
this Agreement, covering any employee or former employee of AutoCyte that,
individually or collectively, could give rise to the payment of any amount that
would not be deductible pursuant to Section 280G of the Code or the limitations
in Section 162(m) of the Code.
(j) AutoCyte has not filed any consent agreement under Section
341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any
disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the
Code) owned by AutoCyte.
(k) AutoCyte is not a party to any tax sharing or allocation
agreements, arrangements or practices nor does AutoCyte owe any amount under any
such agreement, arrangement or practice.
(l) AutoCyte is not nor has been at any time during the period
specified in Section 897(c)(1)(A)(ii) of the Code, a "United States real
property holding corporation" within the meaning of Section 897(c)(2) of the
Code.
(m) AutoCyte has not agreed to, nor is it required to, make any
adjustments under Section 481(c) of the Code by reason of a change in accounting
method or otherwise.
3.11 Compliance with Laws.
(a) Neither AutoCyte nor Merger Sub is in violation in any
material respect of any order, judgment, injunction, award or decree, or any
federal, state, local or foreign law, ordinance or regulation or any other
requirement of any governmental or regulatory body, court or arbitrator, and is
in compliance in all material respects with all of the foregoing that are
applicable to it, its business or its assets. Neither AutoCyte nor Merger Sub
has received notice of, and there has not been any citation, fine or penalty
imposed or asserted against any of them for, any such violation or alleged
violation that has not been favorably and fully resolved.
(b) Each of AutoCyte and Merger Sub holds all licenses, permits,
certificates, franchises, orders or approvals of any federal, state, local or
foreign governmental or regulatory body, that are material to the conduct of
AutoCyte's business and the uses of its assets necessary to operate its business
as presently conducted, other than those (i) which are ministerial in nature and
which AutoCyte has no reason to believe would not be issued in due course and
(ii) which, the failure of AutoCyte or Merger Sub to possess, would result in an
AutoCyte Material Adverse Effect (the "AutoCyte Permits"). The AutoCyte
Disclosure Schedule contains a true and complete list of all such AutoCyte
Permits as of the date hereof. Such AutoCyte Permits are in full force and
effect and the validity and effectiveness of such AutoCyte Permits will not be
affected by the transactions contemplated hereby. No violations are or have been
recorded with any governmental or regulatory body in respect of any AutoCyte
Permit, no proceeding is pending or, to the best knowledge of AutoCyte,
threatened to revoke or limit any AutoCyte Permit, and AutoCyte knows of no
grounds for any such revocation or limitation.
24
32
3.12 Consents; No Breach. All consents, permits, authorizations and
approvals from any person or entity that are required pursuant to applicable
law, or agreement or otherwise in connection with the execution, delivery and
performance of this Agreement by AutoCyte and Merger Sub are set forth in
Section 3.12 of the AutoCyte Disclosure Schedule, other than those which the
failure to obtain would reasonably be expected to have an AutoCyte Material
Adverse Effect. Subject to any prior approval requirements set forth in Section
3.12 of the AutoCyte Disclosure Schedule, the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not (i) violate any provision of the Certificate of
Incorporation or Bylaws of AutoCyte or Merger Sub; (ii) violate, conflict with
or result in the breach of any of the terms or conditions of, result in a
material modification of, or otherwise give any other contracting party the
right to terminate, or constitute (or with notice or lapse of time or both
constitute) a default under, any material instrument, contract or other
agreement to which AutoCyte or Merger Sub is a party or to which either of
AutoCyte or Merger Sub or any of its assets or properties is bound or subject;
(iii) violate any statute, law or regulation of any jurisdiction or any order,
judgment, injunction, award or decree of any court, arbitrator or governmental
or regulatory body applicable to or binding upon AutoCyte or Merger Sub or its
securities, properties, assets or business; (iv) violate any material AutoCyte
Permit; (v) require any filing with, notice to, or approval or consent of any
foreign, federal, state, local or other governmental or regulatory body or any
other person or entity; (vi) give rise to any obligation to make any material
payment; or (vii) result in the creation of any material lien or encumbrance on
the assets or properties of AutoCyte or Merger Sub, excluding from the foregoing
clauses (ii), (iii), (iv) and (v) any exceptions to the foregoing that, in the
aggregate, would not reasonably to expected to have an AutoCyte Material Adverse
Effect and the following: (w) the filing of the Merger Documents with the
Secretary of State of the State of Washington and the Secretary of State of the
State of Delaware, (x) filings with various state blue sky authorities, (y) the
filing with Nasdaq of an application for listing of the shares of AutoCyte
Common Stock to be issued in the Merger and (z) the filing with the SEC of (A)
the Proxy Statement (as defined in Section 4.9 below), (B) the Registration
Statement (as defined in Section 4.9 below) and (C) such reports under Section
13(a), 13(d), 15(d) or 16(a) of the Exchange Act as may be required in
connection with this Agreement and the transaction contemplated hereby and
thereby.
3.13 Actions and Proceedings. There are no outstanding orders,
judgments, injunctions, awards or decrees of any court, governmental or
regulatory body or arbitration tribunal against or involving AutoCyte or Merger
Sub or any of its securities, assets, or properties. There are no actions, suits
or claims or legal, judicial, administrative or arbitral proceedings or
investigations (whether or not the defense thereof or liabilities in respect
thereof are covered by insurance) pending or, to the best knowledge of AutoCyte,
threatened against or involving AutoCyte or Merger Sub or any of its securities,
assets or properties that if determined adverse to AutoCyte or Merger Sub would
have an AutoCyte Material Adverse Effect.
3.14 Contracts and Other Agreements. Section 3.14 of the AutoCyte
Disclosure Schedule sets forth a correct and complete list all of the following
currently effective contracts:
(a) written contracts and other agreements with or for the benefit
of any current or former officer, director, stockholder or employee of AutoCyte
involving more than $25,000 (provided, in the case of a loan by AutoCyte to any
such person, the AutoCyte
25
33
Disclosure Schedule shall list all such loan arrangements, whether or not in
writing, involving at least $1,000), and contracts and other agreements for the
payment of fees or other consideration to any entity in which AutoCyte has an
interest;
(b) contracts and other agreements with any labor union or
association representing any employee of AutoCyte or otherwise providing for any
form of collective bargaining;
(c) contracts and other agreements for the purchase or sale of
materials, supplies, equipment, merchandise or services that contain an
escalation, renegotiation or redetermination clause or that obligate AutoCyte to
purchase all or substantially all of its requirements of a particular product
from a supplier, or for periodic minimum purchases of a particular product from
a supplier;
(d) contracts and other agreements for the sale of any of the
assets or properties of AutoCyte other than in the ordinary course of business
or for the grant to any person of any options, rights of first refusal, or
preferential or similar rights to purchase any of such assets or properties;
(e) partnership or joint venture agreements;
(f) contracts with agents or foreign representatives regarding the
sales or marketing of AutoCyte's services or products;
(g) contracts or other agreements under which AutoCyte agrees to
act as surety or guarantor for or to indemnify any party (other than required
indemnification provisions in customer contracts) or to share the tax liability
of any party;
(h) contracts, options, outstanding purchase orders and other
agreements for the purchase of any material asset, tangible or intangible;
(i) contracts and other agreements with customers, suppliers or
other parties for the sharing of fees, the rebating of charges or other similar
arrangements other than such contracts entered into in the normal course of
business;
(j) contracts and other agreements containing obligations or
liabilities of any kind to holders of the securities of AutoCyte as such
(including, without limitation, an obligation to register any of such securities
under any federal or state securities laws) and contracts obligating AutoCyte to
issue or repurchase any AutoCyte securities;
(k) contracts and other agreements containing covenants of
AutoCyte not to compete in any line of business or with any person or entity or
covenants of any other person or entity not to compete with AutoCyte in any line
of business;
(l) contracts and other agreements relating to the acquisition by
AutoCyte of any operating business or the capital stock of any other person or
entity;
26
34
(m) contracts and other agreements requiring the payment to any
party of a brokerage or sales commission or a finder's or referral fee;
(n) contracts, indentures, mortgages, promissory notes, debentures
loan agreements, guaranties, security agreements, pledge agreements, and other
agreements and instruments relating to the borrowing or lending of money or
securing any such liability in an amount greater than $50,000;
(o) any agreement or series of related agreements requiring
aggregate payments by or to AutoCyte of more than $50,000;
(p) contracts under which AutoCyte will acquire or has acquired
ownership of, or license to, intangible property, including software other than
commercially available end-user licenses; and
(q) any other material contract or other agreement whether or not
made in the ordinary course of business, the absence of which would have an
AutoCyte Material Adverse Effect.
Merger Sub is not a party to any contract or agreement other than the
agreement contemplated hereby. There have been delivered or made available to
NeoPath true and complete copies of all of the contracts and other agreements
(and all amendments, waivers or other modifications thereto) set forth in
Section 3.14 of the AutoCyte Disclosure Schedule. All of such contracts and
other agreements are valid, subsisting, in full force and effect, binding upon
AutoCyte, and to the best knowledge of AutoCyte, binding upon the other parties
thereto in accordance with their terms. Other than defaults which would not,
either singly or in the aggregate, have an AutoCyte Material Adverse Effect,
AutoCyte is not in default under any of such scheduled contracts, nor, to the
best knowledge of AutoCyte, is any other party to any such contract or other
agreement in default thereunder, nor does any condition exist that constitutes
or with notice or lapse of time or both would constitute a default thereunder.
3.15 Real Property; Leases. Neither AutoCyte nor Merger Sub owns any
real property or any buildings or other structures and does not have any options
or any contractual obligations to purchase or acquire any interest in real
property. Section 3.15 of the AutoCyte Disclosure Schedule sets forth a correct
and complete list of all leases of real property to which AutoCyte or Merger Sub
is a party (collectively, the "AutoCyte Leases"). True and complete copies of
the AutoCyte Leases and all amendments, modifications and supplemental
agreements thereto have been delivered by AutoCyte to NeoPath. The AutoCyte
Leases are in full force and effect and, to the best knowledge of AutoCyte, are
binding and enforceable against each of the parties thereto in accordance with
their respective terms. To the best knowledge of AutoCyte, no party to any
AutoCyte Lease has given notice to any other party thereto claiming the
existence or occurrence of a breach or default thereunder and there has not
occurred any event or circumstances which constitutes, or with the passage of
time or the giving of notice or both would constitute, a breach or default
thereunder, other than defaults which would not, either singly or in the
aggregate, have an AutoCyte Material Adverse Effect.
27
35
3.16 Tangible Property. Each of AutoCyte and Merger Sub has good and
marketable title to, free and clear of all encumbrances, or otherwise has the
unrestricted right to use, each item of equipment, furniture, leasehold
improvements, fixtures, vehicles, structures, any related capitalized items and
other tangible property material to the business of AutoCyte ("AutoCyte Tangible
Property"). All such AutoCyte Tangible Property is in good and sufficient
operating condition and repair, ordinary wear and tear excepted, and, to the
best knowledge of AutoCyte, AutoCyte has not received notice that any of the
AutoCyte Tangible Property is in violation of any existing law or any building,
zoning, health, safety or other ordinance, code or regulation.
3.17 Intellectual Property.
(a) AutoCyte owns, or is licensed to use, or otherwise has the
right to use all patents, trademarks, service marks, trade names, trade secrets,
logos, franchises, and copyrights, and all applications for any of the
foregoing, and all technology, inventions, trade secrets, know-how, computer
software and processes that are material in the conduct of its business as now
conducted (collectively, the "AutoCyte Proprietary Rights"). AutoCyte has
previously delivered to NeoPath a list of all such patents and registered
copyrights and trademarks, and all applications therefor (the "AutoCyte
Registered Rights"). All of the AutoCyte Registered Rights owned by AutoCyte,
and to the best knowledge of AutoCyte, all AutoCyte Registered Rights licensed
to AutoCyte, have been registered in, filed in or issued by the United States
Patent and Trademark Office, the United States Register of Copyrights, or the
corresponding offices of other jurisdictions as identified in Section 3.17 of
the AutoCyte Disclosure Schedule, and have been properly maintained and renewed
in accordance with all applicable provisions of law and administrative
regulations in the United States and in each such other jurisdiction.
(b) To the best knowledge of AutoCyte, (i) the business of
AutoCyte as currently conducted does not infringe upon the proprietary rights of
others, nor has AutoCyte received any notice or claim from any third party of
such infringement by AutoCyte, (ii) there is not any material unlicensed
infringement by any third party on, or any issued competing claim of right to
use or own any of, the AutoCyte Proprietary Rights of AutoCyte and (iii) none of
the activities of the employees of AutoCyte on behalf of AutoCyte violates any
agreements or arrangements that any such employees have with former employers.
3.18 Title to Assets; Liens. AutoCyte owns outright, leases or rents,
and has good title to all of its material assets and properties, including,
without limitation, all of the assets and properties reflected on the AutoCyte
Interim Balance Sheet, free and clear of any encumbrance, except for (i) assets
and properties disposed of in the ordinary course of business and as disclosed
in the AutoCyte Disclosure Schedule, (ii) encumbrances securing the claims of
materialmen, carriers, landlords and like persons, all of which are not yet due
and payable, (iii) liens for taxes not yet due and payable or for taxes being
contested in good faith by appropriate proceedings or (iv) encumbrances
reflected on the AutoCyte Interim Balance Sheet.
3.19 Employee Benefit Plans. Section 4.19 of the AutoCyte Disclosure
Schedule sets forth a correct and complete list of all pension, profit sharing,
retirement, deferred compensation, welfare, insurance, disability, bonus,
vacation pay, severance pay and similar plans, programs or arrangements,
including without limitation all employee benefit plans as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") with respect
28
36
to which AutoCyte is the "Plan Sponsor" within the meaning of Section 3(16)(B)
of ERISA, or in which AutoCyte participates (the "AutoCyte Plans"). Each
AutoCyte Plan which is intended to be qualified under Section 401(a) or
501(c)(9) of the Internal Revenue Code of 1986, as amended (the "Code"), has
received a favorable determination letter from the Internal Revenue Service that
remains in effect. Each AutoCyte Plan has been maintained, operated, funded and
administered in all material respects in accordance with the terms of such
AutoCyte Plan and the provisions of any and all applicable statutes, orders or
governmental rules and regulations, including without limitation ERISA and the
Code. To the best knowledge of AutoCyte, nothing has occurred or failed to occur
with respect to any AutoCyte Plan which is intended to comply with Section
401(a) or 501(c)(9) of the Code that would adversely affect the qualified status
of such AutoCyte Plan or result in any material liability on the part of
AutoCyte including, without limitation, under Title I of ERISA or Section 4975
of the Code (other than changes in applicable law for which the remedial
amendment period has not yet expired). All material reports, returns, notices
and documents required to be filed with respect to all AutoCyte Plans, including
without limitation annual reports on Form 5500, have been timely filed, except
for any failures as could not reasonably be expected to result in a material
liability (either individually or in the aggregate) to AutoCyte. All
contributions required by law or the terms of any AutoCyte Plan have been made.
All claims for welfare benefits incurred by employees of AutoCyte on or before
the Closing are or will be fully covered by third-party insurance policies or
programs. Neither AutoCyte nor any of its ERISA Affiliates maintains or
contributes to, or has ever maintained or contributed to (or been obligated to
contribute to), any multiemployer plan as defined in Section 4001(a)(3) of
ERISA, any employee benefit plan that is subject to Section 412 of the Code or
Section 302 of ERISA or any employee benefit plan that is subject to Title IV of
ERISA. Neither AutoCyte nor any AutoCyte Plan provides or has any obligation to
provide (or contribute toward the cost of) health benefits with respect to any
current or former, officer, employee, agent, director or independent contractor
of AutoCyte or any other entity beyond such individual's retirement or other
termination of service, other than as required by applicable law, including
without limitation, Section 4980B(f) of the Code and Sections 601 through 608 of
ERISA. There are no actions, suits or claims (other than routine claims for
benefits) pending or, to the best knowledge of AutoCyte, threatened with respect
to (or against the assets of) any AutoCyte Plan, nor, to the best knowledge of
AutoCyte, is there a reasonable basis for any such action, suit or claim. No
AutoCyte Plan is currently under investigation, audit or review, directly or
indirectly, by the IRS, the DOL or any other governmental entity or agency, and,
to the best knowledge of AutoCyte, no such action is contemplated or under
consideration by the IRS, the DOL or any other governmental entity or agency.
Complete copies of the following documents with respect to each AutoCyte Plan
(as applicable) have been delivered to NeoPath: (i) each relevant AutoCyte Plan
document, as currently in effect, and subsequent amendment thereto; (ii) each
trust agreement, group annuity contract, insurance policy or contract, as
currently in effect; (iii) each Form 5500 series annual report with each
required schedule and attachment for each of the three (3) most recent plan
years; (iv) the most recent IRS determination letter; and (v) the most recent
summary plan description and each summary of material modification thereto. An
"ERISA Affiliate" of AutoCyte means any corporation, trade, business or other
entity (whether or not incorporated) that together with AutoCyte would have been
deemed a "single employer" within the meaning of Section 414(b), (c), (m) or (o)
of the Code at any time within the five-year period ending on the Closing Date.
29
37
3.20 Employee Relations. AutoCyte has approximately 83 full-time
equivalent employees and generally enjoys good employer-employee relations. None
of AutoCyte's employees are represented by any labor union. AutoCyte is not
delinquent in payments to any of its employees or consultants for any wages,
salaries, commissions, bonuses or other direct compensation for any services
performed by them to the date hereof or amounts required to be reimbursed to
such employees or consultants. AutoCyte will not by reason of the Merger or
anything done prior to the Closing be liable to any AutoCyte employees for
severance pay or any other payments (other than accrued salary, vacation or sick
pay in accordance with AutoCyte's normal policies) in the event any such
employees are terminated. Each employee of AutoCyte has executed AutoCyte's
standard form of Confidentiality and Assignment of Inventions Agreement. Correct
and complete information as to all current directors, officers, employees or
consultants of AutoCyte including, in each case, name, current job title and
annual rate of compensation has been provided by AutoCyte to NeoPath.
3.21 Relationships with Affiliates. Except as set forth in Section 3.21
of the AutoCyte Disclosure Schedule, to the best knowledge of AutoCyte, no
officer or director of AutoCyte has directly or indirectly any interest in (i)
any property or assets of AutoCyte (except as a stockholder of AutoCyte), (ii)
any competitor or customer of AutoCyte, (iii) any supplier or lender to AutoCyte
or (iv) any party to any material contract or agreement with AutoCyte.
3.22 Insurance. Section 3.22 of the AutoCyte Disclosure Schedule sets
forth a correct and complete list of all policies or binders of fire, liability,
product liability, workmen's compensation, vehicular, directors' and officers'
and other insurance held by or on behalf of AutoCyte specifying in each case the
type and scope of coverage, the amount of coverage, the premium, the insurer,
the expiration date and all claims made thereunder within the past three years.
Such policies and binders are in full force and effect, are reasonably believed
to be adequate for the businesses engaged in by AutoCyte, are in conformity with
the requirements of all leases or other agreements to which AutoCyte is a party
and are valid and enforceable in accordance with their terms. All premiums due
under such policies and binders have been paid, and AutoCyte is not in default
with respect to any provision contained in any such policy or binder nor has
AutoCyte failed to give any notice or present any claim under any such policy or
binder in due and timely fashion. There are no outstanding unpaid claims under
any such policy or binder. AutoCyte has not received notice of cancellation or
non-renewal of, or any material amendment to, or any material increase in
deductibles or premiums under, any such policy or binder. Correct and complete
copies of certificates of insurance with respect to all such policies and
binders have been provided by AutoCyte to NeoPath.
3.23 Brokerage. No broker, finder, agent or similar intermediary has
acted on behalf of AutoCyte or Merger Sub in connection with this Agreement or
the transactions contemplated hereby, and there are no brokerage commissions,
finders fees or similar fees or commissions payable in connection therewith
based on any agreement, arrangement or understanding with, or any action taken
by AutoCyte or Merger Sub.
3.24 Hazardous Materials. Neither AutoCyte nor Merger Sub has
generated, used or handled any Hazardous Materials (as defined below), nor has
AutoCyte or Merger Sub treated, stored or disposed of any Hazardous Materials at
any site owned or leased at any time by AutoCyte or Merger Sub or shipped any
Hazardous Materials for treatment, storage or disposal
30
38
at any other site or facility, except in compliance with all applicable laws. To
the knowledge of AutoCyte, no other person has generated, used, handled, stored
or disposed of any Hazardous Materials at any site owned or premises leased by
AutoCyte or Merger Sub at any time or at any site in which AutoCyte or Merger
Sub presently holds a mortgage or similar interest, nor has there been or is
there threatened any release of any Hazardous Materials on or at any such site
or premises. Neither AutoCyte nor Merger Sub presently operates or leases, nor
has either operated or leased, any site on which underground storage tanks are
or were located and which tanks are the responsibility of AutoCyte or Merger Sub
to operate. To the best knowledge of AutoCyte, without investigation, no lien
has been imposed by any governmental agency in connection with the presence of
any Hazardous Materials on any property, facility, machinery, or equipment
operated or leased by AutoCyte or Merger Sub or in which AutoCyte or Merger Sub
holds any mortgage, lien, or similar interest. For purposes of this Section
3.24, "Hazardous Materials" shall mean and include any "hazardous waste" as
defined in either the United States Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, or regulations adopted pursuant to said Act, and also any
"hazardous substances" or "hazardous materials" as defined in the United States
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601, but excludes ordinary and customary materials in quantities
reasonably required to be used by AutoCyte in the ordinary course of AutoCyte's
business.
3.25 Registration Statement; Proxy Statement. The information supplied
or to be supplied by AutoCyte specifically for inclusion or incorporation by
reference in (i) the Registration Statement (as defined in Section 4.9 below) to
be filed with the SEC by AutoCyte in connection with the issuance of AutoCyte
Common Stock in the Merger will not, at the time the Registration Statement
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) the Proxy
Statement (as defined in Section 4.9 below) will not, at the date it is first
mailed to the stockholders of AutoCyte and at the time of the special meeting of
stockholders of AutoCyte held pursuant to Section 4.11 hereof, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. The Proxy
Statement will comply as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations thereunder. Notwithstanding
this Section 3.25, no representation or warranty is made by AutoCyte with
respect to statements made or incorporated by reference therein based on
information supplied by NeoPath specifically for inclusion or incorporation by
reference in the Proxy Statement.
3.26 Opinion of Financial Adviser. AutoCyte has received the opinion of
Warburg Dillon Read LLC, dated the date of this Agreement, to the effect that,
as of such date, the Merger is fair from a financial point of view to the
holders of AutoCyte Common Stock (other than NeoPath and its affiliates), a
signed copy of which opinion has been or will promptly be delivered to NeoPath.
3.27 Accounting Matters. To the best knowledge of AutoCyte, neither
AutoCyte nor any of its affiliates has taken or agreed to take any action that
would prevent the business combination to be effected by the Merger to be
accounted for as a pooling of interests.
31
39
3.28 Full Disclosure. No representation, warranty or statement of
AutoCyte or Merger Sub made in this Agreement or in any Exhibit or the AutoCyte
Disclosure Schedule attached hereto or in any document, statement or certificate
furnished to NeoPath pursuant to this Agreement, when taken as a whole, contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements made, in light
of the circumstance under which they were made, not false or misleading.
SECTION 4 - COVENANTS AND AGREEMENTS
The parties covenant and agree as follows:
4.1 Conduct of NeoPath Business. Except with the prior written consent
of AutoCyte and except as otherwise contemplated herein or as set forth in the
NeoPath Disclosure Schedule, during the period from the date hereof to the
Closing Date, NeoPath shall observe the following covenants:
(a) Affirmative Covenants Pending Closing. NeoPath will:
(i) Preservation of Personnel. Use all reasonable efforts to
preserve intact their business organizations and keep available the services of
present employees, in each case in accordance with past practice, it being
understood that termination of employees with poor performance ratings shall not
constitute a violation of this covenant;
(ii) Insurance. Use all reasonable efforts to keep in effect
all insurance coverage that was in force as of March 31, 1999, including, but
not limited to (A) policies insuring loss or destruction of, or damage to,
property, (B) third party liability policies such as, but not limited to,
commercial general liability, automobile liability, employers liability, and
umbrella liability, (C) workers compensation insurance, (D) directors and
officers liability, (E) policies insuring employees for health, dental, life and
accident benefits on a group basis;
(iii) Preservation of the Business; Maintenance of Properties,
Contracts. Use all reasonable efforts to preserve their businesses, advertise,
promote and market their services, keep their properties intact, preserve their
goodwill and maintain all physical properties in good operating condition;
(iv) Intellectual Property Rights. Use all reasonable efforts
to preserve and protect the NeoPath Proprietary Rights; and
(v) Ordinary Course of Business. Operate their businesses
diligently and in the ordinary course.
(b) Negative Covenants Pending Closing. NeoPath will not:
(i) Disposition of Assets. Sell or transfer, or mortgage,
pledge or create or permit to be created any encumbrance on, any of their
assets, other than sales or transfers in the ordinary course of business and
liens existing under arrangements disclosed herein or permitted under Section
2.18;
32
40
(ii) Liabilities. (A) voluntarily incur any obligation or
liability other than in the ordinary course of their business (provided that
NeoPath may incur reasonable and appropriate expenses in connection with this
transaction), (B) incur any indebtedness for borrowed money or enter into any
contracts or commitments involving payments by NeoPath of $50,000 or more, other
than purchase orders or commitments for inventory materials and supplies in the
ordinary course of business;
(iii) Compensation. (A) change the compensation or fringe
benefits of any officer, director or employee, or (B) enter into or modify any
Plan or any employment, severance or other agreement with any officer, director
or employee of NeoPath other than changes required by law to maintain the
tax-qualified status of any Plan or as otherwise required by law;
(iv) Capital Stock. (A) Grant or accelerate the exercisability
of, any option, warrant or other right to purchase, or to convert any obligation
into, shares of its capital stock, (B) declare or pay any dividend or other
distribution with respect to any shares of its capital stock, (C) reclassify,
combine, split, subdivide or redeem, purchase or otherwise acquire, directly or
indirectly, any of its capital stock or (D) issue any shares of its capital
stock, except upon the exercise of options outstanding on the date hereof;
(v) Articles of Incorporation and Bylaws. Amend the Articles of
Incorporation or Bylaws of NeoPath;
(vi) Acquisitions. Acquire (including, without limitation, by
merger, consolidation, or acquisition of stock or assets) any corporation,
partnership, other business organization or any division thereof or acquire any
material amount of assets or property other than in the ordinary course of
NeoPath's business;
(vii) Material Agreements. Enter into or modify any material
agreement with any other person or entity (other than agreements in the ordinary
course of its business involving payments by NeoPath of less than $50,000); or
(viii) Other. Agree in writing or otherwise to take any of the
actions described in this Section 4.1(b).
4.2 Conduct of AutoCyte Business. Except with the prior written consent
of NeoPath and except as otherwise contemplated herein or as set forth in the
AutoCyte Disclosure Schedule, during the period from the date hereof to the
Closing Date, AutoCyte and Merger Sub shall observe the following covenants:
(a) Affirmative Covenants Pending Closing. Each of AutoCyte and
Merger Sub will:
(i) Preservation of Personnel. Use all reasonable efforts to
preserve intact their business organizations and keep available the services of
present employees, in each case in accordance with past practice, it being
understood that termination of employees with poor performance ratings shall not
constitute a violation of this covenant;
33
41
(ii) Insurance. Use all reasonable efforts to keep in effect
all insurance coverage that was in force as of March 31, 1999, including, but
not limited to (A) policies insuring loss or destruction of, or damage to,
property, (B) third party liability policies such as, but not limited to,
commercial general liability, automobile liability, employers liability, and
umbrella liability, (C) workers compensation insurance, (D) directors and
officers liability, (E) policies insuring employees for health, dental, life and
accident benefits on a group basis;
(iii) Preservation of the Business; Maintenance of Properties,
Contracts. Use all reasonable efforts to preserve their businesses, advertise,
promote and market their services, keep their properties intact, preserve their
goodwill and maintain all physical properties in good operating condition;
(iv) Intellectual Property Rights. Use all reasonable efforts
to preserve and protect the AutoCyte Proprietary Rights; and
(v) Ordinary Course of Business. Operate its business
diligently and in the ordinary course.
(b) Negative Covenants Pending Closing. Neither AutoCyte nor Merger
Sub will:
(i) Disposition of Assets. Sell or transfer, or mortgage,
pledge or create or permit to be created any encumbrance on, any of its assets,
other than sales or transfers in the ordinary course of business and liens
existing under arrangements disclosed herein or of the type permitted under
Section 3.18;
(ii) Liabilities. (A) voluntarily incur any obligation or
liability other than in the ordinary course of their business (provided that
AutoCyte may incur reasonable and appropriate expenses in connection with this
transaction), (B) incur any indebtedness for borrowed money or enter into any
contracts or commitments involving payments by AutoCyte of $50,000 or more,
other than purchase orders or commitments for inventory materials and supplies
in the ordinary course of business;
(iii) Compensation. (A) Change the compensation or fringe
benefits of any officer, director or employee, or (B) enter into or modify any
Plan or any employment, severance or other agreement with any officer, director
or employee of AutoCyte other than changes required by law to maintain the
tax-qualified status of any Plan or as otherwise required by law;
(iv) Capital Stock. (A) Grant or accelerate the exercisability
of, any option, warrant or other right to purchase, or to convert any obligation
into, shares of its capital stock, (B) declare or pay any dividend or other
distribution with respect to any shares of its capital stock, (C) reclassify,
combine, split, subdivide or redeem, purchase or otherwise acquire, directly or
indirectly, any of its capital stock or (D) issue any shares of its capital
stock, except (i) upon the exercise of options outstanding on the date hereof or
(ii) in connection with the consummation of the transaction contemplated by the
Asset Purchase Agreement dated as of March 25, 1999 (the "Asset Purchase
Agreement") between AutoCyte and Neuromedical Systems, Inc. ("NSI");
34
42
(v) Certification of Incorporation and ByLaws. Amend the
Certification of Incorporation or Bylaws of AutoCyte;
(vi) Acquisitions. Acquire (including, without limitation, by
merger, consolidation, or acquisition of stock or assets) any corporation,
partnership, other business organization or any division thereof or acquire any
material amount of assets or property other than (i) the acquisition of the
certain assets of NSI that are the subject of the Asset Purchase Agreement or
(ii) an acquisition (by stock or asset purchase, merger or otherwise) of Cell
Analysis Systems, Inc. or other acquisitions in the ordinary course of
AutoCyte's business;
(vii) Material Agreements. Enter into or modify any material
agreement with any other person or entity, other than in the ordinary course of
its business; or
(viii) Other. Agree in writing or otherwise to take any of the
actions described in this Section 4.2(b).
4.3 Nasdaq Listing. AutoCyte shall take such actions as may be
necessary to cause the shares of AutoCyte Common Stock to be issued hereunder to
be approved for quotation on the Nasdaq National Market.
4.4 Corporate Examinations and Investigations. Prior to the Effective
Time, each of AutoCyte and NeoPath shall be entitled, through its employees and
representatives, to have such access to the assets, properties, business, books,
records and operations of the other as AutoCyte or NeoPath, as the case may be,
shall reasonably request in connection with such party's investigation of the
other with respect to the transaction contemplated hereby. Any such
investigation or examination shall be conducted at reasonable times and the
party being investigated shall cooperate fully therein. For the purposes of this
Agreement, actual knowledge shall mean the conscious knowledge of the executive
officers of a party who have given substantive attention to this transaction. In
order that each of AutoCyte and NeoPath may have full opportunity to make such
investigation, the party being investigated shall furnish the representatives of
the other during such period with all such information and copies of such
documents concerning the affairs of the party being investigated as such
representatives may reasonably request and cause its officers, employees,
consultants, agents, accountants and attorneys to cooperate fully with such
representatives in connection with such investigation.
4.5 Agreement not to Entertain Other Offers.
(a) In consideration of the efforts and expenses undertaken by both
parties in pursuing the Merger and other valuable consideration, the receipt and
adequacy of which are acknowledged, AutoCyte and NeoPath agree that until the
Closing Date or until this Agreement is otherwise terminated pursuant to Section
8, neither AutoCyte nor NeoPath nor any of their authorized representatives
shall:
(i) directly or indirectly, solicit any proposal relating to
the acquisition by another party of all or any portion of the capital stock of
such company or substantially all of the assets of such company (whether by
merger or otherwise);
35
43
(ii) directly or indirectly, engage in any discussions or
negotiations with any other party regarding any such acquisition, or otherwise
encourage or facilitate any efforts by any other party to engage in such an
acquisition; or
(iii) sell, transfer or dispose of all or any portion of the
capital stock of such company or substantially all of the assets of such company
(whether by merger or otherwise);
including, without limitation, furnishing to any other person information with
respect to, any effort or attempt by any other person to do or to seek any such
transaction identified in any of the foregoing clauses (i) through (iii);
provided, however, that, notwithstanding the foregoing, each of AutoCyte and
NeoPath and its authorized representatives may participate in discussions or
negotiations with, provide information to, and consummate a transaction with, a
third party that would otherwise be prohibited by this section, if (A) such
discussions or negotiations had been commenced prior to the date hereof or if
commenced after the date hereof, were not solicited by or on behalf of such
company and (B) such discussions or negotiations were being continued or
initiated after the Board of Directors of such company determines in good faith
(after consultation with independent counsel, which may be the company's regular
outside counsel) that such action is necessary for such Board to comply with its
fiduciary duties to its stockholders under applicable law.
(b) AutoCyte and NeoPath each agree to inform the other orally and
in writing in reasonable detail (including without limitation the applicable
terms and conditions and identity of the other person) within one business day
of receipt of any offer, proposal or inquiry relating to any of the transactions
identified in Section 4.5(a) and of any modification thereof or any proposed
agreement and to promptly furnish to the other copies of any written
communications or documents received with respect to the foregoing.
4.6 Authorization from Others. Prior to the Closing Date, the parties
shall use all reasonable efforts to obtain all authorizations, consents and
permits required to permit the consummation of the transactions contemplated by
this Agreement, including without limitation all consents required from third
parties who have contractual relationships with NeoPath.
4.7 Consummation of Agreement. Each party shall use all reasonable
efforts to perform and fulfill all conditions and obligations to be performed
and fulfilled by it under this Agreement and to ensure that to the extent within
its control or capable of influence by it, no breach of any of the respective
representations, warranties and agreements hereunder occurs or exists on or
prior to the Effective Time, all to the end that the transactions contemplated
by this Agreement shall be fully carried out in a timely fashion. Without
limiting the generality of the foregoing, each party shall (i) use all
reasonable efforts to defend any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the consummation of
the transactions contemplated by this Agreement, including seeking to have any
stay or temporary restraining order entered by any court or other governmental
entity vacated or reversed and (ii) (A) use all reasonable efforts to ensure
that no state takeover statute or similar statute or regulation is or becomes
applicable to the Merger, this Agreement or any of the other transactions
contemplated by this Agreement and (B) if any state takeover statute or similar
statute or regulation becomes applicable to the Merger, this Agreement or any
other
36
44
transaction contemplated by this Agreement, use all reasonable efforts to
ensure that the Merger and the other transactions contemplated by this Agreement
may be consummated as promptly as practicable on the terms contemplated by this
Agreement and otherwise to minimize the effect of such statute or regulation on
the Merger and the other transactions contemplated by this Agreement.
4.8 Further Assurances. Each of the parties shall execute such
documents, further instruments of transfer and assignment and other papers and
take such further actions as may be reasonably required or desirable to carry
out the provisions hereof and the transactions contemplated hereby.
4.9 Joint Proxy Statement/Prospectus; Registration Statement. As soon
as practicable after the date of this Agreement, AutoCyte and NeoPath shall
jointly prepare and file with the SEC, subject to the prior approval of the
other party, which approval shall not be unreasonably withheld, preliminary
joint proxy materials relating to the special meetings of the stockholders of
NeoPath and AutoCyte held in accordance with Sections 4.10 and 4.11 hereof,
respectively, and as required by the Exchange Act, and a Registration Statement
on Form S-4 (as amended or supplemented, the "Registration Statement") relating
to the registration under the Securities Act of the shares of AutoCyte Common
Stock to be issued in the Merger. Each of AutoCyte and NeoPath shall use all
reasonable efforts to have the Registration Statement declared effective under
the Securities Act as promptly as practicable after such filing. AutoCyte shall
also use all reasonable efforts to qualify the shares of AutoCyte Common Stock
to be issued in the Merger under the securities or "blue sky" laws of every
state necessary to offer and issue the shares of AutoCyte Common Stock issuable
pursuant to Section 1.6(a) to the stockholders of NeoPath at the Closing, except
any such state with respect to which counsel for AutoCyte has determined that
such qualification is not required under the securities or "blue sky" laws of
such state, and except that in no event shall AutoCyte be obligated to qualify
as a foreign corporation or to execute a general consent to service of process
in any state in which it has not previously so qualified or has not previously
so consented. The joint proxy statement/prospectus included in the Registration
Statement at the time it initially is mailed to the stockholders of AutoCyte and
shareholders of NeoPath and all duly filed supplements, amendments or revisions
made thereto, if any, similarly mailed are hereinafter referred to as the "Proxy
Statement." No filing of, or amendment or supplement to, the Registration
Statement will be made by AutoCyte, or the Proxy Statement will be made by
NeoPath or AutoCyte, without providing the other party the opportunity to review
and comment thereon. If, at any time prior to the Effective Time, any event
relating to either AutoCyte or NeoPath or any of its affiliates, officers or
directors is discovered that is required to be set forth in an amendment to the
Registration Statement or filings under blue sky laws or a supplement to the
Proxy Statement, such party will promptly inform the other party, and such
amendment or supplement will be promptly filed with the SEC and appropriate
state securities administrators and disseminated to the stockholders of AutoCyte
and NeoPath, to the extent required by applicable federal and state securities
laws.
4.10 NeoPath Stockholder Meeting. NeoPath, acting through its Board of
Directors, shall, in accordance with applicable law and its Articles of
Incorporation and Bylaws:
(a) at a special meeting of stockholders of NeoPath and at any
adjournment thereof, submit to the stockholders a proposal to consider and act
on this Agreement to obtain
37
45
such approval required under the WBCA for the consummation of the transactions
contemplated hereby;
(b) include in the Proxy Statement to be delivered to the
stockholders of NeoPath soliciting their approval of the transactions
contemplated hereby the recommendation of its Board of Directors that the
stockholders vote in favor of the adoption of this Agreement; and
(c) use all reasonable efforts (i) to obtain and furnish the
information required to be included by it in the Proxy Statement, (ii) to cause
the Proxy Statement to be mailed to its stockholders at the earliest practicable
time after the effectiveness of the Registration Statement and (iii) to obtain
the necessary approvals by its stockholders of the transactions contemplated
hereby.
4.11 AutoCyte Stockholder Meeting. AutoCyte, acting through its Board
of Directors, shall, in accordance with applicable law and its Certificate of
Incorporation and Bylaws:
(a) at a special meeting of stockholders of AutoCyte and at any
adjournment thereof, submit to the stockholders a proposal to obtain such
approval required pursuant to the Nasdaq Market Rules;
(b) include in the Proxy Statement to be delivered to the
stockholders of AutoCyte soliciting their approval of this Agreement and the
transactions contemplated hereby the recommendation of its Board of Directors
that the stockholders vote in favor of such transactions; and
(c) use all reasonable efforts (i) to obtain and furnish the
information required to be included by it in the Proxy Statement, (ii) to cause
the Proxy Statement to be mailed to its stockholders at the earliest practicable
time after the effectiveness of the Registration Statement and (iii) to obtain
the necessary approvals by its stockholders of this Agreement, the Merger and
the transactions contemplated hereby.
4.12 Public Announcements and Confidentiality. Any press release or
other information to the press or any third party with respect to this Agreement
or the transactions contemplated hereby shall require the prior approval of
AutoCyte and NeoPath, which approval shall not be unreasonably withheld,
provided that a party shall not be prevented from making such disclosure as it
shall be advised by counsel is required by law or any listing agreement with a
national security exchange or the Nasdaq National Market. The parties
acknowledge that AutoCyte and NeoPath have previously executed a
Confidentiality/Non-Disclosure Agreement, dated April 29, 1999 (the
"Confidentiality Agreement"), which Confidentiality Agreement will continue in
full force and effect in accordance with its terms, except as is necessary to
comply with the terms of this Agreement.
4.13 NeoPath Affiliate Agreements. Set forth on Section 4.13 of the
NeoPath Disclosure Schedule is a list of those persons who, at the time of the
vote of NeoPath's stockholders on the Merger, NeoPath believes may be
"affiliates" of NeoPath within the meaning of Rule 145 under the Securities Act
or applicable SEC accounting releases with respect to "pooling of interests"
accounting treatment. NeoPath shall use all reasonable efforts to provide
AutoCyte with such information as AutoCyte shall reasonably request for purposes
of reviewing
38
46
such list. NeoPath shall use its best efforts to deliver or cause to be
delivered to AutoCyte promptly after the date hereof from each of the affiliates
listed in Section 4.13 of the NeoPath Disclosure Schedule an Affiliate Agreement
in substantially the form attached as Exhibit C hereto (the "NeoPath Affiliate
Agreement"), each of which will be in full force and effect as of the Effective
Time. AutoCyte will be entitled to place appropriate legends on the certificates
evidencing any AutoCyte Common Stock to be received by any such affiliate
pursuant to the terms of this Agreement, and to issue appropriate stop transfer
instructions to the transfer agent for the AutoCyte Common Stock, consistent
with the terms of the Affiliate Agreement.
4.14 AutoCyte Affiliate Agreements. Set forth on Section 4.14 of the
AutoCyte Disclosure Schedule is a list of those persons who, at the time of the
vote of AutoCyte's stockholders on the Merger, AutoCyte believes may be
"affiliates" of AutoCyte within the meaning of applicable SEC accounting
releases with respect to "pooling of interests" accounting treatment. AutoCyte
shall use all reasonable efforts to provide NeoPath with such information as
NeoPath shall reasonably request for purposes of reviewing such list. AutoCyte
shall use its best efforts to deliver or cause to be delivered to NeoPath
promptly after the date hereof from each of the affiliates listed in Section
4.14 of the AutoCyte Disclosure Schedule an Affiliate Agreement in substantially
the form attached as Exhibit D hereto (the "AutoCyte Affiliate Agreement"), each
of which will be in full force and effect as of the Effective Time.
4.15 AutoCyte SEC Filings. Until the Closing Date, AutoCyte shall
furnish NeoPath with a copy of each periodic or current report filed by AutoCyte
under the Exchange Act promptly after filing the same. All filings made by
AutoCyte after the date hereof pursuant to the Exchange Act will be made in a
timely fashion, will comply as to form in all material respects with the
applicable provisions of the Exchange Act and the rules and regulations
thereunder and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
4.16 NeoPath SEC Filings. Until the Closing Date, NeoPath shall furnish
AutoCyte with a copy of each periodic or current report filed by NeoPath under
the Exchange Act promptly after filing the same. All filings made by NeoPath
after the date hereof pursuant to the Exchange Act will be made in a timely
fashion, will comply as to form in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations thereunder and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading.
4.17 Stock Options; Employee Stock Purchase Plan.
(a) At the Effective Time, each outstanding option to purchase
shares of NeoPath Common Stock (each a "NeoPath Stock Option") under the NeoPath
Stock Option Plans, whether or not exercisable, will be assumed by AutoCyte.
Each NeoPath Stock Option so assumed by AutoCyte under this Agreement will
continue to have, and be subject to, the same terms and conditions set forth in
the applicable NeoPath Stock Option Plan immediately prior to the Effective Time
(including, without limitation, any repurchase rights), except that (i) each
NeoPath Stock Option will be exercisable (or will become exercisable in
accordance with its
39
47
terms) for that number of whole shares of AutoCyte Common Stock equal to the
product of the number of shares of NeoPath Common Stock that were issuable upon
exercise of such NeoPath Stock Option immediately prior to the Effective Time
multiplied by the Exchange Ratio, rounded down to the nearest whole number of
shares of AutoCyte Common Stock, and (ii) the per share exercise price for the
shares of AutoCyte Common Stock issuable upon exercise of such assumed NeoPath
Stock Option will be equal to the quotient determined by dividing the exercise
price per share of NeoPath Common Stock at which such NeoPath Stock Option was
exercisable immediately prior to the Effective Time by the Exchange Ratio,
rounded up to the nearest whole cent. After the Effective Time, AutoCyte will
issue to each holder of an outstanding NeoPath Stock Option a notice describing
the foregoing assumption of such NeoPath Stock Option by AutoCyte.
(b) It is the intention of the parties that NeoPath Stock Options
assumed by AutoCyte qualify following the Effective Time as incentive stock
options as defined in Section 422 of the Code to the extent NeoPath Stock
Options qualified as incentive stock options immediately prior to the Effective
Time; and that notwithstanding anything contained in Section 1.6(a)(ii) or
Section 4.17 hereof, or any other provision of this Agreement, the exercise
price, the number of shares purchasable and the terms and conditions applicable
to any NeoPath Stock Options shall be determined so as to comply with Sections
422 and 424 of the Code and the regulations promulgated thereunder.
(c) The Board of Directors of NeoPath shall, prior to or as of the
Effective Time, take appropriate action to approve the deemed cancellation of
the NeoPath Stock Options for purposes of Section 16(b) of the Exchange Act. The
Board of Directors of AutoCyte shall, prior to or as of the Effective Time, take
appropriate action to approve the deemed grant of options to purchase AutoCyte
Common Stock under the NeoPath Stock Options (as converted pursuant to this
Section 4.17) for purposes of Section 16(b) of the Exchange Act.
(d) AutoCyte will reserve sufficient shares of AutoCyte Common
Stock for issuance under Section 4.17(a) and under Section 1.6(a)(ii) hereof.
(e) NeoPath shall not commence any offering under its Employee
Stock Purchase Plan after the date hereof.
4.18 AutoCyte Form S-8. AutoCyte agrees to file a registration
statement on Form S-8 for the shares of AutoCyte Common Stock issuable with
respect to the assumed NeoPath Stock Options no later than three business days
after the Effective Time and shall keep such registration statement effective
for so long as any such NeoPath Stock Options remain outstanding.
4.19 FIRPTA. At or prior to the Closing, NeoPath, if requested by
AutoCyte and in a form specified by AutoCyte, shall deliver to the IRS a notice
that the NeoPath Common Stock is not a "U.S. Real Property Interest" as defined
and in accordance with the requirements of Treasury Regulation Section
1.897-2(h)(2).
4.20 Notification of Certain Matters. AutoCyte will give prompt notice
to NeoPath, and NeoPath will give prompt notice to AutoCyte, of the occurrence,
or failure to occur, of any
40
48
event, which occurrence or failure to occur would be reasonably likely to cause
(a) any representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date of this Agreement
to the Effective Time or (b) any material failure of AutoCyte or NeoPath, as the
case may be, or of any officer, director, employee or agent thereof, to comply
with or satisfy any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement. Notwithstanding the above, the delivery of
any notice pursuant to this section will not limit or otherwise affect the
remedies available hereunder to the party receiving such notice or the
conditions to such party's obligation to consummate the Merger.
4.21 Tax-Free Reorganization. AutoCyte and NeoPath will each use all
reasonable efforts to cause the Merger to be treated as a reorganization within
the meaning of Section 368 of the Code. AutoCyte and NeoPath will each make
available to the other party and their respective legal counsel copies of all
Returns reasonably requested by the other party. AutoCyte and NeoPath will make
such representations as reasonably requested by legal counsel for the purpose of
rendering the opinions contemplated by Section 5.7.
4.22 Indemnification. (a) From and after the Effective Time, AutoCyte
shall fulfill and honor in all respects the obligations of NeoPath to indemnify
each person who is or was a director or officer (an "Indemnified Party") of
NeoPath pursuant to any indemnification provisions of NeoPath's Articles of
Incorporation or Bylaws as each is in effect on the date hereof.
(b) For a period of six years after the Effective Time, AutoCyte shall
cause to be maintained in effect the current officers' and directors' liability
insurance maintained by NeoPath with respect to the Indemnified Parties
(provided that AutoCyte may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions which are no less
advantageous to the Indemnified parties than such existing insurance) covering
acts or omissions occurring prior to the Effective Time; provided, that AutoCyte
shall not be required in order to maintain or procure such coverage to pay an
annual premium in excess of the current annual premium paid by NeoPath for its
existing coverage or, alternatively, a single payment in excess of six times the
current annual premium paid by NeoPath for its existing coverage (the "Cap");
and provided, further, that if existing coverage cannot be maintained or
equivalent coverage cannot be obtained, or can be obtained only by paying an
annual premium in excess of the Cap, AutoCyte shall only be required to obtain
as much coverage as can be obtained by paying an annual premium equal to the
Cap. The current annual premium paid by NeoPath for its existing coverage is set
forth in Section 4.22(a) of the NeoPath Disclosure Schedule.
(c) This Section 4.22 shall survive the closing of all the transactions
contemplated hereby, is intended to benefit the Indemnified Parties and their
respective heirs and personal representatives to the extent that the provisions
of NeoPath's Articles of Incorporation or Bylaws and NeoPath's current officers'
and directors' liability insurance benefit such individuals (each of which shall
be entitled to enforce this Section 4.22 against AutoCyte as a third-party
beneficiary of this Agreement to such extent).
4.23 Pooling of Interests. Each of AutoCyte and NeoPath shall use all
reasonable efforts to cause the transaction contemplated by this Agreement,
including the Merger, to be
41
49
accounted for as a pooling of interests under Opinion 16 of the Accounting
Principles Board and applicable SEC rules and regulations, and AutoCyte's and
NeoPath's respective management's conclusion that such accounting treatment is
appropriate for the Merger to be concurred with by each of AutoCyte's and
NeoPath's auditors and by the SEC, respectively, and neither AutoCyte nor
NeoPath shall voluntarily take any action that would cause such accounting
treatment not to be obtained.
4.24 Letters of AutoCyte's and NeoPath's Accountants. (a) AutoCyte
shall use all reasonable efforts to cause its independent public accountants to
deliver to NeoPath a letter, dated a date within two business days before the
Closing Date, addressed to NeoPath, in form and substance reasonably
satisfactory to NeoPath and customary in scope and substance for comfort letters
delivered by independent public accountants in connection with registration
statements similar to the Registration Statement. AutoCyte shall also provide
reasonable cooperation to each of AutoCyte's and NeoPath's independent public
accountants to enable them to issue the letters referred to in Section 5.7.
(b) NeoPath shall use all reasonable efforts to cause its independent
public accountants to deliver to AutoCyte a letter, dated a date within two
business days before the Closing Date, addressed to AutoCyte, in form and
substance reasonably satisfactory to AutoCyte and customary in scope and
substance for comfort letters delivered by independent public accountants in
connection with registration statements similar to the Registration Statement.
NeoPath shall also provide reasonable cooperation to each of NeoPath's and
AutoCyte's independent public accountants to enable them to issue the letters
referred to in Section 5.7.
4.25 Employee Benefit Plans; Existing Agreement. (a) As soon as
practicable after the Effective Time (the "Benefits Date"), AutoCyte shall
provide, or cause to be provided, to each employee of NeoPath employee benefit
plans, programs and arrangements that are the same as those made generally
available to similarly situated non-represented employees of AutoCyte who are
hired by AutoCyte after December 31, 1998. From the Effective Time to the
Benefits Date (which the parties acknowledge may occur on different dates with
respect to different plans, programs or arrangements of NeoPath) (the
"Continuation Period"), AutoCyte shall provide, or cause to be provided, the
employee benefit plans, programs and arrangements of NeoPath provided to
employees of NeoPath as of the date hereof.
(b) With respect to each benefit plan, program practice, policy or
arrangement maintained by AutoCyte (the "AutoCyte Plans") in which employees of
NeoPath subsequently participate, for purposes of determining vesting and
entitlement to benefits, including for severance benefits and vacation
entitlement (but not for accrual of benefits), service with NeoPath (or
predecessor employers to the extent NeoPath provides past service credit) shall
be treated as service with AutoCyte; provided, that such service shall not be
recognized to the extent that such recognition would result in a duplication of
benefits. Such service also shall apply for purposes of satisfying any waiting
periods, evidence of insurability requirements, or the application of any
pre-existing condition limitations. Each AutoCyte Plan shall waive pre-existing
condition limitations to the same extent waived under the applicable NeoPath
benefit plan. NeoPath employees shall be given credit for amounts paid under a
corresponding benefit plan during the same period for purposes of applying
deductible, copayments and out-of-pocket
42
50
maximums as though such amounts had been paid in accordance with the terms and
conditions of the AutoCyte Plan.
SECTION 5 - CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF EACH PARTY TO CONSUMMATE THE MERGER
The respective obligations of each party to consummate the Merger shall
be subject to the satisfaction or waiver, at or before the Effective Time, of
each of the following conditions:
5.1 Stockholder Approvals. All required approvals of the stockholders
of NeoPath, AutoCyte and Merger Sub shall have been obtained.
5.2 Government Approvals. All authorizations, consents, orders,
declarations or approvals of, or filings with, any governmental or regulatory
authority, domestic or foreign, which the failure to obtain, make or occur would
have the effect of making the Merger or any of the transactions contemplated
hereby illegal or would have a Material Adverse Effect on AutoCyte or NeoPath,
assuming the Merger had taken place, shall have been obtained, made or occurred.
5.3 Absence of Restraints. No judgment, order, decree, statute, law,
ordinance, rule or regulation, entered, enacted, promulgated, enforced or issued
by any court or other governmental entity of competent jurisdiction or other
legal restraint or prohibition (collectively, "restraints") shall be in effect,
and there shall not be pending any suit, action or proceeding by any
governmental entity (i) preventing the consummation of the Merger or (ii) which
otherwise is reasonably likely to have a Material Adverse Effect on AutoCyte or
NeoPath, as applicable; provided, that each of the parties shall have used all
reasonable efforts to prevent the entry of any such restraints and to appeal as
promptly as possible any such restraints that may be entered.
5.4 Nasdaq Listing. The shares of AutoCyte Common Stock to be issued in
the Merger shall have been approved for quotation on the Nasdaq National Market.
5.5 Effectiveness of Registration Statement. The Registration Statement
shall have been declared effective by the SEC and there shall not be any stop
order in effect with respect to the Registration Statement.
5.6 Tax Opinions. AutoCyte and NeoPath each shall have received
substantially identical written opinions from their counsel, Xxxxxx & Dodge LLP
and Xxxxxxx & Coie LLP, respectively, in form and substance reasonably
satisfactory to them, to the effect that the Merger will constitute a
reorganization within the meaning of Section 368(a) of the Code; provided that
if the respective counsel to AutoCyte or NeoPath does not render such opinion,
this condition shall nonetheless be deemed satisfied with respect to such party
if counsel to the other party renders such opinion to such party.
5.7 Pooling Letters. Each of AutoCyte and NeoPath shall have received
letters, dated as of the Closing Date, in each case addressed to AutoCyte and
NeoPath, from Ernst & Young LLP stating in substance that pooling of interests
accounting is appropriate for the Merger under Opinion 16 of the Accounting
Principles Board and applicable SEC rules and regulations.
43
51
SECTION 6 - CONDITIONS PRECEDENT TO THE OBLIGATION
OF AUTOCYTE TO CONSUMMATE THE MERGER
The obligation of AutoCyte to consummate the Merger is subject to the
satisfaction or waiver by AutoCyte, at or before the Effective Time, of the
following conditions:
6.1 Representations, Warranties and Covenants. Each of the
representations and warranties of NeoPath contained in this Agreement to the
extent it is qualified by NeoPath Material Adverse Effect shall be true and
correct and each of the representations and warranties to the extent it is not
so qualified by NeoPath Material Adverse Effect shall be true and correct in all
material respects, in each case, on and as of the Effective Time with the same
force and effect as though made on and as of the Effective Time (with such
exceptions as may be permitted under or contemplated by this Agreement and
except to the extent that such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall be
as of such earlier date). NeoPath shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by them on or prior to the Effective Time.
AutoCyte shall have received from NeoPath a certificate, dated the Closing Date,
to the foregoing effect signed on behalf of NeoPath by the Chief Executive
Officer of NeoPath.
6.2 NeoPath Affiliate Agreements. Except as set forth thereon, each of
the individuals and entities listed on Section 4.13 of the NeoPath Disclosure
Schedule shall have entered into a NeoPath Affiliate Agreement in the form
attached hereto as Exhibit C, and such agreements are in full force and effect.
6.3 Voting Agreement. Each of the individuals and entities listed on
Section 4.13 of the NeoPath Disclosure Schedule shall have entered into a Voting
Agreement with AutoCyte in the form attached hereto as Exhibit A, and such
agreements shall be in full force and effect.
6.4 Opinion of Counsel to NeoPath. AutoCyte shall have received a legal
opinion from Xxxxxxx & Coie LLP, counsel to NeoPath, dated the Closing Date and
in form and substance reasonably acceptable to Xxxxxx & Dodge LLP, counsel to
AutoCyte, as to the matters set forth in Exhibit E hereto.
6.5 Merger Documents. NeoPath shall have executed and delivered the
Merger Documents referred to in Section 1.2.
6.6 Consents. NeoPath shall have received all necessary consents or
waivers from the other parties to each contract, lease or agreement to which
NeoPath is a party, except where the failure to receive such consent would not
reasonably be expected, individually or in the aggregate, to have a NeoPath
Material Adverse Effect.
6.7 Dissenting Shares. The Dissenting Shares shall not exceed five
percent (5%) of the shares of the NeoPath Common Stock issued and outstanding or
issuable on the Closing Date.
6.8 Certificates. NeoPath shall have furnished AutoCyte with such
documents and certificates as may be reasonably requested by AutoCyte.
44
52
SECTION 7 - CONDITIONS PRECEDENT TO THE OBLIGATION
OF NEOPATH TO CONSUMMATE THE MERGER
The obligation of NeoPath to consummate the Merger is subject to the
satisfaction or waiver by NeoPath, at or before the Effective Time, of the
following conditions:
7.1 Representations, Warranties and Covenants. Each of the
representations and warranties of AutoCyte and Merger Sub contained in this
Agreement to the extent it is qualified by AutoCyte Material Adverse Effect
shall be true and correct and each of the representations and warranties to the
extent it is not so qualified by AutoCyte Material Adverse Effect, shall be true
and correct in all material respects on and as of the Effective Time with the
same force and effect as though made on and as of the Effective Time (with such
exceptions as may be permitted under or contemplated by this Agreement and
except to the extent that such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall be
as of such earlier date). AutoCyte shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by it on or prior to the Effective Time.
NeoPath shall have received from AutoCyte a certificate, dated the Closing Date,
to the foregoing effect signed on behalf of AutoCyte by the Chief Executive
Officer of AutoCyte.
7.2 AutoCyte Affiliate Agreements. Except as set forth thereon, each of
the individuals and entities listed on Section 4.14 of the AutoCyte Disclosure
Schedule shall have entered into an AutoCyte Affiliate Agreement in the form
attached hereto as Exhibit D, and such agreements are in full force and effect.
7.3 Voting Agreement. Each of Xxxxxxx Xxxxxxx, Xxxxxx Xxxxx and Xxxxx
Xxxxxx shall have entered into a Voting Agreement with AutoCyte on behalf of
himself and all other entities of which such individuals exercise voting control
in the form attached hereto as Exhibit B, and such agreements shall be in full
force and effect.
7.4 Consents. AutoCyte shall have received all necessary consents or
waivers from the other parties to each contract, lease or agreement to which
AutoCyte is a party, except where the failure to receive such consent would not
reasonably be expected, individually or in the aggregate, to have an AutoCyte
Material Adverse Effect.
7.5 Opinion of Counsel to AutoCyte. NeoPath shall have received a legal
opinion from Xxxxxx & Dodge LLP, counsel to AutoCyte, dated the Closing Date and
in form and substance reasonably acceptable to Xxxxxxx & Coie LLP, counsel to
NeoPath, as to the matters set forth in Exhibit F hereto.
7.6 Certificates. AutoCyte shall have furnished NeoPath with such
documents and certificates as may be reasonably requested by NeoPath.
SECTION 8 - TERMINATION
8.1 Termination. This Agreement may be terminated at any time on or
prior to the Effective Time of the Merger, whether prior to or after approval by
NeoPath's stockholders or AutoCyte's stockholders, as follows:
45
53
(a) by AutoCyte or NeoPath if, without fault of the terminating
party, the Closing Date shall not have occurred on or before November 30, 1999,
which date may be extended by mutual consent of the parties;
(b) by AutoCyte upon written notice to NeoPath if any
representation or warranty made herein by NeoPath was not true and correct in
all material respects when made or NeoPath has materially breached any covenant
contained herein and has not cured such breach within ten (10) business days of
receipt of written notice from AutoCyte or by the Closing Date, whichever occurs
first;
(c) by NeoPath upon written notice to AutoCyte if any
representation or warranty of AutoCyte made herein was not true and correct in
all material respects when made or AutoCyte has materially breached any covenant
contained herein and has not cured such breach within ten (10) business days of
receipt of written notice from NeoPath or by the Closing Date, whichever occurs
first;
(d) by AutoCyte or NeoPath if any court of competent jurisdiction
or governmental body shall have issued an order, decree or ruling or taken any
other action restraining, enjoining or otherwise prohibiting the Merger and such
order, decree or ruling shall have become final and nonappealable;
(e) by AutoCyte or NeoPath if either the AutoCyte or NeoPath
stockholders vote and fail to approve the Merger as required by the DGCL or
WBCA, respectively;
(f) by AutoCyte if NeoPath's Board of Directors (i) fails to
include in the Proxy Statement its recommendation that NeoPath stockholders vote
in favor of the adoption of this Agreement or (ii) withdraws its recommendation
that stockholders vote in favor (other than in connection with exercising
NeoPath's rights to terminate this Agreement pursuant to subsection (c) or (d)
of this Section 9.1);
(g) by NeoPath if AutoCyte's Board of Directors (i) fails to
include in the Proxy Statement its recommendation that AutoCyte stockholders
vote in favor of the adoption of this Agreement or (ii) withdraws its
recommendation that stockholders vote in favor (other than in connection with
exercising AutoCyte rights to terminate this Agreement pursuant to Subsection
(b) or (d) of this Section 9.1);
(h) at any time with the written consent of AutoCyte and NeoPath
duly authorized by their respective Boards of Directors;
(i) by AutoCyte, if there shall have occurred any event or
condition that constitutes a NeoPath Material Adverse Effect since the date of
this Agreement, which condition or event shall not have been ameliorated such
that it is no longer a NeoPath Material Adverse Effect within ten (10) business
days following receipt by NeoPath of notice from AutoCyte;
(j) by NeoPath, if there shall have occurred any event or condition
that constitutes an AutoCyte Material Adverse Effect since the date of this
Agreement, which condition or event shall not have been ameliorated such that it
is no longer an AutoCyte Material
46
54
Adverse Effect within ten (10) business days following receipt by AutoCyte of
notice from NeoPath;
(k) by AutoCyte or NeoPath, in the event that it receives written
notice from either Ernst & Young LLP or the SEC that, in the opinion of the
entity giving such notice, the Merger will not qualify for pooling of interests
accounting treatment;
(l) by NeoPath, if the Board of Directors of NeoPath shall have,
pursuant to Section 4.5, recommended or resolved to recommend to the
shareholders of NeoPath a proposal for an Alternative Transaction (as defined in
Section 8.3(d)) under circumstances where the Board of Directors determines in
good faith (after consultation with legal counsel, which may be NeoPath's
regular outside counsel) that acceptance of such proposal is necessary for such
Board to comply with its fiduciary duties to its stockholders under applicable
law, but only after the third business day following AutoCyte's receipt of
written notice advising AutoCyte that such Board is prepared to accept a
proposal for an Alternative Transaction and identifying the terms of the
Alternative Transaction and the Person making the proposal for an Alternative
Transaction and NeoPath makes the payment required pursuant to Section 8.3 of
this Agreement; and
(m) by AutoCyte, if the Board of Directors of AutoCyte shall have,
pursuant to Section 4.5, recommended or resolved to recommend to the
shareholders of AutoCyte a proposal for an Alternative Transaction (as defined
in Section 8.3(d)) under circumstances where the Board of Directors determines
in good faith (after consultation with legal counsel, which may be AutoCyte's
regular outside counsel) that acceptance of such proposal is necessary for such
Board to comply with its fiduciary duties to its stockholders under applicable
law, but only after the third business day following NeoPath's receipt of
written notice advising NeoPath that such Board is prepared to accept a proposal
for an Alternative Transaction and identifying the terms of the Alternative
Transaction and the Person making the proposal for an Alternative Transaction
and AutoCyte makes the payment required pursuant to Section 8.3 of this
Agreement.
8.2 Notice of Termination; Effect of Termination. If this Agreement is
terminated as provided in Section 8.1, this Agreement shall forthwith become
void and have no effect, without further obligation on the part of any party,
its directors, officers or stockholders following the date of such termination
other than the provisions of this Section 8.2, Section 8.3 and Section 9
(Miscellaneous); provided, however, that nothing herein shall relieve any party
from liability for the willful and material breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement; provided further, however, that if either party has received the fee
contemplated by Section 8.3(b) or (c), the party receiving such fee shall not
assert or pursue in any manner, directly or indirectly, any claim or cause of
action against the party paying such fee or any of its officers or directors
based in whole or in part upon its or their receipt, consideration,
recommendation or approval of a proposal for a Alternative Transaction or the
exercise of the right of the party paying such fee to terminate this Agreement.
No termination of this Agreement shall affect the obligations of the parties
contained in the Confidentiality Agreement, all of which obligations shall
survive termination of this Agreement in accordance with their terms.
47
55
8.3 Fees and Expenses.
(a) Except as set forth in this Section 8.3, all fees and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses, whether or not the
Merger is consummated; provided, however, that AutoCyte and NeoPath shall share
equally all fees and expenses, other than attorneys' and accountants fees and
expenses, incurred in relation to the printing and filing of the Proxy Statement
(including any preliminary materials related thereto) and the Registration
Statement (including financial statements and exhibits) and any amendments or
supplements thereto. Notwithstanding the foregoing, in order to induce the other
party to enter into this Agreement and to reimburse the other party for its
costs and expenses and loss of other opportunities related to negotiating and
entering into this Agreement and investigating the desirability of and seeking
to consummate the transactions contemplated by this Agreement, AutoCyte and
NeoPath agree to make cash payments to each other in the circumstances, and in
the amounts, set forth in Sections 8.3(b) and (c).
(b) NeoPath shall pay AutoCyte a termination fee in an amount equal
to the sum of (x) two million eight hundred thousand dollars ($2,800,000) and
(y) all of AutoCyte's fees and expenses reasonably incurred in connection with
this Agreement and the transactions contemplated hereby, upon the earliest to
occur of the following events:
(i) the termination of this Agreement by NeoPath pursuant to
Section 8.1(l);
(ii) the termination of this Agreement by AutoCyte pursuant to
Section 8.1(e) (but only if the AutoCyte stockholders shall have approved the
Merger as required by the DGCL and the WBCA) as a result of the failure to
receive the requisite vote for approval of this Agreement and the Merger by the
stockholders of NeoPath at the NeoPath stockholders' meeting if, at the time of
such failure,
(A) there shall have been announced or commenced an
Alternative Transaction (as defined in Section 8.3(d)) and NeoPath shall have
either (x) executed an agreement to engage in the same or (y) the NeoPath Board
of Directors shall not have recommended against such Alternative Transaction
affirmatively or, if the NeoPath Board of Directors has recommended against such
Alternative Transaction, the NeoPath Board of Directors shall have withdrawn
such recommendation against such Alternative Transaction or modified such
recommendation in a manner adverse to AutoCyte, or
(B) there shall have been announced or commenced an
Alternative Transaction (as defined in Section 8.3(d)) and (x) NeoPath shall
have engaged in, or entered into an agreement to engage in, an Alternative
Transaction with such Third Party or any affiliate thereof within twelve months
after the date of the NeoPath stockholders' meeting or (y) the NeoPath Board of
Directors shall have recommended an Alternative Transaction with the Third Party
proposing such Alternative Transaction or any affiliate thereof within twelve
months after the date of the NeoPath stockholders' meeting; or
48
56
(iii) the termination of this Agreement by AutoCyte pursuant to
Section 8.1(f) if before such termination or within twelve months thereafter
NeoPath shall have entered into an agreement to engage in or shall have engaged
in an Alternative Transaction.
The expenses and fees, if applicable, payable pursuant to this Section 8.3(b)
shall be paid within five business days after the first to occur of the events
described in clauses (ii) or (iii) and prior to the exercise by NeoPath of its
rights as described in clause (i); provided that, (I) despite the foregoing
provision, if NeoPath is obligated to pay a termination fee to AutoCyte pursuant
to Section 8.3(b)(ii)(B) or 8.3(b)(iii), then the fees payable by NeoPath to
AutoCyte pursuant to Section 8.3(b)(ii) or 8.3(b)(iii) shall be paid within five
business days after the occurrence of the transaction or recommendation
occurring or continuing after the NeoPath stockholders' meeting which gives rise
to the rights to receive the termination fee and (II) in no event shall NeoPath
be required to pay any expenses or termination fees to AutoCyte if, immediately
prior to the termination of this Agreement, AutoCyte was in breach of any of its
material obligations under this Agreement.
(c) AutoCyte shall pay NeoPath a termination fee in an amount equal
to the sum of (x) two million eight hundred thousand dollars ($2,800,000) and
(y) all of NeoPath's fees and expenses reasonably incurred in connection with
this Agreement and the transactions contemplated hereby, upon the earliest to
occur of the following events:
(i) the termination of this Agreement by AutoCyte pursuant to
Section 8.1(m);
(ii) the termination of this Agreement by NeoPath pursuant to
Section 8.1(e) (but only if the NeoPath stockholders shall have approved the
Merger as required by the DGCL and the WBCA) as a result of the failure to
receive the requisite vote for approval of this Agreement and the Merger by the
stockholders of AutoCyte at the AutoCyte stockholders' meeting if, at the time
of such failure,
(A) there shall have been announced or commenced an
Alternative Transaction (as defined in Section 8.3(d)) and AutoCyte shall have
either (x) executed an agreement to engage in the same or (y) the AutoCyte Board
of Directors shall not have recommended against such Alternative Transaction
affirmatively or, if the AutoCyte Board of Directors has recommended against
such Alternative Transaction, the AutoCyte Board of Directors shall have
withdrawn such recommendation against such Alternative Transaction or modified
such recommendation in a manner adverse to NeoPath, or
(B) there shall have been announced or commenced an
Alternative Transaction (as defined in Section 8.3(d)) and (x) AutoCyte shall
have engaged in, or entered into an agreement to engage in, an Alternative
Transaction with such Third Party or any affiliate thereof within twelve months
after the date of the AutoCyte stockholders' meeting or (y) the AutoCyte Board
of Directors shall have recommended an Alternative Transaction with the Third
Party proposing such Alternative Transaction or any affiliate thereof within
twelve months after the date of the AutoCyte stockholders' meeting; or
49
57
(iii) the termination of this Agreement by NeoPath pursuant to
Section 8.1(g) if before such termination or within twelve months thereafter
AutoCyte shall have entered into an agreement to engage in or shall have engaged
in an Alternative Transaction.
The expenses and fees, if applicable, payable pursuant to this Section 8.3(c)
shall be paid within five business days after the first to occur of the events
described in clauses (ii) or (iii) and prior to the exercise by AutoCyte of its
rights as described in clause (i); provided that, (I) despite the foregoing
provision, if AutoCyte is obligated to pay a termination fee to NeoPath pursuant
to Section 8.3(b)(ii)(B) or 8.3(b)(iii), then the fees payable by AutoCyte to
NeoPath pursuant to Section 8.3(b)(ii) or 8.3(b)(iii) shall be paid within five
business days after the occurrence of the transaction or recommendation
occurring or continuing after the AutoCyte stockholders' meeting which gives
rise to the rights to receive the termination fee and (II) in no event shall
AutoCyte be required to pay any expenses or termination fees to NeoPath if,
immediately prior to the termination of this Agreement, NeoPath was in breach of
any of its material obligations under this Agreement.
(d) As used in this Agreement, "Alternative Transaction" means
either (i) a transaction pursuant to which any person (or group of persons)
other than AutoCyte or NeoPath, or either of their respective affiliates (a
"Third Party"), acquires more than 15% of the outstanding shares of AutoCyte
Common Stock or NeoPath Common Stock, as applicable, pursuant to a tender offer
or exchange offer of otherwise, (ii) a merger or other business combination
involving either AutoCyte or NeoPath, as applicable, pursuant to which any Third
Party acquires more than 15% of the outstanding equity securities of AutoCyte or
NeoPath, as applicable, or the entity surviving such merger or business
combination, (iii) any other transaction pursuant to which any Third Party
acquires control of assets of AutoCyte or NeoPath having a fair market value (as
determined by the Board of Directors of AutoCyte or NeoPath, as applicable, in
good faith) equal to more than 15% of the fair market value of all the assets of
AutoCyte or NeoPath, as applicable, immediately prior to such transaction
("Material Assets"), or (iv) any public announcement of a proposal, plan or
intention to do any of the foregoing or any agreement to engage in any of the
foregoing.
SECTION 9 - MISCELLANEOUS
9.1 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given when so delivered in
person, by overnight courier, by facsimile transmission (with receipt confirmed
by telephone or by automatic transmission report) or two business days after
being sent by registered or certified mail (postage prepaid, return receipt
requested), as follows:
(a) if to AutoCyte or Merger Sub, to:
AutoCyte, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
50
58
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) if to NeoPath, to:
NeoPath, Inc.
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Any party may by notice given in accordance with this Section 9.1 to the other
parties designate another address or person for receipt of notices hereunder.
9.2 Amendment. This Agreement may not be amended except by an
instrument signed by each party hereto.
9.3 Waiver. At any time prior to the Effective Time, any party hereto
may, (a) extend the time for the performance of any of the obligations or other
acts of any other party hereto or (b) waive compliance with any of the
agreements of any other party or any conditions to its own obligations, in each
case only to the extent such obligations, agreements and conditions are intended
for its benefit; provided that any such extension or waiver shall be binding
upon a party only if such extension or waiver is set forth in a writing executed
by such party.
9.4 Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the Merger and related transactions, and
supersedes all prior agreements, written or oral, with respect thereto, it being
understood that the Confidentiality Agreement shall continue in full force and
effect until the Closing and shall survive any termination of this Agreement.
51
59
9.5 Governing Law. This Agreement is governed by the laws of the State
of Delaware without regard to its conflict of law provisions.
9.6 Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns.
9.7 Variations in Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
9.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
9.9 Exhibits and Disclosure Schedules. The Exhibits and Disclosure
Schedules are a part of this Agreement as if fully set forth herein.
52
60
IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date first stated above.
AUTOCYTE, INC.
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
NEOPATH, INC.
By /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman
TRILOGY ACQUISITION
CORPORATION
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
53
