EXHIBIT 10.5
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made this ___ day of
July, 2004 (the "CLOSING DATE"), by and among BIOTEL INC., a Minnesota
corporation ("BIOTEL"), ACRS Acquisition Company, a Minnesota corporation (the
"BUYER"), Xxxxxx Xxxxxx, an individual residing in Minnesota (the "SELLER'S
OWNER"), and agility centralized research services, llc, a Minnesota limited
liability company (the "SELLER"). Biotel, the Buyer, the Seller's Owner and the
Seller are referred to individually as a "PARTY" and collectively as the
"PARTIES."
RECITALS
A. The Seller desires to sell, transfer and otherwise convey, and the Buyer
desires to purchase certain of the assets used by the Seller in the operation of
its contract research services business (the "BUSINESS"), and assume certain of
the liabilities of the Seller on the terms and subject to the conditions of this
Agreement.
B. Unless otherwise set forth herein, the transactions memorialized by this
Agreement will be deemed to have occurred at 12:01 a.m. on July 1, 2004 (the
"EFFECTIVE DATE").
AGREEMENT
In consideration of the above recitals and the promises set forth in this
Agreement, the Parties agree as follows:
1. BASIC TRANSACTION.
1.1 PURCHASE AND SALE OF ASSETS. On the terms and subject to the
conditions of this Agreement, the Buyer agrees to purchase from
the Seller, and the Seller agrees to sell, transfer, convey and
deliver to the Buyer, all right, title and interest in, to and
under all of the assets of the Seller (other than the Excluded
Assets (as defined herein)) free and clear of all security
interests, liens, claims, charges, restrictions and encumbrances
of any nature (the "ACQUIRED ASSETS"), in exchange for the
Purchase Price (as defined herein), including all of its:
(a) leasehold interest in office space located in Illinois,
together with improvements, fixtures and other appurtenants
related thereto, as set forth in SCHEDULE 1.1(A) (the
"OFFICE LEASE");
(b) tangible personal property, including software, furniture
and office equipment, field equipment and computers,
wherever located, including the personal property identified
on SCHEDULE 1.1(B) to this Agreement;
(c) intellectual property, associated goodwill, licenses and
sublicenses, remedies against infringements, and rights to
protection of interests under any Law, including all rights
to the "Agility Centralized Research Services" and "Agility"
names and logos;
(d) the contracts and agreements set forth on SCHEDULE 1.1(D)
(the "ASSUMED CONTRACTS");
(e) the Seller's accounts receivable arising on or after the
Effective Date;
(f) claims, deposits, prepayments, refunds, causes of action,
rights of recovery, rights of set off and rights of
recoupment;
(g) the current telephone numbers, e-mail addresses, uniform
resource locators, domain names and web sites of the Seller
and the listings for each;
(h) any governmental permits or licenses necessary to conduct
the Business, to the extent transferable;
(i) books, records, ledgers, files, documents, correspondence,
lists, creative materials, advertising and promotional
materials, studies, reports and other printed or written
materials; and
(j) the Seller's goodwill in and the going concern value of the
Business.
The Buyer is not purchasing any of the Seller's cash or accounts
receivable arising on or prior to the Effective Date (collectively,
the "EXCLUDED ASSETS").
1.2 ASSUMPTION OF LIABILITIES. On the terms and subject to the
conditions of this Agreement, the Buyer will assume the following
liabilities that arise on or after the Effective Date: (a) all of
the liabilities of the Seller under the Assumed Contracts either
(i) to furnish goods, services and other non-cash benefits to
another party after the Closing or (ii) to pay for goods,
services and other non-cash benefits that another party has or
will furnish on behalf of the Business; (b) the Seller's accounts
payable set forth on SCHEDULE 1.2; and (c) the Office Lease
(collectively, the "ASSUMED LIABILITIES"). Biotel will guaranty
the Buyer's performance under the Assumed Liabilities. Except for
the Assumed Liabilities, the Buyer does not assume and is not
otherwise obligated or liable for any of the Seller's other
obligations, claims, indebtedness or liabilities (the "EXCLUDED
LIABILITIES"). The Seller is solely responsible for the Excluded
Liabilities.
1.3 PURCHASE PRICE. The "PURCHASE PRICE" for the Acquired Assets
shall be (a) $240,000, such amount to be paid at the Closing (as
defined herein) by Company check (the "CASH PURCHASE PRICE"),
plus (b) the Contract Revenue Adjustment, if any, plus (c) the
Invoice Revenues Adjustment, if any plus (d) the Net Earnings
Adjustment, if any. The Parties agree to allocate the Purchase
Price and all other
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capitalizable costs among the Acquired Assets for all purposes,
including financial and tax purposes, in accordance with SCHEDULE
1.3 to this Agreement.
1.4 PURCHASE PRICE ADJUSTMENTS.
(a) The "CONTRACT REVENUE ADJUSTMENT" -
(i) $30,000 payable by company check at the time that the
Assumed contracts plus any agreements the Buyer enters
into on or after the Effective Date representing
revenues to the Buyer equal to $300,000; plus
(ii) $30,000 payable by company check within 30 days
following the time the Buyer enters into agreements
representing revenues to the Buyer equal to or greater
than an additional $300,000 of revenue, I.E., contracts
that together with those described in clause 1.4(a)
equal or exceed $600,000.
(b) The "INVOICE REVENUES ADJUSTMENT" -
(i) $50,000 payable by Company check within 90 days
following the date that accounts receivable for the
Business that arises on or after the Effective Date
equal $500,000; plus
(ii) $50,000 payable by Company check within 90 days
following the date that accounts receivable for the
Business that arise on or after Effective Date equal an
additional $500,000, I.E., accounts receivable that
together with those described in clause 1.4(b)(i) equal
$1,000,000; plus
(iii) $50,000 payable by Company check within 90 days
following the date accounts receivable for the Business
that arise on or after the Effective Date equal or
exceed an additional $500,000, I.E., accounts
receivable that together with those described in
clauses 1.4(b)(i) and 1.4(b)(ii) equal or exceed
$1,500,000.
(c) The "NET EARNINGS ADJUSTMENT" - $50,000 by Company check
payable within 90 days of the date the Business' net
earnings exceed $100,000 since the Effective Date (such
earnings to be measured in compliance with generally
accepted accounting principles ("GAAP"), after taking into
account the payments made under Sections 1.4(a) and 1.4(b)
above.
(d) The Buyer will act reasonably and in good faith, but will
have sole discretion in operating the Business following the
Effective Date and will have the exclusive right to
establish the prices and discounts, payment terms and all
other terms and conditions of all sales of its products or
services, regardless of how its decisions affect the
calculation of the Contract Revenue Adjustment, the Invoice
Revenue Adjustment and the
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Net Earnings Adjustment. The Buyer will have no obligation
to promote, operate, manage, finance or sustain in any way
its business at any time after the Effective Date and may,
in its sole discretion, dismantle, cease to operate, sell,
liquidate or otherwise dispose of any of its assets.
(e) Biotel will guarantee payment of the Contract Revenue
Adjustment, Invoice Revenue Adjustment and Net Earnings
Adjustment, if any, payable by Buyer under this Agreement.
1.5 PRORATION OF UTILITIES AND ALLOCATION OF SPECIFIC COSTS. The Seller
and the Buyer agree to the following prorations and allocation of
costs in connection with this Agreement and the transactions
contemplated hereby:
(a) All of the utilities, rent, telephone charges, ad valorem taxes
assessed against the Acquired Assets, and other expense items,
shall be allocated between the Seller and the Buyer based upon
the Effective Date, such that the Seller shall pay that portion
for the period of time up to the Effective Date, and the Buyer
shall pay that portion for the period beginning on and after the
Effective Date. The Parties shall cooperate in good faith to
finalize such allocations within 15 days after the Closing Date.
Any amounts owing shall be paid by delivery of a check by the
Party owing such amount to the other Party within five business
days of the finalization of such allocation.
(b) Sales taxes, registration taxes or other transfer taxes, or
conveyance fees, if any, imposed as a result of the transaction
contemplated by this Agreement shall be paid by the Seller, and
Seller will, at its own expense, file all necessary tax returns
and other documentation with respect to all such taxes and fees.
1.6 THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") will take place at the offices of Biotel on
July 30, 2004, at 11:30 a.m., or at such other date, time and place as
mutually agreed to by the Parties (the "CLOSING DATE").
1.7 BUYER'S DELIVERIES AT THE CLOSING. The Buyer will make the following
deliveries at the Closing, duly executed and properly acknowledged, as
appropriate:
(a) the Cash Purchase Price by Company check;
(b) xxxx of sale, assignment and assumption agreement, in form and
substance reasonably satisfactory to the Buyer and the Seller;
(c) confidentiality, assignment of inventions and non-compete
agreement between Buyer and the Seller's Owner in the form
attached hereto as Exhibit 1.7(c) (the "EMPLOYMENT Agreement");
and
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(d) such certificates, instruments and documents that the Seller and
its counsel may reasonably request.
1.8 SELLER'S DELIVERIES AT THE CLOSING. The Seller will make the following
deliveries at the Closing, duly executed and properly acknowledged, as
appropriate:
(a) the Acquired Assets;
(b) xxxx of sale, assignment and assumption agreement, in form and
substance reasonably satisfactory to the Buyer and the Seller;
(c) the Employment Agreement;
(d) UCC-3 releases or similar termination statements with respect to
all security interests filed against the Acquired Assets;
(e) evidence satisfactory to the Buyer that the Seller has paid at or
prior to the Closing all of the Excluded Liabilities (or shall
have made arrangements satisfactory to the Buyer to pay the
Excluded Liabilities after the Closing);
(f) all necessary third party consents, authorizations and approvals;
and
(g) such certificates, instruments and documents that the Buyer and
its counsel may reasonably request.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE SELLER'S OWNER. The
Seller and the Seller's Owner, jointly and severally, represent and warrant
to the Buyer that the statements contained in this Section 2 are correct
and complete as of the date of this Agreement, except as set forth in the
attached disclosure schedule accompanying this Agreement (the "SELLER'S
DISCLOSURE SCHEDULE"). The Seller's Disclosure Schedule will be arranged in
paragraphs corresponding to the numbered subsections contained in this
Section 2.
2.1 ORGANIZATION, QUALIFICATION AND POWER. The Seller is a limited
liability company duly organized, validly existing, duly authorized to
conduct business and in good standing under the laws of the
jurisdiction of its organization and of each jurisdiction where
qualification is required. The Seller has full power and authority and
all permits and licenses necessary to carry on the Business and to own
and use the properties owned and used by the Seller. The Seller has no
subsidiaries or does not otherwise control, own directly or
indirectly, or have any equity participation directly or indirectly in
any entity.
2.2 AUTHORIZATION OF TRANSACTION. The Seller has full power and authority
to enter into and perform its obligations under this Agreement. In
addition, the execution and performance of this Agreement and the
ancillary documents to which the Seller or the Seller's Owner is a
party have been duly authorized. This Agreement and the ancillary
agreements to which the Seller or the Seller's Owner is a party
constitute the valid and legally binding obligations of the Seller and
the
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Seller's Owner, as applicable, and are enforceable in accordance with
their respective terms and conditions.
2.3 NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement or the ancillary documents to which the Seller or the
Seller's Owner is a party, nor the consummation of the contemplated
transactions will: (a) violate any law, order or regulation to which
the Seller or the Seller's Owner is subject; (b) violate any provision
of the articles, member control agreement or bylaws of the Seller or
the Seller's Owner; or (c) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify or cancel, or
require any notice under any agreement, contract, lease, license,
instrument or other arrangement to which the Seller or Seller's Owner
is a party or is bound or to which the Acquired Assets are subject. No
consent approval, authorization or order of any court, governmental
agency or third party is required for the Seller or the Seller's Owner
to consummate the transactions contemplated by this Agreement.
2.4 BROKER FEES. Neither the Seller nor the Seller's Owner has any
liability or obligation to pay any fees or commissions to any broker,
finder or agent with respect to the transactions contemplated by this
Agreement for which the Buyer could become liable or obligated.
2.5 TITLE TO ASSETS; SUFFICIENCY OF ASSETS. The Acquired Assets are free
and clear of all security interests, liens, encumbrances of any
nature, infringements, licenses, liens or claims of third parties. The
Seller has good and marketable title to the Acquired Assets. The
Acquired Assets constitute all of the assets used in or necessary for
the operation of the Business.
2.6 FINANCIAL STATEMENTS. Attached to Section 2.6 of the Seller's
Disclosure Schedule are the Seller's financial statements for the year
ended December 31, 2003 and for the six-month period ended June 30,
2004 (the "FINANCIAL STATEMENTS"). The Financial Statements are true,
complete and correct. The Financial Statements have been prepared in
accordance with GAAP applied on a consistent basis throughout the
periods covered. The Financial Statements accurately present the
financial condition, assets and liabilities of the Seller. Since June
30, 2004, there has been no material adverse change in the Business,
or the financial condition, operations, results of operations or
future prospects of the Business. The Seller has no obligations or
liabilities of any kind that would have a material adverse effect upon
the Acquired Assets or to which the Acquired Assets are subject.
2.7 LEGAL COMPLIANCE; LITIGATION. The Seller has complied with all
applicable laws, including without limitation all laws relating to
employment laws and environmental health and safety laws. No action,
suit, proceeding, hearing, investigation, charge, complaint, claim,
demand or notice has been filed, commenced, is pending or, to the
knowledge of the Seller's Owner, alleged against the Seller. The
Seller is not operating under or subject to, or in default
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with respect to, any order, writ, injunction or decree of any court or
governmental agency. There is no agreement, order, regulation or law
binding upon the Seller or the Business, as opposed to the application
of such to those operating in the business industry generally, that
has or could reasonably be expected to have the effect of prohibiting
or impairing the Business.
2.8 TAX MATTERS. The Seller has filed all material tax returns that its
was required to file. All such tax returns were correct and complete
in all material respects. The Seller has paid all federal, state,
local or foreign taxes owed by the Seller, whether or not disputed.
2.9 CONTRACTS AND GUARANTIES. The Seller has no contracts, whether written
or oral, to the Seller is a party or by which it is bound relating to
the Business or the Acquired Assets other than the Acquired Contracts.
Each of the Acquired Contracts is a valid and binding obligation of
the Seller, is currently in full force and effect, no amounts are
owing under any of them, and the Seller has not transferred or
assigned any of its interest thereunder. The Seller is not a guarantor
or otherwise is responsible for any liability or obligation (including
indebtedness) of any other person or entity relating to the Business.
2.10 EMPLOYEE BENEFITS AND MATTERS. The Seller is not and has not been in
violation in form and in operation of any provision of the Employee
Retirement Income Security Act of 1974, as amended, or any other law
or regulation relating to any employee benefit plan. All the accrued
obligations of the Seller, whether arising by operation of law, by
contract or by past custom, for payments by it to trust or other funds
or any governmental agency with respect to unemployment compensation
benefits, employee benefit plans, social security benefits or any
other benefits for employees of the Seller have been paid prior to
Closing. No organizational effort is presently being made or
threatened by or on behalf of any labor union with respect to
employees of the Seller. Except for the Seller's Owner, no employee of
the Seller is a party to or bound by any agreement with LifeWatch, a
division of Card Guard ("LIFEWATCH"). Seller's Owner is in material
compliance with his employment agreement with LifeWatch.
2.11 PRODUCT LIABILITY. The Seller has no liability (and there is no basis
for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim or demand against any of them
giving rise to any liability) arising out of any injury to individuals
or property as a result of the ownership, possession or use of any
product or service sold, leased or delivered by the Business.
2.12 BUSINESS RELATIONSHIPS. Neither the Seller nor the Seller's Owner is
aware of any facts which indicate that any material or significant
customers, vendors or suppliers of the Business intend to cease doing
business with the Business (or intend to stop doing business with the
Buyer after the Effective Date).
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2.13 OTHER INFORMATION. The information concerning the Seller or the
Business set forth in this Agreement and the schedules and exhibits
attached to this Agreement and any statement or certificate of the
Seller furnished or to be furnished to the Buyer pursuant to this
Agreement, does not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
herein or therein or necessary to make the statements and facts
contained herein or therein, in light of the circumstances in which
they are made, not false or misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
warrants to the Seller that the statements contained in this Section 3 are
correct and complete as of the date of this Agreement, except as set forth
in the disclosure schedule of the Buyer accompanying this Agreement (the
"BUYER'S DISCLOSURE SCHEDULE"). The Buyer's Disclosure Schedule will be
arranged in paragraphs corresponding to the numbered subsections contained
in this Section 3.
3.1 ORGANIZATION, QUALIFICATION AND POWER. The Buyer is a corporation,
duly organized, validly existing and in good standing under laws of
the jurisdiction of its incorporation.
3.2 AUTHORIZATION OF TRANSACTION. The Buyer has full power and authority,
corporate or otherwise, to enter into and perform its obligations
under this Agreement. The Buyer has duly authorized the execution and
performance of this Agreement and the ancillary documents to which the
Buyer is a party. This Agreement and the ancillary documents to which
the Buyer is a party constitute the valid and legally binding
obligations of the Buyer, enforceable in accordance with their
respective terms and conditions.
3.3 NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement or the ancillary documents to which the Buyer is a party,
nor the consummation of the contemplated transactions will: (a)
violate any law, order or regulation to which the Buyer is subject or
(b) violate any provision of the articles or bylaws of the Buyer. No
consent approval, authorization or order of any court, governmental
agency or third party is required for the Buyer to consummate the
transactions contemplated by this Agreement.
3.4 BROKER FEES. The Buyer does not have any liability or obligation to
pay any fees or commissions to any broker, finder or agent with
respect to the transactions contemplated by this Agreement for which
the Seller could become liable or obligated.
4. POST-CLOSING COVENANTS.
4.1 FURTHER ASSURANCES. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this
Agreement and its contemplated transactions, each of the Parties will
take such further action (including the execution and delivery of
further instruments and documents) as
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any other Party reasonably may request, all at the sole cost and
expense of the requesting Party (unless the requesting Party is
entitled to indemnification under Section 5).
4.2 LITIGATION SUPPORT. If any Party is contesting or defending an action,
suit, proceeding, hearing, investigation, charge complaint or demand
in connection with any transaction contemplated under this Agreement,
each of the other Parties will cooperate with the contesting or
defending Party, including providing testimony and access to books or
records, all at the sole cost of the defending or contesting Party
(unless the defending or contesting Party is entitled to
indemnification under Section 5).
4.3 TRANSITION. None of the Seller, the Seller's Owner or their affiliates
will take any action that is designed or intended to have the effect
of discouraging any lessor, licensor, customer, supplier or other
business associate of the Business from maintaining the same business
relationships with the Buyer after the Effective Date as it maintained
with the Business prior to the Effective Date. The Seller and Seller's
Owner will refer all customer inquiries relating to the Business to
the Buyer from and after the Effective Date.
4.4 CONFIDENTIALITY. Any information concerning the Business that is not
already generally available to the public is considered to be
confidential information. The Seller's Owner, the Seller and their
affiliates will treat and hold as such all of such confidential
information and refrain from using any of such confidential
information except in connection with this Agreement and the
transactions contemplated by this Agreement or with the prior written
consent of the Buyer. The obligations under this Section 4.4 are in
addition to and not in derogation of any other confidentiality
obligations of the Seller and the Seller's Owner to the Buyer, whether
by contract, law or otherwise.
5. REMEDIES FOR BREACHES OF THIS AGREEMENT.
5.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. Notwithstanding
any investigation made by or on behalf of any of the Parties or the
results of any investigation, and notwithstanding the participation of
Party in the Closing, all of the representations and warranties of the
Buyer, the Seller and the Seller's Owner contained in this Agreement
will survive the Closing (even if the damaged Party knew or had reason
to know of any misrepresentation or breach of warranty at the time of
the Closing) and continue in full force and effect forever (subject to
any applicable statutes of limitations). The covenants set forth in
this Agreement will survive indefinitely, unless a shorter period of
survival is specifically set forth in this Agreement.
5.2 INDEMNIFICATION FOR THE BENEFIT OF THE BUYER. Both the Seller and the
Seller's Owner, joint and severally, agree to indemnify the Buyer and
its officers, directors, employees, stockholders, agents and
affiliates (the "BUYER PARTIES"), from and against any actions, suits,
proceedings, hearings, investigations, charges,
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complaints, claims, demands, injunctions, judgments, orders, decrees,
rulings, damages, dues, penalties, fines, costs, amounts paid in
settlement, liabilities, obligations, taxes, liens, losses, expenses
and fees, including court costs and reasonable attorneys' fees and
expenses ("ADVERSE CONSEQUENCES") the Buyer Parties may suffer through
and after the date of the claim for indemnification resulting from,
arising out of, relating to, in the nature of, or caused by (a) any
breach by the Seller or the Seller's Owner (or in the event any third
party alleges facts that, if true, would mean that either Seller or
the Seller's Owner has breached) of any representations, warranties or
covenants of the Seller or the Seller's Owner contained in this
Agreement, (b) any Excluded Liability (including any liability of the
Seller that becomes a liability of the Buyer under any bulk transfer
law of any jurisdiction, under any common law doctrine of de facto
merger or successor liability, or otherwise by operation of law), and
(c) the operation and ownership of the Business and the Acquired
Assets prior to the Effective Date.
5.3 INDEMNIFICATION OF THE SELLER AND THE SELLER'S OWNER. The Buyer agrees
to indemnify each of the Seller, the Seller's Owner and their
officers, directors, employees, stockholders, agents and affiliates
(the "SELLER PARTIES") from and against any Adverse Consequences the
Seller Parties may suffer through and after the date of the claim for
indemnification resulting from, arising out of, relating to, in the
nature of or caused by any breach by the Buyer (or in the event any
third party alleges facts that, if true, would mean the Buyer has
breached) of any of Buyer's representations, warranties or covenants
contained in this Agreement.
5.4 ADJUSTMENT TO PURCHASE PRICE. All indemnification payments under this
Section 7 will be deemed adjustments to the Purchase Price.
5.5 OTHER INDEMNIFICATION PROVISIONS. The above indemnification provisions
are in addition to, and not in derogation of, any statutory, equitable
or common law remedy (including without limitation any such remedy
arising under environmental, health and safety requirements) any Party
may have with respect to the Seller, the Seller's Owner or the
transactions contemplated by this Agreement.
5.6 RECOUPMENT. The Buyer will have the option of recouping all or any
part of any Adverse Consequences it may suffer by notifying the Seller
that the Buyer is reducing the principal amount outstanding under any
of the Aggregate Revenue Adjustment, the Aggregate Net Revenues
Adjustment and the Aggregate Net Earnings Adjustment.
6. EMPLOYMENT AND BENEFIT.
6.1 TERMINATION. The Seller will terminate the employment of those
employees of the Business listed on SCHEDULE 6.1 (the "TERMINATED
EMPLOYEES") at a date mutually agreed to by the Parties (the
"TERMINATION DATE"). The Seller and the Seller's Owner covenant and
agree, jointly and severally, that they will bear all
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responsibility, obligation and liability for, and all costs associated
with, and will defend and indemnify Buyer for: (a) any and all claims
and liabilities related to any unemployment fund contributions that
are due and unpaid by the Seller on the Termination Date and (b) any
and all claims and liabilities relating to the Terminated Employees
and any other employee employed at the Business prior to the
Termination Date and resulting from or arising out of their employment
by the Seller prior to the Termination Date and/or any subsequent
decision by the Buyer not to hire some or all of the Terminated
Employees.
6.2 EMPLOYMENT.
(a) On or after the Termination Date, the Buyer may, in its sole
discretion, make offers of employment with such terms and
conditions as the Buyer in its sole discretion will determine, to
the Terminated Employees. All Terminated Employees who accept
such offers of employment and who report to work for the Buyer
will be, collectively, the "HIRED EMPLOYEES." The date that a
Hired Employee reports to work for the Buyer is referred to
herein as the "HIRE DATE."
(b) Nothing in this Agreement constitutes an agreement or guaranty
that any Terminated Employees will be entitled to remain in the
employment of the Buyer for any specified period of time. Except
as provided in this Agreement, all Hired Employees will be "at
will" employees of the Buyer.
6.3 VACATION. The Seller will be responsible for any accrued and unpaid
vacation, sick time, personal holidays, flexible time off, paid time
off or other similar benefits of any of the Terminated Employees
through the Termination Date. Prior to the Termination Date, the
Seller will pay any amounts owing for any accrued and unpaid vacation,
sick time, personal holidays, flexible time off, paid time off or
other similar benefits of any of the Terminated Employees through the
Termination Date. The Buyer will not recognize any earned, but unused,
vacation, sick time and personal holidays of the Terminated Employees.
6.4 WORKERS' COMPENSATION. The Seller will remain responsible for all
workers' compensation claims made by any of the Terminated Employees
based on occurrences through and including the Termination Date. The
Buyer will only be responsible for all workers' compensation claims
made by the Hired Employees based on occurrences after the Hire Date
while employed by the Buyer.
6.5 OTHER EMPLOYMENT-RELATED LIABILITIES. Except as explicitly set forth
in this Section 6, the Seller will be liable for all
employment-related liabilities with respect to the Terminated
Employees that occur on or prior to the Termination Date, including
any obligation or commitment by the Seller to pay severance to any of
the Terminated Employees. The Buyer will be liable only for all
employment-related liabilities of the Hired Employees arising after
the Hire Date. The Buyer will not assume or be bound by any previous
or existing employment or collective bargaining agreement or
arrangement or termination, severance or
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change of control agreement between the Seller and any of the
Terminated Employees.
6.6 LIABILITIES UNDER EMPLOYEE BENEFIT PLAN. The Seller will remain
liable, and the Buyer will not assume or otherwise have any liability,
under any of the Seller's employee benefit plans.
6.7 COBRA AND OTHER NOTICES. For notices and payments related to events
occurring prior the Termination, the Seller shall be responsible for
any notices required to be given to employees of the Seller pursuant
to COBRA or other local, state and federal laws, and for any payments
or benefits required pursuant to such laws or on account of any
violation of any requirement of such laws.
6.8 LIMITATION ON ENFORCEMENT. Nothing in this Section 6, whether express
or implied, confers upon any employee of the Business (including the
Terminated Employees and the Hired Employees) or any other person, any
rights or remedies, including without limitation: (i) any right to
employment or recall; or (ii) any right to claim any particular
compensation, benefit or aggregation of benefits, of any kind or
nature whatsoever, as a result of this Section 6.
7. MISCELLANEOUS.
7.1 NO THIRD-PARTY BENEFICIARIES. This Agreement will not confer any
rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns.
7.2 ENTIRE AGREEMENT. This Agreement and any other documents, certificates
or other instruments delivered pursuant to this Agreement constitute
the entire agreement between the Parties and supersede any prior
understandings, agreements or representations by or between the
Parties, written or oral, to the extent they related in any way to the
subject matter of this Agreement.
7.3 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. The Seller shall not assign either
this Agreement or any of its rights, interest, or obligations
hereunder without the prior written approval of the Buyer. The Buyer
may assign this Agreement, and any of its rights, interest or
obligations hereunder without the prior consent of the Seller;
provided that such assignment shall not operate as a release of the
Buyer or Biotel from its obligations hereunder.
7.4 COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
in one or more counterparts, each of which will be deemed an original
but all of which together will constitute one and the same instrument,
and by facsimile.
7.5 NOTICES. Any notice, offer, request, demand, claim or other
communication provided for by this Agreement must be in writing and
will be deemed given or delivered when delivered by hand, transmitted
by facsimile or three days after the
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day when deposited in the United States mail, certified or registered,
return receipt requested, postage prepaid and properly addressed to
the intended recipient as set forth below:
If to the Seller or Seller's Owner:
Xxxxxx X. Xxxxxx
0000 000xx Xxxx XX
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
If to the Buyer or Biotel: Copy to:
-------------------------- --------
Biotel, Inc. Xxxx Plant Xxxxx
00000 Xxxx Xxxxx 000 XXX Xxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000 00 Xxxxx Xxxxxx Xxxxxx
Attn: B. Xxxxxx Xxxxxxxxxx Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000 Attn: Xxxx Xxxxxx, Esq.
Fax: (000) 000-0000
Any Party may send any notice, reque demand, claim or other
communication to the intended recipient at the address set forth above
using any other means, but no such notice, request, demand, claim or
other communication will be deemed to have been duly given unless and
until it actually is received by the intended recipient.
7.6 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement will be
governed by and construed in accordance with the domestic laws of the
State of Minnesota without giving effect to any choice or conflict of
law provision or rule. Each of the Parties submits to the jurisdiction
of any state or federal court sitting in Hennepin County, Minnesota,
in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect to the action or
proceeding may be heard and determined there.
7.7 AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement will be valid unless the same is in writing and signed by
the Parties. No waiver by any Party of any default, misrepresentation
or breach of warranty or covenant under this Agreement, whether
intentional or not, will be deemed to extend to any prior or
subsequent default, misrepresentation or breach of warranty or
covenant under this Agreement.
7.8 SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction will not affect
the validity or enforceability of the remaining terms and provisions
of this Agreement or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.
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7.9 EXPENSES. Whether or not the transactions under this Agreement
are consummated, the Buyer, the Seller and the Seller's Owner
will bear their own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and these
transactions.
7.10 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party will issue any
press release or make any public announcement relating to the
subject matter of this Agreement prior to the Closing without the
prior written approval of the other Party.
7.11 SPECIFIC PERFORMANCE. Each of the Parties acknowledges and agrees
that the other Party would be damaged irreparably in the event
any of the provisions of this Agreement are not performed in
accordance with their specific terms or otherwise are breached.
Accordingly, each of the Parties agrees that the other Party is
entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this
Agreement in any action instituted, in addition to any other
remedy to which it may be entitled, at law or in equity.
THE REMAINDER OF THIS PAGE IS BLANK. SIGNATURE PAGE FOLLOWS.
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The Parties have executed this Agreement as of the date first above
written.
BUYER:
ACRS ACQUISITION COMPANY
By /s/ B. Xxxxxx Xxxxxxxxxx
----------------------------------------------
Its: Chief Executive Officer
BIOTEL:
BIOTEL, INC.
By /s/ B. Xxxxxx Xxxxxxxxxx
----------------------------------------------
Its: Chief Executive Officer
SELLER:
AGILITY CENTRALIZED RESEARCH
SERVICES, LLC
By /s/ Xxxxxx Xxxxxx
----------------------------------------------
Its:
SELLER'S OWNER:
/s/ Xxxxxx Xxxxxx
-------------------------------------------------
Xxxxxx Xxxxxx
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