Exhibit 2
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter referred to as "Purchase
Agreement"), executed effective as of the 5th day of January, 1999, is by and
among Rystan Company, Inc., a New Jersey corporation, having a place of
business at 00 Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000 (hereinafter
referred to as "Rystan"), Integra LifeSciences Corporation, a Delaware
corporation and sole shareholder of Rystan, having a place of business at 000
Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Integra"
and, together with Rystan, "Seller"), and Healthpoint, Ltd., a Texas limited
partnership having a place of business at 0000 Xxxxxxx Xxxxxxx, Xxxx Xxxxx,
Xxxxx 00000 (hereinafter referred to as "Purchaser").
WITNESSETH:
WHEREAS, Seller desires to sell and Purchaser desires to purchase
Seller's right, title and interest in and to the Assets, as defined below,
pursuant to this Purchase Agreement; and
WHEREAS, the parties hereto desire to set forth certain
representations, warranties and covenants made by each to the other as an
inducement to the consummation of the sale and certain additional requirements
related to the sale;
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to the
conditions herein set forth, the parties hereby agree as follows:
1. Definitions
For purposes of this Purchase Agreement, the following terms shall
have the meanings as set forth below:
1.1 "Products" shall mean Seller's Panafil(R) Ointment (also sometimes
referred to as Panafil(R) Green Ointment) and Seller's Panafil(R) White
Ointment, together with all variations of related papain-urea enzymatic
debriding /healing products.
1.2 "Affiliate" shall mean any entity directly or indirectly
controlling, controlled by or under common control with Seller or Purchaser.
1.3 "Closing Date" shall mean January 5, 1999.
1.4 "Trademark" shall mean the trademark listed on Schedule A attached
hereto.
1.5 "Assets" shall mean the Products, the Trademark and all of the
other assets of Seller transferred to the Purchaser pursuant to Article 2
hereof.
2. Purchase and Sale
2.1 Subject to the terms and conditions set forth herein, Seller
agrees to sell, convey, grant, assign, transfer and deliver to Purchaser, or
cause to be sold, conveyed, granted, transferred and delivered to Purchaser,
and Purchaser agrees to purchase, accept and receive from Seller, on the
Closing Date all rights, title and interest in and to the Assets.
2.2 The parties agree that purchase and sale of the Assets shall
include, and Seller hereby grants and transfers to Purchaser, the Trademark and
all existing tradedress, goodwill and
copyrights associated with the Products, as well as any related patents and
other intellectual property rights necessary to manufacture or distribute the
Products.
2.3 The parties agree that the purchase and sale of the Assets shall
also include all formulations, sales and marketing records and literature,
customer information and tracking reports, production records, stability
records and data, know how and processes associated with manufacture and
filling of the Products, complaint files, all regulatory files and records, all
existing parts and equipment used to manufacture the Products, all raw material
not used to manufacture "Additional Inventory" (as defined in the Manufacturing
and Distribution Agreement dated the date hereof (the "Distribution Agreement")
between the parties hereto and Purchaser's affiliate, DPT Laboratories, Ltd.
("DPT")) as well as all other information in Seller's possession or under
Seller's control and pertaining to the Products.
3. Purchase Price
3.1 The Purchaser shall pay to Seller a total price of Six Million
Four Hundred Thousand Dollars ($6,400,000) (the "Purchase Price"), payable by
wire transfer on the Closing Date, in consideration of the Assets and rights
under this Purchase Agreement.
3.2 The parties agree that the Purchase Price shall be allocated by
the Purchaser and the Seller among the Assets and rights under this Purchase
Agreement by mutual agreement of the parties within 30 days after the Closing
Date. Seller and Purchaser each covenant and agree that it shall not take a
position in any tax proceeding or audit or otherwise that is inconsistent with
such allocation; provided, however, that nothing contained herein shall require
Seller or Purchaser to contest beyond, or otherwise than by, the exhaustion of
its administrative remedies before any taxing authority, and Seller and
Purchaser shall not be required to litigate before any court, including,
without limitation, the United States Tax Court, any proposed deficiency or
adjustment by any taxing authority that challenges such allocation. Seller and
Purchaser each shall give prompt notice to the other of the commencement of any
tax audit or the assertion of any proposed deficiency or adjustment by any
taxing authority that challenges such allocation. Seller and Purchaser each
shall timely file Internal Revenue Service Form 8594 (or any applicable
successor thereto) in respect of the purchase and sale of the Assets and shall
state on such Form the agreed allocation of the Purchase Price among the Assets
and rights under this Purchase Agreement.
4. Liabilities
The Purchaser does not assume nor shall this Purchase Agreement be
construed to impose any liability or obligation with respect to any of the
Seller's debts, obligations or liabilities, whether definite or contingent,
known or unknown, other than specifically created by the terms of this Purchase
Agreement. Seller shall remain financially responsible for any rebates or other
similar payments related to sale of the Products prior to the Closing Date.
Seller shall also be responsible for returns of the Products pertaining to
sales made prior to the Closing Date.
5. Representations and Warranties of Each Seller
Each Seller represents and warrants the following as of the Closing
Date:
5.1 The Seller has the full power and authority, corporate and
otherwise, to enter into this Purchase Agreement and to assume and perform its
obligations hereunder. The execution and delivery of this Purchase Agreement
and the performance by the Seller of its obligations hereunder have been duly
authorized by the board of directors of each Seller and by Integra, as the sole
shareholder of
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Rystan, and no further action or approval, corporate or otherwise, is required
in order to constitute this Purchase Agreement as a binding and enforceable
obligation of the Seller.
5.2 The execution and delivery of this Purchase Agreement and the
performance by the Seller of its obligations hereunder do not and will not
violate any provision of the Certificate of Incorporation or By-laws of the
Seller and do not and will not conflict with or result in any breach of any
condition or provision of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
Assets by reason of the terms of, any contract, mortgage, lien, lease,
agreement, indenture, instrument, judgment or decree to which the Seller is a
party or which is or purports to be binding upon the Seller, or which affects
or purports to affect any of the Assets.
5.3 No action, approval, consent or authorization, including but not
limited to, any action, approval, consent or authorization by any governmental
or quasi-governmental agency, commission, board, bureau or instrumentality is
necessary as to the Seller in order to constitute this Purchase Agreement as a
binding and enforceable obligation of the Seller in accordance with its terms
and to consummate the transactions contemplated hereby, and this Purchase
Agreement is the legal, valid and binding agreement of the Seller, enforceable
against the Seller in accordance with its terms.
5.4 No action, suit, claim, notice of violation, investigation or
proceedings, whether legal or administrative or in mediation or arbitration, is
pending or, to Seller's knowledge, threatened, at law or in equity or
admiralty, before or by any court or federal, state, municipal or other
governmental department, regulatory body, commission, board, bureau, agency or
instrumentality, against, pertaining to or affecting the Assets or in which an
unfavorable judgment, decree or order would restrain, prohibit, invalidate, set
aside, rescind, prevent, or make unlawful this Purchase Agreement or the
carrying out of this Purchase Agreement.
5.5 Rystan is not in default in respect of any judgment, order, writ,
injunction or decree of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
pertaining to or affecting the Assets or that would restrain, prohibit,
invalidate, set aside, rescind, prevent or make unlawful this Purchase
Agreement or the carrying out of this Purchase Agreement.
5.6 Rystan has and the Purchaser shall receive good title to each of
the Assets, and the Assets are free and clear of all liens, encumbrances and
restrictions.
5.7 The Products, as well as all current labeling and written
promotional material pertaining to the Products, are in compliance with all
applicable laws and regulations and there are no restrictions to distribution
of the Products in the markets where such Products are currently distributed.
5.8 Attached as Schedule D hereto is a list of all adverse experience
reports, 483 inspection observations, recall notices, warning letters,
establishment investigation reports and other state or federal regulatory
correspondence (collectively, "Regulatory Reports") pertaining to the Products
received by Rystan during the previous three years. Also attached as Schedule D
hereto is a list of all complaints, claims and demands (collectively, "Other
Reports") pertaining to the Products received by Rystan during the previous
three years, except such Other Reports as have not had, individually or in the
aggregate, a material adverse effect on the existing regulatory status of the
Products, the value of the Products, the legal, regulatory or economic risks
associated with the Products or the ability of Rystan to market the Products.
True and correct copies of the Regulatory Reports and Other Reports listed on
Schedule D have been provided to the Purchaser.
5.9 Attached as Schedule E hereto is a list of all agreements
pertaining to the Products and their components, including, but not limited to,
all quotations, contractual commitments or offers of Rystan pertaining to group
purchasing contracts or programs, as well as any applicable state, federal or
private reimbursement agreements or programs pertaining to the Products, true
and correct copies of
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which have been provided to the Purchaser. Schedule E also contains all
material terms of any verbal agreements concerning the Products or any of their
components.
5.10 There are no federal, state or local tax liens upon any of the
Assets. There are no potential tax deficiencies on the part of the Seller
relating to any tax year which may arise from issues which have been raised or
which have not yet been raised but which would reasonably be expected by the
Seller to be raised by the Internal Revenue Service or any other taxing
authority that might reasonably be expected to have an adverse affect on
Purchaser pursuant to an assertion of transferee liability or otherwise.
5.11 There are no pending or, to the best of Seller's knowledge,
threatened patent or trademark infringement claims with regard to any of the
Assets.
5.12 To the best of Seller's knowledge, use of the Assets or sales of
the Products will not infringe any patent or other proprietary rights.
5.13 No representation or warranty by the Seller in this Purchase
Agreement or under any documents, instruments, certificates or schedules
furnished pursuant hereto or in connection with the transactions contemplated
hereby contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements or facts herein or therein
misleading.
5.14 Attached as Schedule F are Seller's standard costs for
manufacture and packaging of the Products as well as the net sales revenue for
the Products for the past three years.
5.15 Attached as Schedule G is Seller's current returned goods policy.
5.16 Attached as Schedule H is a list of all investigations by or on
behalf of Rystan pertaining to the Products manufactured by Rystan during the
past four years. Except as set forth on Schedule H, there have been no
out-of-specification test results, whether for product release or stability,
for any of the Products manufactured during the past four years. True and
complete copies of all such investigations, pertaining to the Products
manufactured during the past four years have been provided to Purchaser.
5.17 All corrective action and commitments referenced in the January
8, 1997 Investigation Report pertaining to the Products as well as the FDA Form
483 issued to Rystan on March 26, 1997 have been implemented and Rystan is in
compliance therewith.
5.18 Rystan is the owner of sufficient right, title and interest in
and to the Trademark to grant the assignment granted by this Agreement, and the
Trademark has not lapsed or been canceled for failure to pay fees or file
affidavits necessary to maintain the Trademark valid and in force.
5.19 All assay, compounding processes, bulk hold, packaging and
cleaning processes with regard to the Products have been validated in
accordance with applicable legal and regulatory requirements.
6. Representations and Warranties of Purchaser
The Purchaser represents and warrants the following:
6.1 The Purchaser has the full power and authority to enter into this
Purchase Agreement and to assume and perform its obligations hereunder. The
execution and delivery of this Purchase Agreement and the performance by the
Purchaser of its obligations hereunder have been duly authorized by the board
of directors of its general partner and no further action or approval,
corporate or otherwise, is required in order to constitute this Purchase
Agreement as a binding and enforceable obligation of the Purchaser.
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6.2 No action, approval, consent or authorization, including but not
limited to, any action, approval, consent or authorization by any governmental
or quasi-governmental agency, commission, board, bureau or instrumentality is
necessary as to the Purchaser or the general partner of the Purchaser in order
to constitute this Purchase Agreement as a binding and enforceable obligation
of the Purchaser in accordance with its terms and to consummate the
transactions contemplated hereby, and this Purchase Agreement is the legal,
valid and binding agreement of the Purchaser, enforceable against the Purchaser
in accordance with its terms.
6.3 The execution and delivery of this Purchase Agreement and the
performance by the Purchaser of its obligations hereunder do not and will not
violate any provision of the Agreement of Limited Partnership of the Purchaser.
6.4 No action, suit, claim, notice of violation, investigation or
proceedings, whether legal or administrative or in mediation or arbitration, is
pending or, to Purchaser's knowledge, threatened, at law or in equity or
admiralty, before or by any court or federal, state, municipal or other
governmental department, regulatory body, commission, board, bureau, agency or
instrumentality, in which an unfavorable judgment, decree or order would
restrain, prohibit, invalidate, set aside, rescind, prevent, or make unlawful
this Purchase Agreement or the carrying out of this Purchase Agreement.
7. Adverse Experiences
The Seller shall forward to the Purchaser in a timely manner any
information that Seller has knowledge of concerning any adverse experience or
product complaints related to the Products. In the event Purchaser receives
product complaints or reports of adverse experiences which pertain to the
distribution of the Products prior to the Closing Date, or sale of the Products
by Seller after the Closing Date, Purchaser shall forward copies thereof to
Seller in a timely manner. Unless otherwise requested by Seller, Purchaser
shall respond to all complaints or reports of adverse experiences received
after the Effective Date, consistent with its customary practices.
8. Co-Promotion Agreement
Upon Purchaser's receipt of $3,000,000 of Adjusted Gross Sales (as
defined in the Distribution Agreement), the Panafil Promotional Services
Agreement dated the date hereof between Purchaser and Integra (the "Panafil
Agreement") shall become effective and all future revenue pertaining to the
sale of the Products shall belong to Purchaser subject to any applicable
payments to Seller pursuant to the Panafil Agreement.
9. Non-Compete/Right of First Refusal
9.1 For a period of ten (10) years after the Closing Date, neither
Integra nor any of its Affiliates shall develop, license or market, or assist
in the development, marketing or licensing of, directly or indirectly, any
papain-urea debridement products or any extension, improvement or other product
utilizing papain-urea as one of its active components.
9.2 For a period of seven (7) years after the Closing Date, Integra
shall grant to Purchaser a right of first refusal regarding any new debridement
agent product developed by Integra or any of its Affiliates. The rights of
Purchaser would not apply to marketing of the new debridement agent product by
Integra or any of its Affiliates in the Podiatry and Burn Markets (as defined
in the Panafil Agreement). Pursuant to this right of first refusal, Purchaser
shall have the first right to negotiate a license or acquisition of such
product for a period of three (3) months after such product is filed for
approval with the relevant regulatory body for sale in the United States. After
the expiration of such three-month period, if Purchaser and Integra shall not
have agreed to a license or acquisition, neither
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Integra nor any of its Affiliates shall sell or license such product to any
third party for economic terms less favorable to Integra or any of its
Affiliates than those embodied in the Purchaser's offer. In addition, in the
event Purchaser and Integra have not agreed to a license or acquisition, and
Integra or any of its Affiliates elects to market, sell or license such new
debridement product in markets other than the Podiatry and Burn Markets,
whether directly or through another party, the applicable Promotional Services
Agreements shall immediately be subject to termination at Purchaser's election.
10. Ordinary Course of Business/Assistance with Transfer
10.1 Rystan warrants to Purchaser that Rystan has operated its
businesses as they pertain to manufacture and sale of the Products in their
ordinary and usual course for the twelve month period preceding the Closing
Date.
10.2 Seller shall forward to Purchaser all purchase orders, sales
orders, inquiries or other documentation concerning sale of inventory of the
Products by Seller or its agents and representatives after the Closing Date.
10.3 Seller agrees to assist Purchaser as reasonably requested in
connection with transfer of the manufacturing and packaging of the Products to
DPT, including, but not limited to, access to Seller's production and packaging
operations while the Products are being produced by Seller, assistance with
installation of the equipment being transferred to Purchaser, inter-laboratory
assistance with Seller's methods for the Products and their components,
assistance with the sourcing of Seller's components used to manufacture and fill
the Products, and assistance with investigations and complaints pertaining to
the Products. Seller agrees to bear up to an aggregate of $7,500 of the costs
and expenses incurred by it in connection with such assistance, and the
Purchaser shall promptly reimburse Seller for any costs and expenses incurred by
Seller in excess of $7,500 in the aggregate.
10.4 Seller shall be responsible for the recall of any lot of the
Products manufactured by Rystan, whether before or after the Closing Date,
which fails to meet its specifications during its applicable shelf life and
shall reimburse Purchaser for any losses or expenses incurred as a result of
such recall. Seller shall continue stability testing in compliance with
applicable procedures and FDA commitments on all lots of Products manufactured
by Rystan, whether before or after the Closing Date, and promptly notify
Purchaser of any out-of-specification test results obtained with 48 hours after
Seller's receipt of such results and verification thereof. Within 30 days after
the Closing Date, Seller shall provide Purchaser with true and complete copies
of all batch records in Seller's possession pertaining to lots of the Products
previously manufactured by Rystan and still within their applicable shelf life.
Seller shall provide Purchaser with true and complete copies of all batch
records, investigations and testing data associated with all lots of the
Products manufactured by Rystan after the Closing Date.
10.5 Purchaser and Seller shall use their respective best efforts
following the Closing Date to have the other listed as an additional insured on
its product liability insurance policy until 12 months after Purchaser has
received on behalf of Seller $3,000,000 of Adjusted Gross Sales (as defined in
the Distribution Agreement).
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11. Indemnifications
11.1 Subject to the provisions of Sections 11.5, 11.6 and 11.7 hereof,
Seller shall indemnify and hold Purchaser and its Affiliates, partners,
directors, officers and employees harmless from and against any and all loss,
liability, damage, expense and cost, including without limitation reasonable
attorney's fees and other costs of defense (collectively, "Losses"), arising
out of (i) ownership or sale of the Products manufactured by Rystan, whether
prior to or after the Closing Date, (ii) the failure of the Products
manufactured by Rystan, whether prior to or after the Closing Date, to comply
with their applicable shelf life specifications, (iii) any unlawful promotional
practices by Seller's employees with regard to sale of the Products or (iv) any
failure by Integra or Rystan to comply with their respective obligations,
representations or warranties under this Purchase Agreement or under the
Distribution Agreement; provided, however, that Seller shall have no such
obligations or liabilities to Purchaser if such obligations and liabilities
arise out of or are related to (a) Purchaser's failure to comply with its
obligations, representations, or warranties herein or (b) any unlawful
promotional practices of Purchaser's or DPT's employees with regard to sale of
the Products.
11.2 Subject to the provisions of Sections 11.5, 11.6 and 11.7 hereof,
Purchaser shall indemnify and hold Seller and its Affiliates, directors,
officers and employees harmless from and against any and all Losses arising out
of (i) ownership or sale of the Products manufactured by DPT, (ii) any unlawful
promotional practices of Purchaser's or DPT's employees with regard to the sale
of the Products or (iii) any failure by Purchaser or DPT to comply with their
respective obligations, representations or warranties under this Purchase
Agreement or under the Distribution Agreement; provided, however, that
Purchaser shall have no such obligations or liabilities to Seller if such
obligations and liabilities arise out of or are related to (a) Seller's failure
to comply with its obligations, representations, or warranties herein or (b)
any unlawful promotional practices of Seller's employees with regard to the
sale of the Products.
11.3 Each party indemnified hereunder (an "Indemnified Party") will
give the other party hereto (an "Indemnifying Party") written notice of any
action or proceeding relating to any claim or loss for which indemnity is
sought hereunder within ten (10) business days after any such Indemnified Party
shall have had actual notice thereof and the Indemnifying Party, at its option,
shall be entitled to participate in or direct the defense or settlement of such
action; provided the Indemnifying Party employs counsel reasonably acceptable
to the Indemnified Party. The Indemnified Party shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be borne by it. The Indemnifying Party shall not be liable to the
Indemnified Party in respect of settlements effected by the Indemnified Party
without the written consent of the Indemnifying Party. In the event that any
Indemnifying Party shall undertake to compromise or defend any action or
proceeding, it shall promptly notify the Indemnified Party of its intention to
do so and the Indemnified Party agrees to cooperate fully with the Indemnifying
Party and its counsel in any such compromise or defense.
11.4 Each party hereto agrees to maintain commercial general liability
and products insurance coverage with limits of at least $5,000,000 aggregate,
$2,000,000 each occurrence and to designate the other party as an additional
insured under such coverages.
11.5 The performance by either party of any covenant or obligation on
its part to be performed under this Purchase Agreement shall be excused by
floods, strikes or other labor disturbances, riots, fire, accidents, war,
embargoes, delays of carriers, inability to obtain materials, failure of power
or of natural sources of supply, acts, injunctions, or restraints of government
(whether or not now threatened), or any cause preventing such performance
whether similar or dissimilar to the foregoing beyond the reasonable control of
the party bound by such covenant or obligation; provided, however, that
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the party affected shall take all reasonable actions within its power to comply
as fully as possible with the terms of this Purchase Agreement; provided
further, however, that the party affected shall not be required to settle any
labor dispute on terms contrary to its wishes nor to test the validity of any
law, regulation, or order by way of legal proceedings.
11.6 In no event shall an Indemnifying Party be liable to an
Indemnified Party pursuant to this Article 11 unless and until all Losses of the
Indemnified Party hereunder exceed, in the aggregate, $10,000, in which case the
Indemnified Party shall be entitled to recover the portion of such aggregate
Losses in excess of $10,000 up to an amount which does not exceed $1,500,000 in
the aggregate.
11.7 The indemnification obligations of the parties hereunder shall
continue until 12 months after Purchaser has received on behalf of Seller
$3,000,000 of Adjusted Gross Sales (as defined in the Distribution Agreement),
except that (i) the obligations of Seller under Section 11.1 regarding any
unlawful promotional practices by Seller's employees with regard to the sale of
the Products shall continue in effect until 12 months after the termination of
the Panafil Agreement and (ii) the obligations of Purchaser under Section 11.2
regarding any unlawful promotional practices by Purchaser's or DPT's employees
with regard to the sale of the Products shall continue in effect for 12 months
after the termination of the Panafil Agreement.
12. Assignment
This Purchase Agreement shall be binding upon and inure to the benefit
of the successors or permitted assigns of each of the parties and may not be
assigned or transferred by Seller to any party other than an Affiliate without
the prior written consent of the Purchaser.
13. Governing Law
This Purchase Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
14. Dispute Resolution
The parties agree to attempt to settle any disputes that arise in
connection with this Purchase Agreement through good faith mediation efforts.
The parties agree that any dispute that arises in connection with this Purchase
Agreement which is not settled through good faith mediation efforts shall be
settled by arbitration which shall be in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. Such arbitration
shall be held in (i) Xxxxxx County, New Jersey, if the demand for arbitration
is initiated by Purchaser or (ii) Tarrant County, Texas, if the demand for
arbitration is initiated by Seller. There shall be one arbitrator mutually
approved by both parties. If the parties are unable to agree upon the single
arbitrator, there shall be three (3) arbitrators, one (1) to be chosen by
Seller, one (1) to be chosen by Purchaser and a third to be selected by the two
arbitrators so chosen. The decision of the arbitrators shall be final and
binding upon all parties and their respective successors and assigns. The costs
of arbitration, including reasonable attorney's fees, shall be borne by the
losing party.
15. Severability
In the event that any provision of this Purchase Agreement shall for
any reason be finally adjudged as invalid, illegal, or unenforceable in any
respect by any court, arbitration panel, commission, or agency having
jurisdiction over either party or an Affiliate of either party, the validity of
the Purchase
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Agreement as a whole shall not be affected. The parties, rather, undertake to
replace ineffective clauses with legally effective ones which come as close as
possible to the sense of the ineffective clauses and the purpose of this
Purchase Agreement, and the terms shall be reformed to this extent.
16. Notice
Any notice required or permitted by this Purchase Agreement shall be
sent via telefax with an original delivered personally or mailed by first
class, registered, or certified mail, postage prepaid by the other party as
follows:
Notices to Purchaser shall be sent to:
Healthpoint, Ltd.
0000 Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxx 00000
telefax (000) 000-0000
Attention: H. Xxxx Xxxxxx
Notices to Seller shall be sent to:
Integra LifeSciences Corporation
000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
telefax (000) 000-0000
Attention: Xxxxxx X. Xxxxx
and to
Rystan Company, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
telefax (000) 000-0000
Attention: Xxxxxxx Xxxxxx
17. Waiver
No waiver by either party of any default shall be effective unless in
writing, nor shall any such waiver operate as a waiver of any other default or
of the same default on a future occasion
18. Entire Agreement
This Purchase Agreement contains the entire agreement between the
parties hereto and supersedes any prior agreements, whether written or oral,
between such parties related to this Purchase Agreement. No modification,
alteration, amendment or supplement to this Purchase Agreement shall be valid
or effective unless the same is in writing and signed by the party against whom
it is to be enforced.
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19. Counterparts
This Purchase Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same original.
20. Headings
The headings used in this Purchase Agreement are for convenience only
and are not a part of this Purchase Agreement.
21. Expenses
Except as otherwise expressly provided in this Agreement, each party
shall bear its respective out-of-pocket expenses incurred in attending meetings
and in performing its other obligations under this Agreement.
22. Conditions Precedent to Obligations of Purchaser
All obligations of Purchaser hereunder are, at the option of the
Purchaser, subject to the conditions precedent that, at the Closing:
22.1 Purchase shall have completed its due diligence investigation
and shall have determined that the results of such
investigation are satisfactory to Purchaser, in its sole
discretion.
22.2 All of the terms, covenants, agreements and conditions of
this Purchase Agreement to be complied with and performed by
Seller on or before the Closing Date shall have been complied
with and performed in all material respects.
22.3 No action, suit, proceeding or investigation by or before any
court, administrative agency or other governmental authority
shall have been instituted or threatened to restrain,
prohibit or invalidate the transactions contemplated by this
Purchase Agreement or which may affect the right of Purchase
to own, after the Closing Date, the Assets.
23. Conditions Precedent to Obligations of Seller
All obligations of Seller hereunder are, at the option of the Seller,
subject to the conditions precedent that, at the Closing:
23.1 All of the terms, covenants, agreements and conditions of
this Purchase Agreement to be complied with and performed by
Purchaser on or before the Closing Date shall have been
complied with and performed in all material respects.
23.2 No action, suit, proceeding or investigation by or before any
court, administrative agency or other governmental authority
shall have been instituted or threatened to restrain,
prohibit or invalidate the transactions contemplated by this
Purchase Agreement or which may affect the right of Purchase
to own, after the Closing Date, the Assets.
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IN WITNESS WHEREOF, the parties hereto have each caused this Purchase
Agreement to be executed by their duly authorized officers as of the date first
above written.
HEALTHPOINT, LTD.
By: DFB Holding, Inc., its general partner
By: /s/ H. Xxxx Xxxxxx
--------------------------------
Title: President
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INTEGRA LIFESCIENCES CORPORATION
By:/s/ Xxxxxx X. Xxxxx
----------------------------------------
Title: President
------------------------------------
RYSTAN COMPANY, INC.
By:/s/ Xxxxx X. Xxxxx
----------------------------------------
Title: Vice President
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SCHEDULES TO PURCHASE AGREEMENT
Schedule A - Trademarks
Schedule D - Regulatory Reports
Schedule E - Product Agreements
Schedule F - Manufacturing and Packaging Costs
Schedule G - Returned Goods Policy
Schedule H - Product Investigations
