EXECUTION COPY
ASSET PURCHASE AGREEMENT
dated as of March 19, 1999,
by and among
JBL SCIENTIFIC INCORPORATED,
as the Seller,
GENTA INCORPORATED,
as Shareholder and Guarantor,
and
JBL ACQUISITION CORP.,
as the Buyer
TABLE OF CONTENTS
Page
ARTICLE I PURCHASE AND SALE OF ASSETS.....................................2
1.1 Defined Terms............................................2
1.2 Purchased Assets.........................................2
1.3 Excluded Assets..........................................4
1.4 Closing..................................................5
1.5 Assets Not Assignable....................................5
ARTICLE II PURCHASE PRICE.................................................6
2.1 Payment of the Purchase Price............................6
2.2 Post-Closing Adjustment to Preliminary Purchase Price....6
2.3 Purchase Price Allocation................................8
2.4 Sales and Transfer Taxes.................................8
2.5 Prorations...............................................8
ARTICLE III LIABILITIES...................................................8
3.1 Assumption of Liabilities................................8
3.2 Non-Assumption of Liabilities............................9
3.3 Employee Benefit Plans...................................9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLER AND SHAREHOLDER..10
4.1 Ownership, Organization and Qualification...............10
4.2 Authorization...........................................10
4.3 Enforceability..........................................10
4.4 Conflicting Obligations.................................10
4.5 Subsidiaries............................................11
4.6 Title to Assets.........................................11
4.7 Third Party Consents....................................11
4.8 Organizational Documents................................11
4.9 Financial Statements....................................11
4.10 Real Property; Leases...................................11
4.11 Personal Property.......................................12
4.12 All Necessary Assets....................................12
4.13 Receivables.............................................12
4.14 Inventories.............................................13
4.15 Intellectual Property...................................13
4.16 Insurance...............................................15
4.17 Permits.................................................15
4.18 Material Contract.......................................16
4.19 Litigation..............................................17
4.20 Compliance With Law.....................................17
4.21 Environmental Matters...................................17
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4.22 Contingent and Undisclosed Liabilities..................18
4.23 Tax Matters.............................................19
4.24 Employees; Labor Matters................................19
4.25 Employee Benefit Plans..................................20
4.26 Products Liability......................................21
4.27 Product Warranty........................................21
4.28 Events Subsequent to Latest Fiscal Year End.............21
4.29 Customers and Suppliers.................................23
4.30 Brokerage...............................................23
4.31 Affiliate Transactions..................................24
4.32 Guaranties..............................................24
4.33 Investment..............................................24
4.34 Commission Filings......................................24
4.35 Amersham Termination....................................25
4.36 Representations and Warranties True and Correct.........25
ARTICLE V REPRESENTATIONS OF THE BUYER...................................25
5.1 Ownership, Organization and Qualification...............25
5.2 Authorization...........................................25
5.3 Enforceability..........................................26
5.4 Conflicting Obligations.................................26
5.5 Litigation..............................................26
5.6 Brokerage...............................................26
ARTICLE VI COVENANTS OF THE SELLER AND THE SHAREHOLDER...................26
6.1 Access..................................................26
6.2 Operation of Business...................................27
6.3 Preservation of Business................................27
6.4 Insurance and Maintenance of Property...................27
6.5 Compliance with Laws....................................27
6.6 Supplemental Disclosure.................................27
6.7 Fulfill Conditions......................................28
6.8 Employees...............................................28
6.9 Release of Liens........................................28
6.10 Change of Corporate Name................................28
6.11 Documents of Transfer...................................28
6.12 Nondisclosure and Noncompetition Agreement..............28
6.13 Other Deliveries........................................28
6.14 Collection of the Receivables...........................29
6.15 Exclusive Dealing.......................................29
6.16 Further Assurances......................................29
6.17 Brokerage...............................................30
6.18 Quality Assurance Agreement.............................30
6.19 Intellectual Property Assignments.......................30
6.20 Lipid License Agreement.................................30
6.21 Biogenex License Agreement..............................30
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6.22 Note....................................................30
6.23 On-Site Contamination...................................31
6.24 The Seller's Welfare Plans..............................31
6.25 The Seller's 401(k) Plan................................31
ARTICLE VII COVENANTS OF THE BUYER.......................................32
7.1 Certified Resolutions...................................32
7.2 Assignment, Xxxx of Sale and Assumption Agreement.......32
7.3 Nondisclosure and Noncompetition Agreement..............32
7.4 Quality Assurance Agreement.............................32
7.5 Lipid License Agreement.................................32
7.6 Note....................................................32
7.7 Lease...................................................32
7.8 Employees...............................................32
7.9 Preservation of Records.................................33
7.10 Uncollectible Receivables...............................33
7.11 Access to Property......................................33
7.12 The Buyer's 401(k) Plan.................................34
7.13 The Buyer's Welfare Plans...............................34
7.14 Employment Terms and Benefits after the Closing Date....35
7.15 Product Liability Claims................................35
7.16 Minimum Net Book Value..................................35
ARTICLE VIII CONDITIONS OF THE BUYER'S OBLIGATION TO CLOSE...............35
8.1 Representation and Warranties...........................35
8.2 Performance of Covenants and Obligations................36
8.3 Proceedings and Instruments Satisfactory................36
8.4 Adverse Change..........................................36
8.5 No Litigation...........................................36
8.6 Consents, Approvals, Certifications, Licenses
and Permit...........................................36
8.7 Good Standing Certificates..............................36
8.8 Opinion of Counsel......................................36
8.9 Due Diligence...........................................37
8.10 Approval by the Shareholder's Shareholders..............37
8.11 Lease...................................................37
ARTICLE IX CONDITIONS TO THE SELLER'S OBLIGATION TO CLOSE................37
9.1 Representations and Warranties..........................37
9.2 Performance of Covenants and Obligations................37
9.3 Proceedings and Instruments Satisfactory................37
9.4 No Litigation...........................................37
9.5 Opinion of Counsel......................................38
ARTICLE X INDEMNIFICATION BY SELLER AND SHAREHOLDER......................38
10.1 Indemnification.........................................38
10.2 Procedures for Making Claims............................38
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10.3 Participation in Defense of Third Party Claims..........39
10.4 Survival of Representations and Indemnification.........39
10.5 Limitations on Indemnifiable Damages....................40
10.6 Offset..................................................40
10.7 Other Indemnification Provisions........................40
ARTICLE XI INDEMNIFICATION BY BUYER......................................41
11.1 Indemnification.........................................41
11.2 Procedures for Making Claims............................41
11.3 Participation in Defense of Third Party Claims..........42
11.4 Survival of Indemnification.............................42
11.5 Limitations on Indemnifiable Damages....................43
11.6 Offset..................................................43
11.7 Other Indemnification Provisions........................43
ARTICLE XII TERMINATION..................................................44
12.1 Rights to Terminate.....................................44
12.2 Effects of Termination..................................44
ARTICLE XIII GUARANTEE...................................................44
13.1 Guarantee by the Shareholder............................44
13.2 Guarantee by Promega....................................45
ARTICLE XIV DEFINITIONS..................................................45
14.1 Certain Defined Terms...................................45
14.2 Interpretation..........................................53
14.3 Other Terms.............................................53
ARTICLE XV MISCELLANEOUS.................................................53
15.1 Survival of Representations and Warranties..............53
15.2 Benefit and Assignment..................................53
15.3 Governing Law...........................................53
15.4 Expenses................................................53
15.5 Notices.................................................53
15.6 Counterparts............................................54
15.7 Headings................................................54
15.8 Amendment, Modification and Waiver......................54
15.9 Entire Agreement........................................54
15.10 Third-Party Beneficiaries...............................55
15.11 Publicity...............................................55
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EXHIBITS:
Exhibit A-1 Form of Legal Opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
Exhibit A-2 Form of Legal Opinion of Sinsheimer, Schiebelhut & Xxxxxxx
Exhibit A-3 Form of Legal Opinion of Xxxxxxx Xxxx & Friedrich LLP
Exhibit B Form of Assignment, Xxxx of Sale and Assumption Agreement
Exhibit C-1 Form of Seller Intellectual Property Assignment
Exhibit C-2 Form of Shareholder Intellectual Property Assignment
Exhibit D Summary of Lease Terms
Exhibit E Form of Lipid License Agreement
Exhibit F Form of Nondisclosure and Noncompetition Agreement
Exhibit G Form of Note
Exhibit H Form of Quality Assurance Agreement
SCHEDULES:
Schedule 1.2(e) - Real Estate
Schedule 1.2(f) - Equipment
Schedule 1.2(g) - Vehicles
Schedule 1.3(h) - Shareholder Tangible Personal Property
Schedule 1.3(n) - Excluded Assets
Schedule 2.3 - Purchase Price Allocation
Schedule 4.5 - Subsidiaries
Schedule 4.7 - Third Party Consents
Schedule 4.8 - Organization Documents
Schedule 4.9 - Financial Statements
Schedule 4.10(a) - Real Estate
Schedule 4.11 - Personal Property
Schedule 4.13 - Receivables
Schedule 4.15(b) - Infringement of Intellectual Property
Schedule 4.15(c) - Patents
Schedule 4.15(d) - Permits
Schedule 4.15(e) - Misappropriation
Schedule 4.16(a) - Insurance Policies
Schedule 4.16(c) - Insurance Claims
Schedule 4.16(d) - Self-Insurance
Schedule 4.17 - Permits
Schedule 4.18 - Material Contracts and Other Descriptions and Lists
Schedule 4.19 - Litigation
Schedule 4.20 - Compliance With Law
Schedule 4.21(a) - Environmental Compliance
Schedule 4.21(c) - Environmental Litigation
Schedule 4.21(d) - Disposal Practices
Schedule 4.24(a) - Employees
Schedule 4.25(a) - Employee Benefit Plans
Schedule 4.25(g) - Family and Medical Leave Act
Schedule 4.28 - Subsequent Events
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Schedule 4.29 - Customers and Suppliers
Schedule 4.30 - Brokerage
Schedule 4.31 - Affiliate Transactions
Schedule 4.33 - Bank Accounts; Power of Attorney; Other
Schedule 7.8 - Retained Employees
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as
of the 19th day of March, 1999, by and among JBL ACQUISITION CORP., a Wisconsin
corporation (the "Buyer"), JBL SCIENTIFIC INCORPORATED, a California corporation
(the "Seller"), and GENTA INCORPORATED, a Delaware corporation, being the sole
shareholder of the Seller (the "Shareholder").
RECITALS
WHEREAS, the Seller is engaged in the development, manufacture and
sale of specialty chemical products, including DNA reagents used in the
synthesis of oligomers (the "Business");
WHEREAS, the Seller leases and uses certain real property and owns,
leases and uses certain tangible and intangible assets used in the Business,
including, without limitation, intellectual property, buildings and
improvements, machinery and equipment, vehicles, inventory, contract rights and
prepaid expenses and receivables;
WHEREAS, the Buyer desires to purchase all of the assets related to
the Business other than the Excluded Assets referred to below and to assume only
certain specific liabilities associated with the Business, and the Seller
desires to sell and transfer to the Buyer those assets and liabilities, while
retaining environmental and all other liabilities, all as more fully set forth
below;
WHEREAS, the Shareholder, in consideration of the sale of those
assets and the assumption of those liabilities, agrees to be party to the
Agreement and to guarantee the Seller's performance and each and every
obligation of the Seller under this Agreement and the transactions contemplated
hereby; and
WHEREAS, Promega Corporation, a Wisconsin corporation ("Promega"),
in consideration of the purchase of those assets and the assumption of those
liabilities, is willing to guarantee the Buyer's payment of the Purchase Price
(as defined by below), including the payments of obligations under the Note, the
Buyer's obligations under the Lease (as defined below) and the Buyer's
obligations under the Quality Assurance Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Buyer, Promega, the Seller and the Shareholder, hereby agree
as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Defined Terms. Capitalized terms used herein have the meanings
set forth in Section 13.1.
1.2 Purchased Assets. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations, warranties, covenants and
agreements made in this Agreement by the Buyer, the Seller and the Shareholder
(1) the Buyer shall purchase, accept and acquire from the Seller, and the Seller
shall sell, transfer, convey, assign and deliver to the Buyer, all of its right,
title and interest in and to the assets and properties of the Seller (but
excluding Excluded Assets) used or held in the conduct of or in connection with
the Business, whether tangible or intangible, real, personal or mixed, and
wherever located (the "Seller Purchased Assets"), and (2) the Buyer shall
purchase, accept and acquire from the Shareholder, and the Shareholder shall
sell, transfer, convey, assign and deliver to the Buyer, all of its right, title
and interest in and to the assets and properties of the Shareholder specified in
Section 1.2(o) (the "Shareholder Purchased Assets"; together with the Seller
Purchased Assets, the "Purchased Assets"). The Purchased Assets include, without
limitation, the Seller's or, in the case of Section 1.2(o), the Shareholder's
right, title and interest in and to the following, except as otherwise provided
in Sections 1.3, 1.5 and 3.3.
(a) All Intellectual Property of the Seller and all goodwill
associated with the foregoing, all goodwill associated with
respect thereto, licenses and sublicenses granted and obtained
with respect thereto and rights thereunder, remedies against
infringements thereof and rights to protection of interests
therein under the laws of all jurisdictions;
(b) All retail and non-retail inventories of the Seller of whatever
kind, including, without limitation, merchandise, supplies,
accessories, finished goods, work-in-process and raw materials
(the "Inventories");
(c) All present and future rights of the Seller to payment for goods
sold or services rendered whether or not earned by performance,
including, without limitation, trade and other accounts
receivable, all notes receivable and all other amounts receivable
(the "Receivables");
(d) All prepaid expenses, advance payments, deposits and rights to
receive discounts, refunds, rebates, awards and the like;
(e) All leaseholds and subleaseholds, and improvements, fixtures and
appurtenances thereto, including, without limitation, leases
relating to the parcels of land with the legal description of
which is described on Schedule 1.2(e) attached hereto
(collectively, the "Real Estate");
(f) All equipment (building or office), machinery, reactors,
lyophilizers, chemical manufacturing equipment, prototypes,
parts, components, projects in process,
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furniture, appliances, artwork, computers, computer terminals and
printers, telephone systems, telecopiers and photocopiers, office
supplies and office equipment and other tangible personal
property of every kind and description, which are owned or leased
by the Seller, or are utilized in connection with the operations
of the Business upon or within the Real Estate, including,
without limitation, those items listed on Schedule 1.2(f)
attached hereto, but excluding the Inventories and the Vehicles
(the "Equipment");
(g) All motor vehicles, including, without limitation, those listed
on Schedule 1.2(g) attached hereto (the "Vehicles");
(h) All contracts, leases, subleases, arrangements, commitments and
other agreements of the Seller (other than the Granada Leases),
including, without limitation, all customer agreements, vendor
agreements, purchase orders, installation and maintenance
agreements, hardware lease or rental agreements, contract claims
and all other arrangements and understandings related to the
Business, including, without limitation, those items which are
listed on Schedule 4.18 (the "Contracts");
(i) All qualifications, registrations, filings, privileges,
franchises, immunities, licenses, permits, authorizations and
approvals issued by Governmental Authorities to the Seller which
are used or required in order for the Seller to own and operate
the Business, including, without limitation, all certificates of
occupancy and certificates, licenses and permits relating to
zoning, building, housing, safety, Environmental Laws, fire and
health (the "Permits");
(j) All Records;
(k) All sales, marketing and expansion plans, strategic plans,
projections, studies, reports and other documents and data
(including, without limitation, creative materials, advertising
and promotional matters and current and past lists of customers,
suppliers, vendors and sources) related to the Business, and all
training materials and marketing brochures related to the
Business;
(l) The Seller's goodwill related to the Business;
(m) All of the Seller's rights and remedies, under warranty or
otherwise, against a manufacturer, vendor or other Person for any
defects in any Purchased Asset;
(n) All deposits held by the Seller with respect to services to be
performed or products to be delivered after the Closing;
(o) All patents, patent applications and other Intellectual Property
of the Shareholder set forth in the Intellectual Property
Assignment made by the Shareholder in favor of the Buyer;
(p) All other properties, assets and rights of every kind, character
or description which
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are owned by the Seller and which are not Excluded Assets; and
(q) All causes of action, choses in action and rights of recovery
with respect to any of the foregoing.
1.3 Excluded Assets. The Purchased Assets shall not include, and the
Seller shall retain, the following assets (the "Excluded Assets"):
(a) The Seller's rights under this Agreement;
(b) The Seller's minute books, stock record books, corporate
franchise and authorizations to do business as a foreign
corporation and tax returns;
(c) The Seller's cash and cash equivalents;
(d) The Seller's environmental policies and procedures;
(e) All bank or investment accounts of the Seller;
(f) All causes of action, choses in action and rights of recovery
that may arise in connection with the discharge by the Seller of
any Excluded Liability or rights of recovery or contribution in
respect of any Excluded Liability;
(g) Any claims of the Seller for refunds of income and other taxes
attributable to periods prior to the closing;
(h) All tangible personal property of the Shareholder in the
possession of the Seller, all of which is listed on Schedule
1.3(h);
(i) All Records relating to Excluded Assets or Excluded Liabilities;
(j) Any Intellectual Property and know-how related to therapeutic
applications of antisense technology, including but not limited
to, manufacturing, storage, packaging, handling, distribution and
quality control information related to compound G3139; control
oligonucleotides related to G3139; phosphorothioates and modified
backbone structures and components thereof related to G3139;
analytical testing and control information relating to such
compounds; stability information and information relating to
preclinical and clinical development and testing of such
compounds; and all written Records pertaining to the above;
(k) The Granada Leases;
(l) Employee-related assets not being assumed by the Buyer;
(m) All insurance policies of the Seller;
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(n) All assets listed on Schedule 1.3(n); and
(o) All rights and obligations under the Granada Leases.
Nothing in this Section 1.3 shall prevent the concurrent use of
know-how by the Buyer to the extent such know-how is necessary and sufficient
for the Buyer to assume control of and to conduct the Business.
1.4 Closing. The closing (the "Closing") of the purchase and sale of
the Purchased Assets shall take place at 10:00 a.m., local time, on the Closing
Date, at the offices of Xxxxxxx Xxxx & Friedrich LLP, Xxx Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000, or at such other time and place as may be
mutually agreed to by the Buyer and the Seller. The "Closing Date" means the
second business day following the satisfaction or waiver of all conditions to
the obligations of the parties to consummate the transactions contemplated
hereby (other than conditions with respect to action the respective parties will
take at the Closing), or such other date as may be mutually agreed to by the
Buyer and the Seller. The Closing shall be effective as of 12:01 a.m. on the
Closing Date; provided, however, that the Buyer shall have no further obligation
under this Agreement if the conditions set forth in Article VIII have not been
satisfied by the Seller or expressly waived by the Buyer on or before May 15,
1999.
1.5 Assets Not Assignable.
(a) To the extent that any interest in any of the Purchased Assets
is not capable of being assigned, transferred or conveyed without the consent,
waiver or authorization of any Person and that consent, waiver or authorization
is not obtained, or if such assignment, transfer or conveyance or attempted
assignment, transfer or conveyance would constitute a breach of any Contract or
other Purchased Asset, or a violation of any law, statute, decree, rule,
regulation or other governmental edict or is not immediately practicable,
notwithstanding anything to the contrary contained herein, this Agreement shall
not constitute an assignment, transfer or conveyance of such interest, or an
attempted assignment, transfer or conveyance of such interest (such interests
being hereinafter collectively referred to as "Restricted Interests"). The
entire beneficial interest in any Purchased Assets subject to a restriction as
described above, and any other interest in such Purchased Assets, which are
transferable notwithstanding such restriction, shall be transferred from the
Seller to the Buyer as provided in this Section 1.5.
(b) Anything in this Agreement to the contrary notwithstanding, the
Seller shall not be obligated to transfer to the Buyer any Restricted Interests
without the Buyer or the Seller first having obtained all consents, waivers and
authorizations necessary for such transfers. In consultation with the Buyer as
to the practicalities of proposed actions, the Seller shall use its reasonable
efforts to assist the Buyer in obtaining such consents, waivers and
authorizations and to resolve any impracticalities of assignment referred to in
Section 1.5(a) hereof.
(c) To the extent that the consents, waivers and authorizations
referred to in Section 1.5(a) hereof are not obtained by the Buyer or the
Seller, or until the impracticalities of transfer referred to therein are
resolved, the Seller shall use reasonable efforts to (i) provide to the Buyer,
at the request of the Buyer and at the Seller's expense, the benefits of any
Restricted
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Interests, (ii) cooperate in reasonable and lawful arrangements designed to
provide such benefits to the Buyer and (iii) enforce, at the request of the
Buyer for the account of the Buyer, any rights of the Seller arising from any
Restricted Interests (including the right to elect to terminate in accordance
with the terms thereof upon the request of the Buyer).
ARTICLE II
PURCHASE PRICE
2.1 Payment of the Purchase Price.
(a) The payment by the Buyer to the Seller for the Purchased Assets
on the Closing Date (the "Preliminary Purchase Price") shall be SIX MILLION TWO
HUNDRED THOUSAND DOLLARS ($6,200,000) payable on the Closing Date in the
following manner:
(i) The delivery of the Note in an aggregate principal
amount of ONE MILLION TWO HUNDRED THOUSAND DOLLARS
($1,200,000);
(ii) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) of the
Preliminary Purchase Price (the "Adjustment Amount")
shall be retained by the Buyer until any adjustment
to the Preliminary Purchase Price is determined in
accordance with Section 2.2; and
(iii) The balance of the Preliminary Purchase Price shall
be paid in cash to the Seller.
(b) The amounts paid in cash pursuant to Section 2.1(a) shall be by
wire transfer of same-day funds to an account designated in writing to the Buyer
by the Seller prior to the Closing.
2.2 Post-Closing Adjustment to Preliminary Purchase Price.
(a) Purchase Price Adjustment. The Preliminary Purchase Price
assumes the Net Book Value of the Purchased Assets on the Closing Date will be
at least $1,768,000 (the "Estimated Net Book Value"). The Preliminary Purchase
Price shall be reduced on a dollar-for-dollar basis by the amount that the
actual Net Book Value of the Purchased Assets determined as of the Closing Date
and reflected on the Closing Balance Sheet (the "Final Net Book Value") is less
than the Estimated Net Book Value. The Preliminary Purchase Price, as reduced by
this Section 2.2, is the "Purchase Price."
(b) Net Book Value. As used herein, the term "Net Book Value" shall
mean the book value of the Purchased Assets calculated in accordance with GAAP
on a basis consistent with the preparation of the Financial Statements less the
value of the Operating Accruals; provided, however, the Purchased Assets
acquired pursuant to the Biogenex License Agreement shall not include any
increases in the assets attributable to any payments made under such license
after December 31, 1998; provided, further, such definition is modified as to
Inventories as set forth in
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the following sentence. Inventories shall be valued on the basis of the lower of
cost (first-in, first-out) or market in accordance with GAAP, excluding the
following: (a) all slow-moving, obsolete or damaged merchandise included in
reserves established on a basis consistent with the Inventories shown on the
Latest Balance Sheet; (b) items with an expiration date prior to the twelve
month anniversary of the Closing Date; (c) products that do not meet current
quality standards and specifications of the Seller; and (d) finished goods in
quantities on hand in excess of quantities sold in the twenty-four (24)
preceding months up to and including the Closing Date.
(c) Closing Balance Sheet. Within sixty (60) days after the Closing
Date, the Buyer shall cause Ernst & Young LLP (the "Buyer's Accountants") to
prepare a draft audited balance sheet of the Business as of the close of
business on the Closing Date in accordance with GAAP applied on a basis
consistent with the preparation of the Financial Statements (the "Closing
Balance Sheet"). The Closing Balance Sheet shall consist solely of those
Purchased Assets and the Operating Accruals normally included in the Seller's
historical balance sheets. For purposes of measuring the carrying value of any
element of the Closing Balance Sheet, the assets and liabilities referred to
above will be presented as though the transactions contemplated herein had not
occurred and in accordance with GAAP consistently applied by the Seller.
(d) Dispute Resolution. The Closing Balance Sheet and any
supporting documentation may be reviewed by a firm of independent certified
public accountants selected by the Seller (the "Seller's Accountants"). In
connection with the preparation of the Closing Balance Sheet, the Buyer's
Accountants shall conduct a physical count of the Inventories as of the Closing
Date. The Seller's Accountants may audit the work papers used in the preparation
of the Closing Balance Sheet, and the Seller shall grant the Buyer's Accountants
full access to all work papers and other documents and information and to all
personnel as may be reasonably requested. If the Seller has any objection to the
draft Closing Balance Sheet, it shall deliver a detailed statement describing
its objection to the Buyer within thirty (30) days after receiving the draft
Closing Balance Sheet. The Buyer and the Seller shall meet (if necessary) in an
attempt to stipulate to the purchase price adjustment described in Section
2.2(a) (or stipulate to such portion thereof with respect to which there is no
dispute). If the parties do not agree upon a final resolution within fifteen
(15) days after the Buyer has received the Seller's objections, the Buyer's
Accountants and the Seller's Accountants shall mutually select a third firm of
independent public accountants (the "Dispute Accountants") to resolve any
remaining objections. The determination of the Dispute Accountants shall be
binding on the parties. The Buyer and the Seller shall pay equally all fees and
expenses of the Dispute Accountants. No party may unreasonably withhold its
consent to the appointment as Dispute Accountants of a firm of independent
accountants suggested by another party.
(e) Modification of the Closing Balance Sheet. If the Buyer and the
Seller agree upon a change to the Closing Balance Sheet, or the Dispute
Accountants determines that a change should be made to the Closing Balance
Sheet, the Buyer shall promptly cause the Buyer's Accountants to modify
appropriately the Closing Balance Sheet. All references in this Agreement to the
Closing Balance Sheet, other than in Section 2.2(c), 2.2(d) and 2.2(e), shall be
to the Closing Balance Sheet as initially prepared by the Buyer and accepted by
the Seller, or to the Closing Balance Sheet as modified by the Seller pursuant
to agreement of the Buyer and the Seller or a determination of the Dispute
Accountants, as applicable.
(f) Payment of Purchase Price Reduction. After the Closing Balance
Sheet is in final
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form, if the Final Net Book Value reflected on the Closing Balance Sheet is less
than the Estimated Net Book Value, then the Buyer shall retain such difference
from the Adjustment Amount. If the Final Net Book Value as of the Closing Date
is greater than the Estimated Net Book Value, no adjustment shall be made. After
deducting any adjustments to the Preliminary Purchase Price as set forth in this
Section 2.2(f), the Buyer shall pay the remainder of the Adjustment Amount to
the Seller in same day funds on the day following the date the Closing Balance
Sheet is in final form. In the event of a dispute regarding the Closing Balance
Sheet, any undisputed amounts shall be promptly paid, and any disputed amounts
shall be promptly paid upon resolution of the dispute.
2.3 Purchase Price Allocation. The parties agree to allocate the
Purchase Price as set forth on Schedule 2.3 for all federal, state and local
income tax purposes (including IRS Form 8594), and will not take any
inconsistent or contrary position therewith for any other purpose.
2.4 Sales and Transfer Taxes. The Seller shall pay any and all
transfer, sales, purchase, use, value added, excise or similar tax imposed under
the laws of the United States, or any state or political subdivision thereof,
which arises out of the transfer by the Seller to the Buyer of any of the
Purchased Assets.
2.5 Prorations.
(a) Real and personal property taxes for the Purchased Assets for
1999 shall be prorated on the Closing Date based upon the taxes assessed for
1999; but if the taxes assessed for 1999 are not known on the Closing Date, such
taxes shall be prorated based upon the taxes assessed for 1998 and shall be
re-prorated within ten (10) days after the 1999 tax assessment and rate shall
become available with appropriate payment made.
(b) The Seller shall order final readings for utility services, such
as gas, electricity, water and sewer services, as of the Seller's close of
business on the day before the Closing Date, and prorated charges for such
utility services shall be reflected on the Closing Balance Sheet.
ARTICLE III
LIABILITIES
3.1 Assumption of Liabilities. As additional consideration for the
Purchased Assets, the Buyer shall, on the Closing Date, by its execution and
delivery of the Assignment, Xxxx of Sale and Assumption Agreement, assume and
agree to pay when due and perform when required only the following (the "Assumed
Liabilities"):
(a) all current liabilities of the Seller classified as trade
payables or operating accruals as set forth on the face of
the Closing Balance Sheet (rather than in any notes
thereto);
(b) all written and oral obligations of the Seller under the
Contracts which constitute Purchased Assets and all
obligations under written and oral Contracts entered into
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by the Seller in the Ordinary Course of Business between
the date of this Agreement and the Closing Date and which
do not violate any covenant in this Agreement, but as to
any obligation, only to the extent that payment is for
goods, services or other consideration to another party
that are delivered, performed or provided on or after the
Closing Date; and
(c) accrued vacation owing to employees of the Seller up to a
maximum of four weeks per employee.
provided, however, that the Buyer shall not assume any obligation to the extent
the existence thereof violates or is in breach of any of the representations,
warranties and covenants of the Seller or the Shareholder in this Agreement.
3.2 Non-Assumption of Liabilities. Except only as expressly provided
in Section 3.1, the Buyer shall not be responsible for, assume, pay, perform,
discharge, or accept any liabilities, debts or obligations of the Seller of any
kind whatsoever, whether actual, contingent, accrued, known or unknown,
including, without limitation, any relating to interest-bearing debt,
intercompany indebtedness owing from the Seller to the Shareholder, notes to
Affiliates or other related Persons, interest and termination penalties on
indebtedness, taxes, employee compensation, severance, pension, profit-sharing,
vacation in excess of four weeks per employee, health insurance, disability
insurance or other employee benefit plans and programs, worker's compensation,
breach or negligent performance of any contract, or breach of warranty relating
thereto, liabilities resulting from breach of contract, torts (including,
without limitation, product liability claims), illegal activity, unlawful
employment or business practice, infringement of intellectual property rights,
claim for environmental liability or remediation or any other liability or
obligation whatsoever. All such non-assumed liabilities, debts and obligations
(collectively, the "Excluded Liabilities") shall remain the responsibility of
the Seller which shall pay and discharge the same when and as due.
3.3 Employee Benefit Plans. The Buyer shall not assume, honor or
accept any employee benefit plan or stock option plan of the Seller, including
but not limited to any employee pension benefit plan within the meaning of
Section 3(2) of ERISA. Except for the obligation of the Buyer with respect to
accrued vacation set forth in Section 3.1(c) and except for liabilities
resulting from any failure by the Buyer to meet its obligations under Sections
7.8 or 7.13 of this Agreement, the Seller shall be solely responsible for
satisfying all obligations (whether arising under federal, state or local law,
or pursuant to contract) which may arise or which may have arisen prior to the
Closing, in connection with the employment by the Seller of the Seller's
employees, the creation, funding or operation of any of the Seller's employee
benefit plans that cover any of the Seller's employees, or which may arise as a
result of the transactions described in this Agreement, but excluding any
liabilities incurred by the Seller as a result of the Buyer's failure to meet
its obligations under Sections 7.8 or 7.13 of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE SELLER AND SHAREHOLDER
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In order to induce the Buyer and Promega to enter into this
Agreement, the Seller and the Shareholder, jointly and severally, make the
following representations and warranties to the Buyer and Promega (which
representations and warranties shall survive the Closing to the extent provided
in Section 10.4), each of which shall be deemed to be independently material and
relied upon by the Buyer and Promega, regardless of any investigation made by,
or information known to, the Buyer and Promega. Any matter described on the
disclosure schedules attached hereto and incorporated herein shall be set forth
with reference to each separate Section of this Agreement to which the matter
relates.
4.1 Ownership, Organization and Qualification. The Seller and the
Shareholder are corporations duly incorporated and in good standing under the
laws of the State of California and the State of Delaware, respectively, have
not filed articles of dissolution and have a perpetual period of existence. Each
of the Seller and the Shareholder are qualified to transact business as a
foreign corporation in the jurisdictions where it is required to be so
qualified, except where such failure to be qualified would not result in a
Material Adverse Effect.
4.2 Authorization. The Seller and the Shareholder have all necessary
power and authority to enter into and perform the transactions contemplated
hereby in accordance with the terms and conditions hereof. The execution and
delivery of this Agreement, and the performance by the Seller of each of its
obligations contained herein, have been duly approved by the Board of Directors
of the Seller and the Shareholder, and by the Shareholder, in its capacity as
sole shareholder of the Seller. No other corporate authorization by either the
Seller or the Shareholder (including, without limitation, approval by the
Shareholder's shareholders) is required for the execution and delivery of this
Agreement or the performance by each of the Seller and the Shareholder of its
obligations hereunder.
4.3 Enforceability. Assuming the execution and delivery by the Buyer
and Promega have been duly authorized, this Agreement and all other agreements
of the Seller or the Shareholder contemplated hereby are or, upon the execution
and delivery thereof will be, the valid and binding obligations of the Seller
and the Shareholder, respectively, enforceable against them in accordance with
their terms.
4.4 Conflicting Obligations. The execution and delivery of this
Agreement does not, and the consummation of the sale and purchase of the
Purchased Assets will not: (a) conflict with or violate any provisions of the
certificate of incorporation or bylaws of each of the Seller or the Shareholder,
as amended and in effect on and as of the date hereof and on and as of the
Closing Date; (b) conflict with or violate any provisions of, or result in the
maturation or acceleration of, any obligations under any contract, agreement,
instrument, document, lease, license, permit, indenture, or obligation, or any
law, statute, ordinance, rule, regulation, code, guideline, order, arbitration
award, judgment or decree, to which the Seller or the Shareholder is subject or
to which the Seller or the Shareholder is a party; or (c) violate any
restriction or limitation, or result in the termination or loss of any right (or
give any third Person the right to cause such termination or loss), of any kind
to which the Seller or the Shareholder is bound, except, with respect to clauses
(b) and (c), where such conflict, violation or loss would not result in a
Material Adverse Effect on the Business.
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4.5 Subsidiaries. Except as set forth on Schedule 4.5, the Seller
owns no stock or other securities of nor has any investment in any corporation,
joint venture, partnership or other business enterprise. The Seller has no
Subsidiaries.
4.6 Title to Assets. The Seller has good title to all of the Seller
Purchased Assets and the Shareholder has good title to all of the Shareholder
Purchased Assets, in each case, free and clear of any Lien (other than Permitted
Liens).
4.7 Third Party Consents. Except as set forth on Schedule 4.7, no
third party consents, approvals or authorizations are necessary for the
execution and consummation of the transactions contemplated hereby, nor are any
such consents, approvals or authorizations required in order for any of the
Purchased Assets, including without limitation, the Contracts and the Permits,
to be assigned to the Buyer.
4.8 Organizational Documents. Attached as Schedule 4.8 are true,
correct and complete copies of the certificate of incorporation and bylaws of
the Seller and the Shareholder, in each case as amended and in effect on and as
of the date hereof.
4.9 Financial Statements. Attached as Schedule 4.9 are complete
copies of the unaudited financial statements (including December 31, 1998
balance sheets and statements of earnings and cash flow) of the Seller for each
of its last three fiscal years ending December 31 through and including December
31, 1998 (the "Latest Fiscal Year End"), and a complete copy of the unaudited
financial statements (including balance sheets and statement of earnings and
cash flow) of the Seller for the 2-month period ending February 28, 1999 (the
"Latest Balance Sheet Date") (collectively, the "Financial Statements"). The
Financial Statements have been prepared in accordance with GAAP maintained and
applied on a consistent basis throughout the indicated periods, and fairly
present in all material respects the financial condition and results of
operation of the Seller at the dates and for the relevant periods indicated.
True and correct copies have been delivered to Buyer of all written reports
submitted to the Seller or the Shareholder by the Shareholder's auditors since
January 1, 1994, relating to the findings of audits or examination of the books
and records of the Seller and the Shareholder; provided, that such written
reports shall be redacted so that they shall include only those items related to
the Seller.
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4.10 Real Property; Leases. The Seller does not own any real
property. Schedule 4.10(a) sets forth a true and correct summary description of
all Real Estate leased or rented by the Seller. The description of each parcel
of Real Estate describes such parcel fully and adequately. To the Knowledge of
the Seller and the Shareholder, except as set forth on Schedule 4.10(a), all
buildings, structures and other improvements on the Real Estate are free of
defects that would result in loss to the Business in excess of $25,000. The use
and operation of the Real Estate conform to all applicable building, zoning,
safety, and other laws, statutes, ordinances, rules, regulations, codes,
licenses, material permits, and all other restrictions and conditions, except
where the failure to conform would not result in a Material Adverse Effect. To
the Knowledge of the Seller and the Shareholder, no portion of any of the Real
Estate is located in a flood plain, flood hazard area or designated wetlands
area. Except as set forth on Schedule 4.10(a), neither the Seller nor the
Shareholder has received any written notice of, and neither the Seller nor the
Shareholder has Knowledge of, any assessments for public improvements against
the Real Estate or any written order by any Governmental Authority, any
insurance company which has issued to the Seller or the Shareholder a policy
with respect to any parcel of Real Estate or any board of fire underwriters or
other body exercising similar functions that: (i) relates to material violations
of building, safety or fire ordinances or regulations which have not been
remediated; (ii) claims any material defect or deficiency with respect to any
parcel of Real Estate which has not been remediated; or (iii) requests the
performance of any repairs, alterations or other work to or in any parcel of
Real Estate or in the streets bounding the same that have not yet been
performed. Neither the Seller nor the Shareholder has made any arrangements with
any Governmental Authority for the deferral of taxes or assessments for any
parcel of Real Estate. To the Knowledge of the Seller and the Shareholder, there
is no condemnation, expropriation, eminent domain or similar proceeding
affecting all or any portion of the Real Estate pending or threatened. Except
where the Seller is lessee, to the Knowledge of the Seller and the Shareholder,
there are no leases, subleases, licenses, concessions or other agreements
(written or oral) granting to any Person the right to use or occupy any portion
of each parcel of Real Estate. Except as set forth on Schedule 4.10(a), to the
Knowledge of the Seller and the Shareholder, there are no outstanding options or
rights of first refusal to purchase any parcel of Real Estate or any portion
thereof or interest therein.
4.11 Personal Property. Schedule 4.11 sets forth all items of
personal property of the Seller which have a book value or current estimated
market value in excess of $25,000. Except for such personal property as has been
disposed of in the Ordinary Course of Business since the Latest Balance Sheet
Date, the Seller owns all property reflected on the Latest Balance Sheet, and
will own all property reflected on the Closing Balance Sheet. All tangible
personal property of the Seller is located upon the Seller's premises, except
items in transit or as set forth on Schedule 4.11. To the Knowledge of the
Seller and the Shareholder, all such property set forth on Schedule 4.11 is in
good condition and repair (normal wear and tear excepted).
4.12 All Necessary Assets. The Purchased Assets constitute all of
the material assets which are used in, and all of the assets which are necessary
for, the conduct of the Business, as presently conducted and presently is
proposed to be conducted, subject to Section 1.5.
4.13 Receivables. All of the Receivables (a) have arisen and will
arise solely from bona fide transactions in the Ordinary Course of Business and
are not and will not be subject to
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counterclaim or set-off and are not or will not be otherwise in dispute and (b)
are, and as of the Closing Date will, be good and collectible in full (less only
the allowance for doubtful accounts receivable as set forth on the Latest
Balance Sheet), and will be collected (less only such allowance) within 120 days
following the Closing Date. Schedule 4.13 contains a true and correct aging list
of Receivables as of March 18, 1999, specifying the date of original invoice and
current payment status of each Receivable.
4.14 Inventories. The Inventories of the Seller have been valued at
the lower of cost or market. The values at which Inventories are reflected on
the Financial Statements have been determined on a first-in-first-out basis in
accordance with GAAP consistently applied for all periods. The Inventories which
consist of work-in-process are being completed on schedule and there are no
forfeitures, chargebacks or penalties which have been or will be incurred due to
the failure of the Seller to complete the work-in-progress in a timely manner.
None of the Inventories have been consigned to others, nor is any inventory
consigned to the Seller. All of the Inventories are located at San Luis Obispo,
California.
4.15 Intellectual Property.
(a) The Seller owns or has the right to use pursuant to license,
sublicense, agreement, or permission all Intellectual Property necessary for the
operation of the Businesses. Each item of Intellectual Property owned or used by
the Seller immediately prior to the Closing hereunder which constitute Purchased
Assets will be owned or available for use by the Buyer on identical terms and
conditions immediately subsequent to the Closing hereunder. To the Knowledge of
the Seller and the Shareholder, the Seller has taken all necessary action to
maintain and to protect each item of Intellectual Property that it owns or uses
which constitute Purchased Assets, including, but not limited to, payment of any
and all maintenance fees and annuities.
(b) The Seller has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual Property
of any Person and, except as set forth on Schedule 4.15(b), neither the
Shareholder nor the Seller has received any charge, complaint, claim, demand, or
notice alleging any such interference, infringement, misappropriation, or
violation of any Intellectual Property of any other party, including, but not
limited to, any claim that the Seller must license or refrain from using any
Intellectual Property of any third party.
(c) Schedule 4.15(c) identifies each patent or registration which
has been issued to the Seller with respect to any of its Intellectual Property,
identifies each pending patent application or application for registration which
the Seller has made with respect to any of its Intellectual Property, and
identifies each license, agreement, or other permission which the Seller has
granted to any third party with respect to any of its Intellectual Property
(together with any exceptions). The Seller has delivered to the Buyer correct
and complete copies of all such patents, registrations, applications, licenses,
agreements, and permissions (as amended to date) and has made available to the
Buyer correct and complete copies of all other written documentation evidencing
ownership and prosecution (if applicable) of each such item. Schedule 4.15(c)
identifies each trade name or unregistered trademark used by the Seller in
connection with any of its businesses. With respect to each item of Intellectual
Property required to be identified in Schedule 4.15(c):
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(i) the Seller possesses all right, title and interest in
and to the item, free and clear of any Lien, license, or other
restriction;
(ii) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge;
(iii) no action, suit, proceeding, hearing, investigation,
claim, or demand is pending or, to the Knowledge of the Seller and
the Shareholder, is threatened which challenges the legality,
validity, enforceability, use, or ownership of the item; and
(iv) the Seller has not entered into any agreement to
indemnify any Person for or against any interference,
infringement, misappropriation, reexamination, opposition or other
conflict with respect to the item.
(d) Schedule 4.15(d) identifies each and every material item of
Intellectual Property (excluding commercially available computer software) that
any third party owns or licenses and that the Seller uses pursuant to license,
sublicense, agreement, or permission. The Seller has delivered to the Buyer
correct and complete copies of all such licenses, sublicenses, agreements, and
permissions (as amended to date). With respect to each item of Intellectual
Property required to be identified in Schedule 4.15(d), except as stated in
Schedule 4.15(d):
(i) the license, sublicense, agreement, or permission
covering the item is legal, valid, binding, enforceable, and in
full force and effect;
(ii) the license, sublicense, agreement, or permission will
continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of
the transactions contemplated hereby (including the assignments
and assumptions referred to in Section 1.2 above);
(iii) to the Knowledge of the Seller and the Shareholder,
no party to the license, sublicense, agreement, or permission is
in breach or default, and no event has occurred which with notice
or lapse of time would constitute a breach or default or permit
termination, modification, or acceleration thereunder;
(iv) no party to the license, sublicense, agreement, or
permission has repudiated any provision thereof;
(v) to the Knowledge of the Seller and the Shareholder,
with respect to each sublicense, the representations and
warranties set forth in subsections (i) through (iv) above are
true and correct with respect to the underlying license;
(vi) the underlying item of Intellectual Property is not
subject to any outstanding injunction, judgment, order, decree,
ruling or charge;
(vii) no action, suit, proceeding, hearing, investigation,
claim, or demand is pending or, to the Knowledge of the Seller and
the Shareholder, is threatened which
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challenges the legality, validity, or enforceability of the
underlying item of Intellectual Property; and
(viii) the Seller has never granted any sublicense or
similar right with respect to the license, sublicense, agreement,
or permission.
(e) Except as set forth on Schedule 4.15(e), neither the Seller nor
the Shareholder have any Knowledge of any products, inventions or procedures of
competitors which reasonably could or do infringe or misappropriate any
Intellectual Property of the Seller. The Seller has not given formal or informal
notice of infringement or sent a demand to "cease and desist" to any Person.
4.16 Insurance.
(a) General. Schedule 4.16(a) lists and contains a description of
each policy of insurance owned by the Seller currently in effect (including
without limitation, policies for fire and casualty, liability, worker's
compensation, business interruption, umbrella coverage, products liability,
medical, disability and other forms of insurance) specifying the insurer, amount
of coverage, type of insurance, policy number, deductible limits and any pending
claim in excess of $5,000, whether or not covered by insurance (the
"Insurance"). True and complete copies of each policy of Insurance have been
previously delivered to Buyer. The Insurance is in full force and effect, all
premiums with respect thereto covering all periods up to and including the date
hereof have been paid, and no notice of cancellation or termination has been
received by the Seller with respect to any such policy. To the Knowledge of the
Seller and the Shareholder, the Insurance is sufficient for compliance with all
requirements of law and with all agreements to which the Seller is a party. The
Seller has not received any notice from or on behalf of any insurance carrier
issuing any such policy that: (i) insurance rates will hereafter be
substantially increased; (ii) that there will hereafter be no renewal of any
such policy; or (iii) that alteration of any personal or real property or
purchase of additional equipment, or modification of any method of doing
business, is required or suggested.
(b) Denials of Coverage. The Seller has not been refused any
insurance with respect to the Seller's assets or operations, nor has the
Seller's coverage been limited by any insurance carrier to which it has applied
for or with which it has carried insurance.
(c) Claims. Schedule 4.16(c) sets forth a list of and summary of
information pertaining to, all claims (other than workers' compensation claims)
of property damage and personal injury or death against the Seller which are
currently pending or were made during the preceding three (3) fiscal years or
the current fiscal year. Except as set forth on Schedule 4.16(c), all of such
claims are fully satisfied or are being defended by an insurance carrier and
involve no exposure to the Seller (other than deductibles).
(d) Self-Insurance. Schedule 4.16(d) describes any self-insurance
programs relating to the Business.
4.17 Permits. The Seller possesses all Permits (including, without
limitation, occupancy permits for real estate and permits required pursuant to
Environmental Law) as are necessary for the
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consummation of the transactions contemplated hereby or the conduct of its
business or operations, except where the failure to hold such Permits would not
have a Material Adverse Effect on the Business. Schedule 4.17 sets forth a list
of all Permits and true and complete copies of each written document evidencing
or affecting any Permits have been previously delivered to the Buyer. The Seller
is in compliance with the terms and conditions of all Permits, except where such
noncompliance would not result in a Material Adverse Effect.
4.18 Material Contract. Schedule 4.18 lists the following contracts
and other agreements to which the Seller is a party:
(a) Leases. All leases of real or personal property, excluding the
leases described in Schedule 4.10(a) hereof;
(b) Purchase and Sale Orders. All written and oral agreements,
including purchase orders, relating to the purchase or sale of products,
services or supplies by the Seller other than (i) any such agreements which have
been completely performed and (ii) individual purchase or sales orders issued in
the Ordinary Course of Business for amounts in each case not in excess of
$10,000 individually;
(c) Certain Agreements. All of the following described types of
agreements or documents: (i) distributorship, sales representative or similar
agreements; (ii) license, royalty or similar agreements; (iii) service or
maintenance; (iv) protective services or security; and (v) commission or other
contingent agreements pursuant to which the Seller's obligation to make payments
is in excess of $10,000 per year, or pursuant to which the Seller's obligation
to make contingent payments is dependent upon sales, revenues, income, success
or other performance standard;
(d) Other Financial Obligations. All other written and oral
agreements or commitment which requires the Seller to pay or expend, after the
Closing, more than $10,000 in the aggregate of all such instances with the same
or related parties;
(e) Capital Expenditures. All outstanding written and oral
commitments by the Seller to make a capital expenditure, capital addition or
capital improvement in excess of $10,000;
(f) Employment Contracts. All written and oral employment, bonus,
incentive compensation, profit sharing, stock option, salary-continuation or
other fringe benefit agreements, other than those disclosed in Schedule 4.25(a),
currently in effect or to become effective, or under which any amounts remain
unpaid, on the date of this Agreement or to become payable or effective after
the date of this Agreement;
(g) Non-Compete Covenants. All written and oral covenants not to
compete, non-solicitation covenants and non-disclosure covenants in favor of the
Seller, or binding upon or against the Seller;
(h) Discounts. All agreements, arrangements or programs pursuant to
which the Seller has offered, promised or made available to its customers any
volume discount, rebate, credit or allowance; and
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(i) Non-Ordinary Course Agreements. All other contracts, agreements
and arrangements binding upon the Seller and which was made or entered into
either other than in the Ordinary Course of Business or the performance of which
involves consideration in excess of $10,000.
The Seller has delivered to the Buyer a correct and complete copy of each
written agreement listed on Schedule 4.18 (as amended to date) and a written
summary setting forth the material terms and conditions of each oral agreement
which involve amounts in excess of $10,000 as referred to in Schedule 4.18. With
respect to each such agreement: (i) the agreement is legal, valid, binding,
enforceable, except as enforceability may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors'
rights generally or (B) general principles of equity, whether considered in a
proceeding in equity or at law, and in full force and effect; and (ii) no party
is in breach or default, and no event has occurred which with notice or lapse of
time would constitute a breach or default, or permit termination, modification
or acceleration under the agreement; and (iii) no party has repudiated any
provision of the agreement.
4.19 Litigation. Except as set forth on Schedule 4.19 or Schedule
4.21(a), there is not now, and there has not been within the last three (3)
years, any litigation, claim, proceeding or investigation pending, or, to the
Seller's or the Shareholder's Knowledge, threatened against or relating to the
Seller, its properties or the Business, or the ability to perform its
obligations under this Agreement. Schedule 4.19 sets forth, with respect to each
item described thereon, the name or title of the action (and parties or
potential parties thereto), a description of the nature of the action or claim,
and an estimate of the maximum liability of the Seller in the event of an
adverse result. Except as so described, neither the Seller nor the Shareholder
have Knowledge of any facts or circumstances which reasonably could be expected
to ripen into litigation, proceeding or investigation that would result in a
Material Adverse Effect. Except as described on Schedule 4.19, there is no
outstanding order, decree or stipulation issued by any Governmental Authority to
which the Seller is a party or subject and which adversely affects or may
adversely affect its properties, business or prospects.
4.20 Compliance With Law. Except as set forth on Schedule 4.21(a),
the conduct of the Business does not violate, nor is the Seller in default
under, any law, statute, ordinance, rule, regulation, code, license, permit,
guideline, order, arbitration award, judgment or decree, and Buyer will not
after the Closing incur any Liability or obligation as a result of any such
violation or default existing at the Closing or arising or accruing thereafter
but based upon conditions existing at the Closing, except where such violation
or default would not have a Material Adverse Effect on the Business. Except as
set forth on Schedule 4.20, no material expenditures are anticipated which are
necessary or appropriate for the continuation of the Business in compliance with
any such law, statute, rule, regulation, code, license, permit, guidelines,
order, arbitration award, judgment or decree.
4.21 Environmental Matters.
(a) Environmental Compliance. Except as set forth in Schedule
4.21(a), (i) the Seller is
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in material compliance with all applicable Environmental Laws and to the
Knowledge of the Seller and the Shareholder, the Leased Property is in material
compliance with all applicable Environmental Laws; (ii) the Seller has furnished
or made available to the Buyer and Promega all communications (either written or
oral) received by the Seller or the Shareholder from a Governmental Authority or
other Person which alleges that the Seller, the Shareholder or the Leased
Property is not in material compliance with any applicable Environmental Law;
(iii) to the Knowledge of the Seller and the Shareholder, neither the Seller nor
the Shareholder is under investigation by any Governmental Authority for the
failure to comply in all material respects with any Environmental Law; (iv)
neither the Seller nor the Shareholder is required to take on behalf of the
Business or at the Real Estate, any Remedial Action by any Governmental
Authority or Environmental Law; and (v) to the Knowledge of the Seller and the
Shareholder, neither the Seller nor the Shareholder has made any statements,
warranties, or representations in any documents submitted to any Governmental
Authority or submittal created pursuant to an obligation imposed by
Environmental Law containing any untrue statement of material fact or omitting
any statement of material fact which render the statements made misleading in
connection with any Environmental Law.
(b) Environmental Permits. The Seller and the Shareholder have
obtained all Environmental Permits necessary for the Seller's operations on the
Leased Property, and all such Environmental Permits are in good standing.
(c) Pending Litigation. Except as set forth in Schedule 4.21(c), to
the Knowledge of the Seller and the Shareholder, there is no Environmental Claim
pending or threatened against the Seller or the Shareholder in connection with
the Leased Property or the Business, operations or actions of the Seller.
Neither the Seller nor the Shareholder has received any notice of any past,
present or future event, condition, circumstance, activity, practice, incident,
action or plan which may give rise to any Environmental Claim based on or
related to the Leased Property.
(d) Disposal Practices. Except as set forth in Schedule 4.21(d), to
the Knowledge of the Seller and the Shareholder, neither the Seller, the
Shareholder nor any other Person has arranged for the disposal, treatment or
recycling of, or transported for disposal, treatment or recycling of any
Environmental Material, including, but not limited to, any Hazardous Waste,
PCB-containing Material, petroleum substance (including crude oil or any
fraction thereof), or petroleum product from the Leased Property to any other
location which has been identified on the National Priority List (NPL), CERCLIS
or state equivalent lists. To the knowledge of the Seller and the Shareholder,
no Environmental Materials have, in a manner that violates any Environmental
Laws, been transported from the Leased Property for purposes of disposal.
4.22 Contingent and Undisclosed Liabilities. The Seller has no
Liabilities, whether such Liabilities are now known or unknown, fixed or
contingent, of any nature whatsoever, except: (i) those fully reflected or
reserved against on the face of the Latest Balance Sheet (rather than in any
notes thereto); (ii) those fully disclosed in this Agreement and the Schedules
hereto; or (iii) Liabilities which do not result in a Material Adverse Effect.
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4.23 Tax Matters.
(a) The Seller has filed all Tax Returns that it was required to
file. All such Tax Returns were correct and complete in all respects. All Taxes
owed by the Seller (whether or not shown on any Tax Return) have been paid. The
Seller is not currently the beneficiary of any extension of time within which to
file any Tax Return. No claim has ever been made by an authority in a
jurisdiction where the Seller does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no Liens on any of the
assets of the Seller that arose in connection with any failure (or alleged
failure) to pay any Tax.
(b) The Seller has withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
creditor, stockholder, or other third party.
4.24 Employees; Labor Matters.
(a) Schedule 4.24(a) lists each of the following:
(i) (A) all officers and directors of the Seller; (B) the names
and current annual salary rates (and bonus, incentive or
commission arrangements) of all full-time and part-time
employees and agents of the Seller; (C) all loans made by
the Seller to its employees and a statement of the terms
thereof; and (D) a list of all of the Seller's employees
who are currently laid-off or on parental, disability or
other leave; and
(ii) All employees who are expected, as of the Closing Date, to
have earned but unused vacation and other personal days (or
earned but unpaid vacation pay in lieu thereof), together
with an estimate of the dollar amount thereof.
(b) The Seller is not a party to any collective bargaining
agreement or bound to any other agreement with a labor union. The labor
relations of the Seller are satisfactory in that there has not been within the
preceding three (3) fiscal years of the Seller and the current fiscal year, nor
is there currently, any strike, walkout or work stoppage; nor, to the Seller's
and the Shareholder's Knowledge, is any such action threatened. Neither the
Seller nor the Shareholder has been notified of any proceedings pending for
certification or representation before the National Labor Relations Board nor,
to the Seller's and the Shareholder's Knowledge, has there been any attempt
within the preceding three (3) fiscal years or the current fiscal year to
organize the employees of the Seller into a collective bargaining unit. To the
Knowledge of the Seller and the Shareholder, there is no investigation pending,
nor is there any uncorrected or unresolved citation, complaint or charge issued,
by any agency responsible for administering or enforcing laws relating to labor
relations, employee safety or health, fair labor standards and equal employment
opportunity nor, to the Knowledge of the Seller and the Shareholder, is any such
proceeding threatened.
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4.25 Employee Benefit Plans.
(a) General. Schedule 4.25(a) sets forth a true and complete list
and brief description of each "employee pension benefit plan" (as defined in
Section 3(2) of ERISA), each "employee welfare benefit plan" (as defined in
Section 3(1) of ERISA) and each and every other employee benefit plan maintained
or contributed to, or required to be contributed to, by the Seller for the
benefit of any officers or employees, current or former, active or inactive, of
the Business, whether on an active or frozen basis (all the foregoing being
herein called "Benefit Plans"). The Seller does not have any formal plan or
commitment, whether legally binding or not, to modify or change any existing
Benefit Plan that would affect any employee or former employee of the Seller.
True, complete and correct copies of the following have been previously
delivered to the Buyer: (i) each Benefit Plan, including any amendments thereto;
(ii) the most recent Form 5500 or Form 5500-C filed with the IRS with respect to
each Benefit Plan (if any such report was required), (iii) the most recent
summary plan description together with each subsequent summary of material
modifications required under ERISA with respect to each Benefit Plan; (iv) each
trust agreement or other funding arrangement relating to each Benefit Plan which
is an employee pension benefit plan as defined in Section 3(2) of ERISA
(hereinafter "Pension Plan"); and (v) all currently effective IRS rulings or
determination letters relating to each Pension Plan.
(b) PBGC. No Pension Plan is subject to Title IV of ERISA and there
are no facts which might give rise to any liability of the Seller under Title IV
of ERISA or which could reasonably be anticipated to result in any claims being
made against the Seller by the Pension Benefit Guaranty Corporation with respect
to any Pension Plan. For purposes of the preceding sentence and Section 4.25(e)
hereof, the term "Seller" shall also include any entity which is under common
control or affiliated with the Seller, within the meaning of Section 4001(b)(1)
of ERISA, and the rules and regulations promulgated thereunder and/or Sections
414(b), (c), (m) or (o) of the Code, and the rules and regulations promulgated
thereunder.
(c) Post-Retirement Benefits. Except as disclosed on Schedule 4.18
or Schedule 4.25(a), no Benefit Plan provides benefits, including without
limitation, death, disability, or medical benefits (whether or not insured),
with respect to current or former employees of the Business beyond their
retirement or other termination of service other than (i) coverage mandated by
applicable law, or (ii) death benefits or retirement benefits under any Pension
Plan.
(d) COBRA. Each "group health plan" (within the meaning of Section
5000(b)(1) of the Code) maintained by the Seller that covers or has covered
employees of the Business, as of the first day of each such group health plan's
first plan year beginning on or after July 1, 1986, has been administered in
compliance with the continuation coverage requirements initially enacted as a
part of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and
as formerly provided under Section 162(k) of the Code and as currently provided
under Sections 601 through 609 of ERISA and Section 4980B of the Code and any
regulations promulgated or proposed under any of those Code or ERISA sections,
except where a failure to administer any such group health plan in compliance
with such laws and regulations would not have a Material Adverse Effect.
(e) Multiemployer Plans. At no time has the Seller been required to
contribute to, or incurred any withdrawal liability (within the meaning of
Section 4201 of ERISA) to any Benefit
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Plan which is a multiemployer plan as defined in Section 3(37) of ERISA and no
event has occurred that could result in any liability of the Seller to any
multiemployer plan.
(f) Foreign Employees. No current officers or employees, active or
inactive, of the Business regularly work at a location outside the United
States.
(g) Family and Medical Leave. Except as disclosed on Schedule
4.25(g), on the date hereof, no employees of the Seller are inactive or are on a
leave of absence covered by the Family and Medical Leave Act of 1993, P.L.
103-3.
4.26 Products Liability. To the Knowledge of the Seller and the
Shareholder, there exists no defect in the design or manufacture of any of the
Seller's products and there is no pending or threatened action, suit, inquiry,
proceeding or investigation by or before any Person relating to any product
alleged to have been manufactured, distributed or sold by the Seller to others,
and alleged to have been defective or improperly designed or manufactured or in
breach of any express or implied product warranty ("Products Liability"). There
exists no pending or, to the Knowledge of the Seller or the Shareholder,
threatened, Products Liability claims. To the Knowledge of the Seller and the
Shareholder, there is no valid basis for any such suit, inquiry, action,
proceeding, investigation or claim. The Seller does not have any 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 manufactured, sold,
leased or delivered by the Seller. The Seller is insured, and has been insured
continuously for the past five years against product liabilities, in accordance
with the insurance policies identified on Schedule 4.16(a) (including a
statement of the name of the insurer, the type of policy, the amounts of
coverage and the applicable deductible limits).
4.27 Product Warranty. All product warranties given by the Seller in
connection with the Business: (a) limit the remedy available to Seller's
customers to the replacement of the warranted goods by Seller, or alternatively,
a refund of the sales price of such goods to customer; (b) expressly disallow
claims for incidental or consequential damages; and (c) expressly disclaim all
other warranties not expressly stated therein, whether express or implied,
including warranties of merchantability, fitness for a particular purpose.
4.28 Events Subsequent to Latest Fiscal Year End. Except as set
forth on Schedule 4.28, since the Latest Fiscal Year End, the Seller has
operated in the Ordinary Course of Business and there has not been any Material
Adverse Effect. Without limiting the generality of the foregoing, since that
date, except as set forth on Schedule 4.28:
(a) The Seller has not sold, leased, transferred, or assigned any of
its assets, tangible or intangible, other than sales of Inventory in the
Ordinary Course of Business or which would not result in a Material Adverse
Effect on the Business;
(b) The Seller has not entered into any agreement, contract, lease
or license (or series of related agreements, contracts, leases, and licenses)
either involving more than $10,000 or outside the Ordinary Course of Business;
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(c) No party (including the Seller) has accelerated, terminated,
modified, or cancelled any agreement, contract, lease, or license (or series of
related agreements, contracts, leases, or licenses) involving more than $10,000
individually to which the Seller is a party or by which it is bound;
(d) The Seller has not made any capital expenditure (or series of
related capital expenditures) either involving more than $25,000 individually or
outside the Ordinary Course of Business;
(e) The Seller has not made any capital investment in, any loan to,
or any acquisition of the securities or assets of, any other Person (or series
of related capital investments, loans, and acquisitions) either involving more
than $25,000 individually or outside the Ordinary Course of Business;
(f) The Seller has not issued any note, bond, or other debt security
or created, incurred, assumed, or guaranteed any indebtedness for borrowed money
or capitalized lease obligation;
(g) The Seller has not delayed or postponed the payment of accounts
payable and other Liabilities outside the Ordinary Course of Business;
(h) The Seller has not cancelled, compromised, waived, or released
any right or claim (or series of related rights and claims);
(i) The Seller has not granted any license or sublicense of any
rights under or with respect to any of its Intellectual Property;
(j) There has been no change made or authorized in the certificate
of incorporation or bylaws of the Seller;
(k) The Seller has not issued, sold, or otherwise disposed of any of
its capital stock, or granted any options, warrants, or other rights to purchase
or obtain (including upon conversion, exchange, or exercise) any of its capital
stock;
(l) The Seller has not declared, set aside, or paid any dividend or
made any distribution with respect to its capital stock (whether in cash or in
kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(m) The Seller has not experienced any damage, destruction, or loss
(whether or not covered by insurance) to its property, other than damage,
destruction or loss that did not, individually or in the aggregate, have a
Material Adverse Effect;
(n) The Seller has not made any loan to, or entered into any other
transaction with, any of its directors, officers, and employees, except for the
payment of compensation in the Ordinary Course of Business;
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(o) The Seller has not entered into any employment contract or
collective bargaining agreement, written or oral, or modified the terms of any
existing such contract or agreement outside the Ordinary Course of Business;
(p) The Seller has not granted any increase in the base compensation
of any of its directors, officers, and employees outside the Ordinary Course of
Business;
(q) The Seller has not adopted, amended, modified, or terminated any
bonus, profit-sharing, incentive, severance, or other plan, contract, or
commitment for the benefit of any of its directors, officers, and employees (or
taken any such action with respect to any other Employee Benefit Plan), other
than as necessary to comply with applicable law (including Section 401(a) of the
Code) and other than in the Ordinary Course of Business;
(r) The Seller has not made or pledged to make any charitable or
other capital contribution outside the Ordinary Course of Business;
(s) Neither the Seller nor the Shareholder has entered into any
agreement or arrangement for the sale of the Business or any part thereof or for
the purchase of another business, whether by merger, consolidation, exchange of
capital stock or otherwise (other than with respect to this Agreement);
(t) The Seller has not changed or modified its accounting methods or
practice;
(u) The Seller has not settled, or agreed to settle, any litigation,
arbitration or other proceeding; and
(v) The Seller has not committed to any of the foregoing.
4.29 Customers and Suppliers. Schedule 4.29 lists, in descending
order, those customers of the Seller accounting for at least 5% of annual sales
volume in the Seller's most recently completed fiscal year and the top ten
suppliers of raw materials or supplies accounting for the largest annual expense
to the Seller. The Seller has received no notice, nor do the Seller or the
Shareholder have any Knowledge, that (a) any customer of the Seller who
accounted for five percent (5%) or more of the Seller's sales during its
immediately preceding fiscal year or (b) any supplier to the Seller (if such
supplier could not be replaced by the Seller with no material adverse effect to
it), has terminated or will terminate business relations with the Seller.
4.30 Brokerage. Except as described on Schedule 4.30, neither the
Seller nor the Shareholder has incurred, or made commitments for, any brokerage,
finders' or similar fee in connection with the transactions contemplated by this
Agreement.
4.31 Affiliate Transactions. Except as described on Schedule 4.31,
the Seller: (a) has not had any financial transactions or arrangements (other
than payment of regular salary to Affiliates who are employees) with any
Affiliate since the Latest Fiscal Year End, and (b) does not have and will not
have any present or future obligation to enter into any transaction or
arrangement with any Affiliate. Except as described on Schedule 4.31, no
Affiliate owns, directly or indirectly, or is a
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director, member, officer or employee of, or consultant to, any business
organization which is a competitor, supplier, or customer of the Seller, nor
does any Affiliate own any assets or properties which are used in the Business.
4.32 Guaranties. The Seller is not a guarantor or otherwise liable
for any Liability (including, without limitation, indebtedness) of any other
Person.
4.33 Investment. The Seller (i) understands that the Note has not
been, and will not be, registered under the Securities Act, or under any state
securities laws, and are being offered and sold in reliance upon federal and
state exemptions for transactions not involving any public offering, (ii) is
acquiring the Note solely for its own account for investment purposes, and not
with a view to the distribution thereof (except to the Shareholder), (iii) is a
sophisticated investor with knowledge and experience in business and financial
matters, (iv) has received certain information concerning the Buyer and has had
the opportunity to obtain additional information as desired in order to evaluate
the merits and the risks inherent in holding the Note, (v) is able to bear the
economic risk and lack of liquidity inherent in holding the Note and (vi) is an
Accredited Investor.
4.34 Commission Filings. The Shareholder has filed with the
Commission all reports, registration statements, proxy statements and other
filings (including all notes, exhibits and schedules thereto and documents
incorporated by reference therein) required to be filed by the Shareholder with
the Commission since December 31, 1997 (such reports, registration, statements
and other filings, together with any amendments thereto, are sometimes
collectively referred to as the "Commission Filings"). The Shareholder has
delivered to the Buyer true and complete copies of all Commission Filings within
the past year. The Commission Filings and any forms, reports and other documents
filed by the Shareholder with the Commission after the date of this Agreement
(a) were or will be prepared in all material respects in accordance with the
requirements of the Securities Act and the Exchange Act, as the case may be, and
(b) at the time they were or will be filed with the Commission, 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 made therein,
in light of the circumstances under which they were made, not misleading. The
Seller has not ever been required to file any form, report or other document
with the Commission. Each of the audited consolidated financial statements and
unaudited interim financial statements (including any related notes or
schedules) included in the Commission Filings was prepared in accordance with
GAAP applied on a consistent basis except as may be indicated therein or in the
notes or schedules thereto, and fairly presents the financial position of the
Shareholder and its consolidated subsidiaries as at the dates thereof and the
results of their operations, cash flows, changes in financial position and
changes in stockholders' equity for the periods then ended.
4.35 Amersham Termination. Neither the Seller nor the Shareholder
has received any notices or other communication from Amersham International,
p.l.c. challenging the validity of the Seller's termination of that certain
agreement dated August 16, 1995 between the Seller and Amersham International,
p.l.c.
4.36 Representations and Warranties True and Correct. The
representations and warranties contained herein, and, subject to the following
sentence, all other documents, certifications, materials and statements or
information given to the Buyer by or on behalf of the
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Seller or Shareholder or disclosed in this Agreement, do not include any untrue
statement of a material fact or omit to state a material fact required to be
stated herein or therein in order to make the statements herein or therein, in
light of the circumstances under which they are made, not misleading.
Notwithstanding the foregoing, neither the Seller nor the Shareholder makes any
representation, warranty or other assurance that any of the financial
information, financial estimates, forecasts or projections contained in that
certain Confidential Memorandum, delivered to Promega via facsimile on October
28, 1998 and relating to the Business, will be realized.
ARTICLE V
REPRESENTATIONS OF THE BUYER
In order to induce the Seller and the Shareholder to enter into this
Agreement, the Buyer makes the following representations and warranties to the
Seller and the Shareholder (which representations and warranties shall survive
the Closing to the extent provided in Section 11.4), each of which shall be
deemed to be independently material and relied upon by the Seller and the
Shareholder, regardless of any investigation made by, or information known to,
the Seller and the Shareholder.
5.1 Ownership, Organization and Qualification. Each of the Buyer and
Promega is a corporation duly incorporated and validly existing under the laws
of the State of Wisconsin, has filed with the appropriate state agency the most
recent annual report required to be filed by it, has not filed articles of
dissolution and has a perpetual period of existence. Each of the Buyer and
Promega are qualified to transact business as a foreign corporation in the
jurisdictions where it is required to be so qualified, except where the failure
to be qualified would not result in a material adverse effect on the operations,
prospects or condition (financial or otherwise) on Promega.
5.2 Authorization. Each of the Buyer and Promega (with respect to
its obligations under Section 12.2) has all necessary power and authority to
enter into and perform the transactions contemplated hereby in accordance with
the terms and conditions hereof. The execution and delivery of this Agreement,
and the performance by each of the Buyer and Promega of each of its obligations
contained herein, have been duly approved by the Buyer's and Promega's Board of
Directors. No other corporate authorization of the Buyer or Promega is required
for the execution and delivery of this Agreement or the performance by them of
their obligations hereunder.
5.3 Enforceability. Assuming the execution and delivery by the
Seller and the Shareholder have been duly authorized, this Agreement and all
other agreements of the Buyer and Promega contemplated hereby and, with respect
to Promega, its obligations under Section 12.2, are or, upon the execution
thereof, will be the valid and binding obligations of each of the Buyer and
Promega enforceable against each of the Buyer and Promega, as applicable, in
accordance with their terms.
5.4 Conflicting Obligations. The execution and delivery of this
Agreement do not, and the consummation of the sale and purchase of the Purchased
Assets will not: (a) conflict with or violate any provisions of the articles of
incorporation of each of the Buyer and Promega;
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(b) conflict with or violate any provisions of, or result in the
maturation or acceleration of, any obligations under any contract, agreement,
instrument, document, lease, license, permit, indenture, or obligation, or any
law, statute, ordinance, rule, regulation, code, guideline, order, arbitration
award, judgment or decree, to which the Buyer or Promega is subject to or which
the Buyer or Promega is a party; 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 Buyer or Promega is a party or by which it is bound or to which any
of the assets of the Buyer or Promega is subject.
5.5 Litigation. There is no litigation, claim, proceeding or
investigation pending, or to the Buyer's Knowledge, threatened, against the
Buyer or Promega and relating to their ability to perform their obligations
under this Agreement.
5.6 Brokerage. Neither the Buyer nor Promega has incurred, or made
commitment for, any brokerage, finders' or similar fee in connection with the
transactions contemplated by this Agreement.
ARTICLE VI
COVENANTS OF THE SELLER AND THE SHAREHOLDER
The Seller and the Shareholder, jointly and severally, covenant and
agree with the Buyer as follows:
6.1 Access. From the date hereof and until the earlier of (i)
termination of this Agreement pursuant to Article XII and (ii) the Closing Date,
the Buyer and its authorized officers, agents and representatives shall have
full access (upon reasonable prior notice) to all properties, Records,
Contracts, Tax Returns, management letters, work papers of outside auditors and
other documents of the Seller. The Seller and the Shareholder shall cooperate
with the Buyer by using reasonable efforts to arrange meetings among the Seller,
the Buyer and the Seller's customers and suppliers to meet with and respond to
all questions posed by the Buyer concerning the Seller and promptly responding
to, and causing the Seller's and the Shareholder's outside auditors, officers
and employees promptly to respond to, all questions posed by the Buyer
concerning the Seller, the Business, the Purchased Assets, or the condition
(financial or otherwise) or prospects of the Seller.
6.2 Operation of Business. From the date hereof and until the
Closing Date, without the express prior written consent of the Buyer, the Seller
shall not engage in any practice, take any action or enter into any transaction
outside the Ordinary Course of Business. Without limiting the generality of the
foregoing, the Seller shall not:
(a) issue, sell or otherwise dispose of any of its capital stock, or
grant any options, warrants or other rights to purchase or obtain (including
upon conversion, exchange or exercise) any of its capital stock;
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(b) declare, set aside or pay any dividend or make any distribution
with respect to its capital stock (whether in cash or in kind) or redeem,
purchase or otherwise acquire any of its capital stock;
(c) without the prior approval of the Seller, enter into any
agreement with Affiliates or any other Person (other than in the Ordinary Course
of Business) that cannot be terminated upon thirty (30) days' notice without
liability to the Seller and without payment of any cancellation fee or penalty;
or
(d) otherwise engage in any practice, take any action or enter into
any transaction of the sort described in Section 4.28.
6.3 Preservation of Business. From the date hereof and until the
Closing Date, the Seller and the Shareholder shall carry on the Business
substantially in the Ordinary Course of Business and shall use commercially
reasonable efforts to keep the Business intact, including its present
relationships with employees, suppliers and customers and others having business
relations with it. The Seller shall use commercially reasonable efforts to
maintain at all times in inventory quantities of raw materials, finished goods,
spare parts and other supplies and materials sufficient to allow the Buyer to
continue to operate the Business, after the Closing Date, free from any shortage
of such items.
6.4 Insurance and Maintenance of Property. From the date hereof and
until the Closing Date, the Seller shall cause all property owned or leased by
it to be insured against all ordinary insurable risks and shall maintain in
effect all the Insurance, and shall operate, maintain and repair all of its
property in a manner consistent with past practice.
6.5 Compliance with Laws. From the date hereof and until the Closing
Date, the Seller shall comply with all applicable laws, statutes, ordinances,
rules, regulations, guidelines, orders, arbitration awards, judgments and
decrees applicable to, or binding upon, the Seller or the Business, except where
such noncompliance would not have a Material Adverse Effect.
6.6 Supplemental Disclosure. On the Closing Date, the Seller and the
Shareholder shall inform the Buyer in writing of all information, events or
actions which, if this Agreement were signed on the Closing Date, would be
required to be disclosed on the Schedules in order to make the Seller's and the
Shareholder's representations and warranties contained herein true and not
misleading. The delivery thereof by the Seller and the Shareholder shall not
absolve the Seller or the Shareholder from liability for breach of any
representation or warranty which was untrue when made.
6.7 Fulfill Conditions. The Seller and the Shareholder shall use
their best efforts to cause to be fulfilled on or prior to the Closing each of
the conditions set forth in Article VIII hereof.
6.8 Employees. The Seller shall terminate the employment of all of
its employees, other than Xxxxxx X. Xxxx.
6.9 Release of Liens. The Seller shall on or prior to the Closing
Date deliver to the
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Buyer such documents as are necessary to terminate and release all Liens on the
Purchased Assets, except for Permitted Liens, which documents shall be in form
and substance acceptable to the Buyer and shall include without limitation, all
documents necessary to terminate of record all Liens on the Purchased Assets,
except for Permitted Liens.
6.10 Change of Corporate Name. The Seller and the Shareholder agree
to take all action that is necessary to authorize the amendment of the Seller's
certificate of incorporation to change the corporate name of the Seller to a
name which does not include the words "JBL Scientific" and/or words of similar
meaning. At or prior to the Closing, the Seller and the Shareholder shall
provide the Buyer with documentation reasonably satisfactory to the Buyer
evidencing this amendment.
6.11 Documents of Transfer. On the Closing Date, the Seller shall
duly execute and deliver to the Buyer (i) the Assignment, Xxxx of Sale and
Assumption Agreement and (ii) certificates of title sufficiently endorsed to
transfer the Vehicles to the Buyer. Any applicable transfer fee shall be paid by
the Seller at the Closing.
6.12 Nondisclosure and Noncompetition Agreement. On the Closing
Date, the Seller, the Shareholder and Xxxxxx X. Xxxx shall execute and deliver
to the Buyer the Nondisclosure and Noncompetition Agreement.
6.13 Other Deliveries. On the Closing Date, the Seller shall deliver
to the Buyer the following:
(a) The resolutions of the Boards of Directors of the Seller
and the Shareholder and the Shareholder in its capacity as
the sole shareholder of the Seller authorizing and
approving the execution and delivery of this Agreement and
performance by the Seller and the Shareholder of the
transactions contemplated hereby, certified on behalf of
the Seller and the Shareholder, as applicable, by an
officer of the Seller and the Shareholder, respectively;
(b) Current Uniform Commercial Code and state, local and
federal tax, sales and unemployment compensation tax,
judgment, bankruptcy and similar lien searches showing no
Liens against the Purchased Assets other than Permitted
Liens;
(c) All consents for the assignment of all Contracts and
Permits, which are necessary in order for said Contracts
and Permits to be assigned to the Buyer upon their present
terms (other than those for which, individually or in the
aggregate, would not result in a Material Adverse Effect)
and the Seller shall pay all fees, charges and other costs
that are required or imposed in connection with obtaining
any such consent;
(d) An affidavit that the Seller is not a "foreign person"
within the meaning of Section 1445 of the Code, and stating
the Seller's federal taxpayer identification number, in
form and substance acceptable to counsel for the Buyer; and
(e) All other documents reasonably requested by counsel for the
Buyer to consummate the transactions herein contemplated.
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6.14 Collection of the Receivables. After the Closing, subject to
Section 7.10, the Buyer shall have full power and authority to collect for its
account all Receivables, and to endorse, without recourse to the Seller, in the
name of the Seller, any checks or other instruments of payment received on
account of payment of any such Receivables. Subject to Section 7.10, if, after
the Closing, the Seller receives any payment on account of any such Receivables,
the Seller shall transfer and deliver such payment (endorsed where necessary) to
the Buyer, promptly after receipt.
6.15 Exclusive Dealing. Neither the Seller, the Shareholder, nor any
of their agents or representatives will take, directly or indirectly, any action
to initiate, continue, assist, solicit, negotiate, encourage or accept any offer
or inquiry from any Person (a) to engage in any Business Combination, (b) to
reach any agreement or understanding (whether or not such agreement or
understanding is absolute, revocable, contingent or conditional) for, or
otherwise attempt to consummate, any Business Combination or (c) to furnish or
cause to be furnished any information with respect to the Seller or its assets
to any Person (other than as contemplated in this Agreement) who the Seller or
the Shareholder knows or has reason to believe is in the process of considering
any Business Combination. For purposes hereof, "Business Combination" means any
merger, consolidation or combination to which the Seller is a party, any sale,
dividend, split or other disposition of capital stock or other equity interest
of the Seller or any sale, dividend or other disposition of all or substantially
all of the assets of the Seller.
6.16 Further Assurances. The Seller and the Shareholder, upon
request of the Buyer, shall execute, acknowledge and deliver such other
instruments as reasonably may be requested to more effectively transfer the
Purchased Assets to the Buyer or to otherwise carry out the terms and conditions
of this Agreement.
6.17 Brokerage. Any brokerage, finders' or similar fee incurred in
connection with the transactions contemplated by this Agreement shall be
promptly paid by the Seller or the Shareholder.
6.18 Quality Assurance Agreement. On the Closing Date, the Seller
and the Shareholder shall execute and deliver to the Buyer the Quality Assurance
Agreement.
6.19 Intellectual Property Assignments. On the Closing Date, each of
the Seller and the Shareholder shall execute and deliver to the Buyer its
Intellectual Property Assignment.
6.20 Lipid License Agreement. On the Closing Date, the Seller and
the Shareholder shall execute and deliver to the Buyer the Lipid License
Agreement.
6.21 Biogenex License Agreement. The Seller shall have consummated
the transactions contemplated by the Biogenex License Agreement, including,
without limitation, the licensing of the Amadite technology to the Seller and
any payments required to be made by the Seller has been made.
6.22 Note. The Note shall be imprinted with a legend substantially
in the following form:
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THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO,
OR FOR SALE IN CONNECTION WITH, ANY DISTRIBUTION HEREOF WITHIN THE
MEANING OF THE SECURITIES ACT OF 1933, AS AMENDED. THE PAYMENT OF
PRINCIPAL AND INTEREST ON THIS NOTE IS SUBJECT TO CERTAIN RECOUPMENT
PROVISIONS SET FORTH IN THIS NOTE AND AN ASSET PURCHASE AGREEMENT
DATED AS OF MARCH 19, 1999 (THE "PURCHASE AGREEMENT") BETWEEN THE
BUYER (AS DEFINED BELOW), JBL SCIENTIFIC INCORPORATED AND GENTA
INCORPORATED. NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED HEREIN,
NO TRANSFER OF THIS NOTE SHALL BE MADE UNLESS CONDITIONS SPECIFIED
IN THE PURCHASE AGREEMENT HAVE BEEN FULFILLED. A COPY OF THE
PURCHASE AGREEMENT IS ON FILE AND AVAILABLE FOR INSPECTION AT THE
PRINCIPAL OFFICE OF THE BUYER.
The Note shall not be assigned or transferred (other than to the Shareholder)
without the express written consent of the Buyer. Each holder desiring to
transfer the Note first must furnish the Buyer with (i) a written opinion
satisfactory to the Buyer in form and substance from counsel satisfactory to the
Buyer by reason of experience to the effect that the holder may transfer the
Note as desired without registration under the Securities Act and (ii) a written
undertaking executed by the desired transferee satisfactory to the Buyer in form
and substance agreeing to be bound by the recoupment provisions and the
restrictions on transfer contained herein and therein; provided, that the Seller
shall be permitted to transfer the Note to the Shareholder without compliance
with clause (i) above.
6.23 On-Site Contamination. With respect to any further monitoring
and possible cleanup of PCE and chloroform contamination at the facility located
at 000 Xxxxxxx Xxxxx, Xxx Xxxx Xxxxxx, Xxxxxxxxxx (that contamination, the
"On-Site Contamination"), the Seller shall comply promptly with all directives
from the Regional Water Quality Control Board and other Governmental Authorities
to remain in material compliance with all Environmental Laws, other than those
directives being contested in good faith through appropriate legal proceedings.
The Seller shall determine what actions must be taken after the date of this
Agreement to ensure such compliance. The Seller shall provide the Buyer with any
documents to be submitted to any Governmental Authority, and shall not take any
action with respect to the On-Site Contamination without the Buyer's prior
consent, which may not be unreasonably withheld and must be promptly provided if
it is to be given. The Seller shall bear all costs and expenses incurred in
connection with the On-Site Contamination.
6.24 The Seller's Welfare Plans. Effective as of the end of the day
immediately preceding the Closing Date, except as otherwise provided in this
Section 6.24, Hired Employees shall cease to be covered by the Seller's Welfare
Plans (as hereinafter defined) except the Seller shall be liable for any
vacation pay in excess of four (4) weeks per Hired Employee that has accrued as
of the Closing Date. The Seller shall be responsible for all of the following
claims under the Seller's Welfare Plans, which shall be deemed to have been
"incurred" prior to the Closing Date: (i) under any medical, dental or health
plans for any treatment or service actually rendered prior to the Closing Date
(but not rendered thereafter), regardless of whether the service or treatment is
part of
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an ongoing course of treatment that commenced prior to the Closing Date; (ii)
under any life insurance plans with respect to deaths occurring prior to the
Closing Date; and (iii) for any payments or benefits otherwise incurred or
arising prior to the Closing Date under any other Seller's Welfare Plan. The
Seller shall be responsible for providing all employees of the Business whose
employment is terminated by the Seller and who are covered under a "group health
plan" (within the meaning of Section 5000(b)(1) of the Code) maintained by the
Seller (the "Seller's Group Health Plan"), and the qualified spouses and
dependents of these employees, with continuation coverage under the Seller's
Group Health Plan to the extent required by the provisions of COBRA as currently
set forth in Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the
Code, and the implementing regulations promulgated or proposed under any of
those laws. The Buyer shall have no obligation to provide, nor any liability
for, any benefits of any kind under any of the Seller's Welfare Plans,
including, but not limited to, any COBRA benefits under any group health plan of
the Seller, except to the extent related to a failure by the Buyer to meet its
obligations under Sections 7.8 and 7.13 hereof. For purposes of this Section,
the "Seller's Welfare Plans" shall include each "employee welfare benefit plan"
(within the meaning of Section 3(1) of ERISA) and each other benefit plan,
program, policy or arrangement that is maintained by the Seller, that covers
employees of the Seller who are employed by the Seller in connection with the
Business, and that is not an "employee pension benefit plan" within the meaning
of Section 3(2) of ERISA.
6.25 The Seller's 401(k) Plan. The Seller maintains the JBL
Scientific Savings and Retirement Plan (the "Seller's 401(k) Plan"), a defined
contribution profit-sharing plan with a cash or deferred arrangement that is
intended to be qualified under Sections 401(a) and 401(k) of the Code. The
Seller shall retain sponsorship of the Seller's 401(k) Plan after the Closing
Date and neither the Buyer nor any plan maintained by the Buyer shall be
entitled to any assets of the Seller's 401(k) Plan. The Buyer shall not assume
any responsibility or liability for the Seller's 401(k) Plan, and the Seller and
the Seller's 401(k) Plan shall remain solely and entirely responsible for
satisfying any and all obligations and liabilities arising under the Seller's
401(k) Plan. The accrued benefits under the Seller's 401(k) Plan of all
participants are 100% vested and non-forfeitable.
ARTICLE VII
COVENANTS OF THE BUYER
The Buyer covenants and agrees with the Seller and the Shareholder
as follows:
7.1 Certified Resolutions. On the Closing Date, the Buyer shall
deliver to the Seller a copy of the resolutions of the Boards of Directors of
the Buyer and Promega, authorizing and approving the execution and delivery of
this Agreement and the performance by the Buyer and Promega of the transactions
contemplated hereby, as certified on behalf of the Buyer and Promega, as
applicable, by an officer of the Buyer and Promega, respectively.
7.2 Assignment, Xxxx of Sale and Assumption Agreement. On the
Closing Date, the Buyer shall execute and deliver to the Seller the Assignment,
Xxxx of Sale and Assumption Agreement.
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7.3 Nondisclosure and Noncompetition Agreement. On the Closing Date,
the Buyer shall execute and deliver to the Seller and the Shareholder the
Nondisclosure and Noncompetition Agreement.
7.4 Quality Assurance Agreement. On the Closing Date, the Buyer
shall execute and deliver to the Seller and the Shareholder the Quality
Assurance Agreement.
7.5 Lipid License Agreement. On the Closing Date, the Buyer shall
execute and deliver to the Shareholder the Lipid License Agreement.
7.6 Note. On the Closing Date, the Buyer shall execute and deliver
to the Seller the Note.
7.7 Lease. On the Closing Date, the Buyer shall execute and deliver
to Granada Associates, LLC the Lease.
7.8 Employees. On the Closing Date, the Buyer shall offer
employment, effective as of the Closing Date, to all full-time and part-time
employees of the Seller, other than Xxxxxx X. Xxxx, who are active or on leave
for medical or disability reasons or are covered by the Family and Medical Leave
Act of 1993, P.L. 103-3, with employee benefits and perquisites which, in the
aggregate, are substantially comparable to the employee benefits and perquisites
set forth on Schedule 7.8; provided, that each employee shall receive a base
salary that is no less favorable than the base salary set forth on Schedule 7.8.
Employees of the Seller who accept the Buyer's offers of employment and who
become employees of the Buyer as of the Closing Date are referred to herein as
"Hired Employees."
7.9 Preservation of Records. Subject to the following sentence, the
Buyer shall at its own expense (a) preserve and keep the Records for a period of
five (5) years from the Closing and (b) make the Records and its personnel
available to the Seller or the Shareholder at their request. In the event the
Buyer wishes to destroy any Records during the time specified above, it shall
first give thirty (30) days' prior written notice to the Seller and the
Shareholder and the Seller and the Shareholder shall have the right at its
option and expense, upon prior written notice given to the Buyer within that
thirty (30) day period, to take possession of the records within thirty (30)
days after the date of the Seller's notice to the Buyer.
7.10 Uncollectible Receivables.
(a) The Buyer shall promptly assign each Receivable to the Seller
upon the end of the 120-day period following the Closing Date.
(b) The Buyer shall afford the Seller and its representatives a
reasonable opportunity, during normal business hours, to examine and audit the
books and records of the Buyer with respect to the collection of Receivables.
(c) For purposes of determining the collections on Receivables, any
payments received by the Buyer shall be applied against the oldest account owed
by the Person making the payment
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unless that Person indicates to the Buyer that that account is in dispute, in
which event the payment shall be applied against the next oldest Receivable.
(d) The Buyer shall maintain appropriate records with respect to the
Receivables and shall act in good faith to collect the Receivables in accordance
with the Seller's past practices for the collection of accounts receivable;
provided, however, that in no event shall the Buyer be required to institute or
threaten litigation or refuse to accept any purchase order.
(e) All proceeds of any Receivable assigned by the Buyer to the
Seller pursuant to Section 7.10(a) that are collected by the Buyer after the
date that Receivable was so assigned shall be promptly remitted by the Buyer.
The Buyer shall provide to the Seller a copy of such records relating to the
Receivables so assigned to the Seller as the Seller may request, such copies to
be delivered within ten (10) days after the pertinent Receivable is so assigned
or after such request is made, whichever is later.
7.11 Access to Property. From the Closing Date, the Buyer shall
cooperate with the Seller and shall provide the Seller with reasonable access at
reasonable times to the facility located at 000 Xxxxxxx Xxxxx, so that the
Seller may oversee any monitoring and cleanup activities with respect to the
On-Site Contamination required by the Regional Water Quality Control Board
directives. From the Closing Date, the Buyer shall allow the Seller to use Xxxx
Xxxxx for up to fifteen (15) hours each month to assist in the Seller's efforts
to comply with all directives, monitoring and clean-up at the facility located
at 000 Xxxxxxx Xxxxx; provided, that each hour Xxxx Xxxxx spends assisting the
Seller shall reduce the Buyer's obligations under the Quality Assurance
Agreement by one hour.
7.12 The Buyer's 401(k) Plan. Promega maintains the Promega Profit
Sharing and Salary Deferral Plan (the "Promega 401(k) Plan"), a defined
contribution profit-sharing plan with a cash or deferred arrangement that is
intended to be qualified under Sections 401(a) and 401(k) of the Code. As of the
Closing Date, coverage under the Promega 401(k) Plan shall be extended to all
Hired Employees and credit under the Promega 401(k) Plan shall be given to Hired
Employees for all their service with the Seller, solely for purposes of
eligibility to participate and vesting, to the same extent such service would
have been credited if the service had been performed for Promega, and Promega
shall cause the Promega 401(k) Plan to be amended, to the extent (if any)
necessary, to provide for this crediting of service with the Seller. After the
Closing Date, Promega shall permit Hired Employees who are entitled and who
elect to receive an eligible rollover distribution from the Seller's 401(k) Plan
to direct that the eligible rollover distribution be transferred to the Promega
401(k) Plan in accordance with Section 402(c) of the Code and Promega shall
cause the Promega 401(k) Plan to be amended, to the extent (if any) necessary,
to permit such transfers.
The Buyer shall be responsible for all of the following claims under
the Buyer's Welfare Plans, which shall be deemed "incurred" on or after the
Closing Date: (i) under any medical, dental or health plans for any treatment or
service actually rendered on or after (but not rendered before) the Closing
Date, regardless of whether the service or treatment is part of an ongoing
course of treatment that commenced prior to the Closing Date, (ii) under any
life insurance plans with respect to deaths occurring on or after the Closing
Date, and (iii) for any payments or benefits incurred on or after the Closing
Date under any other Buyer Welfare Plan.
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7.13 The Buyer's Welfare Plans. The Buyer shall not assume or
continue any of the Seller's Benefit Plans. As of the Closing Date, the Buyer
shall provide Hired Employees with employee benefit plans, programs, policies
and arrangements (the "Buyer's Welfare Plans") that provide benefits on an
aggregate basis which are comparable to the benefits provided to Hired Employees
immediately prior to the Closing under the Seller's Welfare Plans. Specifically
with respect to medical and other health-related benefits, the Buyer shall
provide each Hired Employee (and each such Hired Employee's spouses and
dependents) with immediate coverage as of the Closing Date under a "group health
plan" (within the meaning of Section 5001(b) of the Code) maintained by the
Buyer (the "Buyer's Group Health Plan") that provides benefits and includes
terms and conditions which are substantially similar to or better than the
benefits provided and terms and conditions included under the Seller's group
health plan in which each Hired Employee participated immediately prior to the
Closing, and the Buyer shall waive any pre-existing condition exclusions or
restrictions with respect to Hired Employees under the Buyer's Group Health Plan
to the same extent as coverage is provided under the Seller's Group Health Plan.
Each Hired Employee shall receive credit under the Buyer's group health plan for
all amounts paid by each Hired Employee in calendar year 1999 under the Seller's
group health plan for purposes of any applicable deductibles, co-payments or
out-of-pocket maximums. The Buyer shall be solely responsible for providing
Hired Employees with any continuation coverage (and shall have sole liability in
respect of any failure to provide such continuation coverage) under Section
4980B of the Code or Part 6 of Subtitle B or Title I of ERISA resulting from any
"qualifying event" occurring on or after the Closing Date. The Buyer shall grant
full credit to Hired Employees, under the Buyer's Welfare Plans that are not
group health plans, for service with the Seller (or with a predecessor employer
to the extent credited under the corresponding Seller's Welfare Plan) for
purposes of (i) satisfying any and all eligibility and participation
requirements under the Buyer's Welfare Plans and (ii) determining the amount and
duration of any benefits under the Buyer's Welfare Plans to the extent that
service or seniority is a consideration in calculating benefits but the Buyer
shall not be required to credit any service that would result in a duplication
of benefits. The Seller shall have no obligation to provide, nor any liability
for, any benefits of any kind to Hired Employees under any of the Buyer's
Welfare Plans, including, but not limited to, COBRA benefits under any Buyer's
Group Health Plan.
7.14 Employment Terms and Benefits after the Closing Date. Nothing
in this Agreement shall be construed to limit or restrict the Buyer in any way
after the Closing Date with respect to (i) the Buyer's conduct of the Business;
(ii) the Buyer's modification or change in the terms of employment (including
the termination of employment) of any Hired Employee; and (iii) the Buyer's
modification, amendment or termination of any employee benefit plan maintained
or contributed to by the Buyer, including but not limited to any of the Buyer's
Welfare Plans; provided, however, within ninety (90) days from the Closing Date,
no such amendment or modification shall be inconsistent with the requirement
that Hired Employees receive immediate coverage under a group health plan
pursuant to Section 7.13.
7.15 Product Liability Claims. If the Buyer successfully asserts a
claim against the Seller or the Shareholder with respect to a breach of the
representations or warranties contained in Section 4.26, the Buyer shall
promptly assign any rights and remedies, under warranty or otherwise, against
the manufacturers, vendors or other Persons for any defects in the Purchase
Asset giving rise to such claim.
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7.16 Minimum Net Book Value. From and after the Closing Date, until
the third anniversary of the Closing Date, the Buyer shall not cause its Net
Book Value to be more than $500,000 less than the Final Net Book Value, unless
Promega agrees to indemnify the Seller and the Shareholder with respect to
Assumed Liabilities as set forth in Article XI and to assume the Buyer's
obligations under Article XI.
ARTICLE VIII
CONDITIONS OF THE BUYER'S OBLIGATION TO CLOSE
The obligation of the Buyer to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction and
fulfillment or waiver, prior to and on the Closing Date, of the following
express conditions precedent:
8.1 Representation and Warranties. The representations and
warranties in this Agreement made by the Shareholder and the Seller shall be
true and correct in all material respects as of and at the Closing Date with the
same force and effect as though said representations and warranties had been
again made on the Closing Date, and each of the Seller and the Shareholder shall
have furnished the Buyer a certificate to that effect signed on behalf of the
Seller and the Shareholder and by an officer of the Seller and the Shareholder,
respectively.
8.2 Performance of Covenants and Obligations. The Shareholder and
the Seller shall have performed and complied in all material respects with all
of their covenants and obligations under this Agreement which are to be
performed or complied with by them prior to or on the Closing Date, and each of
the Seller and the Shareholder shall have furnished the Buyer a certificate to
that effect signed on behalf of the Shareholder and the Seller and by an officer
of the Seller and the Shareholder, respectively.
8.3 Proceedings and Instruments Satisfactory. All proceedings,
corporate or otherwise, to be taken in connection with the transactions
contemplated by this Agreement, and all documents incident thereto, shall be
satisfactory in form and substance to the Buyer. The Seller shall have made
available to the Buyer for examination the originals or true and correct copies
of all documents which the Buyer reasonably may request in connection with the
transactions contemplated by this Agreement.
8.4 Adverse Change. From and after the date of this Agreement and
until the Closing Date, the Buyer shall have reasonably determined that there
has been no event or condition which has resulted in a Material Adverse Effect
in the Business. Each of the Seller and the Shareholder shall have furnished
with the Buyer a certificate to that effect signed on behalf of the Shareholder
and the Seller and by an officer of the Seller and the Shareholder,
respectively.
8.5 No Litigation. No investigation, suit, action or other
proceeding shall be threatened or pending before any Governmental Authority in
which it is sought to restrain, prohibit or obtain
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damages or other relief in connection with this Agreement or the consummation of
the transactions contemplated hereby.
8.6 Consents, Approvals, Certifications, Licenses and Permits. All
necessary consents, approvals, certifications, licenses and permits with respect
to the transaction contemplated hereby, including, without limitation, the
transfer of the Purchased Assets to the Buyer, the absence of which would have a
Material Adverse Effect.
8.7 Good Standing Certificates. The Seller and the Shareholder shall
have delivered to the Buyer current certificates of good standing relative to
the Seller and the Shareholder recently certified by the Secretary of State or
other appropriate governmental authority of each state or jurisdiction in which
the Seller and the Shareholder, as applicable, are organized or qualified to
transact business.
8.8 Opinion of Counsel. On the Closing Date, the Seller and the
Shareholder shall have delivered to the Buyer the legal opinions of Xxxxxx Xxxxx
Xxxxxxxx & Xxxxxxx LLP and Sinsheimer, Schiebelhut & Xxxxxxx, the Shareholder's
and the Seller's counsel, in substantially the form of Exhibits A-1 and A-2,
respectively, attached hereto.
8.9 Due Diligence. On or prior to March 22, 1999, the Buyer shall
have conducted a due diligence investigation and review of the Purchased Assets,
the Assumed Liabilities, the Business and all matters pertaining thereto that
the Buyer deems relevant and the results of such investigation and review shall
be satisfactory to the Buyer in its sole and absolute discretion, including,
without limitation, any due diligence investigation relating to the Seller's
Intellectual Property and existing Environmental Claims. This Section 8.9 shall
terminate on 12:01 a.m. Eastern Time on March 23, 1999.
8.10 Approval by the Shareholder's Shareholders. A majority of the
voting power of the Shareholder's holders of voting securities shall have
delivered to the Shareholder a written consent in the form previously delivered
to the Buyer.
8.11 Lease. Granada Associates, LLC shall have entered into the
Lease.
ARTICLE IX
CONDITIONS TO THE SELLER'S OBLIGATION TO CLOSE
The obligation of the Seller and the Shareholder to consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction
and fulfillment or waiver, prior to and on the Closing Date, of the following
express conditions precedent:
9.1 Representations and Warranties. The representations and
warranties in this Agreement made by the Buyer and Promega shall be true and
correct in all material respects as of and at the Closing Date with the same
force and effect as though said representations and warranties had been again
made on the Closing Date, and each of the Buyer and Promega shall have furnished
the Seller a certificate to that effect signed on behalf of the Buyer and
Promega by an officer of the Buyer and Promega, respectively.
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9.2 Performance of Covenants and Obligations. The Buyer and Promega
shall have performed and complied with all of its covenants and obligations
under this Agreement which are to be performed or complied with by it prior to
or on the Closing Date, and each of the Buyer and Promega shall have furnished
the Seller a certificate to that effect signed on behalf of the Buyer and
Promega by an officer of the Buyer and Promega, respectively.
9.3 Proceedings and Instruments Satisfactory. All proceedings,
corporate or otherwise, to be taken in connection with the transactions
contemplated by this Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to the Seller; and, the Buyer
shall have made available to the Seller for examination the originals or true
and correct copies of all documents which the Buyer reasonably may request in
connection with the transactions contemplated by this Agreement.
9.4 No Litigation. No investigation, suit, action or other
proceeding shall be threatened or pending before any Governmental Authority in
which it is sought to restrain, prohibit or obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated hereby.
9.5 Opinion of Counsel. On the Closing Date, the Buyer and Promega
shall have delivered the legal opinion of Xxxxxxx Xxxx & Friedrich LLP, the
Buyer's and Promega's counsel, in substantially the form of Exhibit A-3 attached
hereto.
ARTICLE X
INDEMNIFICATION BY SELLER AND SHAREHOLDER
10.1 Indemnification. Notwithstanding the Closing, and regardless of
any investigation made by, or on behalf of, the Buyer, or any information known
to the Buyer, the Seller and the Shareholder (collectively, the "Indemnitors"),
subject to the terms and conditions of this Article X, jointly and severally,
indemnify and save the Buyer, its shareholders, officers, directors or employees
(collectively, the "Buyer" as used in this Article X) harmless from and against
any and all losses, claims, damages, liabilities, costs, expenses or
deficiencies including, but not limited to, reasonable attorneys' fees and other
costs and expenses, and including simple interest thereon at the Applicable Rate
(collectively, "Losses") reasonably incident to proceedings or investigations or
the defense or settlement of any claim or claims, incurred by or asserted
against the Buyer or the Purchased Assets due to or resulting from any of the
following: (a) the inaccuracy or breach of any representation or warranty of the
Seller or the Shareholder given in or pursuant to this Agreement; (b) any breach
or default in the performance by the Seller or the Shareholder of any of their
covenants, obligations or agreements in or pursuant to this Agreement; (c) any
liability or obligation of the Seller not expressly assumed by the Buyer
pursuant to this Agreement; and (d) the ownership or conduct of the Business or
the ownership or use of the Seller's assets at any time prior to the Closing, or
any incident, occurrence, condition or claim existing, arising or accruing prior
to the Closing and relating to the operation or conduct of the Business or the
ownership or use of the Seller's assets (including, without limitation, all
Losses due to Environmental Claims, Environmental Releases by any Person prior
to the Closing Date) other than any liability or obligation of the Seller
expressly assumed by the Buyer pursuant to this Agreement. The foregoing are
collectively referred to as "Indemnifiable Damages." The term "Indemnifiable
Damages" shall also include an amount of interest on the amount of such
Indemnifiable Damages (computed before the application of this sentence), which
interest shall be computed at the Applicable Rate in simple interest per annum
from the Closing Date and until paid by the Indemnitors.
10.2 Procedures for Making Claims. If and when the Buyer desires to
assert a claim for Indemnifiable Damages against the Indemnitors pursuant to the
provisions of this Article X, the Buyer shall deliver to the Indemnitors,
reasonably promptly after the Buyer's receipt of a claim or specific and
affirmative awareness of a potential claim, a certificate signed by an officer
(the "Notice of Claim"): (a) stating that the Buyer has paid or accrued (or
intends to pay or accrue) Indemnifiable Damages to which it is entitled to
indemnification pursuant to this Article X and the amount thereof (to the extent
then known); and (b) specifying to the extent possible (i) the individual items
of loss, damage, liability, cost, expense or deficiency included in the amount
so stated, (ii) the date each such item was or will be paid or accrued and (iii)
the basis upon which Indemnifiable Damages are claimed. If the Indemnitors shall
object to such Notice of Claim, the Indemnitors shall simultaneously deliver
written notice of objection (the "Notice of Objection") to the Buyer within
thirty (30) days after the Buyer's delivery of the Notice of Claim. The Notice
of Objection shall set forth the grounds upon which the objection is based and
state whether the Indemnitors object to all or only a portion of the matter
described in the Notice of Claim. If the Notice of Objection shall not have been
so delivered within such thirty (30) day period, all Indemnitors shall be
conclusively deemed to have acknowledged the correctness of the claim or claims
specified in the Notice of Claim for the full amount thereof, and the
Indemnifiable Damages set forth in the Notice of Claim shall be paid to the
Buyer, on demand, in cash.
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10.3 Participation in Defense of Third Party Claims. If any third
party shall assert any claim against the Buyer which, if successful, might
result in an obligation of the Indemnitors to pay Indemnifiable Damages and
which can be remedied to the reasonable satisfaction of the Buyer by the payment
of money damages without further adverse consequence to the Buyer, the
Indemnitors, at the sole expense of the Indemnitors, may assume the primary
defense thereof with counsel reasonably acceptable to the Buyer, but only if and
so long as: (a) the Indemnitors diligently pursue the defense of such claim; and
(b) the Indemnitors acknowledge to the Buyer in writing that the claim, if
resolved or settled with an acknowledgement that the Indemnitors have an
indemnification claim hereunder, is one for which the Indemnitors are obligated
to indemnify the Buyer hereunder. Except with the prior written consent of the
Buyer, which shall not be unreasonably withheld, the Indemnitors shall not
consent to entry of any judgment, or enter into any settlement, that provides
for injunctive or other nonmonetary relief affecting the Buyer or that does not
include as an unconditional term thereof the giving by each claimant or
plaintiff to the Buyer of a release from all liability with respect to such
claim or litigation. If the Indemnitors fail or are unable to so elect to assume
the primary defense of any such claim, the Buyer may (but need not) do so, in
which event the Buyer may defend, settle or compromise the claim, at the expense
and cost of the Indemnitors, in any such manner as the Buyer reasonably deems
appropriate; provided, that, except with the prior written consent of the
Indemnitors, which shall not be unreasonably withheld, the Buyer shall not
consent to entry of any judgment, or enter into any settlement, that provides
for injunctive or other nonmonetary relief affecting either of the Indemnitors
or that does not include as an unconditional term thereof the giving by each
claimant or plaintiff to the Indemnitors of a release from all liability with
respect to such claim or litigation.
10.4 Survival of Representations and Indemnification. The
Indemnitor's obligation to pay Indemnifiable Damages arising out of claims
described in Sections 10.1(b), (c) and (d) shall survive the Closing of this
transaction indefinitely. The representations and warranties contained in
Article IV, and the Indemnitor's obligation to pay Indemnifiable Damages arising
out of Section 10.1(a) hereof, shall survive the Closing Date, as follows:
(a) Fraudulent Breach of Representations; Certain Representations.
In the case of a claim based upon the inaccuracy or breach of a representation
or warranty which was made fraudulently or with respect to any representation or
warranty contained in Sections 4.1, 4.2, 4.3, 4.4(a), 4.5, 4.6 and 4.30,
indefinitely;
(b) Taxes; Environmental. In the case of a claim based upon the
inaccuracy or breach of a representation or warranty contained in Sections 4.21
and 4.23, for a period equal to the applicable statute of limitations;
(c) Inventories. In the case of a claim based upon the inaccuracy or
breach of a representation or warranty contained in Section 4.14, until the
Closing Balance Sheet has been finalized pursuant to Section 2.2(c)-(d) and any
required payment has been made pursuant to Section 2.2(f); and
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(d) All Other Claims. In the case of all other claims based upon the
inaccuracy or breach of any other representation or warranty contained in
Article IV, for a period commencing on the date hereof and ending three (3)
years after the Closing Date.
No claim for recovery of Indemnifiable Damages arising out of Section 10.1
hereof may be asserted by the Buyer after the expiration of the applicable time
period described in this Section 10.4; provided, however, that any claim first
asserted by the giving of a Notice of Claim within the applicable survival
period shall neither be abated nor barred.
10.5 Limitations on Indemnifiable Damages. Notwithstanding the
foregoing, other than Indemnifiable Damages (a) due to fraud or intentional
misrepresentation on behalf of the Seller or the Shareholder or (b) arising out
of an inaccuracy or breach of any representations or warranty contained in
Sections 4.1, 4.2, 4.3, 4.4(a), 4.5, 4.6, 4.21, 4.23 and 4.30, for which there
shall be no limitation on the Seller's breach, (x) the maximum amounts of
Indemnifiable Damages payable by the Seller and the Shareholder arising under
Section 10.1(a) shall not exceed the Purchase Price and (y) the Buyer shall not
be entitled to recover Indemnifiable Damages for any matter described in Section
10.1(a) unless and until the aggregate of all claims for Indemnifiable Damages
asserted pursuant to Section 10.1(a) exceeds $25,000.
10.6 Offset. The Buyer shall be entitled to offset against any
obligations owed by the Buyer to the Indemnitors the sum of all Indemnifiable
Damages that the Buyer is entitled to pursuant to Article X and all other
obligations owed by the Buyer to the Indemnitors under any other agreement,
contract or other arrangement. Without limiting the generality of the foregoing,
the Buyer shall have the option of recouping all or any part of any
Indemnifiable Damages it may suffer (in lieu of seeking any indemnification to
which it is entitled under this Article X) by notifying the Seller that the
Buyer is reducing the principal amount outstanding under the Note. No offset
made by the Buyer pursuant to this Section 10.6 shall constitute a default under
any of the Buyer's payment obligations or, even if it is subsequently determined
that no Indemnifiable Damages or other obligations were due the Buyer, give rise
to any right of acceleration under the Note or any other agreement, contract or
understanding on the part of any of the Indemnitors by reason of such offset.
10.7 Other Indemnification Provisions. The foregoing 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 Law) the Buyer may have with respect to the Seller,
the Shareholders or the transactions contemplated by this Agreement.
Notwithstanding the foregoing, each of the Buyer and Promega hereby agrees that
it will not make, and agrees that its officers, directors or employees will not
make, any claim for indemnification against any Person who is or was a director,
officer, employee, or agent of any of the Seller, the Shareholder and their
Affiliates or was serving at the request of any such entity as a partner,
trustee, director, officer, employee, or agent of another entity (each such
Person, a "Protected Shareholder Person") (whether such claim is for judgments,
damages, penalties, fines, costs, amounts paid in settlement, losses, expenses,
or otherwise and whether such claim is pursuant to any statute, charter
document, bylaw, agreement, or otherwise) with respect to any action, suit,
proceeding, complaint, claim, or demand brought by the Buyer or Promega in
connection with the transactions contemplated by this Agreement.
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ARTICLE XI
INDEMNIFICATION BY BUYER
11.1 Indemnification. Notwithstanding the Closing, and regardless of
any investigation made by, or on behalf of, the Seller or Shareholder, or any
information known to the Seller or Shareholder, the Buyer, subject to the terms
and conditions of this Article XI, indemnifies and saves the Seller and the
Shareholder and their shareholders, officers, directors or employees
(collectively, the "Indemnitees") harmless from and against any and all Losses,
reasonably incident to proceedings or investigations or the defense or
settlement of any claim or claims, incurred by or asserted against the
Indemnitees due to: (a) the inaccuracy or breach of any representation or
warranty of the Buyer or Promega given in or pursuant to this Agreement; (b) any
breach or default in the performance by the Buyer of any of its covenants,
obligations or agreements in or pursuant to this Agreement; (c) any Assumed
Liabilities; (d) Losses relating to the operations of the Business after the
Closing Date, including, without limitation, Losses from Environmental Releases
caused by the operations of the Business and Environmental Claims resulting from
the operations of the Business after the Closing; and (e) Losses arising from
the Buyer's due diligence activities at the Real Estate prior to the Closing,
including, without limitation any soil or groundwater testing conducted by or on
behalf of the Buyer. The foregoing are collectively referred to as "Seller
Indemnifiable Damages." The term "Seller Indemnifiable Damages" shall also
include an amount of interest on the amount of such Indemnifiable Damages
(computed before the application of this sentence), which interest shall be
computed at the Applicable Rate simple interest per annum from the date such
Seller Indemnifiable Damages were incurred by the Indemnitees and until paid.
11.2 Procedures for Making Claims. If and when the Indemnitees
desire to assert a claim for Seller Indemnifiable Damages against the Buyer
pursuant to the provisions of this Article XI, the Indemnitees shall deliver to
the Buyer, reasonably promptly after the Indemnitees' receipt of a claim or
awareness of a potential claim, a certificate signed by the Indemnitees (the
"Seller Notice of Claim"): (a) stating that the Indemnitees have paid or accrued
(or intend to pay or accrue) Seller Indemnifiable Damages to which they are
entitled to indemnification pursuant to this Article XI and the amount thereof
(to the extent then known); and (b) specifying to the extent possible (i) the
individual items of loss, damage, liability, cost, expense or deficiency
included in the amount so stated, (ii) the date each such item was or will be
paid or accrued and (iii) the basis upon which Seller Indemnifiable Damages are
claimed. If the Buyer shall object to such Notice of Claim, the Buyer shall
deliver written notice of objection (the "Seller Notice of Objection") to the
Indemnitees within thirty (30) days after the Indemnitee's delivery of the
Seller Notice of Claims. The Seller Notice of Objection shall set forth the
grounds upon which the objection is based and state whether the Buyer objects to
all or only a portion of the matter described in the Seller Notice of Claim. If
the Seller Notice of Claim shall not have been so delivered within such thirty
(30) day period, the Buyer shall be conclusively deemed to have acknowledged the
correctness of the claim or claims specified in the Seller Notice of Claim for
the full amount thereof and the Seller Indemnifiable Damages set forth in the
Seller Notice of Claim shall be paid to the Indemnitees, on demand, in cash.
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11.3 Participation in Defense of Third Party Claims. If any third
party shall assert any claim against the Indemnitees which, if successful, might
result in an obligation of the Buyer to pay Seller Indemnifiable Damages, and
which can be remedied to the reasonable satisfaction of the Seller by the
payment of money damages without further adverse consequences to the Seller, the
Buyer, at the sole expense of the Buyer, may assume the primary defense thereof
with counsel reasonably acceptable to the Indemnitees, but only if and so long
as: (a) the Buyer diligently pursues the defense of such claim; and (b) the
Buyer acknowledges to the Indemnitees in writing that the claim, if resolved or
settled with an acknowledgement that the Buyer has an indemnification claim
hereunder, is one for which the Buyer is obligated to indemnify the Indemnitees
hereunder. Except with the prior written consent of the Indemnitees, which shall
not be unreasonably withheld, the Buyer shall not consent to entry of any
judgment, or enter into any settlement, that provides for injunctive or other
nonmonetary relief affecting the Indemnitees or that does not include as an
unconditional term thereof the giving by each claimant or plaintiff to the
Indemnitees of a release from all liability with respect to such claim or
litigation. If the Buyer fails or refuses so to elect to assume the primary
defense of any such claim, the Indemnitees may (but need not) do so, in which
event the Indemnitees may defend, settle or compromise the claim in any such
manner as the Indemnitees reasonably deem appropriate; provided, that except
with the prior written consent of the Buyer, which shall not be unreasonably
withheld, the Indemnitees shall not consent to entry of any judgment, or enter
into any settlement, that provides for injunctive or other nonmonetary relief
affecting the Buyer or that does not include as an unconditional term thereof
the giving by each claimant or plaintiff to the Buyer of a release from all
liability with respect to such claim or litigation.
11.4 Survival of Indemnification. The Buyer's obligation to pay
Seller Indemnifiable Damages arising out of claims described in Section 11.1(b),
(c), (d) and (e) shall survive the Closing of this transaction indefinitely. The
representations and warranties contained in Article V and the Buyer's
obligations to pay Indemnifiable Damages arising out of Section 11.1(a) shall
survive the Closing Date, as follows:
(a) Fraudulent Breach of Representations; Certain Representations.
In the case of a claim based upon the inaccuracy or breach of a representation
or warranty which was made fraudulently or with respect to any representation or
warranty contained in Sections 5.1, 5.2, 5.3, 5.4(a) and 5.6, indefinitely; and
(b) All Other Claims. In the case of all other claims based upon the
inaccuracy or breach of a representation or warranty contained in Article V, for
a period commencing on the date hereof and ending three (3) years after the
Closing Date.
No claim for recovery of Indemnifiable Damages arising out of Section 11.1(a)
hereof may be asserted by the Indemnitee after the expiration of the applicable
time period described in this Section 11.4; provided, however, that any claim
first asserted by the giving of a Seller Notice of Claim within the applicable
survival period shall neither be abated nor barred.
11.5 Limitations on Indemnifiable Damages. Notwithstanding the
foregoing, other than Seller Indemnifiable Damages (a) due to fraud or
intentional misrepresentation on behalf of the Buyer or Promega or (b) arising
out of an inaccuracy or breach of any representation or warranty contained in
Sections 5.1, 5.2, 5.3, 5.4(a) or 5.6, for which there shall be no limitation,
(x) the
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maximum amount of Seller Indemnifiable Damages on the Buyer's or Promega's
breach payable by the Buyer arising under Section 11.1(a) shall not exceed the
Purchase Price and (y) the Seller shall not be entitled to recover Seller
Indemnifiable Damages for any matter described in Section 11.1(a) unless and
until the aggregate of all claims for Indemnifiable Damages asserted pursuant to
Section 11.1(a) exceeds $25,000.
11.6 Offset. The Seller and the Shareholder shall be entitled to
offset against any obligations owed by the Seller or the Shareholder to the
Buyer or Promega the sum of all Seller Indemnifiable Damages that the Seller or
the Shareholder is entitled to pursuant to Article XI and all other obligations
owed by the Seller or the Shareholder to the Buyer or Promega under any other
agreement, contract or other arrangement. No offset made by the Seller or the
Shareholder pursuant to this Section 11.6 shall constitute a default under any
of the Seller's or the Shareholder's payment obligations or, even if it is
subsequently determined that no Seller Indemnifiable Damages or other
obligations were due the Seller or the Shareholder, give rise to any right of
acceleration under any other agreement, contract or understanding on the part of
the Seller or the Shareholder by reason of such offset.
11.7 Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy the Seller may have with respect to the Buyer or
the transactions contemplated by this Agreement. Notwithstanding the foregoing,
each of the Seller and the Shareholder hereby agrees that it will not make any
claim for indemnification against any Person who is or was a director, officer,
employee, or agent of any of the Buyer, Promega and their Affiliates or was
serving at the request of any such entity as a partner, trustee, director,
officer, employee, or agent of another entity (each such Person, a "Protected
Promega Person") (whether such claim is for judgments, damages, penalties,
fines, costs, amounts paid in settlement, losses, expenses, or otherwise and
whether such claim is pursuant to any statute, charter document, bylaw,
agreement, or otherwise) with respect to any action, suit, proceeding,
complaint, claim, or demand brought by the Seller against the Buyer or Promega.
ARTICLE XII
TERMINATION
12.1 Rights to Terminate. This Agreement may be terminated at any
time prior to the Closing only as follows:
(a) by mutual written consent of the Seller, the Shareholder
and the Buyer;
(b) by the Buyer by giving written notice to the Seller and the
Shareholder on or before March 22, 1999, if the Buyer is
not satisfied with the results of its continuing business,
legal and accounting due diligence of the Seller.
(c) by the Seller and the Shareholder by giving written notice
to the Buyer if the Buyer is in breach of any
representation, warranty or covenant under this Agreement
(and
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neither the Seller nor the Shareholder are then in breach
of any representation, warranty or covenant);
(d) by the Buyer by giving written notice to the Seller and the
Shareholder if the Seller or the Shareholder are in breach
of any representation, warranty or covenant under this
Agreement (and the Buyer is not then in breach of any
representation, warranty or covenant); or
(e) by either the Buyer or the Seller and the Shareholder by
giving written notice to the other parties if the Closing
shall not have occurred on or before May 15, 1999.
Each party's right to termination hereunder is in addition to any of
the rights it may have hereunder or otherwise.
12.2 Effects of Termination. Notwithstanding any other provision of
this Agreement, no termination of this Agreement shall release any party of any
Liabilities arising hereunder for any pre-termination breaches hereof or
intentional misrepresentations made herein.
ARTICLE XIII
GUARANTEE
13.1 Guarantee by the Shareholder. The Shareholder hereby
irrevocably, absolutely and unconditionally guarantees to the Buyer and Promega
(a) the payment of all amounts due and payable by the Seller under this
Agreement and each other agreement, document and instrument executed and
delivered by the Seller in connection with the transactions contemplated by this
Agreement and (b) the performance of all agreements and undertakings of the
Seller under this Agreement and each other agreement, document and instrument
executed and delivered by the Seller in connection with the transactions
contemplated by this Agreement, in each case strictly in accordance with the
terms hereof or thereof.
13.2 Guarantee by Promega. Promega hereby irrevocably, absolutely
and unconditionally guarantees to the Seller and the Shareholder the payment of
the Purchase Price, including the payment of obligations under the Note, the
performance of the Buyer's obligations under Article VII, the Buyer's obligation
to consummate the transactions contemplated by this Agreement if the provisions
of Article VIII of this Agreement are satisfied, the Buyer's obligations under
the Lease and the Buyer's obligations under the Quality Assurance Agreement.
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ARTICLE XIV
DEFINITIONS
14.1 Certain Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified in this Section 14.1 unless the context
otherwise requires.
"Adjustment Amount" has the meaning set forth in Section 2.1(a)(ii).
"Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act.
"Agreement" means this Asset Purchase Agreement, together with all
Exhibits and Schedules hereto, as amended, restated, supplemented or otherwise
modified from time to time in accordance with the terms hereof.
"Applicable Rate" means 7% per annum.
"Assignment, Xxxx of Sale and Assumption Agreement" means that
Assignment, Xxxx of Sale and Assumption Agreement, dated as of the Closing Date,
between the Seller and the Buyer, in substantially the form of Exhibit B
attached hereto.
"Assumed Liabilities" has the meaning set forth in Section 3.1.
"Benefit Plans" has the meaning set forth in Section 4.25(a).
"Biogenex License Agreement" means that certain license agreement
dated as of January 20, 1999, between the Seller and Biogenex, Inc.
"Business" has the meaning set forth in the recitals to this
Agreement.
"Business Combination" has the meaning set forth in Section 6.15.
"Buyer" has the meaning set forth in the first paragraph to this
Agreement.
"Buyer's Accountants" has the meaning set forth in Section 2.2(c).
"Buyer's Group Health Plan" has the meaning set forth in Section
7.13.
"Buyer's Welfare Plans" has the meaning set forth for in Section
7.13.
"Closing" has the meaning set forth in Section 1.4.
"Closing Balance Sheet" has the meaning set forth in Section 2.2(c).
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"Closing Date" has the meaning set forth in Section 1.4.
"COBRA" has the meaning set forth in Section 4.25(d).
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange
Commission.
"Commission Filings" has the meaning set forth in Section 4.35.
"Contracts" has the meaning set forth in Section 1.2(h).
"Dispute Accountants" has the meaning set forth in Section 2.2(d).
"Environmental Claim" means any and all claims, demands, suits,
actions, orders, directives, notices of noncompliance or violation, liens,
investigations or administrative, regulatory or judicial proceedings by any
Person alleging potential liability or responsibility for enforcement,
penalties, fines, forfeitures, damages, losses, costs, costs for Remedial Action
taken, governmental response costs, natural resource damages, property damages,
personal injury or bodily injury arising out of, based on or resulting from: (A)
the presence, use, manufacture, processing, distribution, production,
generation, handling, transport, storage, disposal, labeling, discharge,
release, threatened release, treatment, control or cleanup of any Environmental
Material at any location; or (B) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law; or (C) any and all
claims by any person or Governmental Authority seeking damages, contribution,
indemnification, costs, compensation or injunctive relief resulting from the
presence or Environmental Release of any Environmental Material.
"Environmental Law" means any Legal Requirement which relates to or
otherwise imposes liability, obligations, responsibility, or standards with
respect to zoning, land use, pollution, or the restoration, repair, remediation
or protection of natural resources, human health or the environment (including
ambient air, surface water, groundwater, land surface, subsurface soil strata),
including without limitation, any Legal Requirement relating to the presence,
use, manufacture, processing, distribution, production, generation, handling,
transport, storage, disposal, labeling, discharge, release, threatened release,
treatment, control or cleanup of any Environmental Material.
"Environmental Material" means: (A) any petroleum substance,
petroleum product, underground storage tank, underground cistern, radioactive
material, asbestos in any form that is or could become friable, urea
formaldehyde foam insulation, PCB-containing Material; (B) any Hazardous
Substance, Hazardous Material, Hazardous Waste or any other material, substance,
chemical, waste, contaminant or pollutant which is now or hereafter defined as
or determined to be hazardous, extremely hazardous, toxic, dangerous,
restricted, or a nuisance, or words of similar import, under any Environmental
Law; (C) any other material, substance, chemical, waste, contaminant, pollutant
or exposure to which is now prohibited, limited or regulated by any Governmental
Authority or pursuant to any Environmental Law.
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"Environmental Permits" means all permits, licenses, authorizations,
certifications, notices, approvals or authorizations under any Environmental
Law.
"Environmental Release" shall mean any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the atmosphere, soil, surface water, groundwater or soil.
"Equipment" has the meaning set forth in Section 1.2(f).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Estimated Net Book Value" has the meaning set forth in Section
2.2(a).
"Excluded Assets" has the meaning set forth in Section 1.3.
"Excluded Liabilities" has the meaning set forth in Section 3.2.
"Final Net Book Value" has the meaning set forth in Section 2.2(a).
"Financial Statements" has the meaning set forth in Section 4.9.
"First Day" has the meaning set forth in Section 7.13.
"GAAP" means United States generally accepted accounting principles
as in effect from time to time.
"Granada Leases" means, collectively, that certain Lease dated as of
February 27, 1990 between the Seller and Sueldo Associates, a California general
partnership, as amended, and that certain Revised and Restated Lease dated as of
March 1, 1990 between the Seller and Granada Associates, LLC, a California
limited liability company, as amended.
"Governmental Authority" means the government of the United States
of America and any other country, and any state, province, municipality or other
governmental unit, or any court, agency, board, bureau, instrumentality,
department or commission (including any court or other tribunal) of any of the
foregoing.
"Hazardous Material" means hazardous materials as defined under the
regulations adopted pursuant to the Hazardous Materials Transportation Act. Such
regulations appear at 49 C.F.R. Part 171, et seq.
"Hazardous Substance" means hazardous substances as defined under
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. ss.9601, et seq. and under comparable state laws.
"Hazardous Waste" means hazardous waste as defined under the
Resource Conservation and Recovery Act, 42 U.S.C.ss.6901, et seq.ss.144.60, et
seq. and other comparable state laws.
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"Hired Employees" has the meaning set forth in Section 7.8.
"Indemnifiable Damages" has the meaning set forth in Section 10.1.
"Indemnitees" has the meaning set forth in Section 11.1.
"Indemnitors" has the meaning set forth in Section 10.1.
"Insurance" has the meaning set forth in Section 4.16(a).
"Intellectual Property" means, with respect to any Person, any and
all United States and foreign intellectual property owned or licensed by that
Person, including, without limitation, (i) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications (including international applications), and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof, (ii)
all trademarks, service marks, trade dress, logos, trade names, brand names and
corporate names (including, without limitation, in the case of the Seller, the
name "JBL Scientific" and all derivatives thereof), together with all
translations, adaptations, derivations, and combinations thereof and including
all goodwill associated therewith, and all applications, registrations, and
renewals in connection therewith, (iii) all copyrightable works, all copyrights,
and all applications, registrations, and renewals in connection therewith, (iv)
all mask works and all applications, registrations, and renewals in connection
therewith, (v) all trade secrets and confidential business information
(including ideas, research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical data, designs,
drawings, specifications, customer and supplier lists, pricing and cost
information, and business and marketing plans and proposals), (vi) all computer
software owned or licensed by the Seller specifically including, but not limited
to, software developed by or for the Seller (including data and related
documentation), (vii) all other proprietary rights, (viii) all copies and
tangible embodiments thereof (in whatever form or medium). Intellectual Property
to be assigned includes, without limitation, the Intellectual Property set forth
in the Intellectual Property Assignments.
"Intellectual Property Assignments" means those certain Intellectual
Property Assignments dated as of the Closing Date, between the Buyer and (i) the
Seller and (ii) the Shareholder, in substantially the forms of Exhibits C-1 and
C-2 respectively, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Inventories" has the meaning set forth in Section 1.2(b).
"IRS" means the Internal Revenue Service.
"Knowledge" means, with respect to the Seller and the Shareholder,
the actual knowledge of Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxx and
Xxxxxx X. Xxxxx after due inquiry.
"Latest Balance Sheet" means the unaudited balance sheet for the
Business dated as of the Latest Balance Sheet Date and attached in Schedule 4.9.
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"Latest Balance Sheet Date" has the meaning set forth in Section
4.9.
"Latest Fiscal Year End" has the meaning set forth in Section 4.9.
"Lease" means that certain Lease Agreement to be entered into as of
the Closing Date, between the Buyer and Granada Associates, LLC, containing
terms substantially similar to the terms set forth on Exhibit D hereto, as the
same may be amended, restated, supplemented or otherwise modified from time to
time in accordance with its terms.
"Leased Property" shall mean the Real Estate, as well as any other
real estate heretofore owned or used by Seller in the conduct of the Business.
"Legal Requirement" means any and all statutes, laws, codes,
ordinances, regulations, rules, directives, policy, orders, judgments, writs,
injunctions, rulings, decrees, bylaws or common law (whether presently in effect
or hereinafter enacted, adopted, promulgated or issued) of any Governmental
Authority.
"Liability" means any liability or obligation (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and whether due or to
become due), including, without limitation, any liability for Taxes.
"Lien" means any mortgage, pledge, lien, encumbrance, charge or
other security interest of any kind.
"Lipid License Agreement" means that certain Lipid License Agreement
dated as of the Closing Date, between the Shareholder and the Buyer, in
substantially the form of Exhibit E attached hereto, as the same may be amended,
restated, supplemented or otherwise modified from time to time in accordance
with its terms, pursuant to which the Buyer grants to the Seller an exclusive,
royalty free license to use technology pertaining to cationic lipids described
in Attachment E-1 to the Lipid License Agreement.
"Losses" has the meaning set forth in Section 10.1(a).
"Material Adverse Effect" means a material adverse effect on the
Purchased Assets, operations, prospects or condition (financial or otherwise) of
the Business.
"Net Book Value" has the meaning set forth in Section 2.2(b).
"Nondisclosure and Noncompetition Agreement" means that certain
Consulting and Noncompetition Agreement, dated as of the Closing Date, among the
Buyer, the Seller and the Shareholder, in substantially the form of Exhibit F
attached hereto, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Note" means that certain $1,200,000 promissory note dated as of the
Closing Date made by the Buyer in favor of the Seller in substantially the form
of Exhibit G hereto, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
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"Notice of Claim" has the meaning set forth in Section 10.2.
"Notice of Objection" has the meaning set forth in Section 10.2.
"On-Site Contamination" has the meaning set forth in Section 6.23.
"Operating Accruals" means the Assumed Liabilities specified in
Section 3.1(a).
"Ordinary Course of Business" means the ordinary course of business
consistent with past practice (including with respect to quantity and
frequency).
"Owner" has the meaning set forth in the definition of "Subsidiary"
set forth in Section 15.1.
"PCB-containing Material" means polychlorinated biphenyls, including
PCB-laden lubricating or hydraulic oils or transformers or other equipment which
contain dielectric fluid containing polychlorinated biphenyls.
"Pension Plan" has the meaning set forth in Section 4.25(a).
"Permits" has the meaning set forth in Section 1.2(i).
"Permitted Liens" means (a) any Lien for taxes that are not yet due,
(b) any carrier's, warehouseman's, mechanic's, materialman's, repairman's,
landlord's, lessor's or similar statutory lien incidental to the ordinary
conduct of the Business or (c) any municipal and zoning ordinance, recorded
easement, covenant or restriction that does not prohibit or materially interfere
with the present use, or materially affect the present value, of the Business or
the Purchased Assets.
"Person" means an individual, partnership, corporation, limited
liability company, firm, enterprise, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"Preliminary Purchase Price" has the meaning set forth in Section
2.1(a).
"Products Liability" has the meaning set forth in Section 4.26.
"Promega" has the meaning set forth in the fifth paragraph of the
recitals to this Agreement.
"Promega 401(k) Plan" has the meaning set forth in Section 7.12.
"Protected Promega Person" has the meaning set forth in Section
11.7.
"Protected Shareholder Person" has the meaning set forth in Section
10.7.
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"Purchase Price" has the meaning set forth in Section 2.2(a).
"Purchased Assets" has the meaning set forth in Section 1.2.
"Quality Assurance Agreement" means that certain Quality Assurance
and Quality Control Agreement, between the Buyer and the Shareholder, in
substantially the form of Exhibit H attached hereto, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Real Estate" has the meaning set forth in Section 1.2(e).
"Receivables" has the meaning set forth in Section 1.2(c).
"Records" means books of account, ledgers, forms, records,
documents, files, invoices, lab notebooks, archived batch records, chemical
waste disposal records, vendor or supplier lists, plans and other data which are
necessary to or desirable for the ownership, use, maintenance or operation of
the Business and which are owned or used by any Seller, including, without
limitation, all blueprints and specifications, all Tax, personnel, payroll,
payroll tax and labor relations records, all environmental control records,
environmental impact reports, statements, studies and related documents,
handbooks, technical manuals and data, engineering specifications and work
papers, all pricing and cost information, all sales records, all accounting and
financial records, all sales and use Tax returns, reports, files and records,
asset history records and files, all data entry and accounting systems used to
conduct the day-to-day operations of the Business, all maintenance and repair
records, all correspondence, notices, citations and all other documents received
from, sent to or in the Seller's possession in connection with any Governmental
Authority (including, without limitation, federal, state, county or regional
environmental protection, air or water quality control, occupational health and
safety, land use, planning or zoning and any alcohol, beverage or fire
prevention authorities), all plans, maps and surveys of the Real Estate, and all
plans and designs of buildings, structures, fixtures and equipment.
"Remedial Action" means any action taken or required to be taken as
a result of Environmental Law or by demand of Governmental Authority in response
to a known or suspected condition in the environment (including ambient air,
surface water, groundwater, land surface or subsurface soil strata), including,
without limitation, sampling, investigation, monitoring, remedial action,
remediation, removal, response, restoration, repair, replacement, treatment,
clean-up and corrective action.
"Restricted Interests" has the meaning set forth in Section 1.5(a).
"Securities Act" means the Securities Act of 1993, as amended,
including any rules and regulations promulgated thereunder.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, including any rules and regulations promulgated thereunder.
"Seller" has the meaning set forth in the first paragraph to this
Agreement.
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"Seller Indemnifiable Damages" has the meaning set forth in Section
11.1.
"Seller Notice of Claim" has the meaning set forth in Section 11.2.
"Seller Notice of Objection" has the meaning set forth in Section
11.2.
"Seller Purchased Assets" has the meaning set forth in Section 1.2.
"Seller's Accountants" has the meaning set forth in Section 2.2(d).
"Seller's 401(k) Plan" has the meaning set forth in Section 6.25 .
"Seller's Group Health Plan" has the meaning set forth in Section
6.24.
"Seller's Welfare Plans" has the meaning set forth in Section 6.24.
"Shareholder" has the meaning set forth in the first paragraph to
this Agreement.
"Shareholder Purchased Assets" has the meaning set forth in Section
1.2.
"Subsidiary" means, with respect to any Person (the "Owner") any
corporation or other Person of which securities or other interests having the
power to elect a majority of that Person's board of directors of similar
governing body, or otherwise having the power to direct the business and
policies of that Person are held by the Owner or one or more of its
Subsidiaries. When used without reference to a particular Person, Subsidiary"
means a Subsidiary of the Seller.
"Tax" means any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties, capital stock,
franchise, profits, withholding, social security, unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated or other tax of any kind whatsoever,
including any interest, penalty or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"Vehicles" has the meaning set forth in Section 1.2(g).
14.2 Interpretation. Unless otherwise expressly provided or unless
the context requires otherwise, (a) all references in this Agreement to
Articles, Sections, Schedules and Exhibits shall mean and refer to Articles,
Sections, Schedules and Exhibits of this Agreement; (b) all references to
statutes and related regulations shall include all amendments of the same and
any successor or replacement statutes and regulations; (c) words using the
singular or plural number also shall include the plural and singular number,
respectively; (d) references to "hereof," "herein," "hereby"
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and similar terms shall refer to this entire Agreement (including the Schedules
and Exhibits hereto); and (e) references to any Person shall be deemed to mean
and include the successors and permitted assigns of such Person (or, in the case
of a Governmental Authority, Persons succeeding to the relevant functions of
such Person).
14.3 Other Terms. Except as otherwise specifically provided, each
accounting term used herein shall have the meaning given to it under GAAP.
ARTICLE XV
MISCELLANEOUS
15.1 Survival of Representations and Warranties. All of the
representations and warranties of the parties contained in this Agreement shall
survive the Closing hereunder to the extent provided in Sections 10.4 and 11.4.
15.2 Benefit and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, their heirs, successors,
assignees, and beneficiaries in interest; provided, however, that this Agreement
may not be assigned by the Seller or the Shareholder without the prior written
consent of the Buyer.
15.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
(regardless of such State's conflict of laws principles), and without reference
to any rules of construction regarding the party responsible for the drafting
hereof.
15.4 Expenses. Except as otherwise herein provided, all expenses
incurred in connection with this Agreement or the transactions herein provided
for shall be paid by the party incurring such expenses and costs.
15.5 Notices. Every notice or other communication required or
contemplated by this Agreement must be in writing and sent by one of the
following methods: (i) personal delivery, in which case delivery is deemed to
occur the day of delivery; (ii) certified or registered mail, postage prepaid,
return receipt requested, in which case delivery is deemed to occur the day it
is officially recorded by the U.S. Postal Service as delivered to the intended
recipient; or (iii) next-day delivery to a U.S. address by recognized overnight
delivery service such as Federal Express, in which case delivery is deemed to
occur one business day after being sent. In each case, a notice or other
communication sent to a party must be directed to the address for that party set
forth below, or to another address designated by that party by written notice:
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(a) If to the Buyer or Promega,
or both: Promega Corporation
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: General Counsel
With a copy to: Xxx X. Xxxxxxxxx, Esq.
Xxxxxxx Xxxx & Xxxxxxxxx LLP
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
(b) If to the Seller or the
Shareholder, or both: c/o Genta Incorporated
One Ledgemont Center
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Ph.D.
With a copy to: Xxxxxx Xxxx, Esq.
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
15.6 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument, provided that all
such counterparts, in the aggregate, shall contain the signatures of all parties
hereto.
15.7 Headings. All Section headings herein are inserted for
convenience only and shall not modify or affect the construction or
interpretation of any provision of this Agreement.
15.8 Amendment, Modification and Waiver. This Agreement may not be
modified, amended or supplemented except by mutual written agreement of all the
parties hereto. Any party may waive in writing any term or condition contained
in this Agreement and intended to be for its benefit; provided, however, that no
waiver by any party, whether by conduct or otherwise, in any one or more
instances, shall be deemed or construed as a further or continuing waiver of any
such term or condition. Each amendment, modification, supplement or waiver shall
be in writing signed by the party or the parties to be charged.
15.9 Entire Agreement. This Agreement and the Exhibits and Schedules
attached hereto represent the full and complete agreement of the parties with
respect to the subject matter hereof and supersede and replace any prior
understandings and agreements among the parties with respect to the subject
matter hereof and no provision or document of any kind shall be included in or
form a part of such agreement unless signed and delivered to the other party by
the parties to be charged.
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15.10 Third-Party Beneficiaries. No third parties are intended to
benefit from this Agreement, and no third-party beneficiary rights shall be
implied from anything contained in this Agreement, except that each Protected
Shareholder Person and each Protected Promega Person is a third-party
beneficiary under Sections 10.7 and 11.7, respectively.
15.11 Publicity. The Buyer and the Seller agree that no publicity
announcements or disclosures of any kind concerning the terms of this Agreement
or concerning the transactions contemplated hereby shall be made without the
mutual consent of the Buyer and the Seller, except to the extent that disclosure
is required by law or to accountants, counsel, other professionals and to
lenders on a "need to know" basis who similarly agree to maintain the
confidentiality of the existence of and terms of the Agreement and the
transactions contemplated thereby.
15.12 Specific Performance. Each of the Buyer, Promega, the Seller
and the Shareholder acknowledges and agrees that the other parties 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 Buyer, Promega, the Seller and the Shareholder agrees
that the other parties shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and all agreements and
transactions contemplated hereby, and to enforce specifically this Agreement and
all agreements and transactions contemplated hereby, and the terms and
provisions hereof or thereof in any action instituted in any court of the United
States or any state thereof having jurisdiction over the parties and the matter,
in addition to any other remedy to which it may be entitled, at law or in
equity.
[SIGNATURE PAGE FOLLOWS]
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[Signature Page to Asset Purchase Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year first above written.
JBL ACQUISITION CORP.
By:_______________________________
Its:______________________________
JBL SCIENTIFIC INCORPORATED
By:_______________________________
Its:______________________________
GENTA INCORPORATED
By:_______________________________
Its:______________________________
Promega Corporation hereby executes this Agreement to confirm its
obligations under Section 13.2 of this Agreement.
PROMEGA CORPORATION
By:_______________________________
Its:______________________________
EXHIBIT A-1
[Form of Legal Opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP]
X-0-0
XXXXXXX X-0
[Form of Legal Opinion of Sinsheimer, Schiebelhut & Xxxxxxx]
X-0-0
XXXXXXX X-0
[Form of Legal Opinion of Xxxxxxx Xxxx & Friedrich LLP]
A-3-1
EXHIBIT B
[Form of Assignment, Xxxx of Sale and Assumption Agreement]
B-1
EXHIBIT C-1
[Form of Seller Intellectual Property Assignment]
C-1-1
EXHIBIT C-2
[Form of Shareholder Intellectual Property Assignment]
C-2-1
EXHIBIT D
[Summary of Lease Terms]
D-1
EXHIBIT E
[Form of Lipid License Agreement]
E-1
EXHIBIT F
[Form of Nondisclosure and Noncompetition Agreement]
F-1
EXHIBIT G
[Form of Note]
G-1
EXHIBIT H
[Form of Quality Assurance Agreement]
H-1
