Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
by and among
Albany Molecular Research, Inc.
NCE Acquisition Corp.,
New Chemical Entities, Inc.
and
Certain Stockholders Thereof
Dated as of December 19, 2000
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TABLE OF CONTENTS
PAGE
ARTICLE I THE MERGER.......................................................................1
Section 1.01 The Merger....................................................................1
Section 1.02 Effects of the Merger.........................................................1
Section 1.03 Conversion of Shares; Payment of Merger Consideration.........................1
Section 1.04 Adjustments to Purchase Price.................................................4
Section 1.05 Principal Stockholders' Representative........................................4
Section 1.06 Closing.......................................................................5
Section 1.07 Actions Subsequent to Closing.................................................6
Section 1.08 Effective Time................................................................6
Section 1.09 Certificate of Incorporation..................................................6
Section 1.10 By-Laws.......................................................................6
Section 1.11 Directors and Officers........................................................6
Section 1.12 Dissenting Shares.............................................................7
Section 1.13 Surrender of Certificates; Stock Transfer Books...............................7
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL STOCKHOLDERS.....................8
Section 2.01 Making of Representations and Warranties; Certain Definitions.................8
Section 2.02 Ownership of Capital Stock....................................................8
Section 2.03 Authority of the Principal Stockholders.......................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF NCE............................................9
Section 3.01 Making of Representations and Warranties; Certain Definitions.................9
Section 3.02 Qualifications of NCE.........................................................9
Section 3.03 Subsidiaries..................................................................9
Section 3.04 Capital Stock; Beneficial Ownership...........................................9
Section 3.05 Authority of NCE.............................................................10
Section 3.06 Real and Personal Property...................................................11
Section 3.07 Financial Statements.........................................................12
Section 3.08 Taxes........................................................................12
Section 3.09 Accounts Receivable; Accounts Payable........................................14
Section 3.10 Absence of Certain Changes...................................................14
Section 3.11 Ordinary Course..............................................................15
Section 3.12 Banking Relations............................................................15
Section 3.13 Intellectual Property........................................................15
Section 3.14 Contracts....................................................................17
Section 3.15 Litigation...................................................................18
Section 3.16 Permits; Compliance with Laws................................................19
Section 3.17 Insurance Coverage...........................................................19
Section 3.18 Warranty or Other Claims.....................................................19
Section 3.19 Powers of Attorneys..........................................................19
(i)
Section 3.20 Finder's Fee.................................................................19
Section 3.21 Corporate Records; Copies of Documents.......................................20
Section 3.22 Employees; Labor Relations...................................................20
Section 3.23 Employee Benefit Programs....................................................20
Section 3.24 Environmental Matters........................................................22
Section 3.25 List of Employees, Customers, Suppliers and Vendors..........................23
Section 3.26 Transactions with Affiliates.................................................24
Section 3.27 Disclosure...................................................................24
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF AMRI AND ACQUISITION..........................24
Section 4.01 Making of Representations and Warranties.....................................24
Section 4.02 Organization and Corporate Power.............................................24
Section 4.03 Authority....................................................................24
Section 4.04 Finder's Fee.................................................................25
Section 4.05 Litigation...................................................................25
ARTICLE V COVENANTS OF NCE AND THE PRINCIPAL STOCKHOLDERS.................................25
Section 5.01 Making of Covenants and Agreements...........................................25
Section 5.02 Consents and Approvals.......................................................26
Section 5.03 Meeting of Stockholders......................................................26
Section 5.04 Conduct of Business..........................................................26
Section 5.05 Breach of Representations and Warranties.....................................28
Section 5.06 Acquisition Proposals........................................................29
Section 5.07 No Transfer of Shares; Voting................................................29
Section 5.08 Certain Deliveries...........................................................29
Section 5.09 Tax Returns..................................................................30
ARTICLE VI COVENANTS OF AMRI AND ACQUISITION...............................................30
Section 6.01 Consents and Approvals.......................................................30
Section 6.02 Breach of Representations and Warranties.....................................30
Section 6.03 Certain Deliveries...........................................................30
Section 6.04 No Transfer of Shares; Voting................................................31
Section 6.05 Grant of AMRI Options........................................................31
Section 6.06 Employee Benefit Plans.......................................................31
ARTICLE VII CONDITIONS.....................................................................31
Section 7.01 Conditions to the Obligations of AMRI and Acquisition........................31
Section 7.02 Conditions to the Obligations of NCE and the Principal Stockholders..........33
ARTICLE VIII TERMINATION OF AGREEMENT........................................................34
Section 8.01 Termination..................................................................34
Section 8.02 Effect of Termination........................................................35
Section 8.03 Right to Proceed.............................................................35
(ii)
ARTICLE IX SURVIVAL; INDEMNIFICATION.......................................................35
Section 9.01 Survival of Representations, Warranties, Etc.................................35
Section 9.02 Indemnification by the Principal Stockholders................................36
Section 9.03 Limitations on Indemnification by the Principal Stockholders.................37
Section 9.04 Indemnification by AMRI and Acquisition......................................38
Section 9.06 Notice; Defense of Claims....................................................38
Section 9.07 Satisfaction of Indemnification Obligations..................................39
Section 9.08 Satisfaction of Principal Stockholder Indemnification Obligations............39
Section 9.08 Exclusive Remedy.............................................................40
Section 9.09 Recoveries...................................................................40
ARTICLE X MISCELLANEOUS...................................................................40
Section 10.01 Fees and Expenses............................................................40
Section 10.02 Governing Law................................................................40
Section 10.03 Notices......................................................................40
Section 10.04 Entire Agreement.............................................................41
Section 10.05 Assignability; Binding Effect................................................41
Section 10.06 Captions and Gender..........................................................42
Section 10.07 Execution in Counterparts....................................................42
Section 10.08 Amendments...................................................................42
Section 10.09 Publicity and Disclosures....................................................42
Section 10.10 Dispute Resolution...........................................................42
(iii)
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
Schedule I List of Principal Stockholders
Schedule 2.02 Ownership of Beneficial Stock
Schedule 3.04 Capital Stock; Beneficial Ownership
Schedule 3.06(b) Leased Real Property
Schedule 3.06(c) Personal Property
Schedule 3.07 Financial Statements
Schedule 3.08 Taxes
Schedule 3.09 Accounts Receivable; Accounts Payable
Schedule 3.10 Absence of Certain Changes to NCE's Business
Schedule 3.12 Banking Relations
Schedule 3.13 Intellectual Property
Schedule 3.14 Contracts
Schedule 3.15 Litigation
Schedule 3.16 Permits
Schedule 3.17 Insurance Coverage
Schedule 3.22 Employees; Labor Relations
Schedule 3.23 Employee Benefit Programs
Schedule 3.24 Environmental Matters
Schedule 3.25 List of Employees, Customers, Suppliers and Vendors
Schedule 3.26 Transactions with Affiliates
Schedule 5.02 Consents and Approvals of NCE and Principal Stockholders
Schedule 5.04(g) Repayment of Loans
Schedule 6.01 Consents and Approvals of AMRI and Acquisition
Schedule 6.05 Grant of AMRI Options
Schedule 9.02(f) Liabilities Relating to Losses
EXHIBITS
Exhibit 1.03 Form of Escrow Agreement
Exhibit 5.08 Form of General Release
(iv)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of the 19th
day of December, 2000, by and among Albany Molecular Research, Inc., a Delaware
corporation (together with its successors and assigns, "AMRI"), NCE Acquisition
Corp., a Delaware corporation and wholly owned subsidiary of AMRI
("Acquisition"), New Chemical Entities, Inc., a Delaware corporation ("NCE"),
and each of the stockholders of NCE set forth on SCHEDULE I hereto
(collectively, the "Principal Stockholders").
W I T N E S S E T H
WHEREAS, AMRI has formed Acquisition as a wholly owned subsidiary in order
to effect the merger of Acquisition with and into NCE (the "Merger"), in
accordance with this Agreement and the laws of the State of Delaware such that,
upon consummation of the Merger, NCE will be a wholly owned subsidiary of AMRI
and Acquisition will cease to exist; and
WHEREAS, the respective Boards of Directors of AMRI, Acquisition and NCE,
and the Principal Stockholders of NCE, have approved this Agreement and the
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I THE MERGER
Section 1.01 THE MERGER. At the Effective Time (as defined in Section 1.08)
and subject to the terms and conditions hereof and the provisions of the General
Corporation Law of the State of Delaware, as amended (the "DGCL"), and in
reliance on the representations, warranties and covenants herein set forth,
Acquisition will be merged with and into NCE in accordance with the DGCL,
whereupon the separate existence of Acquisition shall cease and NCE shall
continue as the surviving corporation (the "Surviving Corporation"). With
respect to the Merger, Acquisition and NCE are hereinafter referred to
collectively as the "Constituent Corporations."
Section 1.02 EFFECTS OF THE MERGER . At the Effective Time, the Merger
shall have the effects set forth in Sections 259 and 261 of the DGCL, and all
other applicable laws.
Section 1.03 CONVERSION OF SHARES; PAYMENT OF MERGER CONSIDERATION.
(a) The closing merger consideration shall be equal to $23,000,000,
less the sum of (i) the aggregate principal amount plus accrued and unpaid
interest of Indebtedness (as defined below) of NCE; plus (ii) the aggregate
liquidation preference to be paid to the holders of Series A Participating
Convertible Preferred Stock of NCE (the "Series A Preferred Stock"), which shall
be paid to the holders of Series A Preferred Stock in accordance with the terms
thereof (which shall be paid by AMRI to such holders on the Closing Date in
accordance with their pro rata ownership of the Series A Preferred Stock); plus
(iii) any amount by which expenses paid and accrued as of the Closing Date (as
defined below) by NCE in connection with
the Merger exceeds $200,000 (collectively, the "Closing Merger Consideration").
Of the amount of Closing Merger Consideration to be delivered to the Principal
Stockholders pursuant to this Section 1.03, $1,500,000 in the aggregate (the
"Escrow Amount") shall be delivered on a pro rata basis in proportion to each
Principal Stockholder's percentage of Closing Merger Consideration to an escrow
agent reasonably satisfactory to AMRI and NCE, which Escrow Amount shall be held
for a period of six (6) months from the Closing Date, at which time $500,000
less any and all amounts sufficient to satisfy claims made by AMRI under Article
IX hereof shall be released, and the remaining balance of the Escrow Amount less
any and all amounts sufficient to satisfy claims made by AMRI under Article IX
hereof shall be released on the first anniversary of the Closing Date, pursuant
to and in accordance with the terms of the Escrow Agreement (the "Escrow
Agreement") to be executed substantially in the form attached hereto as EXHIBIT
1.03. At the Closing (as defined below), AMRI shall pay to the stockholders of
NCE the Closing Merger Consideration in the form and the amounts specified in
Section 1.03(b)(ii).
(b) At the Effective Time of the Merger, by virtue of such Merger and
without any action on the part of Acquisition, NCE or any stockholder of NCE:
(i) Each share of common stock, par value $.01 per share, of
Acquisition issued and outstanding immediately prior to the Effective Time
shall be converted into one fully paid and nonassessable share of common
stock, par value $.001 per share, of the Surviving Corporation.
(ii) Each share of common stock of NCE issued and outstanding
immediately prior to the Effective Time, including shares of common stock
issued or issuable upon conversion of the Series A Preferred Stock (an "NCE
Share," and collectively the "NCE Shares"), other than Dissenting Shares
(as defined in Section 1.12), if any, shall automatically be converted into
the right to receive an amount in cash equal to the quotient of (A) the
Closing Merger Consideration plus the aggregate exercise price of all NCE
Options (as defined below), other than Unvested Options (as defined below),
and NCE Warrants (as defined below) divided by (B) the number of NCE Shares
issued and outstanding immediately prior to the Effective Time of the
Merger plus the total number of NCE Options, other than Unvested Options,
and NCE Warrants (such amount, the "Per Share Closing Merger
Consideration");
(iii) All NCE Shares, when converted as provided in this Section
1.03(b) shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each certificate (a "Certificate"
and, collectively, the "Certificates") previously evidencing such shares
shall thereafter represent only the right to receive the Closing Merger
Consideration. The holders of Certificates previously evidencing NCE Shares
outstanding immediately prior to the Effective Time shall cease to have any
rights with respect to the NCE Shares except as otherwise provided herein
or by law and, upon the surrender of Certificates in accordance with the
provisions of Section 1.03, shall only represent the right to receive for
their NCE Shares, the Closing Merger Consideration, without any interest
thereon.
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(c) For purposes of this Agreement, "Indebtedness" means indebtedness
for money borrowed shown on the balance sheet of NCE as of the Closing Date,
including the current portion thereof, determined in accordance with generally
accepted accounting principles applied in a manner consistent with those used in
preparing NCE's Base Balance Sheet (as defined in Section 3.06), other than
equipment leases and indebtedness to finance equipment purchases.
(d) Each NCE Share held in the treasury and any NCE Shares owned by
Acquisition, AMRI or any direct or indirect wholly owned subsidiary of
Acquisition or AMRI immediately prior to the Effective Time shall be canceled
without any conversion thereof, and no payment shall be made with respect
thereto.
(e) Stock Options of NCE shall be treated as follows:
(i) Each option to acquire NCE common stock (collectively, the
"NCE Options") granted under the NCE 1998 Employee, Director and Consultant
Stock Plan (the "NCE Stock Plan"), which is outstanding and exercisable as
of immediately prior to the Effective Time and which has not been exercised
or canceled prior thereto, shall terminate and be canceled as of the
Effective Time and thereafter be of no further force or effect; and upon
the surrender and cancellation of the option agreement representing such
NCE Option, NCE shall pay to the holder thereof cash in an amount equal to
the product of (A) the number of shares of common stock of NCE with respect
to which such NCE Option is then exercisable and (B) the excess, if any, of
the Per Share Closing Merger Consideration over the exercise price per
share provided for in such NCE Option, which cash payment shall be treated
as compensation and shall be net of any applicable federal or state
withholding tax (the "Option Consideration"). NCE shall take all actions
necessary to ensure that (x) all NCE Options, to the extent not exercised
prior to the Effective Time, shall terminate and be canceled as of the
Effective Time and thereafter be of no further force or effect, and (y) no
NCE Options are granted after the date of this Agreement.
(ii) Each NCE Option that is outstanding as of immediately prior
to the Effective Time, but is not then exercisable (the "Unvested Options")
shall terminate and be canceled as of the Effective Time and thereafter be
of no further force or effect.
(iii) The NCE Stock Plan shall terminate as of the Effective Time,
and the provisions in any other plan, program or arrangement providing for
the issuance or grant of any other interest in respect of the capital stock
of NCE shall be of no further force and effect and shall be deemed to be
deleted as of the Effective Time, and no holder of an Option or any
participant in the NCE Stock Option Plan or any other plans, programs or
arrangements (other than holders of Unvested Options) shall have any right
thereunder to acquire any equity securities of NCE, AMRI or the Surviving
Corporation.
(f) Warrants of NCE shall be treated as follows: each warrant to
acquire NCE common stock (collectively, the "NCE Warrants"), which is
outstanding and exercisable as of immediately prior to the Effective Time and
which has not been exercised or canceled prior thereto, shall terminate and be
canceled as of the Effective Time and thereafter be of no further
3
force or effect; and upon the surrender and cancellation of the warrant
agreement representing such NCE Warrant, NCE shall pay to the holder thereof
cash in an amount equal to the product of (i) the number of shares of common
stock of NCE with respect to which such NCE Warrant is then exercisable and (ii)
the excess, if any, of the Per Share Closing Merger Consideration over the
exercise price per share provided for in such NCE Warrant. NCE shall take all
actions necessary to ensure that (A) all NCE Warrants, to the extent not
exercised prior to the Effective Time, shall terminate and be canceled as of the
Effective Time and thereafter be of no further force or effect, and (B) no NCE
Warrants are granted after the date of this Agreement.
Section 1.04 ADJUSTMENTS TO PURCHASE PRICE. As of five (5) days prior to
the Closing, NCE shall deliver to AMRI a certificate (the "Closing Adjustment
Certificate") signed by the Chief Operating Officer and President of NCE setting
forth as of the Closing Date the aggregate principal amount plus accrued and
unpaid interest of the Indebtedness and the total amount of expenses paid and
accrued by NCE as of the Closing Date, which expenses have been paid and accrued
in accordance with generally accepted accounting principles, which certificate
shall be approved by AMRI in its reasonable discretion prior to the Effective
Time and which certificate shall be accompanied by such additional information
as AMRI may reasonably request.
Section 1.05 PRINCIPAL STOCKHOLDERS' REPRESENTATIVE.
(a) By the execution and delivery of this Agreement or the appropriate
Letter of Transmittal (as defined in Section 1.13(b) hereof) and by their act of
surrendering certificates representing their Shares pursuant to this Agreement,
each of the Principal Stockholders hereby irrevocably constitutes and appoints,
for the period beginning on the date hereof and ending on the second anniversary
of the date of this Agreement, Xxxxx Xxxxxxxxx ("Xx. Xxxxxxxxx") as his, her or
its true and lawful agent and attorney-in-fact (the "Representative"), with full
power of substitution, to act in his, her or its name, place and stead with
respect to all transactions contemplated by and all terms and provisions of this
Agreement, and to act on his, her or its behalf in any dispute, litigation or
arbitration involving this Agreement, and to do or refrain from doing all such
further acts and things, and execute all such documents as the Representative
shall deem necessary or appropriate in connection with the transactions
contemplated by this Agreement, including, without limitation, the power:
(i) to waive any condition to the obligations of the Principal
Stockholders to consummate the transactions contemplated by this Agreement;
(ii) to act for the Principal Stockholders with regard to matters
pertaining to indemnification referred to in this Agreement, including the
power to settle any dispute with respect to this Agreement;
(iii) to do or refrain from doing any further act or deed on
behalf of the Principal Stockholders that the Representative deems
necessary or appropriate in his sole discretion relating to the subject
matter of this Agreement, as fully and completely as each Principal
Stockholder could do if personally present; and
(iv) to deliver all ancillary agreements, certificates and
documents and to receive all notices and service of process on behalf of
the Principal Stockholders in
4
connection with any claims or matters under this Agreement (and the
Representative agrees to deliver copies of all such notices and service of
process to the Principal Stockholders).
(b) If Xx. Xxxxxxxxx dies or otherwise becomes incapacitated and unable
to serve as Representative, or is unwilling to serve as Representative, then a
new Representative shall be selected by the affirmative vote of a majority in
interest of the Principal Stockholders to serve as the new Representative. All
notices delivered by AMRI or the Surviving Corporation to the Representative
(whether pursuant hereto or otherwise) for the benefit of the Principal
Stockholders shall constitute notice by AMRI or the Surviving Corporation to the
Principal Stockholders. The Representative shall act for the Principal
Stockholders on all of the matters set forth in this Agreement in the manner the
Representative believes to be in the best interest of the Principal Stockholders
and consistent with his obligations under this Agreement, but the Representative
shall not be responsible to the Principal Stockholders for any loss or damages
the Principal Stockholders may suffer by reason of the performance by the
Representative of his duties under this Agreement, other than loss or damage
arising from willful violation of the law or gross negligence in the performance
of his duties under this Agreement.
The Principal Stockholders agree to indemnify and hold harmless the
Representative from and against any and all expenses (including attorneys'
fees), judgments, fines or other damages incurred by him in connection with,
arising from or relating to the performance of his duties as Representative
hereunder, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Principal Stockholders and,
with respect to any criminal action or proceeding, had no reasonable belief his
conduct was unlawful. AMRI and NCE agree that the Principal Stockholders may so
indemnify the Representative.
(c) All actions, decisions and instructions of the Representative
taken, made or given pursuant to the authority granted to the Representative
pursuant to paragraph (a) above shall be conclusive and binding upon all of the
Principal Stockholders, and no Principal Stockholder shall have the right to
object, dissent, protest or otherwise contest the same. AMRI and NCE hereby
acknowledge that the Representative may with respect to any particular action,
decision or instruction solicit the consent of the Principal Stockholders before
acting.
(d) The provisions of this Section 1.05 are independent and severable,
shall constitute an irrevocable power of attorney, coupled with an interest and
surviving death or dissolution, granted by the Principal Stockholders to the
Representative and shall be binding upon the executors, heirs, legal
representatives, successors and assigns of each such Principal Stockholder.
(e) AMRI and NCE shall be entitled to rely conclusively on the
instructions and decisions of the Representative as to any actions required or
permitted to be taken by the Principal Stockholders or the Representative
hereunder, and no party hereunder shall have any cause of action against AMRI or
NCE for any action taken by AMRI or NCE in reliance upon the instructions or
decisions of the Representative.
Section 1.06 CLOSING. The transactions contemplated by this Agreement shall
be consummated at a closing (the "Closing") which will take place at the offices
of Xxxxxxx,
5
Procter & Xxxx LLP, Exchange Place, Boston, MA, on the later of January 25, 2001
or the first business day immediately following the day on which all of the
conditions to the Closing set forth in Article VII (other than conditions to be
satisfied at the Closing, which shall be satisfied or waived as of the Closing)
have been satisfied or waived in accordance with the terms hereof, such day
being referred to herein as the "Closing Date." Notwithstanding the foregoing,
the Closing may take place at such other place, time or date as may be mutually
agreed upon in writing by the Representative and AMRI. Notwithstanding anything
in Section 7.01 to the contrary, in the event all conditions to the Closing
(other than conditions to be fulfilled at the Closing) have been satisfied or
waived on or prior to the Closing Deadline (as defined in Section 8.01(b)), then
no party shall be entitled to exercise its right of termination as contemplated
therein by reason of the fact that this Section 1.06 contemplates that the
Closing will occur following satisfaction or waiver of conditions, such
provision being included for the convenience of the parties and their counsel in
connection with the Closing.
Section 1.07 ACTIONS SUBSEQUENT TO CLOSING. The Representative and AMRI
from time to time after the Closing, and without further consideration, shall
execute and deliver or cause to be executed and delivered such further
instruments of transfer, assignments, consents or documents as may be reasonably
necessary or appropriate to carry out the intent and purposes hereof.
Section 1.08 EFFECTIVE TIME. Subject to the terms and conditions hereof, on
the Closing Date, the parties hereto shall cause a Certificate of Merger (the
"Certificate of Merger") in a form reasonably satisfactory to NCE and AMRI, to
be filed with the Delaware Secretary of State in accordance with the relevant
provisions of the DGCL. The Merger shall be effective at such time as the
Certificate of Merger shall have been duly filed with the Delaware Secretary of
State (the "Effective Time").
Section 1.09 CERTIFICATE OF INCORPORATION. From and after the Effective
Time, the Certificate of Incorporation of Acquisition, as in effect immediately
prior to the Effective Time, as amended by the Certificate of Merger, shall be
the Certificate of Incorporation of the Surviving Corporation until amended in
accordance with applicable law.
Section 1.10 BY-LAWS. The By-Laws of Acquisition, as in effect immediately
prior to the Effective Time, shall from and after the Effective Time be the
By-Laws of the Surviving Corporation until amended in accordance with applicable
law or such By-Laws.
Section 1.11 DIRECTORS AND OFFICERS. From and after the Effective Time, the
Board of Directors of the Surviving Corporation will consist of the directors of
Acquisition immediately prior to the Effective Time, such directors to hold
office, subject to the applicable provisions of the Certificate of Incorporation
and the By-Laws of the Surviving Corporation, until the next annual meeting of
stockholders of the Surviving Corporation and until his successor shall be duly
elected or appointed and shall duly qualify. If, at or after the Effective Time,
a vacancy shall exist in the Board of Directors or in any of the offices of the
Surviving Corporation by reason of death or inability to act, or for any other
reason, such vacancy shall be filled in the manner provided in the By-Laws of
the Surviving Corporation.
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Section 1.12 DISSENTING SHARES.
(a) Notwithstanding any other provision of this Agreement to the
contrary, any NCE Shares held by a Stockholder who has demanded and perfected
appraisal rights in accordance with Section 262 of the DGCL and as of the
Effective Time has not effectively withdrawn or lost such appraisal rights
("Dissenting Shares") shall not be converted into the right to receive cash
pursuant to Section 1.03, but the holder thereof shall only be entitled to such
rights as are granted by Section 262 of the DGCL.
(b) Notwithstanding the provisions of Section 1.12(a) above, if any
holder of Shares who demands payment for such NCE Shares under the DGCL shall
effectively withdraw or lose (through failure to perfect or otherwise) the right
to dissent, then, as of the Effective Time or the occurrence of such event,
whichever last occurs, such holder's NCE Shares shall automatically be converted
into and represent only the right to receive cash as provided in Section 1.03,
upon surrender of the certificate or certificates representing such NCE Shares
in the manner provided by Section 1.13.
(c) NCE shall give AMRI (i) prompt notice of any written demands for
appraisal of any Shares, any withdrawals of such demands and any other
instruments served pursuant to the DGCL received by NCE and (ii) the opportunity
to direct all negotiations and proceedings with respect to demands for appraisal
under the DGCL. NCE shall not, except with the prior written consent of AMRI,
voluntarily make any payment with respect to any demands for appraisal of Shares
or offer to settle or settle any such demands.
Section 1.13 SURRENDER OF CERTIFICATES; STOCK TRANSFER BOOKS.
(a) At the Effective Time, the Surviving Corporation shall deliver (or
cause to be delivered) to each stockholder of NCE who surrenders certificates
representing NCE Shares pursuant to this Section 1.13, the amount in cash, by
check or wire transfer, payable to such stockholder pursuant to Section 1.03(c).
(b) At or after the Effective Time, upon surrender to the Surviving
Corporation of Certificates representing NCE Shares (or loss and indemnity
agreement in a form reasonably satisfactory to AMRI), together with a letter of
transmittal in a form reasonably satisfactory to AMRI (a "Letter of
Transmittal") and such other documents as may be reasonably requested by AMRI,
AMRI shall cause the Surviving Corporation to promptly deliver or cause to be
delivered to the persons entitled thereto the cash to which such persons may be
entitled as provided in Section 1.03. Until so surrendered and exchanged, each
such certificate representing Shares shall, from and after the Effective Time,
be deemed to represent only the right to the cash to which such holder is
entitled pursuant to Section 1.03, subject to the terms of this Agreement. No
interest shall accrue or be paid on any assets so held by the Surviving
Corporation. Upon surrender of each certificate representing Shares, such
certificate shall forthwith be canceled.
(c) At the Effective Time, the stock transfer books of NCE shall be
closed, and there shall be no further registration of transfers of Shares
thereafter on the records of NCE. From and after the Effective Time, the holders
of certificates evidencing ownership of Shares outstanding immediately prior to
the Merger shall cease to have any rights as stockholders of
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NCE or otherwise with respect to such shares, except as otherwise provided
herein or by law. No dividends or other distribution declared after the
Effective Time with respect to any shares of capital stock of the Surviving
Corporation shall be paid to the holder of any unsurrendered certificate or
certificates formerly representing Shares.
(d) Notwithstanding anything to the contrary in this Section 1.13,
neither the Surviving Corporation nor any party hereto shall be liable to a
holder of a certificate or certificates formerly representing Shares for any
amount properly paid to a public official pursuant to any applicable property,
escheat or similar law.
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL STOCKHOLDERS
Section 2.01 MAKING OF REPRESENTATIONS AND WARRANTIES; CERTAIN DEFINITIONS.
(a) As a material inducement to AMRI entering into this Agreement and
consummating the transactions contemplated hereby, each of the Principal
Stockholders, severally and not jointly, hereby makes to AMRI as of the date
hereof and as of the Closing Date the representations and warranties contained
in this Article II.
(b) For purposes of this Agreement, references to a "Person" shall mean
an individual, a corporation, an association, an estate, a trust, a limited
liability company, a partnership or any other entity or organization.
Section 2.02 OWNERSHIP OF CAPITAL STOCK. Each of the Principal Stockholders
owns beneficially and of record all of the Shares set forth opposite such
Principal Stockholder's name on SCHEDULE I hereto. Except as set forth on
SCHEDULE 2.02, the Shares are free and clear of any and all liens, claims,
options, charges, encumbrances, rights or restrictions of any kind or nature
other than restrictions imposed by federal and state securities laws.
Section 2.03 AUTHORITY OF THE PRINCIPAL STOCKHOLDERS. Each of the Principal
Stockholders has full authority, power and capacity to enter into this Agreement
and each agreement, document and instrument to be executed and delivered by or
on behalf of such Principal Stockholder pursuant to or as contemplated by this
Agreement and to carry out the transactions contemplated hereby and thereby.
This Agreement and all of the agreements, documents and instruments to be
executed and delivered by each of the Principal Stockholders pursuant to or as
contemplated by this Agreement constitute, or when executed and delivered by
such Principal Stockholder will constitute, valid and binding obligations of
such Principal Stockholder enforceable in accordance with their respective terms
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and subject to general principles of equity.
8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF NCE
Section 3.01 MAKING OF REPRESENTATIONS AND WARRANTIES; CERTAIN DEFINITIONS.
(a) As a material inducement to AMRI to enter into this Agreement and
consummate the transactions contemplated hereby, each of NCE and the Principal
Stockholders, jointly and severally, hereby makes to AMRI the representations
and warranties contained in this Article III. No Principal Stockholder, as such,
shall have any right of indemnity or contribution from NCE with respect to the
breach of any representation or warranty under this Agreement.
(b) For purposes of this Agreement, references to a "Material Adverse
Effect" on a party to this Agreement shall mean a material adverse effect on the
properties, assets, business, affairs, condition (financial or otherwise),
operations or prospects of such party.
(c) In connection with the making of such representations and
warranties, it is hereby agreed that the disclosure in any Schedule hereto shall
qualify those other sections hereof if it is reasonably clear upon a reading of
such disclosure that it is applicable to such other sections.
(d) As used herein, NCE will be deemed to have "knowledge" of a
particular fact or other matter if any individual who is currently serving as an
executive officer of NCE (which individuals are listed on Schedule 3.01(d)
attached hereto) has actual knowledge of such fact or other matter.
Section 3.02 QUALIFICATIONS OF NCE. NCE is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with full corporate power and authority to own or lease its properties and to
conduct its business in the manner and in the places where such properties are
owned or leased or such business is currently conducted. The copies of the
certificate of incorporation of NCE, as amended to date (the "NCE Certificate of
Incorporation"), and By-laws, as amended to date (the "NCE By-laws"), and
heretofore delivered to Buyer's counsel, are complete and correct, and no
amendments thereto are pending. NCE is not in violation of any provision of the
NCE Certificate of Incorporation or NCE By-laws. NCE is duly qualified to do
business as a foreign corporation in each jurisdiction in which it is required
to be so qualified, other than jurisdictions in which the failure to be so
qualified would not have a Material Adverse Effect on NCE.
Section 3.03 SUBSIDIARIES. NCE has no subsidiaries and does not own any
securities issued by any other business organization or governmental authority.
NCE does not own and does not have any direct or indirect interest in or control
over any Person.
Section 3.04 CAPITAL STOCK; BENEFICIAL OWNERSHIP. The authorized capital
stock of NCE consists of (a) 77,552,529 shares of Common Stock, par value $.001
per share, of which 15,410,503 shares are issued and outstanding, and (b)
49,760,444 shares of preferred stock, which are designated as Series A
Participating Convertible Preferred Stock, par value $.001 per share, of which
48,416,357 shares are issued and outstanding. All of the issued and outstanding
shares of capital stock of NCE have been duly authorized, validly issued and are
fully paid and nonassessable, and have been issued in compliance with all
applicable federal and state securities laws, and free and clear of any
preemptive or similar rights created by statute, the NCE
9
Certificate of Incorporation or NCE By-laws or any agreement to which NCE is a
party or by which it is bound. Except as set forth on SCHEDULE 3.04 hereto,
there are no outstanding options, warrants, rights, commitments, preemptive
rights or agreements of any kind for the issuance or sale of, or outstanding
securities convertible into, any additional shares of capital stock of any class
of NCE. There are no voting agreements, trusts, proxies or other agreements,
instruments or undertakings with respect to the voting of the capital stock of
NCE to which NCE or, to NCE's knowledge, any stockholder of NCE is a party. The
Principal Stockholders own of record a majority of the outstanding shares of
capital stock of NCE as set forth on SCHEDULE 3.04 hereto (together with any
shares issued by NCE pursuant to the exercise of Options prior to the Effective
Time).
Section 3.05 AUTHORITY OF NCE. NCE has full right, authority and power to
enter into this Agreement and each agreement, document and instrument to be
executed and delivered by NCE pursuant to this Agreement and, subject to the
approval of this Agreement by the stockholders of NCE, to carry out the
transactions contemplated hereby. The execution, delivery and performance by NCE
of this Agreement and of each such other agreement, document and instrument have
been duly authorized by the Board of Directors of NCE, and no other action on
the part of NCE or its stockholders or otherwise will be required in connection
therewith. This Agreement and each agreement, document and instrument executed
and delivered by NCE pursuant to this Agreement constitutes, or when executed
and delivered will constitute, valid and binding obligations of NCE enforceable
in accordance with their terms, except that such enforceability may be limited
by bankruptcy, insolvency, moratorium or other similar laws affecting or
relating to creditors' rights generally and is subject to general principles of
equity; PROVIDED, HOWEVER, that the Certificate of Merger will not be effective
until filed with the Delaware Secretary of State. The execution, delivery and
performance by NCE of this Agreement and of each such agreement, document and
instrument:
(a) do not and will not violate any provision of the Certificate of
Incorporation or By-laws of NCE;
(b) do not and will not violate any laws of the United States, or any
state or other jurisdiction (domestic or foreign) applicable to NCE or require
NCE to obtain any approval, consent or waiver of, or make any filing with, any
Person (governmental or otherwise) that has not been obtained or made except for
the filing of the Certificate of Merger with the Delaware Secretary of State,
and the filing of appropriate documents with the relevant authorities of all
states in which NCE is qualified to do business, if any; and
(c) except as set forth on SCHEDULE 3.05, do not and will not result in
a breach of, constitute a default under, accelerate any obligation under, or
give rise to a right of termination of any indenture or loan or credit agreement
or any other agreement, contract, instrument, mortgage, lien, lease, permit,
authorization, order, writ, judgment, injunction, decree, determination or
arbitration award to which NCE is a party or by which the property of NCE is
bound or affected other than with respect to any breach, violation, conflict,
default or acceleration right which would not have a Material Adverse Effect on
NCE or which would not prevent or delay the consummation of the Merger or
otherwise prevent NCE from performing its obligations hereunder in any material
respect, or result in the creation or imposition of any mortgage, pledge, lien,
security interest or other charge or encumbrance on any of the assets or
10
property of NCE or on the NCE Shares and which is material to the business or
financial condition of NCE.
Section 3.06 REAL AND PERSONAL PROPERTY.
(a) OWNED REAL PROPERTY. NCE does not own any real property.
(b) LEASED REAL PROPERTY. All of the real property leased by NCE, as
tenant or lessee, is identified on SCHEDULE 3.06(b) hereto (collectively
referred to herein as the "Leased Real Property"). NCE hereby makes the
following representations and warranties with respect to the Leased Real
Property:
(i) NCE holds a valid leasehold interest in the Leased Real
Property;
(ii) to NCE's knowledge, there are no material defects in the
physical condition of any improvements constituting a part of the Leased
Real Property, and all of such improvements are in good operating condition
and repair (other than normal wear and tear);
(iii) a copy of the lease, as such has been amended to date (the
"Lease"), for the Leased Real Property delivered by NCE to AMRI is
complete, accurate, true and correct;
(iv) the Lease is in full force and effect and has not been
modified, amended, or altered, in writing or otherwise;
(v) all material obligations of NCE under the Lease that have
accrued have been performed, and NCE is not in default under the Lease, and
no circumstance presently exists that, with notice or the passage of time,
or both, would give rise to a default by NCE; and
(vi) NCE has obtained or will obtain prior to the Closing any
consent of the landlord or lessor under the Lease to the extent required in
connection with the Merger.
(c) PERSONAL PROPERTY. A description of NCE's fixtures,
machinery, equipment and other tangible personal property (other than
personal property individually valued at less than $1,000) is contained on
SCHEDULE 3.06(c) hereto. Except as described on SCHEDULE 3.06(c) hereto, NCE
has good and marketable title to all of its personal property. Except as
disclosed on SCHEDULE 3.06(c) hereto, none of such personal property or
assets is subject to any mortgage, pledge, lien, conditional sale agreement,
security agreement, encumbrance or other charge. To the knowledge of NCE, all
material leasehold improvements, furnishings, machinery, equipment and other
tangible personal property of NCE are in good repair (normal wear and tear
excepted), and substantially comply with all applicable laws, ordinances and
regulations, and such machinery and equipment and other tangible personal
property is in good working order (normal wear and tear excepted).
11
Section 3.07 FINANCIAL STATEMENTS.
(a) NCE has delivered to Buyer the following financial statements,
copies of which are attached hereto as SCHEDULE 3.07:
(i) A balance sheet of NCE at December 31, 1999 (the "Base Balance
Sheet") and statements of operations and cash flows for the year then
ended, audited by Xxxxx Xxxxxxxx LLP.
(ii) An unaudited balance sheet of NCE at November 30, 2000 (the
"Unaudited Balance Sheet") and statements of operations and cash flows for
the eleven-month period then ended, certified by the Chief Operating
Officer and President of NCE.
(b) Except as set forth on SCHEDULE 3.07 hereto, said financial
statements have been prepared in accordance with generally accepted accounting
principles applied consistently during the periods covered thereby and present
fairly the financial condition of NCE at the dates of said statements and the
results of its operations and its cash flows for the periods covered thereby
(except that the Unaudited Balance Sheet and related statements of operations
and cash flows may not contain all footnotes required by generally accepted
accounting principles and are subject to customary year-end adjustments).
(c) Except as reflected on the Base Balance Sheet or the Unaudited
Balance Sheet, as of the date of such balance sheets, NCE had no material
liabilities or obligations of any nature, whether accrued, absolute, contingent
or otherwise, known or unknown (including, without limitation, liabilities as
guarantor or otherwise with respect to obligations of others, or potential
liabilities for taxes due or then accrued or to become due or contingent or
liabilities relating to activities of NCE or the conduct of its business prior
to the date hereof or the Closing Date, as applicable, regardless of whether
claims in respect thereof had been asserted as of such date) other than
liabilities or obligations incurred in the ordinary course of business
consistent with past practice.
(d) Except as stated or adequately reserved against in the Base Balance
Sheet or the Unaudited Balance Sheet, or incurred as a result of or arising out
of the transactions contemplated by this Agreement, NCE does not have and will
not have as of the Closing Date any material liability or obligation of any
nature, whether accrued, absolute, contingent or otherwise, asserted or
unasserted, known or unknown (including, without limitation, liabilities as
guarantor or otherwise with respect to obligations of others, or potential
liabilities for taxes due or then accrued or to become due or contingent or
liabilities relating to activities of NCE or the conduct of its business prior
to such date, regardless of whether claims in respect thereof had been asserted
as of such date) other than liabilities or obligations incurred in the ordinary
course of business consistent with past practice. NCE has not assumed,
guaranteed, endorsed or otherwise become directly or contingently liable on or
for any indebtedness of any other Person.
Section 3.08 TAXES.
(a) Except as set forth on SCHEDULE 3.08 hereto, NCE has paid or caused
to be paid all federal, state, local, foreign and other taxes, including,
without limitation, income taxes, estimated taxes, alternative minimum taxes,
excise taxes, sales taxes, use taxes, value-added
12
taxes, gross receipts taxes, franchise taxes, capital stock taxes, employment
and payroll-related taxes, withholding taxes, stamp taxes, transfer taxes,
windfall profit taxes, environmental taxes and property taxes, whether or not
measured in whole or in part by net income, and all deficiencies, or other
additions to tax, interest, fines and penalties owed by it (collectively,
"Taxes"), required to be paid by NCE through the date hereof whether disputed or
not.
(b) NCE has in accordance with applicable law filed all federal, state,
local and foreign tax returns required to be filed by it through the date
hereof, and all such returns correctly and accurately, in all material respects,
set forth the amount of any Taxes relating to the applicable period. A list of
all federal, state, local and foreign income tax returns filed with respect to
NCE for taxable periods since its inception are set forth on SCHEDULE 3.08
hereto, and said Schedule indicates those returns that have been audited or
currently are the subject of an audit. NCE has delivered to AMRI correct and
complete copies of all federal, state, local and foreign income tax returns
listed on said Schedule, and of all examination reports and statements of
deficiencies assessed against or agreed to by NCE with respect to said returns.
NCE is not required to file a foreign tax return, or to pay any Principal
Stockholders' foreign taxes, in connection with the business conducted by NCE.
(c) Neither the Internal Revenue Service nor any other governmental
authority is now asserting or, to the knowledge of NCE, threatening to assert
against NCE any deficiency or claim for additional Taxes. No claim has ever been
made by an authority in a jurisdiction where NCE does not file reports and
returns that NCE is or may be subject to taxation by that jurisdiction. There
are no security interests on any of the assets of NCE that arose in connection
with any failure (or alleged failure) to pay any Taxes. NCE has not entered into
a closing agreement pursuant to Section 7121 of the Internal Revenue Code of
1986, as amended, (the "Code").
(d) Except as set forth on SCHEDULE 3.08(d) hereto, there has not been
any audit of any tax return filed by NCE for any tax period, no audit of any tax
return of NCE is in progress, and NCE has not been notified by any tax authority
that any such audit is contemplated or pending. No extension of time with
respect to any date on which a tax return was or is to be filed by NCE is in
force, and no waiver or agreement by NCE is in force for the extension of time
for the assessment or payment of any Taxes.
(e) NCE has not been (and has no liability for unpaid Taxes because it
once was) a member of an "affiliated group" (as defined in Section 1504(a) of
the Code). NCE has never filed, nor has it been required to file, a
consolidated, combined or unitary tax return with any other entity.
(f) NCE is not a "foreign person" within the meaning of Section 1445 of
the Code and Treasury Regulations Section 1.1445-2.
(g) Except as set forth on SCHEDULE 3.08(g) hereto, NCE is not a party
to any contract, agreement, plan or arrangement that, individually or
collectively, could give rise to any payment that would not be deductible by
reason of Section 162 or 28OG of the Code.
13
(h) For purposes of this Agreement, all references to Sections of the
Code shall include any predecessor provisions to such Sections.
Section 3.09 ACCOUNTS RECEIVABLE; ACCOUNTS PAYABLE. Except as set forth on
SCHEDULE 3.09 hereto, all of the accounts receivable of NCE are valid and
enforceable claims, are subject to no set-off or counterclaim, and, to the
knowledge of NCE, are fully collectable in the normal course of business, after
deducting the allowance for doubtful accounts stated in the Base Balance Sheet
in accordance with generally accepted accounting principles. Since the date of
the Base Balance Sheet, NCE has collected its accounts receivable in the
ordinary course of business and in a manner consistent with past practices and
has not accelerated any such collections. Except as set forth on SCHEDULE 3.09
hereto, all accounts payable and notes payable of NCE arose in bona fide arms'
length transactions in the ordinary course of business, and no such account
payable or note payable is delinquent by more than sixty (60) days in its
payment. Since the date of the Base Balance Sheet, NCE has paid its accounts
payable in the ordinary course of business and in a manner consistent with its
past practices.
Section 3.10 ABSENCE OF CERTAIN CHANGES. Except as set forth on SCHEDULE
3.10 hereto, since the date of the Base Balance Sheet, there has been:
(i) no change in the condition, financial or otherwise, of NCE or
in the assets, liabilities, properties, business or prospects of NCE, which
change by itself or in conjunction with all other such changes, whether or
not arising in the ordinary course of business, has had or would be
reasonably expected to have a Material Adverse Effect on NCE;
(ii) no mortgage, encumbrance or lien placed on any of the
properties of NCE;
(iii) no declaration, setting aside or payment of any dividend or
other distribution with respect to, or any direct or indirect redemption or
acquisition of, any shares of any capital stock of any class of NCE or any
options, warrants or other rights to acquire, or securities convertible
into or exchangeable for, any such capital stock;
(iv) no waiver of any valuable right of, or cancellation of any
debt or claim for more than $10,000 held by, NCE;
(v) no incurrence or modification of any contingent liability with
respect to the obligations of others, and no incurrence or modification of
any other contingent or fixed obligations or liabilities except in the
ordinary course of business consistent with past practice other than
obligations and liabilities not exceeding $10,000 in the aggregate and,
with respect to incurrences or modifications after the date hereof, other
than such as have been approved by AMRI;
(vi) no increase of more than $10,000, direct or indirect, in the
compensation paid or payable to any officer, director, employee, agent or
stockholder other than salary increases or bonuses in the ordinary course
of business consistent with past practice of NCE;
14
(vii) no material loss, destruction or damage to any property of
NCE, whether or not insured;
(viii) no notice of any claim of unfair labor practices or labor
dispute or work stoppage involving NCE and no change in senior personnel of
NCE;
(ix) no acquisition or disposition of any assets (or any contract
or arrangement therefor) of more than $10,000 each, or $25,000 in the
aggregate, nor any other transaction by NCE other than in the ordinary
course of business and, with respect to acquisitions or dispositions after
the date hereof, other than such as have been approved by AMRI;
(x) no payment or discharge of a material lien or liability of NCE
that is not recorded in the Unaudited Balance Sheet included on SCHEDULE
3.07 hereto;
(xi) no change in accounting methods or practices, credit
practices or collection policies used by NCE; and
(xii) no agreement or understanding whether in writing or
otherwise, that would result in any of the transactions or events or
require NCE to take any of the actions specified in paragraphs (i) through
(xii) above.
Section 3.11 ORDINARY COURSE. Since the date of the Base Balance Sheet, NCE
has conducted its business and operations in all material respects only in the
ordinary course of business and consistently with its prior practices.
Section 3.12 BANKING RELATIONS. All of the arrangements that NCE has with
any banking institution are completely and accurately described on SCHEDULE 3.12
hereto, indicating with respect to each of such arrangements the type of
arrangement maintained (such as checking account, borrowing arrangements, safe
deposit box, etc.) and the person or persons authorized in respect thereof.
Section 3.13 INTELLECTUAL PROPERTY.
(a) Except as set forth on SCHEDULE 3.13 hereto, NCE owns all right,
title and interest in and to, or has the right to use, all patents and patent
applications, supplementary protection certificates and patent extensions,
copyrights, technology, software, software tools, know-how, processes,
compositions, formulae, trade secrets, inventions, biological materials,
technical information, research data, research raw data, laboratory notebooks,
procedures, designs, trademarks and trademark applications, service marks and
service xxxx registrations, trade names, logos, commercial symbols, business
name registrations and other proprietary rights used in the conduct of NCE's
business as conducted to the date hereof or contemplated (including without
limitation distribution rights) (all of which are referred to as "Proprietary
Rights"), free and clear of all liens, claims and encumbrances. The foregoing
representation as it relates to Third Party Technology (as hereinafter defined)
is limited to NCE's interest pursuant to the Third Party Licenses (as
hereinafter defined), all of which are valid and enforceable and in full force
and effect and which grant NCE such right to Third Party Technology as are
employed
15
in or necessary to the business of NCE as conducted or currently proposed to be
conducted prior to the Closing Date.
(b) SCHEDULE 3.13 hereto contains an accurate and complete description
of (i) all patents, trademarks (with separate listings of registered and
unregistered trademarks), trade names, and registered copyrights in or related
to products owned by NCE (the "NCE Products"), all applications and registration
statements therefor, and a list of all licenses and other agreements relating
thereto, and (ii) a list of all licenses and other agreements currently in
effect with third parties (the "Third Party Licenses") relating to any software,
technology, know-how, or processes that NCE is licensed or otherwise authorized
by such third parties to use, market, distribute or incorporate into its
products or processes (such software, technology, know-how and processes are
collectively referred to as the "Third Party Technology"). All of NCE's
trademark or trade name registrations related to the NCE Products and all of
NCE's copyrights in any of the NCE Products are valid and in full force and
effect; and consummation of the transactions contemplated hereby will not alter
or impair any such rights. There is no material default by any party to any
Third Party License and all of NCE's rights thereunder are freely assignable. To
the knowledge of NCE, the licensors under such Third Party Licenses have and had
all requisite power and authority to grant the rights purported to be conferred
thereby. True and complete copies of such Third Party Licenses, and any
amendments thereto, have been provided to AMRI.
(c) No claims have been asserted against NCE or, to the knowledge of
NCE, any of the Principal Stockholders (and NCE is not aware of any claims which
are likely to be asserted against NCE) by any Person challenging the use or
distribution by NCE of any patents, trademarks, trade names, copyrights, trade
secrets, software, technology, know-how or processes utilized by it (including,
without limitation, the Third Party Technology) or challenging or questioning
the validity or effectiveness of any license or agreement relating thereto
(including, without limitation, the Third Party Licenses). To the knowledge of
NCE, there is no valid basis for any claim of the type specified in the
immediately preceding sentence that would be reasonably likely to in any way
relate to or interfere with the continued enhancement and exploitation by NCE of
any of the NCE Products. To the knowledge of NCE, none of the NCE Products nor
the use of any patents, trademarks, trade names, copyrights, software,
technology, know-how or processes by NCE in its current business infringes on
the rights of, constitutes misappropriation of, or in any way involves unfair
competition with respect to, any proprietary information or intangible property
right of any third person or entity, including without limitation any trade
secret, copyright, trademark or trade name or patent.
(d) All licenses or other agreements currently in effect pursuant to
which NCE has granted rights to others in Proprietary Rights owned or licensed
by NCE are listed on SCHEDULE 3.13 hereto. All of such licenses or agreements
are in full force and effect, there is no default by NCE or, to the knowledge of
NCE, any other party thereto and all of NCE's rights thereunder are freely
assignable. True and complete copies of all such licenses or other agreements,
and any amendments thereto, have been provided to AMRI. Except as set forth on
SCHEDULE 3.13 hereto, NCE has not granted any third party any right to
manufacture, reproduce, distribute, market or exploit any of the NCE Products or
any adaptations, translations or derivative works based on the NCE Products or
any portion thereof. Except with respect to the rights of third parties to the
Third Party Technology, to the knowledge of NCE, no third party
16
has any right to manufacture, reproduce, distribute, market or exploit any
underlying works or materials of which any of the NCE Products are a "derivative
work" as that term is defined in the United States Copyright Act, Title 17,
U.S.C. Section 101.
(e) NCE has taken commercially reasonable measures to maintain the
confidentiality of the inventions, trade secrets, formulae, know-how, technical
information, research data, research raw data, laboratory notebooks, procedures,
designs, proprietary technology and information of NCE, and all other
information the value of which to NCE is contingent upon maintenance of the
confidentiality thereof.
(f) Each person presently or previously employed by NCE (including
independent contractors, if any) in a research and development or other
technical position has executed a confidentiality, nondisclosure and assignment
of inventions agreement in substantially the same form as the form previously
provided to AMRI or its representatives. To the knowledge of NCE, neither the
execution or delivery of such agreements, nor the carrying on of NCE's business
by such persons as employees, nor the conduct of NCE's business as currently
anticipated, will conflict with or result in a breach of the terms, conditions
or provisions of or constitute a default under any contract, covenant or
instrument currently in effect under which any of such persons is obligated. NCE
is not knowingly making unauthorized use of any confidential information or
trade secrets of any Person, including, without limitation, any former employer
or any past or present employee of NCE. Neither NCE nor, to the knowledge of
NCE, any of NCE's employees have any agreements or arrangements with any Persons
other than NCE related to confidential information or trade secrets of such
Persons or restricting any such employee's ability to engage in business
activities of any nature.
(g) To the knowledge of NCE, no employee of NCE is in violation of any
term of any employment contract, patent disclosure agreement or any other
contract or agreement relating to the relationship of any such employee with NCE
or, to the knowledge of NCE, any other party, including, without limitation, any
previous employer, because of the nature of the business conducted by NCE or
proposed to be conducted by NCE.
Section 3.14 CONTRACTS. Except for contracts, commitments, plans,
agreements and licenses (true and complete copies of which have been delivered
to AMRI) described on SCHEDULE 3.14 hereto (the "Material Contracts"), NCE is
not a party to or subject to:
(i) any plan or contract providing for bonuses, pensions, options,
stock purchases, deferred compensation, retirement payments, profit
sharing, collective bargaining or the like, or any contract or agreement
with any labor union;
(ii) any employment contract or contract for personal services;
(iii) any contract or agreement relating to capital expenditures
in excess of $10,000 per annum;
(iv) any other contracts or agreements creating any obligations of
NCE of $25,000 or more per annum with respect to any such contract or
agreement not specifically disclosed elsewhere in this Agreement;
17
(v) any contract or agreement for more than $10,000 which by its
terms does not terminate or is not terminable without penalty by such
entity or any successor or assignee on or at any time after the Closing
Date;
(vi) any contract for more than $10,000 not made in the ordinary
course of business;
(vii) any contract currently in effect containing covenants
limiting the freedom of NCE to compete in any line of business or with any
person or entity;
(viii) any license agreement for more than $10,000 (as licensor or
licensee);
(ix) any indenture, mortgage, promissory note, loan agreement,
guaranty or other agreement or commitment for the borrowing of money for
more than $10,000 each, or $25,000 in the aggregate;
(x) any contract or agreement with any officer, employee, director
or stockholder of NCE or with any persons or organizations controlled by or
affiliated with any of them; or
(xi) any joint venture, partnership or similar agreement.
NCE is not in default under any of the Material Contracts, and NCE does not have
any knowledge of conditions or facts that with notice or passage of time, or
both, would constitute a default.
All Material Contracts have been duly authorized by NCE and, to the
knowledge of NCE, are valid and are in full force and effect and constitute
legal, valid and binding obligations of NCE, and, to the knowledge of NCE, the
other parties thereto, and are enforceable in accordance with their respective
terms, in each case, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and subject to general principles of equity.
Section 3.15 LITIGATION. There is no litigation or governmental or
administrative proceeding or investigation pending or, to the knowledge of the
Principal Stockholders and NCE, threatened, by or against NCE or affecting any
of NCE's properties or assets, or to the knowledge of NCE, against any director,
officer, key employee or stockholder of NCE in his or her capacity as such, nor,
to the knowledge of NCE, has there occurred any event nor does there exist any
condition on the basis of which any litigation, proceeding or investigation
might properly be instituted with any substantial chance of recovery where such
recovery would likely have a Material Adverse Effect on NCE. Neither NCE nor, to
the knowledge of NCE, any director, officer, key employee or stockholder in his
or her capacity as such is a party to or in default with respect to any order,
writ, injunction, decree, ruling or decision of any court, commission, board or
other government agency that may have a Material Adverse Effect on NCE. SCHEDULE
3.15 includes a description of all material litigation, claims, proceedings or,
to NCE's knowledge, investigations involving NCE or any of its officers,
directors, stockholders or
18
key employees in connection with the business of NCE occurring, arising or
existing during the past three (3) years.
Section 3.16 PERMITS; COMPLIANCE WITH LAWS. Except as disclosed on SCHEDULE
3.16, NCE has all necessary franchises, authorizations, approvals, orders,
consents, licenses, certificates, permits, registrations, qualifications or
other rights and privileges (collectively "Permits") necessary to permit it to
own its properties and to conduct its businesses as the same are presently
conducted or currently proposed to be conducted, and all such Permits are valid
and in full force and effect except to the extent the absence of any such Permit
is not reasonably likely to have a Material Adverse Effect on NCE. No Permit is
subject to termination as a result of the execution of this Agreement or
consummation of the transactions contemplated hereby. Except as disclosed on
SCHEDULE 3.16, NCE is now and has heretofore been in compliance with all
applicable statutes, ordinances, orders, rules and regulations (including all
applicable environmental laws and regulations) promulgated by any federal,
state, municipal or other governmental authority that apply to the conduct of
its business, except for any such noncompliance or violation that, individually
or in the aggregate, is not reasonably likely to have a Material Adverse Effect
on NCE. Except as set forth on SCHEDULE 3.16, NCE has never entered into or been
subject to any judgment, consent decree, compliance order or administrative
order with respect to any environmental or health and safety law or received any
request for information, notice, demand letter, administrative inquiry or formal
or informal complaint or claim with respect to any environmental or health and
safety matter or the enforcement of any such law.
Section 3.17 INSURANCE COVERAGE. SCHEDULE 3.17 hereto contains an accurate
summary of the insurance policies currently maintained by NCE. There are
currently no claims pending against NCE under any insurance policies currently
in effect and covering the property, business or employees of NCE, and all
premiums due and payable with respect to the policies maintained by NCE have
been paid to date. To NCE's knowledge, there is no threatened termination of any
such policies or arrangements.
Section 3.18 WARRANTY OR OTHER CLAIMS. There are no existing or, to the
knowledge of NCE, threatened product liability, warranty or other similar
claims, or, to the knowledge of NCE, any facts upon which a material claim of
such nature could be based, against NCE for products or services that are
defective or fail to meet any product or service warranties. No claim has been
asserted against NCE for renegotiation or price redetermination of any business
transaction, and, to the knowledge of NCE, there are no facts upon which any
such claim could reasonably be based.
Section 3.19 POWERS OF ATTORNEYS. NCE has not granted powers of attorney
that are presently outstanding, except powers of attorney granted to NCE's
patent counsel for purposes of handling patent and trademark matters on behalf
of NCE.
Section 3.20 FINDER'S FEE. NCE has not incurred or become liable for any
broker's commission or finder's fee relating to or in connection with the
transactions contemplated by this Agreement.
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Section 3.21 CORPORATE RECORDS; COPIES OF DOCUMENTS. The corporate record
books of NCE accurately record, in all material respects, all corporate action
taken by its stockholders and board of directors. The copies of the corporate
records of NCE, as delivered to AMRI or AMRI's counsel pursuant to this
Agreement, are true and complete copies of the originals of such documents. NCE
has made available for inspection and copying by AMRI and its counsel complete
and correct copies of all documents referred to in this Section or in the
Schedules delivered to AMRI pursuant to this Agreement.
Section 3.22 EMPLOYEES; LABOR RELATIONS. As of the date hereof, NCE employs
the number of full-time and part-time employees and the number of scientists
holding doctorate degrees as are indicated on SCHEDULE 3.22 hereto. NCE is not
delinquent in payments to any of its employees or agents for any wages,
salaries, commissions, bonuses or other direct compensation for any services
performed for it to the date hereof or amounts required to be reimbursed to such
employees. There are no charges of employment discrimination or unfair labor
practices or strikes, slowdowns, stoppages of work, or any other concerted
interference with normal operations existing, pending or, to the knowledge of
NCE, threatened against or involving NCE. No question concerning union
representation or collective bargaining exists respecting any group of employees
of NCE. Except as set forth on SCHEDULE 3.22 hereto, there are no material
claims or charges relating to or alleging violations of any federal, state or
local employment laws, including, without limitation, laws relating to
discrimination, harassment, family leave or wage payments, existing, pending or,
to the knowledge of NCE, threatened against NCE nor, to the knowledge of NCE,
has there occurred any event or does there exist any condition on the basis of
which any such claim is reasonably likely to be asserted. NCE is, and at all
times since its inception has been, in compliance in all material respects with
the requirements of the Immigration Reform Control Act of 1986. There are no
changes (including, without limitation, resignations) pending or, to the
knowledge of NCE, threatened with respect to the employment of a senior
management or key supervisory personnel of NCE nor has NCE received any notice
or information concerning any prospective change with respect to the senior
management or key supervisory personnel of NCE.
Section 3.23 EMPLOYEE BENEFIT PROGRAMS.
(a) SCHEDULE 3.23 hereto sets forth a list of every Employee Program
(as defined below) that has been maintained (as such term is further defined
below) by NCE at any time during the three-year period ending on the date
hereof.
(b) Each Employee Program that has been maintained by NCE and that has
at any time been intended to qualify under Section 401(a) or 501(c)(9) of the
Code, has received a favorable determination or approval letter from the
Internal Revenue Service ("IRS") regarding its qualification under such section
and has, in fact, been qualified under the applicable section of the Code from
the effective date of such Employee Program through and including the Closing
(or, if earlier, the date that all of such Employee Program's assets were
distributed). Except for amendments made to the Code for which the remedial
amendment period has not expired, no event or omission has occurred that would
cause any such Employee Program to lose its qualification under the applicable
Code section.
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(c) Except as set forth on SCHEDULE 3.23 hereto, NCE has complied with
all laws applicable with respect to the Employee Programs that have been
maintained by NCE other than such non-compliance which has not had and would not
be reasonably likely to have a Material Adverse Effect on NCE. With respect to
any Employee Program now or heretofore maintained by NCE, there has occurred no
"prohibited transaction," as defined in Section 406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code,
or breach of any duty under ERISA or other applicable law (including, without
limitation, any health care continuation requirements or any other tax law
requirements, or conditions to favorable tax treatment, applicable to such
plan), which could result, directly or indirectly (including without limitation
through any obligation of indemnification or contribution), in any taxes,
penalties or other liability to NCE or any Affiliate (as defined below) which is
reasonably likely to have a Material Adverse Effect on NCE. No litigation,
arbitration, or governmental administrative proceeding (or investigation) or
other proceeding (other than those relating to routine claims for benefits) is
pending or, to the knowledge of NCE, threatened with respect to any such
Employee Program which is reasonably likely to have a Material Adverse Effect on
NCE.
(d) NCE has not incurred any liability under Title IV of ERISA that
will not be paid in full prior to the Closing. There has been no "accumulated
funding deficiency" (whether or not waived) with respect to any Employee Program
ever maintained by NCE and subject to Code Section 412 or ERISA Section 302.
With respect to any Employee Program maintained by NCE and subject to Title IV
of ERISA, there has been no (nor will there be any as a result of the
transactions contemplated by this Agreement) (i) "reportable event," within the
meaning of ERISA Section 4043, or the regulations thereunder (for which the
notice requirement is not waived under 29 C.F.R. Part 2615) and (ii) event or
condition presents a material risk of plan termination or any other event that
may cause NCE to incur liability or have a lien imposed on its assets under
Title IV of ERISA. All payments and/or contributions required to have been made
(under the provisions of any agreements or other governing documents or
applicable law) with respect to all Employee Programs heretofore maintained by
NCE, for all periods prior to the Closing, either have been made or have been
accrued (and all such unpaid but accrued amounts are described on SCHEDULE 3.23
hereto). Except as described on SCHEDULE 3.23 hereto, no Employee Program
maintained by NCE and subject to Title IV of ERISA (other than a Multiemployer
Plan) has any "unfunded benefit liabilities" within the meaning of ERISA Section
4001(a)(18), as of the Closing Date. NCE has never maintained a Multiemployer
Plan. Except as described on SCHEDULE 3.23 hereto, none of the Employee Programs
ever maintained by NCE has ever provided health care or any other non-pension
benefits to any employees after their employment was terminated (other than as
required by Part 6 of Subtitle B of Title I of ERISA or has ever promised to
provide such post-termination benefits.
(e) With respect to each Employee Program maintained by NCE within the
three years preceding the date hereof, complete and correct copies of the
following documents (if applicable to such Employee Program) have previously
been delivered to AMRI: (i) all documents embodying or governing such Employee
Program, and any funding medium for the Employee Program (including, without
limitation, trust agreements) as they may have been amended to the date hereof;
(ii) the most recent IRS determination or approval letter with respect to such
Employee Program under Code Section 401 or 501(c)(9), and any applications for
determination or approval subsequently filed with the IRS; (iii) the three most
recently filed IRS
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Forms 5500, with all applicable schedules attached thereto; (iv) the summary
plan description for such Employee Program (or other descriptions of such
Employee Program provided to employees) and all modifications thereto; (v) any
insurance policy (including any fiduciary liability insurance policy) related to
such Employee Program; (vi) any documents evidencing any loan to an Employee
Program that is a leveraged employee stock ownership plan; and (vii) with
respect to any Multiemployer Plan, any participation or adoption agreement
relating to NCE's participation in or contributions under such plan;
(f) Except as set forth on SCHEDULE 3.23 hereto, each Employee Program
maintained by NCE as of the date hereof is subject to termination by the Board
of Directors of NCE without any further liability or obligation on the part of
NCE to make further contributions to any trust maintained under any such
Employee Program following such termination.
(g) For purposes of this Section 3.23:
(i) "Employee Program" means (A) all employee benefit plans within
the meaning of ERISA Section 3(3), including, but not limited to, multiple
employer welfare arrangements (within the meaning of ERISA Section 3(40)),
plans to which more than one unaffiliated employer contributes and employee
benefit plans (such as foreign or excess benefit plans) which are not
subject to ERISA; and (B) all stock option plans, bonus or incentive award
plans, severance pay policies or agreements, deferred compensation
agreements, supplemental income arrangements, vacation plans, and all other
employee benefit plans, agreements and arrangements not described in (A)
above. In the case of an Employee Program funded through an organization
described in Code Section 501(c)(9), each reference to such Employee
Program shall include a reference to such organization;
(ii) an entity "maintains" an Employee Program if such entity
sponsors, contributes to or provides (or has promised to provide) benefits
under such Employee Program, or has any obligation (by agreement or under
applicable law) to contribute to or provide benefits under such Employee
Program, or if such Employee Program provides benefits to or otherwise
covers employees of such entity (or their spouses, dependents or
beneficiaries);
(iii) an entity is an "Affiliate" of NCE for purposes of Section
3.23 if it would have ever been considered a single employer with NCE under
ERISA Section 4001(b) or part of the same "controlled group" as NCE for
purposes of ERISA Section 302(d)(8)(C); and
(iv) "Multiemployer Plan" means a (pension or non-pension)
employee benefit plan to which more than one employer contributes and that
is maintained pursuant to one or more collective bargaining agreements.
Section 3.24 ENVIRONMENTAL MATTERS.
(a) Except as set forth on SCHEDULE 3.24 hereto, (i) NCE has never
generated, transported, used, stored, treated, disposed of or managed any
Hazardous Waste (as defined below) other than in material compliance with
Environmental Laws; (ii) to the knowledge of
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NCE, no Hazardous Material (as defined below) has ever been or is threatened to
be spilled, released, or disposed of at any site presently or formerly operated,
leased, or used by NCE other than in material compliance with Environmental
Laws, or has ever come to be located in the soil or groundwater at any such site
as a result of NCE's operations; (iii) to the knowledge of NCE, no Hazardous
Material has ever been transported from any site presently or formerly operated,
leased, or used by NCE for treatment, storage, or disposal at any other place
other than in material compliance with Environmental Laws; (iv) NCE does not
presently own, operate, lease, or use any site on which underground storage
tanks are or were located other than in material compliance with Environmental
Laws; and (v) no lien has ever been imposed by any governmental agency on any
property, facility, machinery, or equipment owned, operated, leased, or used by
NCE in connection with the presence of any Hazardous Material.
(b) Except as set forth on SCHEDULE 3.24 hereto, to the knowledge of
NCE, (i) NCE does not have any liability under, nor has NCE violated in any
material respect, any Environmental Law (as defined below), which liability or
violation is reasonably likely to have a Material Adverse Effect on NCE; (ii)
NCE and any property owned, operated, leased, or used by it, and any facilities
and operations thereon are presently in compliance in all material respects with
all applicable Environmental Laws; and (iii) NCE has not entered into or been
subject to any judgment, consent decree, compliance order, or administrative
order with respect to any Environmental Law or received any written request for
information, written notice, demand letter, administrative inquiry, or formal
complaint or claim with respect to any Environmental Law or the enforcement of
any Environmental Law.
(c) NCE has provided AMRI with access to copies of all documents,
records, and information known and available to it concerning any material
environmental or health and safety matter relevant to NCE, whether generated by
NCE or others, including, without limitation, environmental audits,
environmental risk assessments, site assessments, documentation regarding
off-site disposal of Hazardous Materials, spill control plans, and consultant
reports, correspondence with governmental agencies, permits, licenses, approvals
and other authorizations related to Environmental Laws issued by any
governmental agency.
(d) For purposes of this Section 3.24, (i) "Hazardous Material" shall
mean and include any hazardous waste, hazardous material, hazardous substance,
petroleum product, oil, toxic substance, pollutant, or contaminant, as defined
or regulated under any Environmental Law; (ii) "Hazardous Waste" shall mean and
include any hazardous waste as defined or regulated under any Environmental Law
(including, without limitation, medical waste); (iii) "Environmental Law" shall
mean any environmental or health and safety-related law, regulation, rule,
ordinance, or by law at the federal, state, or local level, existing as of the
date hereof, previously enforced; and (iv) "NCE" shall mean and include NCE, any
predecessor and all other entities known to NCE for whose conduct NCE is or may
be held responsible under any Environmental Law.
Section 3.25 LIST OF EMPLOYEES, CUSTOMERS, SUPPLIERS AND VENDORS. SCHEDULE
3.25 hereto contains a complete list of all officers, managers, employees,
consultants, independent contractors, brokers and sales persons of NCE,
including the current job title and aggregate annual compensation of each such
individual. SCHEDULE 3.25 hereto sets forth a complete list of all customers,
suppliers and vendors of NCE with whom NCE has conducted business during the
23
fiscal year ended December 31, 1999, or during the eleven-month period ended
November 30, 2000, showing, with respect to each, the name, address and dollar
volume involved. Except as set forth on SCHEDULE 3.25 hereto, since December 31,
1999, no customer, supplier or vendor with whom NCE has conducted more than
$10,000 in business in any fiscal year has canceled or otherwise terminated or
materially reduced its business with NCE or materially and adversely modified
its relationship with NCE nor, to the knowledge of NCE, does any such customer,
supplier or vendor have any plan or intention to do so other than in the
ordinary course of business.
Section 3.26 TRANSACTIONS WITH AFFILIATES. Except as set forth on SCHEDULE
3.26 hereto, there are no loans, leases or other continuing transactions between
NCE and any present or former stockholder, director or officer of NCE. Except as
set forth on SCHEDULE 3.26 hereto, to the knowledge of NCE, no stockholder,
director or officer of NCE nor any of their respective spouses or family
members, owns directly or indirectly on an individual or joint basis any
material interest in, or serves as an officer or director or in another similar
capacity of, any competitor or supplier of NCE, or any organization which has a
material contract or arrangement with NCE.
Section 3.27 DISCLOSURE. To the knowledge of NCE, neither this Agreement,
nor any other agreement, document or written statement made by NCE and furnished
by NCE to AMRI in connection with the transactions contemplated hereby, contains
any untrue statement of a material fact or omits to state any material fact
necessary to make the statements contained herein or therein not misleading in
light of the circumstances in which they were made. To NCE's knowledge, there is
no material fact directly relating to the business, operations, condition or
prospects of NCE (including any competitive developments, but other than facts
that relate to general economic or industry trends or conditions) that could
reasonably be expected to have a Material Adverse Effect on NCE that has not
been set forth in this Agreement or in any Schedule hereto.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF AMRI AND ACQUISITION
Section 4.01 MAKING OF REPRESENTATIONS AND WARRANTIES. As a material
inducement to NCE and the Principal Stockholders entering into this Agreement
and consummating the transactions contemplated hereby, each of AMRI and
Acquisition hereby jointly and severally makes, as of the date hereof and as of
the Closing Date, to them the representations and warranties contained in this
Article IV.
Section 4.02 ORGANIZATION AND CORPORATE POWER. Each of AMRI and Acquisition
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and is duly qualified or registered as a foreign
corporation in each jurisdiction in which it is required to be so licensed or
qualified to conduct its businesses or own its properties, except where the
failure to so qualify or register would not have a Material Adverse Effect on
AMRI or Acquisition. AMRI and Acquisition have all requisite corporate power and
authority to conduct their businesses as presently conducted.
Section 4.03 AUTHORITY. Each of AMRI and Acquisition has full right,
authority and power to enter into this Agreement and each agreement, document
and instrument to be executed
24
and delivered by AMRI and Acquisition pursuant to this Agreement and to carry
out the transactions contemplated hereby. The execution, delivery and
performance by AMRI and Acquisition of this Agreement and each such other
agreement, document and instrument have been duly authorized by all necessary
corporate action of AMRI and Acquisition and no other action on the part of AMRI
and Acquisition is required in connection therewith. This Agreement and each
other agreement, document and instrument executed and delivered to AMRI and
Acquisition pursuant to this Agreement constitute, or when executed and
delivered will constitute, valid and binding obligations of AMRI and Acquisition
enforceable in accordance with their terms. The execution, delivery and
performance by AMRI and Acquisition of this Agreement and each such agreement,
document and instrument:
(a) do not and will not violate any provision of the respective
Certificates of Incorporation or By-laws of AMRI and Acquisition;
(b) do not and will not violate any laws of the United States, or any
state or other jurisdiction (domestic or foreign) applicable to AMRI or
Acquisition or require AMRI or Acquisition to obtain any approval, consent or
waiver of, or make any filing with, any Person (governmental or otherwise) that
has not been obtained or made except for the filing of the Certificate of Merger
with the Delaware Secretary of State, and the filing of appropriate documents
with the relevant authorities of all states in which AMRI or Acquisition is
qualified to do business, if any; and
(c) do not and will not result in a breach of, constitute a default
under, accelerate any obligation under, or give rise to a right of termination
of any indenture or loan or credit agreement or any other agreement, contract,
instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which AMRI or
Acquisition is a party or by which the property of AMRI or Acquisition is bound
or affected, or result in the creation or imposition of any mortgage, pledge,
lien, security interest or other charge or encumbrance on any of the assets or
property and which is material to the business or financial condition of AMRI or
Acquisition.
Section 4.04 FINDER'S FEE. AMRI has not incurred or become liable for any
broker's commission or finder's fee relating to or in connection with the
transactions contemplated by this Agreement.
Section 4.05 LITIGATION. There is no litigation or governmental or
administrative proceeding or investigation pending or, to the knowledge of AMRI,
threatened against AMRI or any affiliate of AMRI that would prevent or hinder
the consummation of the transactions contemplated by this Agreement.
ARTICLE V COVENANTS OF NCE AND THE PRINCIPAL STOCKHOLDERS
Section 5.01 MAKING OF COVENANTS AND AGREEMENTS. Each of NCE and the
Principal Stockholders hereby makes the covenants and agreements set forth in
this Article V and each of the Principal Stockholders hereby severally and not
jointly with all other Principal Stockholders agrees to cause NCE to comply with
such agreements and covenants. The Principal
25
Stockholders shall have no right of indemnity or contribution from NCE with
respect to the breach of any covenant or agreement hereunder.
Section 5.02 CONSENTS AND APPROVALS. Each of NCE and the Principal
Stockholders will use commercially reasonable efforts to cause all conditions to
the obligations of the parties hereunder to be satisfied and to obtain or cause
to be obtained prior to the Closing Date all necessary consents and approvals to
the performance of the obligations of the Principal Stockholders under this
Agreement, including, without limitation, the consents and approvals described
on SCHEDULE 5.02. NCE and the Principal Stockholders will cooperate in all
respects with AMRI with a view toward obtaining timely satisfaction of the
conditions to the Closing set forth herein, it being understood that all fees
and expenses associated with obtaining required governmental consents and
approvals shall be paid in accordance with Section 10.01 hereof. NCE and the
Principal Stockholders shall make all filings, document submissions,
applications, statements and reports to all federal, state or local government
agencies or entities which are required to be made by them prior to the Closing
Date pursuant to any applicable statute, rule or regulation in connection with
this Agreement and the transactions contemplated hereby, it being understood
that the required filing fees in connection therewith shall be paid in
accordance with Section 10.01 hereof unless prohibited by law. NCE and the
Principal Stockholders shall (i) furnish to AMRI copies of all filings and such
necessary information and assistance as may be requested by AMRI in connection
with its preparation of required filings or submissions to any governmental
agency and (ii) keep AMRI informed of the status of any inquiries made of any of
them by any federal, state or local agency or authority with respect to this
Agreement or the transactions contemplated hereby.
Section 5.03 MEETING OF STOCKHOLDERS. Promptly following the execution of
this Agreement, NCE shall take all action necessary in accordance with
applicable law and the NCE Certificate of Incorporation and the NCE By-laws to
convene a meeting of its stockholders (or obtain the written consent of
stockholders in lieu of such meeting) as promptly as practicable to consider and
vote upon the adoption of this Agreement and the approval of the Merger. NCE,
subject to and in accordance with applicable law, shall use its best efforts to
obtain the approval of its stockholders described in this Section 5.03. Should
applicable law not require a meeting of the stockholders to consider and vote
upon the adoption of this Agreement, the parties may obtain stockholder approval
by written consent of the necessary vote of each class of stock entitled to
vote.
Section 5.04 CONDUCT OF BUSINESS. Between the date of this Agreement and
the Closing Date, the Principal Stockholders of NCE shall cause NCE to do, and
NCE shall do, the following, unless AMRI shall otherwise consent in writing:
(a) conduct its business only in the ordinary course of business
consistent with past practices, refrain from changing or introducing any method
of management or operations except in the ordinary course of business and in a
manner consistent with past practices and maintain levels of working capital
consistent with past practices;
(b) refrain from making any purchase, sale or disposition of any asset
or property other than in the ordinary course of business, from purchasing or
selling any capital
26
asset costing more than $10,000 and from mortgaging, pledging, subjecting to a
lien or otherwise encumbering any of its properties or assets;
(c) refrain from incurring or modifying any contingent liability as a
guarantor or otherwise with respect to the obligations of others, and from
incurring or modifying any other contingent or fixed obligations or liabilities
except in the ordinary course of business consistent with past practice;
(d) refrain from making any change in its incorporation documents,
by-laws or authorized or issued capital stock or from acquiring any securities
issued by any other business organization other than short-term investments in
the ordinary course of business;
(e) refrain from (i) declaring, setting aside or paying any dividend,
making any other distribution in respect of its capital stock, (ii) making any
direct or indirect redemption, purchase or other acquisition of its capital
stock or options with respect thereto, (iii) issuing, granting, awarding,
selling, pledging, disposing of or encumbering or authorizing the issuance,
grant, award, sale, pledge, disposition or encumbrance of any shares of, or
securities convertible or exchangeable for, or options, warrants, calls,
commitments or rights of any kind to acquire, any shares of its capital stock of
any class thereof or (iv) entering into any agreement or commitment with respect
to any of the foregoing;
(f) other than the payment to employees of performance bonuses earned
during the year 2000 of up to an aggregate of $100,000, refrain from making any
change in the compensation payable or to become payable to any of its officers,
employees or agents, except for scheduled increases in salary or wages ranging
up to 10% in the ordinary course of business that are consistent with past
practice, or granting any severance or termination pay to, or entering into or
amending any employment, severance or other agreement or arrangement with, any
of its directors, officers or other employees, or establishing, adopting or
entering into or amending any collective bargaining, bonus, incentive, deferred
compensation, profit sharing, stock option or purchase, insurance, pension,
retirement or other employee benefit plan;
(g) except as set forth on SCHEDULE 5.04(G) of NCE's Disclosure
Schedule, refrain from prepaying any loans, including without limitation loans
from its stockholders, officers or directors (if any), making any change in its
borrowing arrangements or modifying, amending or terminating any of its
contracts except in the ordinary course of business, or waiving, releasing or
assigning any material rights or claims;
(h) use its best efforts to prevent any material change with respect to
its management and supervisory personnel or banking arrangements;
(i) use its best efforts to keep intact its business organization and
to preserve the goodwill of and business relationships with all suppliers,
customers and others having business relations with it;
(j) pay all accounts payable in the ordinary course of business in a
manner consistent with past practice and in any event within 60 days unless they
are being disputed in good faith, and otherwise refrain from paying, discharging
or satisfying any claim, liability or obligation (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the
27
payment, discharge or satisfaction in the ordinary course of business and in a
manner consistent with past practices of liabilities reflected or reserved
against in the Base Balance Sheet or incurred since the date of the Base Balance
Sheet in the ordinary course of business and in a manner consistent with past
practices (provided that it shall in no event prepay any indebtedness for
borrowed money);
(k) use its best efforts to have in effect and maintain at all times
all insurance of the kind, in the amount and with the insurers set forth on
SCHEDULE 3.17 or equivalent insurance with any substitute insurers approved by
AMRI;
(l) refrain from materially changing accounting policies or procedures
(including, without limitation, procedures with respect to the payment of
accounts payable and collection of accounts receivable) or from making any tax
election or settling or compromising any federal, state, local or foreign income
tax liability;
(m) refrain from entering into any executory agreement, commitment or
undertaking to do any of the activities prohibited by the foregoing provisions;
(n) subject to applicable laws, permit AMRI and its authorized
representatives (including without limitation AMRI's attorneys, accountants,
pension and environmental consultants and software or information systems
consultants) to have full access with reasonable notice and during normal
business hours to all of its properties, assets, books, records, business files,
executive personnel, tax returns, contracts and documents and furnish to AMRI
and its authorized representatives such financial and other information with
respect to its business or properties as AMRI may from time to time reasonably
request;
(o) in connection with any filings to be made by AMRI under the
Securities Act of 1933 or the Securities Exchange Act of 1934, as amended, (i)
provide for inclusion therein or filing therewith such financial and other
information and documents relating to NCE as AMRI may reasonably request, and
(ii) generally cooperate with AMRI and its representatives and agents in
connection therewith, provided that all expenses relating to such consents,
reports and comfort letters shall be paid directly and promptly by AMRI and
shall not be accrued by NCE (except for expenses that NCE would have incurred in
any event, such as the expenses of an annual audit); and
(p) provide (i) monthly financial statements, including a balance sheet
as of month-end and a monthly income statement, as soon as practicable but not
later than 30 days after the last day of each month and (ii) quarterly financial
statements (unaudited) meeting the requirements set forth in Section 3.07 hereof
as soon as practicable but not later than 45 days after the last day of each
quarter.
Section 5.05 BREACH OF REPRESENTATIONS AND WARRANTIES. Promptly upon NCE or
any Principal Stockholder becoming aware of any breach, or the impending or
threatened occurrence of any event that would cause or constitute a breach, of
any of the representations and warranties of the Principal Stockholders
contained in or referred to in this Agreement, NCE and the Principal
Stockholders shall give detailed written notice thereof to AMRI and shall use
their best efforts to prevent or promptly remedy the same.
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Section 5.06 ACQUISITION PROPOSALS. Except in connection with the
transactions contemplated hereby, unless and until this Agreement shall have
been terminated in accordance with its terms for any reason, NCE and each
Principal Stockholder shall not and NCE shall communicate to all directors,
officers and key employees of NCE that they are not authorized to and must not,
directly or indirectly, (a) take any action to solicit, initiate submission of
or encourage any proposal or offer from any person relating to any acquisition
or purchase of all or (other than in the ordinary course of business) a portion
of the assets of, or any equity interest in, NCE, any merger or business
combination with NCE, or any public or private offering of shares of the capital
stock of, or financing or joint venture involving NCE (an "Acquisition
Proposal"), (b) participate in any discussions or negotiations regarding an
Acquisition Proposal with any Person other than AMRI and its affiliates and
representatives, (c) furnish any information with respect to or afford access to
the properties, books or records of NCE to any Person that may consider making
or has made an offer with respect to an Acquisition Proposal other than AMRI and
its affiliates and representatives, or (d) otherwise cooperate in any way with,
or assist or participate in, facilitate or encourage, any effort or attempt by
any Person other than AMRI and its affiliates and representatives to do or seek
any of the foregoing. NCE and each of the Principal Stockholders shall promptly
notify AMRI upon receipt of any offer or indication that any Person is
considering making an offer with respect to an Acquisition Proposal or any
request for information relative to NCE, shall promptly reject any such offer,
and shall keep AMRI fully informed of the status and details of any such offer,
indication or request.
Section 5.07 NO TRANSFER OF SHARES; VOTING. Unless and until this Agreement
shall have been terminated in accordance with its terms for any reason, no
Principal Stockholder shall directly or indirectly exchange, deliver, assign,
pledge, encumber or otherwise transfer or dispose of any of the Shares
(including options in respect thereof), nor shall any Principal Stockholder
directly or indirectly grant any right of any kind to acquire, dispose of, vote
or otherwise control in any manner any of the Shares; provided that a transfer
to the executor or administrator of such Principal Stockholder upon such
Principal Stockholder's death shall not be deemed prohibited by this Section
5.06 as long as such executor or administrator on behalf of the estate of such
Principal Stockholder shall be bound by all of the provisions of this Agreement
to the same extent as such Principal Stockholder.
On the date hereof, each Principal Stockholder shall execute a written
consent in lieu of a special meeting of the stockholders of NCE (a "Written
Consent") approving and adopting this Agreement and the consummation of the
Merger, and each Principal Stockholder shall take any and all such further
actions as may be necessary or appropriate in connection with the approval of
this Agreement, the Merger and the consummation of the transactions contemplated
hereby.
Section 5.08 CERTAIN DELIVERIES. Each Principal Stockholder agrees to
execute and deliver to AMRI at the Closing:
(a) a general release substantially in the form of EXHIBIT 5.08
attached hereto; and
(b) all other instruments and deliveries required to be delivered by
them at or prior to the Closing Date.
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Section 5.09 TAX RETURNS. NCE, with the approval of AMRI and in accordance
with applicable law, shall (i) promptly prepare and file on or before the due
date or any extension thereof all federal, state, local and foreign tax returns
required to be filed by NCE with respect to taxable periods of NCE that include
any period ending on or before the Closing Date and (ii) pay all Taxes of NCE
attributable to periods ending on or before the Closing Date.
ARTICLE VI COVENANTS OF AMRI AND ACQUISITION
Section 6.01 CONSENTS AND APPROVALS. Each of AMRI and Acquisition will use
commercially reasonable efforts to cause all conditions and obligations of the
parties hereunder to be satisfied and to obtain or cause to be obtained prior to
the Closing all necessary consents and approvals to the performance of its
obligations under this Agreement, including, without limitation, the consents
and approvals described in SCHEDULE 6.01 attached hereto, and will cooperate in
all respects with NCE and the Principal Stockholders with a view toward
obtaining timely satisfaction of conditions to the Closing set forth herein,
provided that all fees and expenses associated with obtaining required
governmental consents and approvals shall be paid in accordance with Section
10.01 hereof.
AMRI and Acquisition shall make all filings, document submissions,
applications, statements and reports to all federal, state or local government
agencies or entities which are required to be made by them prior to the Closing
Date pursuant to any applicable statute, rule or regulation in connection with
this Agreement and the transactions contemplated hereby, it being understood
that the required filing fees in connection therewith shall be paid in
accordance with Section 10.01 hereof. AMRI and Acquisition shall, unless
prohibited by law, (i) furnish to NCE copies of all filings and such necessary
information and assistance as may be requested by NCE in connection with its
preparation of such required filings or submissions to any governmental agency,
and (ii) will keep NCE informed of the status of any inquiries made of AMRI or
Acquisition by any federal, state or local governmental agency or authority with
respect to this Agreement or the transactions contemplated hereby. AMRI shall
furnish to NCE a list of any materials that it is prohibited by law from
providing to NCE, together with a reference to the source of the prohibition.
Section 6.02 BREACH OF REPRESENTATIONS AND WARRANTIES. Promptly upon AMRI
or Acquisition becoming aware of any breach, or the impending or threatened
occurrence of any event that would cause or constitute a breach of any of the
representations or warranties of AMRI or Acquisition contained in or referred to
in this Agreement, AMRI and Acquisition shall give detailed written notice
thereof to NCE and the Representative and shall use their best efforts to
prevent or promptly remedy the same.
Section 6.03 CERTAIN DELIVERIES. AMRI and Acquisition agree to execute
and/or deliver to the Principal Stockholders at the Closing:
(a) the consideration described in Article I hereof; and
(b) all other instruments and deliveries required to be delivered by
them at or prior to the Closing Date.
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Section 6.04 NO TRANSFER OF SHARES; VOTING.
(a) Unless and until this Agreement shall have been terminated in
accordance with its terms for any reason, AMRI shall not directly or indirectly
exchange, deliver, assign, pledge, encumber or otherwise transfer or dispose of
any of the shares of capital stock (including options in respect thereof) of
Acquisition, nor shall AMRI directly or indirectly grant any right of any kind
to acquire, dispose of, vote or otherwise control in any manner any of such
shares if, as a result of such transactions, AMRI shall no longer control
Acquisition;
(b) On the date hereof, AMRI shall execute a written consent in lieu of
a special meeting of the stockholders of Acquisition approving and adopting this
Agreement and the consummation of the Merger of NCE with and into Acquisition
and AMRI shall take any and all such further actions as may be necessary or
appropriate in connection with the approval of this Agreement, the Merger and
the consummation of the transactions contemplated hereby.
Section 6.05 GRANT OF AMRI OPTIONS. At the Closing, AMRI agrees to grant to
certain NCE employees options (the "AMRI Options") to acquire the number of
shares of common stock of AMRI, par value $.01 per share ("AMRI Common Stock"),
as set forth on SCHEDULE 6.05 hereto at an exercise price equal to the fair
market value of one share of AMRI Common Stock on such date, such options to be
governed by the terms of the Albany Molecular Research, Inc. 1998 Stock Option
and Incentive Plan.
Section 6.06 EMPLOYEE BENEFIT PLANS. Beginning on the Closing Date, AMRI
shall continue those employee programs maintained by NCE immediately prior to
the Closing Date based on the then existing terms of such programs (except to
the extent that changes to such terms are required under applicable law) until
such time as AMRI has provided coverage to the Surviving Corporation's employees
who were employed by NCE immediately prior to the Closing Date and who continue
to be employed by the Surviving Corporation after the Closing Date under
employee benefit programs substantially similar to those of the employee benefit
programs provided by AMRI to its employees generally.
ARTICLE VII CONDITIONS
Section 7.01 CONDITIONS TO THE OBLIGATIONS OF AMRI AND ACQUISITION. The
obligations of AMRI and Acquisition to consummate the transactions contemplated
by this Agreement are subject to the fulfillment unless otherwise waived by AMRI
and Acquisition, prior to or at the Closing, of the following conditions
precedent:
(a) REPRESENTATIONS; WARRANTIES; COVENANTS. Each of the representations
and warranties of NCE and the Principal Stockholders made pursuant to this
Agreement shall be true and correct on and as of the Closing Date, with the same
effect as though made on and as of the Closing Date (it being understood that
representations and warranties (other than Section 3.07(c)) made "as of the date
hereof" shall be deemed to have been made as of the Closing Date); the Principal
Stockholders and NCE shall, on or before the Closing Date, have performed and
satisfied all of their covenants and agreements set forth herein, which by the
terms hereof, are to be performed and satisfied on or before the Closing Date;
and NCE and each of the
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Principal Stockholders, respectively, shall have delivered to AMRI certificates
executed as of the Closing Date certifying to the foregoing effect.
(b) OPINION OF COUNSEL AND OTHER DOCUMENTS. On the Closing Date, AMRI
shall have received (i) an opinion of Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx
PC, counsel for NCE, dated as of the Closing Date and addressed to AMRI in a
form reasonably satisfactory to AMRI, and (ii) such other certificates and
documents with respect to NCE and the Principal Stockholders as counsel for AMRI
shall have reasonably requested from NCE and the Principal Stockholders.
(c) NO ACTIONS OR PROCEEDINGS. No action or proceeding by or before any
court, administrative body or governmental agency shall have been instituted or
threatened which seeks to enjoin, restrain or prohibit, or might result in
material damages in respect of, this Agreement or the complete consummation of
the transactions contemplated by this Agreement, and which would in the
reasonable good faith judgment of AMRI make it inadvisable to consummate such
transactions. No law or regulation shall be in effect and no court order shall
have been entered in any action or proceeding instituted by any party which
enjoins, restrains or prohibits this Agreement or the complete consummation of
the transactions contemplated by this Agreement.
(d) DELIVERIES. Each Principal Stockholder shall have executed and
delivered to AMRI: (i) a general release substantially in the form of EXHIBIT
5.08 attached hereto; and (ii) all other documents and instruments required
hereunder to be delivered by them at or prior to the Closing Date, all in form
and substance reasonably acceptable to AMRI and its counsel if the form thereof
is not already specified therein. NCE shall have executed and delivered to AMRI,
in addition to any other items required by this Section 7.01, the Closing
Adjustment Certificate.
(e) NCE APPROVALS AND CONSENTS; LEGALITY OF STRUCTURE. NCE and each of
the Principal Stockholders shall have made all filings with and notifications of
governmental authorities and regulatory agencies required to be made in
connection with the execution and delivery of this Agreement, the performance of
the transactions contemplated hereby and the continued operation of the business
of NCE subsequent to the Closing Date, and NCE and each of the Principal
Stockholders shall have received all required authorizations, waivers, consents
and permits to permit the consummation of the transactions contemplated by this
Agreement, in form and substance reasonably satisfactory to AMRI, with any
conditions or limitations contained therein or imposed thereby to be approved by
AMRI, from all third parties, including, without limitation, applicable
governmental authorities, regulatory agencies, lessors, lenders and contract
parties, required in connection with transactions contemplated by this Agreement
or by any of NCE's permits, leases, licenses and franchises, to avoid a breach,
default, termination, acceleration or modification of any material agreement,
contract, instrument, mortgage, lien, lease, permit, authorization, order, writ,
judgment, injunction, decree, determination or arbitration award as a result of
the execution or performance of this Agreement, or otherwise in connection with
the execution and performance of this Agreement.
(f) AMRI APPROVALS AND CONSENTS. AMRI shall have made all filings with
and notifications of governmental authorities and regulatory agencies required
to be made by it in connection with the execution and delivery of this Agreement
and the performance by it of the
32
transactions contemplated hereby, and AMRI shall have received all required
authorizations, waivers, consents and permits to permit the consummation of the
transactions contemplated by this Agreement, in form and substance reasonably
satisfactory to NCE, from all such parties.
(g) MATERIAL ADVERSE CHANGES; MANDATORY CHANGES.
(i) There shall not have been since the date of this Agreement,
(A) any change or series of changes that have caused or, in the reasonable
business judgment of AMRI, could reasonably be anticipated to cause the
revenues or net income of NCE to be materially decreased or the performance
of the business of NCE to be materially decreased or the performance of the
business of NCE to be materially adversely different than NCE's current
operating plans and budgets, (B) any actual or threatened termination,
revocation, or other loss or modification after the date hereof of any
approval necessary to conduct business or sell any product or provide any
service in any state held by NCE, which termination, revocation, loss or
modification is reasonably likely to have a Material Adverse Effect on NCE,
or (C) any change or series of changes that, in the reasonable business
judgment of AMRI, acting in good faith, have a Material Adverse Effect on
NCE or could reasonably be anticipated to have a Material Adverse Effect on
NCE.
(ii) In the event that performance of any provision of this
Agreement should for any reason be, or be interpreted by any federal or
state regulatory agency to be, a violation of any statute, regulation, or
otherwise illegal (the "Mandated Changes"), then AMRI shall have the right
to require NCE to use its best efforts to renegotiate the affected or
pertinent terms of this Agreement while still maintaining the original
Agreement's purpose. The parties agree to make a good faith attempt to
renegotiate the Agreement to the extent necessary to comply with any
Mandated Changes. If renegotiated, such terms shall become effective no
later than thirty (30) days after receipt of written notice of the request
for renegotiation. If the parties fail to reach an agreement satisfactory
to both parties within thirty (30) days of the request for renegotiation,
either party may terminate this Agreement upon (30) days' prior written
notice to the other party.
(h) STOCKHOLDER CONSENTS. The written consent of the Stockholders
(including, without limitation, the Principal Stockholders) shall have been duly
executed by the holders of a majority of the outstanding shares of capital stock
of NCE entitled to vote on the Merger or the Merger shall have been approved by
such holders at a meeting thereof and shall remain in full force and effect as
of the Closing.
(i) PROCEEDINGS SATISFACTORY TO AMRI. All proceedings to be taken by
the Principal Stockholders and/or NCE in connection with the consummation of the
Closing and the other transactions contemplated hereby and all certificates,
opinions, instruments and other documents required to effect the transaction
contemplated hereby reasonably requested by AMRI will be reasonably satisfactory
in form and substance to AMRI and its counsel.
Section 7.02 CONDITIONS TO THE OBLIGATIONS OF NCE AND THE PRINCIPAL
STOCKHOLDERS. The obligations of NCE and the Principal Stockholders to
consummate the transactions contemplated
33
by this Agreement are subject to the fulfillment, unless otherwise waived by the
parties, prior to or at the Closing, of the following additional conditions
precedent:
(a) REPRESENTATIONS; WARRANTIES; COVENANTS. Each of the representations
and warranties of AMRI and Acquisition contained in this Agreement shall be true
and correct on and as of the Closing Date, with the same effect as though made
on and as of the Closing Date (it being understood that representations and
warranties made "as of the date hereof' shall be deemed to have been made as of
the Closing Date); AMRI and Acquisition shall, on or before the Closing Date,
have performed and satisfied all of their respective covenants and agreements
set forth herein which by the terms hereof are to be performed and satisfied by
AMRI and Acquisition on or before the Closing Date; and each of AMRI and
Acquisition shall have delivered to NCE and the Principal Stockholders a
certificate signed on its behalf by their respective Presidents and dated as of
the Closing Date certifying to the foregoing effect.
(b) NO ACTIONS OR PROCEEDINGS. No action or proceeding by or before any
court, administrative body or governmental agency shall have been instituted or
threatened which seeks to enjoin, restrain or prohibit, or might result in
damages in respect of, this Agreement or the complete consummation of the
transactions as contemplated by this Agreement and which would in the reasonable
judgment of NCE makes it inadvisable to consummate such transactions. No law or
regulation shall be in effect and no court order shall have been entered in any
action or proceeding instituted by any party which enjoins, restrains or
prohibits this Agreement or the complete consummation of the transactions as
contemplated by this Agreement.
(c) DELIVERIES. AMRI and Acquisition shall have delivered to NCE and
the Principal Stockholders, as applicable, (i) the consideration described in
Article I hereof, and (ii) all instruments and documents required to be
delivered by them at or prior to the Closing Date. AMRI shall have delivered the
AMRI Options.
(d) PROCEEDINGS SATISFACTORY TO THE REPRESENTATIVE. All proceedings to
be taken by AMRI or Acquisition in connection with the consummation of the
Closing and the other transactions contemplated hereby and all certificates,
instruments and other documents required to effect the transaction contemplated
hereby reasonably requested by NCE will be reasonably satisfactory in form and
substance NCE and its counsel.
(e) AMRI AND ACQUISITION APPROVALS AND CONSENTS. Each of AMRI and
Acquisition shall have made all filings with and notifications of governmental
authorities and regulatory agencies required to be made by it in connection with
the execution and delivery of this Agreement and the performance by it of the
transactions contemplated hereby, and each of AMRI and Acquisition shall have
received all required authorizations, waivers, consents and permits to permit
the consummation of the transactions contemplated by this Agreement, in form and
substance reasonably satisfactory to NCE, from all such parties.
ARTICLE VIII TERMINATION OF AGREEMENT
Section 8.01 TERMINATION. This Agreement may be terminated any time prior
to the Closing Date as follows:
34
(a) With the mutual consent of AMRI and NCE;
(b) By either AMRI or NCE, if the Closing has not occurred on or before
180 days after the date hereof (the "Closing Deadline");
(c) By AMRI, if there has been a material misrepresentation or material
breach of warranty on the part of NCE or any Principal Stockholder in the
representations and warranties contained herein or a material breach of
covenants on the part of NCE or any Principal Stockholder and the same has not
been cured within 30 days after notice thereof. In the event of any termination
pursuant to this Section 8.01(c), written notice setting forth the reasons
therefor shall forthwith be given by AMRI to NCE;
(d) By NCE, if there has been a material misrepresentation or breach of
warranty on the part of AMRI in the representations and warranties contained
herein or a material breach of covenants on the part of AMRI and the same has
not been cured within 30 days after notice thereof. In the event of any
termination pursuant to this Section 8.01(d), written notice setting forth the
reasons therefor shall forthwith be given by NCE to AMRI.
Notwithstanding anything herein to the contrary, the right to terminate this
Agreement under Section 8.01 shall not be available to any party to the extent
the failure of such party, respectively, to fulfill any of its obligations under
this Agreement has been the cause of, or resulted in, the failure of the Closing
to occur on or before such date (as a result, for example, of an action or
failure to act causing a failure of a condition precedent).
Section 8.02 EFFECT OF TERMINATION. All obligations of the parties
hereunder shall cease upon any termination pursuant to Section 8.01; PROVIDED,
HOWEVER, that (i) the provisions of this Article VIII shall survive any
termination of this Agreement in any event; (ii) nothing herein shall relieve
any party from any liability for a material error or omission in any of its
representations or warranties contained herein or a material failure to comply
with any of its covenants, conditions or agreements contained herein; PROVIDED,
HOWEVER, that no party shall have any liability for any such material error or
omission or failure to comply other than for willful errors or omissions or
failure to comply; and (iii) any party may proceed as further set forth in
Section 8.03 below.
Section 8.03 RIGHT TO PROCEED. Anything in this Agreement to the contrary
notwithstanding, if any of the conditions specified in Section 7.01 hereof have
not been satisfied, AMRI shall have the right to proceed with the transactions
contemplated hereby without waiving any of its rights hereunder, and if any of
the conditions specified in Section 7.02 hereof have not been satisfied, NCE
shall have the right to proceed with the transactions contemplated hereby
without waiving any of its or the Principal Stockholders' rights hereunder.
ARTICLE IX SURVIVAL; INDEMNIFICATION
Section 9.01 SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC. All
representations, warranties, agreements, covenants and obligations herein or in
any schedule or certificate delivered by any party incident to the transactions
contemplated hereby are material and may be relied upon by the party receiving
the same and shall survive the Closing regardless of any
35
investigation by such party and shall not merge into the performance of any
obligation by any party hereto, subject to the provisions of this Article IX;
PROVIDED, HOWEVER, the representations and warranties set forth in Article II,
Article III (other than those described in Section 9.03(d)(ii)) and Article IV
(other than those described in Section 9.04(c)) and the covenants contained in
Article V and Article VI shall survive until the first anniversary of the
Closing Date.
Section 9.02 INDEMNIFICATION BY THE PRINCIPAL STOCKHOLDERS. The Principal
Stockholders, severally and not jointly with each other Principal Stockholder,
on behalf of themselves and their respective successors, executors,
administrators, estates, heirs and permitted assigns as contemplated by Section
10.04, agree subsequent to the Closing Date to indemnify and hold harmless AMRI,
its subsidiaries and their respective stockholders, officers, directors,
employees and agents (other than the Principal Stockholders) (individually, a
"Buyer Indemnified Party" and collectively, the "Buyer Indemnified Parties")
from and against and in respect of all losses, liabilities, obligations,
damages, deficiencies, actions, suits, proceedings, demands, assessments,
orders, judgments, fines, penalties, costs and expenses (including the
reasonable fees, disbursements and expenses of attorneys, accountants and
consultants) of any kind or nature whatsoever (whether or not arising out of
third-party claims and including all amounts paid in investigation, defense or
settlement of the foregoing) (a "Loss" or "Losses") sustained, suffered or
incurred by or made against any Buyer Indemnified Party, as such Losses are
incurred, arising out of, based upon or in connection with:
(a) any breach of any representation or warranty made by NCE and the
Principal Stockholders pursuant to Article III of this Agreement or in any
certificate delivered pursuant to Section 7.01(a) in connection with the
Closing;
(b) any breach of any covenant or agreement made by NCE in this
Agreement or in any Schedule hereto;
(c) any breach of any representation and warranty made by any Principal
Stockholder in Article II of this Agreement;
(d) any breach of any covenant or agreement made by any Principal
Stockholder of this Agreement or in any Schedule hereto;
(e) liabilities relating to Losses with respect to federal, state,
local or foreign Taxes payable by NCE (including its predecessors) for periods
ending on or prior to the date of the Closing and periods including but not
ending on the date of the Closing but only with respect to the portion of the
period ending on the date of the Closing;
(f) liabilities relating to Losses with respect to the matters set
forth on SCHEDULE 9.02(F) attached hereto;
(g) liabilities relating to Losses resulting from any inaccuracy on the
Closing Adjustment Certificate; or
(h) any fees and expenses of the Principal Stockholders and NCE
(including without limitation legal fees, consulting fees and accounting fees)
in excess of $200,000 relating
36
to the execution, delivery and performance of this Agreement paid, assumed or
otherwise borne by AMRI or NCE.
Claims under clauses (a) through (g) of this Section 9.02 hereinafter
collectively referred to as "Buyer Indemnifiable Losses."
Section 9.03 LIMITATIONS ON INDEMNIFICATION BY THE PRINCIPAL STOCKHOLDERS.
(a) GENERAL THRESHOLD. Subject to the exceptions set forth in Section
9.03(d), the Principal Stockholders shall not be obligated to indemnify Buyer
Indemnified Parties in respect of Buyer Indemnifiable Losses until the
cumulative amount of all Buyer Indemnifiable Losses exceeds $50,000 (the "Buyer
Threshold"), whereupon only such excess amount shall be recoverable in
accordance with the terms hereof. Notwithstanding the foregoing, in the case of
Losses under Section 9.02(a) and 9.02(f) with respect to uncollected accounts
receivable, the Principal Stockholders shall not be obligated to indemnify Buyer
Indemnified Parties until such Losses exceed 5% of the outstanding accounts
receivable as of the Closing Date, whereupon only such excess shall be
recoverable hereunder.
(b) GENERAL MAXIMUM INDEMNIFICATION. Subject to the exceptions set
forth in Section 9.03(d), and subject to Section 9.08, each Principal
Stockholder shall not be obligated to indemnify Buyer Indemnified Parties in
respect of Buyer Indemnifiable Losses to the extent the cumulative amount of all
Buyer Indemnifiable Losses exceeds $1,500,000.
(c) TIME LIMITS FOR CLAIMS. Subject to the exceptions set forth in
Section 9.03(d), no claim for indemnification may be made by any Buyer
Indemnified Party in respect of Buyer Indemnifiable Losses described in Section
9.02(a) unless the written notice required by Section 9.06 with respect to such
Losses shall have been received by the Representative on a date prior to the
first anniversary of the date of the Closing; PROVIDED, HOWEVER, that the
limitation of this clause (c) shall not apply to indemnification with respect to
matters set forth in Section 9.03(d) which shall expire upon the later of (i)
termination of the applicable statute of limitations relating to the subject
matter covered by such Section or (ii) solely with respect to third party claims
made prior to the termination of the applicable statute of limitations, ten (10)
days after receipt by the applicable Buyer Indemnified Party of notice of such
third party claim; and PROVIDED FURTHER, HOWEVER, that in each case if prior to
the applicable date of expiration a specific state of facts shall have become
known which may constitute or give rise to any Buyer Indemnifiable Loss as to
which indemnity may be payable and a Buyer Indemnified Party shall have given
notice of such facts to the Representative, made a claim for indemnification
and, except with respect to third party claims, pursued such claim within six
months thereafter, then the right to indemnification with respect thereto shall
remain in effect until such matter shall have been finally determined and
disposed of, and any indemnification due in respect thereof shall have been
paid.
(d) DOLLAR-FOR-DOLLAR CLAIMS. Notwithstanding anything herein to the
contrary, Buyer Indemnified Parties shall not be subject to any limitation,
whether pursuant to this Section 9.03 or otherwise, and shall be entitled to
dollar-for-dollar recovery, in seeking indemnification from the Principal
Stockholders with respect to the following:
37
(i) Losses arising from fraud on the part of NCE or any Principal
Stockholder;
(ii) Losses involving a breach by NCE or any Principal Stockholder
of the representations and warranties contained in Sections 3.02, 3.04,
3.05 and 3.20;
(iii) Losses described in Section 9.02(c) and Sections 9.02(e)
through (h) provided that Losses described in Section 9.02(g) shall be
subject to the time limit set forth in Section 9.03(c).
(e) NO LIMITATION OF RIGHTS. Notwithstanding anything herein to the
contrary, the limitations set forth in this Section 9.03 shall apply only with
respect to post-Closing indemnification obligations and shall in no way limit
any rights AMRI or Acquisition may have in law or equity, consistent with
Section 8.02, in the event the Closing does not occur.
Section 9.04 INDEMNIFICATION BY AMRI AND ACQUISITION. AMRI and Acquisition
agree subsequent to the Closing Date, jointly and severally, to indemnify and
hold harmless NCE and the Principal Stockholders and their respective
successors, executors, administrators, estates, heirs and permitted assigns
("Seller Indemnified Parties") from and against and in respect of all Losses
sustained, suffered or incurred by or made against any of them arising out of,
based upon or in connection with (a) any breach of any representation or
warranty made by AMRI or Acquisition in this Agreement or in any Schedule hereto
or in any certificate delivered pursuant to Section 7.02(a) in connection with
the Closing; (b) any breach of any covenant or agreement made by AMRI or
Acquisition in this Agreement or in any Schedule hereto; and (c) any fees and
expenses of AMRI or Acquisition (including without limitation legal fees,
consulting fees, and accounting fees) relating to the execution, delivery and
performance of this Agreement paid, assumed or otherwise borne by the Principal
Stockholders or NCE (such claims under clauses (a), (b) and (c) being
hereinafter collectively referred to as "Seller Indemnifiable Claims").
Section 9.05 NOTICE; DEFENSE OF CLAIMS. Promptly after receipt by an
indemnified party of notice of any claim, liability or expense to which the
indemnification obligations hereunder would apply, the indemnified party shall
give notice thereof in writing to the indemnifying party (AMRI or Acquisition
with respect to claims by any Seller Indemnified Party and the Representative
with respect to claims by any Buyer Indemnified Party), but the omission to so
notify the indemnifying party promptly will not relieve the indemnifying party
from any liability except to the extent that the indemnifying party shall have
been prejudiced as a result of the failure or delay in giving such notice. Such
notice shall state the information then available regarding the amount and
nature of such claim, liability or expense and shall specify the provision or
provisions of this Agreement under which the liability or obligation is
asserted. If within 20 days after receiving such notice the indemnifying party
gives written notice to the indemnified party stating that (i) it would be
liable under the provisions hereof for indemnity in the amount of such claim,
liability or expense if such claim were successful and (ii) that it disputes and
intends to defend against such claim, liability or expense at its own cost and
expense, then counsel for the defense shall be selected by the indemnifying
party (subject to the consent of the indemnified party which consent shall not
be unreasonably withheld) and the indemnified party shall not be required to
make any payment with respect to such claim, liability or expense as long as the
indemnifying party is conducting a good faith and diligent defense at
38
its own expense; PROVIDED, HOWEVER, that the assumption of defense of any such
matters by the indemnifying party shall relate solely to the claim, liability or
expense that is subject or potentially subject to indemnification, and provided
further that prior to such assumption of defense the indemnifying party shall
enter into an agreement with the indemnified party in form and substance
satisfactory to the indemnified party pursuant to which the indemnifying party
agrees to pay and perform, to the extent provided in this Article IX, any
liability or obligation which may arise out of or in any way relating to such
claim, liability or expense or the facts giving rise thereto and provides to the
indemnified party evidence satisfactory to the indemnified party of the
indemnifying party's ability to pay in full any amount which may be payable with
respect to such claim, liability or expense or the facts giving rise thereto.
The indemnifying party shall have the right, with the consent of the indemnified
party, which consent shall not be unreasonably withheld, to settle all
indemnifiable matters related to claims by third parties which are susceptible
to being settled provided its obligation to indemnify the indemnifying party
therefor will be fully satisfied. The indemnifying party shall keep the
indemnified party apprised of the status of the claim, liability or expense and
any resulting suit, proceeding or enforcement action, shall furnish the
indemnified party with all documents and information that the indemnified party
shall reasonably request and shall consult with the indemnified party prior to
acting on major matters, including settlement discussions. Notwithstanding
anything herein stated to the contrary, the indemnified party shall at all times
have the right to fully participate in such defense at its own expense directly
or through counsel; PROVIDED, HOWEVER, if the named parties to the action or
proceeding include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate under
applicable standards of professional conduct, the expense of separate counsel
for the indemnified party shall be paid by the indemnifying party provided that
such counsel is selected by the indemnifying party and such counsel is
reasonably acceptable to the indemnified party. If no such notice of intent to
dispute and defend is given by the indemnifying party, or if such defense is not
being or ceases to be conducted, the indemnified party shall, at the reasonable
expense of the indemnifying party, undertake the defense of (with counsel
selected by the indemnified party), and shall have the right to compromise or
settle (exercising reasonable business judgment), such claim, liability or
expense. If such claim, liability or expense is one that by its nature cannot be
defended solely by the indemnifying party, then the indemnified party shall make
available all information and assistance that the indemnifying party may
reasonably request and shall cooperate with the indemnifying party in such
defense.
Section 9.06 SATISFACTION OF INDEMNIFICATION OBLIGATIONS. Any indemnity
payable pursuant to this Article IX shall be paid within fifteen (15) business
days after the indemnified party's request therefor and after final unappealable
determination of liability so provided for in this Article IX, or, with respect
to a settlement, upon final settlement. Any party may recover the amount of any
indemnification claim under this Article IX through offset against amounts
otherwise owed or post-closing adjustments pursuant to Article I.
Section 9.07 SATISFACTION OF PRINCIPAL STOCKHOLDER INDEMNIFICATION
OBLIGATIONS. In order to satisfy the indemnification obligations of the
Principal Stockholders pursuant to Section 9.02 above, a Buyer Indemnified Party
first proceed directly against the Escrow Amount as further set forth in the
Escrow Agreement.
39
Section 9.08 EXCLUSIVE REMEDY. Except for Losses described in Section
9.03(d), the indemnification of Buyer Indemnified Parties in this Article IX
shall be without personal liability of or personal recourse against any
director, officer or other agent of NCE, or any stockholder of NCE, and the sole
and exclusive remedy and recourse of Buyer Indemnified Parties against any such
person for any breach of any representation, warranty or covenant hereunder or
otherwise shall be against the Escrow Fund. With respect to Losses described in
Section 9.03(d), Buyer Indemnified Parties shall be entitled to recover damages
in excess of the Escrow Amount up to, but not exceeding, the actual amount of
Merger Consideration received by the Indemnifying Party.
Section 9.09 RECOVERIES. The amount of any Losses required to be paid by
any indemnifying party shall be reduced by the amount of any insurance proceeds
received by the indemnified party.
ARTICLE X MISCELLANEOUS
Section 10.01 FEES AND EXPENSES. Except as set forth herein, each of the
parties will bear its own expenses in connection with the negotiation and the
consummation of the transactions contemplated by this Agreement, including,
without limitation, any broker's commissions or finder's fees incurred by NCE or
any Principal Stockholder and all attorneys' and accountants' fees; provided
that NCE shall not pay or accrue in excess of $200,000 of expenses in connection
with the transactions contemplated hereby.
Section 10.02 GOVERNING LAW. This Agreement shall be construed under and
governed by the internal laws of the State of Delaware without regard to its
conflict of laws provisions. The parties hereto hereby irrevocably and
unconditionally consent to the exclusive jurisdiction of the courts of the State
of Delaware and the United States District Court for the District of Delaware
for any action, suit or proceeding arising out of or relating to this Agreement
and the transaction contemplated hereby, and agree not to commence any such
action, suit or proceeding except in such courts. The parties hereto further
hereby irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit or proceeding arising out of or relating to this
Agreement and the transaction contemplated hereby in courts referenced in this
Section 10.02 under the applicable circumstances, and hereby further irrevocably
and unconditionally waive and agree not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Each of the parties hereto further agrees that service
of any process, summons, notice or document by U.S. registered mail to its
address set forth herein shall be effective service of process for any action,
suit or proceeding brought against it in any such court.
Section 10.03 NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered or sent by facsimile transmission, upon receipt, if sent
by overnight courier, upon the day following the day sent, or if sent by
registered or certified mail, upon the sooner of the date on which receipt is
acknowledged or the expiration of three days after deposit in United States Post
Office facilities properly addressed with postage prepaid. All notices to a
party will be sent to the addresses set forth below or to such other address or
person as such party may designate by notice to each other party hereunder:
40
To AMRI: Albany Molecular Research, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile: 000-000-0000
with a copy to: Xxxxxxx, Procter & Xxxx LLP
Exchange Place
Boston, Massachusetts 02109-2881
Attention: Xxxxxx X. Cable, P.C.
Xxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
To NCE: New Chemical Entities, Inc.
00000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxxx
Facsimile: 000-000-0000
with a copy to: Mintz Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: 617-542-2241
Any notice given hereunder may be given on behalf of any party by his counsel or
other authorized representatives.
Section 10.04 ENTIRE AGREEMENT. This Agreement, including the Schedules and
Exhibits referred to herein and the other writings specifically identified
herein or contemplated hereby, is complete, reflects the entire agreement of the
parties with respect to its subject matter, and supersedes all previous written
or oral negotiations, commitments and writings. No promises, representations,
understandings, warranties and agreements have been made by any of the parties
hereto except as referred to herein or in such Schedules and Exhibits or in such
other writings; and all inducements to the making of this Agreement relied upon
by either party hereto have been expressed herein or in such Schedules or
Exhibits or in such other writings.
Section 10.05 ASSIGNABILITY; BINDING EFFECT. Prior to the Closing, this
Agreement shall only be assignable by AMRI to a corporation, partnership or
limited liability company controlling, controlled by or under common control
with AMRI upon written notice to NCE and no such assignment shall release AMRI
of its obligations hereunder. After the Closing, AMRI's rights and obligations
hereunder shall be freely assignable. This Agreement may not be assigned by NCE
or any of the Principal Stockholders without the prior written consent of AMRI.
This Agreement shall be binding upon and enforceable by, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
41
Section 10.06 CAPTIONS AND GENDER. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun in
reference to a party hereto shall be deemed to include the feminine or neuter,
as the context may require.
Section 10.07 EXECUTION IN COUNTERPARTS. For the convenience of the parties
and to facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
Section 10.08 AMENDMENTS. This Agreement may not be amended or modified,
nor may compliance with any condition or covenant set forth herein be waived,
except by a writing duly and validly executed by each party hereto, or in the
case of a waiver, the party waiving compliance.
Section 10.09 PUBLICITY AND DISCLOSURES. Except as may be otherwise
required by law, no press releases or public disclosure, either written or oral,
of the transactions contemplated by this Agreement, shall be made by a party to
this Agreement without the prior knowledge and written consent of AMRI and NCE.
Section 10.10 DISPUTE RESOLUTION.
(a) All disputes, claims, or controversies arising out of or relating
to this Agreement, or any other agreement executed and delivered pursuant to
this Agreement, or the negotiation, validity or performance hereof and thereof
or the transactions contemplated hereby and thereby, that are not resolved by
mutual agreement shall be resolved solely and exclusively by binding arbitration
to be conducted before J.A.M.S./Endispute, Inc. or its successor or other
dispute resolution firm mutually acceptable to the parties. The parties
understand and agree that this arbitration provision shall apply equally to
claims of fraud or fraud in the inducement. The arbitration shall be held in New
York, New York before a single arbitrator and shall be conducted in accordance
with the rules and regulations promulgated by J.A.M.S./Endispute, Inc. unless
specifically modified herein.
(b) The parties covenant and agree that the arbitration shall commence
within one hundred twenty (120) days of the date on which a written demand for
arbitration is filed by any party hereto. In connection with the arbitration
proceeding, the arbitrator shall have the power to order the production of
documents by each party and any third-party witnesses. In addition, each party
may take up to three depositions as of right, and the arbitrator may in his or
her discretion allow additional depositions upon good cause shown by the moving
party. However, the arbitrator shall not have the power to order the answering
of interrogatories or the response to requests for admission. In connection with
any arbitration, each party shall provide to the other, no later than fourteen
(14) business days before the date of the arbitration, the identity of all
persons that may testify at the arbitration, a copy of all documents that may be
introduced at the arbitration or considered or used by a party's witness or
expert, and a summary of the expert's opinions and the basis for said opinions.
The arbitrator's decision and award shall be made and delivered within sixty
(60) days of the conclusion of the arbitration. The arbitrator's decision shall
set forth a reasoned basis for any award of damages or finding of liability. The
arbitrator shall not have power to award damages in excess of actual
compensatory
42
damages and shall not multiply actual damages or award punitive damages or any
other damages that are specifically excluded under this Agreement, and each
party hereby irrevocably waives any claim to such damages.
(c) The parties covenant and agree that they will participate in the
arbitration in good faith and that they will share equally its costs, except as
otherwise provided herein. The arbitrator may in his or her discretion assess
costs and expenses (including the reasonable legal fees and expenses of the
prevailing party) against any party to a proceeding. Any party unsuccessfully
refusing to comply with an order of the arbitrators shall be liable for costs
and expenses, including attorneys' fees, incurred by the other party in
enforcing the award. This Section 10.10 applies equally to requests for
temporary, preliminary or permanent injunctive relief, except that in the case
of temporary or preliminary injunctive relief any party may proceed in court
without prior arbitration for the limited purpose of avoiding immediate and
irreparable harm. The provisions of this Section 10.10 shall be enforceable in
any court of competent jurisdiction.
(d) Subject to the second sentence of the immediately preceding
paragraph, the parties shall bear their own attorneys' fees, costs and expenses
in connection with the arbitration. The parties will share equally in the fees
and expenses charged by J.A.M.S.
(e) Each of the parties hereto irrevocably and unconditionally consents
to the exclusive jurisdiction of J.A.M.S./Endispute, Inc. to resolve all
disputes, claims or controversies arising out of or relating to this Agreement
or any other agreement executed and delivered pursuant to this Agreement or the
negotiation, validity or performance hereof and thereof or the transactions
contemplated hereby and thereby and further consents to the jurisdiction of the
courts of New York for the purposes of enforcing the arbitration provisions of
Section 10.10(a) of this Agreement. Each party further irrevocably waives any
objection to proceeding before J.A.M.S./Endispute, Inc. based upon lack of
personal jurisdiction or to the laying of venue and further irrevocably and
unconditionally waives and agrees not to make a claim in any court that
arbitration before J.A.M.S./Endispute, Inc. has been brought in an inconvenient
forum. Each of the parties hereto hereby consents to service of process by
registered mail at the address to which notices are to be given. Each of the
parties hereto agrees that its or his submission to jurisdiction and its or his
consent to service of process by mail is made for the express benefit of the
other parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
AMRI: ALBANY MOLECULAR RESEARCH, INC.
By:
---------------------------------------------
Name: Xxxxxx X. X'Xxxxx, Ph.D.
Title: Chairman and Chief Executive Officer
ACQUISITION: NCE ACQUISITION CORP.
By:
---------------------------------------------
Name: Xxxxxx X. X'Xxxxx, Ph.D.
Title: Chairman and Chief Executive Officer
44
NCE: NEW CHEMICAL ENTITIES, INC.
By:
--------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman and Chief Executive Officer
PRINCIPAL STOCKHOLDERS:
-----------------------------------------------
[Name]
-----------------------------------------------
[Name]
-----------------------------------------------
[Name]
45
SCHEDULE 9.02(f)
1. The amount of any accounts receivable on the balance sheet as of the
Closing Date that remains uncollected one year after the Closing Date.
46
