ASSET PURCHASE AGREEMENT
between
BIOSEARCH MEDICAL PRODUCTS, INC., Seller,
and
X.X. XXXX, INC., Purchaser
--------------------------------
Dated: February 25, 1999
--------------------------------
TABLE OF CONTENTS
Page
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ARTICLE I
PURCHASE AND SALE ......................................................... 1
1.1 Purchased Assets .............................................. 1
1.2 No Assumed Liabilities ........................................ 2
1.3 Purchase Price ................................................ 2
1.4 Payment of Purchase Price ..................................... 2
1.5 Allocation of Purchase Price .................................. 3
1.6 The Closing ................................................... 3
1.7 Sales and Transfer Taxes and Fees ............................. 4
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER .................................. 4
2.1 Due Organization; Good Standing ............................... 4
2.2 Corporate Authorization; Binding Effect ....................... 5
2.3 Absence of Default; Non-Contravention; No Liens ............... 6
2.4 Fixed Assets .................................................. 7
2.5 Real Property Lease ........................................... 7
2.6 Litigation .................................................... 8
2.7 Compliance with Laws .......................................... 8
2.8 Environmental Matters ......................................... 9
2.9 Third Party and Governmental Consents ......................... 9
2.10 Trademarks, Copyrights, etc. .................................. 10
2.11 Product Liability ............................................. 11
2.12 Disclosure .................................................... 12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER ............................... 13
3.1 Due Organization; Good Standing ............................... 13
3.2 Corporate Authorization; Binding Effect ....................... 14
3.3 No Breach ..................................................... 15
ARTICLE IV
COVENANTS AND OTHER AGREEMENTS ............................................ 15
4.1 Risk of Loss; Casualty ........................................ 15
4.2 Covenants of Seller ........................................... 16
4.3 Access to Property and Records ................................ 18
4.4 Material Events ............................................... 18
4.6 Public Announcements .......................................... 18
4.7 Indemnification ............................................... 20
4.8 Other Rights and Remedies Not Affected ........................ 24
4.9 Survival of Representations and Warranties .................... 25
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TABLE OF CONTENTS
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4.10 Termination ................................................... 25
4.11 Confidentiality ............................................... 26
4.12 Other Negotiations ............................................ 27
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING ........................................... 27
5.1 Conditions Precedent to Purchaser's Obligations ............... 27
5.2 Conditions Precedent to Seller's Obligations .................. 30
ARTICLE VI
MISCELLANEOUS ............................................................. 33
6.1 Entire Understanding; Amendment ............................... 33
6.2 Confidentiality ............................................... 33
6.3 Further Assurances ............................................ 33
6.4 Binding Effect ................................................ 34
6.5 Assignment .................................................... 34
6.6 Waiver ........................................................ 34
6.7 Counterparts .................................................. 34
6.8 Section Headings; Exhibits; Schedules ......................... 34
6.9 Governing Law ................................................. 35
6.10 Notices ....................................................... 35
6.11 Expenses ...................................................... 36
6.12 Certificates as Representations ............................... 36
6.13 Interpretation ................................................ 36
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ASSET PURCHASE AGREEMENT
AGREEMENT made this 25th day of February, 1999 between BIOSEARCH MEDICAL
PRODUCTS, INC., a New Jersey corporation, having its principal place of business
at 00X Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000 ("Seller"), and
X.X. XXXX, INC., a New Jersey corporation, having its principal place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 ("Purchaser")
WHEREAS, Seller, among other things, is engaged in the business of
manufacturing coatings, manufacturing and coating medical products, and
providing other related services with respect to coatings and medical products;
and
WHEREAS, Seller is the owner of certain technology, know-how and equipment
having utility for dipping intermittent urological catheters in hydrophilic
coating; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase such
technology, know-how and equipment of Seller, upon the terms and subject to the
conditions herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein; the parties agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchased Assets. Subject to the terms and conditions set forth in
this Agreement, Seller hereby agrees to sell, assign, transfer and deliver to
Purchaser, and Purchaser hereby agrees to purchase from Seller, on the Closing
Date, the following assets,
rights and interests of Seller (collectively, the "Purchased Assets"), free and
clear of all liens and encumbrances:
(a) The equipment and other fixed assets listed in Schedule 1.1(a),
which is attached hereto and incorporated herein (collectively, the "Fixed
Assets");
(b) All technology, trade secrets, patent applications, issued
patents, know-how, manufacturing processes and procedures, formulae, quality
control procedures, test procedures, specifications, protocols, drawings,
designs and other proprietary information relating to Seller's methods of
applying hydrophilic coatings to intermittent urological catheters in existence
on the date hereof or hereafter invented or acquired by Seller (collectively,
the "Methods").
1.2 No Assumed Liabilities. Purchaser shall assume no obligations or
liabilities of Seller whatsoever, whether known or unknown, matured or
unmatured, absolute or contingent, whether relating to the Purchased Assets or
otherwise.
1.3 Purchase Price. In consideration of the transfer of the Purchased
Assets as provided herein, Purchaser shall pay to Seller a purchase price equal
to Six Hundred Fifty Thousand Dollars ($650,000) (the "Purchase Price").
1.4 Payment of Purchase Price. The Purchase Price shall be paid by
Purchaser to Seller as follows: (a) $200,000, which has been paid and the
receipt of which is hereby acknowledged by Seller pursuant to the Standstill
Letter Agreement between the parties dated August 14, 1998, as amended; and (b)
$450,000 to be paid at
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Closing by Purchaser to Seller by wire transfer of immediately available funds
to a bank designated in writing by Seller.
1.5 Allocation of Purchase Price. The Purchase Price for the Purchased
Assets shall be allocated to the Purchased Assets (the "Purchase Price
Allocation") as follows: (a) Methods: $400,000; (b) Fixed Assets: $250,000.
Seller and Purchaser each agree to timely file or cause to be filed Internal
Revenue Service Form 8594 with the Internal Revenue Service for the taxable year
that includes the Closing Date, in accordance with the requirements of Section
1060 of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder. Seller and Purchaser shall allocate the Purchase Price
on Form 8594 consistently with the Purchase Price Allocation.
1.6 The Closing. The closing of the transactions contemplated hereby (the
"Closing") shall take place at 12:00 p.m. on the 25th day of February, 1999,
unless mutually agreed to otherwise by the parties, at the offices of Xxxxxxx &
Xxxxxx, P.C., 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000. The time and
date of the Closing is referred to in this Agreement as the "Closing Date". The
transfer, assignment and delivery of the Purchased Assets shall be effected by a
xxxx of sale and assignment substantially in the form attached hereto as Exhibit
A, which is attached hereto and incorporated herein (the "Xxxx of Sale and
Assignment") and such other assignments and instruments of transfer, in form and
substance reasonably acceptable to Purchaser
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and its counsel, sufficient to transfer the Purchased Assets to Purchaser.
1.7 Sales and Transfer Taxes. All applicable sales, transfer, use and
similar taxes that may be due or payable as a result of the assignment, transfer
or delivery of the Purchased Assets to Purchaser shall be borne solely by
Purchaser. Purchaser shall pay all such taxes, if any, in a prompt and timely
manner and shall provide Seller with written notice of such payment(s), if any,
promptly after said payments are made.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser, knowing and intending that
Purchaser is relying thereon in entering into the transactions contemplated
hereby, as follows:
2.1 Due Organization; Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey and has the power and authority to carry on its business as now
conducted, to own and operate the properties and assets now owned and operated
by it and to enter into and perform this Agreement. Seller is duly qualified to
do business and is in good standing in all jurisdictions where such
qualification is required.
2.2 Corporate Authorization; Binding Effect.
(a) The execution, delivery and performance of this Agreement by
Seller, and the transfers, assignments, deliveries and execution, delivery and
performance of all other agreements to be
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executed by Seller pursuant hereto or in connection herewith, have been duly
authorized by the Board of Directors of Seller, and no other corporate
proceedings and no further action is necessary on the part of Seller to execute,
deliver and perform this Agreement or any other agreement, document or
instrument to be executed by Seller pursuant hereto or in connection herewith.
(b) This Agreement is a valid and legally binding obligation of
Seller, enforceable against Seller in accordance with its terms, and each
agreement, document and instrument contemplated by this Agreement, when executed
and delivered by Seller in accordance with the provisions of this Agreement,
will be duly authorized, executed and delivered by Seller and will be valid and
legally binding obligations of Seller, enforceable against Seller in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors rights generally or by the
application of general principles of equity.
2.3 Absence of Default; Non-Contravention; No Liens.
(a) Seller: (i) is not in default under or in violation of any
provision of its Articles of Incorporation or By-Laws, (ii) is not in default
under or in violation of any agreement material to the Purchased Assets or the
Facility (as hereinafter defined), and (iii) has not received any notice that it
is in violation of any law, ordinance, rule, regulation or directive pertaining
or relating to any of the Purchased Assets or the Facility.
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(b) Neither the execution nor delivery of this Agreement or any
other agreement, document or instrument to be executed and delivered by Seller
pursuant hereto or in connection herewith, nor the fulfillment of nor the
compliance with the terms and provisions hereof or thereof, nor the consummation
of the transactions contemplated hereby or thereby, will: (i) result in a breach
of any term, condition or provision of, or constitute a default under, or result
in a violation or termination of, or conflict with or give any third party the
right to accelerate the performance provided by the terms of, (a) the Articles
of Incorporation or By-Laws of Seller, or (b) any contract or agreement related
to any of the Purchased Assets or the Facility to which Seller is a party or by
which it or any of the Purchased Assets or the Facility is bound, (ii) violate
any provision of any law, rule, regulation, order, judgment or decree to which
any of the Purchased Assets or the Facility are subject or bound, or (iii)
result in the creation or imposition of any lien, charge, restriction, security
interest or encumbrance of any nature whatsoever on any of the Purchased Assets
or the Facility.
2.4 Fixed Assets. The Fixed Assets, including all of their components and
parts, are in good operating condition, subject to ordinary wear and tear, and
perform in accordance with their applicable specifications. Except for the liens
described in Schedule 2.4 which is attached hereto and incorporated herein, each
of which will be released on or prior to the Closing Date, Seller has good and
marketable title to all of the Purchased Assets, free
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and clear of all liens, charges, claims and encumbrances. All of the Fixed
Assets are located at the Seller's leased facility located at 00X Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx (the "Facility").
2.5 Real Property Lease. Seller leases the Facility from Hydromer, Inc., a
New Jersey corporation, having its principal place of business at 00 Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Hydromer") pursuant to a Lease dated
June 12, 1998 (the "Real Property Lease"). Neither Seller nor Hydromer is in
default under or in breach of any provision of the Real Property Lease. There
exists no condition or event which, after notice or lapse of time or both, would
constitute a default by Seller or Hydromer under the Real Property Lease. Seller
has not received any notice of violation of any applicable building, zoning or
planning regulation, ordinance or other law, order, regulation or requirement
relating to the Fixed Assets or the Facility. Seller has no knowledge of any
defect or defects with respect to the Facility which would interfere with the
continued use of the Facility for the purpose of operating the Fixed Assets
under the equipment lease, which is attached hereto and incorporated herein as
Exhibit B (the "Equipment Lease") in the manner operated heretofore by Seller.
Seller's interest in the Real Property Lease is free and clear of all liens,
charges, claims and encumbrances. Seller has supplied Purchaser with a true and
correct copy of the Real Property Lease.
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2.6 Litigation. Except as set forth in Schedule 2.6 which is attached
hereto and incorporated herein, there are no claims, actions, suits, proceedings
or investigations pending or, to the best knowledge of Seller, threatened
against or affecting Seller or any of the Purchased Assets or the Facility, at
law or in equity, before or by any Federal, State, municipal or other court,
governmental department, commission, board, agency or instrumentality, and
Seller does not know of any basis for any of the foregoing. There is no order,
writ, injunction or decree of any court or any Federal, State, municipal or
local agency or instrumentality affecting Seller or any of the Purchased Assets
or the Facility to which Seller is subject or by which any of the Purchased
Assets or the Facility is subject or bound.
2.7 Compliance with Laws. Seller has, and on the Closing Date will have,
complied in all material respects with all laws, ordinances, rules, regulations
and directives of any and all Federal, State, county, city and other
governments, governmental departments, bureaus, agencies and other bodies, and
any and all public authorities whatsoever pertaining or relating to the
Purchased Assets and the Facility.
2.8 Environmental Matters. No governmental agency has asserted any claim
or, to the best knowledge of Seller, threatened to assert any claim against
Seller in respect of any of the Purchased Assets or the Facility arising out of
any Federal, state or local law, rule, regulation or directive pertaining to the
environment ("Environmental Claim"). To the best knowledge of
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Seller, after due inquiry, there are no past or present actions, activities,
circumstances, conditions, offenses, or incidences, including, without
limitation, the release, emission, discharge or disposal of hazardous materials,
that could form the basis of any Environmental Claim against Seller related to
any of the Purchased Assets or the Facility.
2.9 Third Party and Governmental Consents. Except as described in Schedule
2.9, which is attached hereto and incorporated herein, no consent,
authorization, approval, order, license, certificate or permit of or from, or
registration, declaration or filing with, any governmental authority or any
court or other tribunal or any other person, firm or entity, nor under any
contract, indenture, mortgage, lease, (including the Real Property Lease),
license or other agreement or instrument to which Seller is a party or by which
Seller or any of its assets or properties is subject or bound, is required by or
with respect to Seller in connection with the execution, delivery or performance
of this Agreement or of any other agreement, document or instrument to be
executed and delivered by Seller pursuant hereto or in connection herewith or
the consummation of the transactions contemplated hereby.
2.10 Trademarks, Copyrights, etc. Seller does not use or hold for use with
any of the Purchased Assets any patents, patent applications, copyrights,
copyright registrations or applications therefor, trademarks, trademark
registrations or applications therefor, tradenames, service marks, logos or
other identifying
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symbols, names or marks. All Methods in existence on the date hereof are
contained in Seller's internal file No. MOD 3276 which is incorporated herein by
reference. All of the technology, trade secrets, know-how, manufacturing
processes and procedures, formulae, quality control procedures, test procedures,
specifications, protocols, drawings, designs and other intellectual property
used or held for use by Seller in connection with any of the Purchased Assets
have been reduced to writing or other tangible form and are complete and include
all information and rights necessary for the use and operation of the Methods
and Fixed Assets in the manner operated heretofore by Seller. Other than filing
for patent protection, Seller has protected to the fullest extent permitted by
law all of the Methods. No proceedings are pending and no claim has been made
or, to the best knowledge of Seller, threatened which challenges the rights of
Seller in respect of any of the Methods or Seller's right to use the same. None
of the Methods infringe upon or otherwise violate the rights of others, is being
infringed by others, or is subject to any outstanding order, decree, judgment or
stipulation.
2.11 Product Liability. Except to the extent disclosed on Schedule
2.11(a), which is attached hereto and incorporated herein, (a) there have been
no claims or complaints, and there are no claims or complaints existing or, to
the best knowledge of Seller, threatened against Seller or other parties for
product liability in respect of any product developed, manufactured, sold or
distributed at any time by Seller or any predecessor of Seller or predecessor
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owner of any of the Purchased Assets, including any claim on account of any
express or implied warranty, except for normal returns and allowances, and
Seller does not know and has no reasonable grounds to know of any basis for
assertion against Seller or other parties of any such claim or complaint. Seller
has had no recalls of any of its products, whether voluntary or ordered by
governmental authorities, and does not know and has no reasonable grounds to
know of any basis for any such recall. Seller has promptly and adequately
notified its insurance carriers of any and all claims or complaints with respect
to its products for which Seller is insured.
(b) Schedule 2.11(b), which is attached hereto and incorporated
herein, lists each policy of insurance covering product liability maintained by
Seller, including the identity of each underwriter, the amount of coverage and
the term and limits of the liability thereunder. All of such policies are in
full force and effect and provide adequate coverage for Seller's benefit and
against all risks relating to product liability claims usually insured against
by persons owning or operating properties or businesses similar to those of
Seller. Seller shall provide copies of such policies to Purchaser promptly upon
Purchaser's written request.
2.12 No Broker. Neither Seller nor any agent on Seller's behalf has
employed any broker or finder in connection with this Agreement or any of the
transactions contemplated hereby including any agreement set forth on any
Exhibit hereto.
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2.13 Disclosure. No representation or warranty of Seller contained in this
Agreement or any other agreement, document or instrument to be executed and
delivered by Seller pursuant hereto or in connection herewith is untrue or omits
to state a material fact necessary in order to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading. Except for changes in the ordinary course of business and those
contemplated by this Agreement, the representations, warranties and covenants of
Seller contained in this Agreement shall be deemed made again at Closing and as
of the Closing Date. All documents provided to Purchaser by Seller are true and
correct copies of the documents which they purport to represent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby warrants and represents to Seller, knowing and intending
that Seller is relying thereon in entering into the transactions contemplated
hereby, as follows:
3.1 Due Organization; Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey and has the corporate power and authority to carry on its business as
now conducted, to own and operate the properties and assets now owned and
operated by it and to enter into and perform this Agreement.
3.2 Corporate Authorization; Binding Effect.
(a) The execution, delivery and performance of this Agreement by
Purchaser, and the execution, delivery and performance
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of all other agreements to be executed by Purchaser pursuant thereto or in
connection therewith have been duly authorized by all necessary corporate action
on the part of Purchaser and no other corporate proceedings and no further
action is necessary on the part of Purchaser to authorize this Agreement or any
other agreement, document or instrument to be executed by Purchaser pursuant
hereto. No consent or approval of any other person to the consummation of any of
the transactions contemplated hereby by Purchaser is required.
(b) This Agreement is a valid and legally binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, and each
agreement, document and instrument contemplated by this Agreement, when executed
and delivered by Purchaser in accordance with the provisions of this Agreement,
will be duly authorized, executed and delivered by Purchaser and will be a valid
and legally binding obligation of Purchaser, enforceable against Purchaser in
accordance with its respective terms, except as such enforceability may. be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors rights generally or by
the application of general principles of equity.
3.3 No Breach. The execution, delivery and performance by Purchaser of
this Agreement will not conflict with or result in a breach of any of the terms,
conditions or provisions of Purchaser's Certificate of Incorporation or By-Laws
or any contract or agreement to which Purchaser is a party and by which it is
bound,
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and does not contravene any law, rule, regulation or order applicable to
Purchaser.
3.4 No Broker. Neither Purchaser nor any agent on Purchaser's behalf has
employed any broker or finder in connection with this Agreement or any of the
transactions contemplated hereby including any agreement set forth on any
Exhibit hereto.
ARTICLE IV
COVENANTS AND OTHER AGREEMENTS
4.1 Risk of Loss; Casualty. Until the Closing Date, the risk of loss or
damage to any of the Purchased Assets by fire or other casualty or any cause
whatsoever shall be upon Seller. In the event of damage or destruction or loss
to the extent of more than twenty percent (20%) of the aggregate fair market
value of the Purchased Assets, computed as of the Closing Date, as a result of
fire or other elements, or other casualty or any cause whatsoever, whether or
not beyond any party's control, Purchaser shall have the right to terminate this
Agreement by serving upon Seller, on or before the Closing Date, written notice
of its election to terminate. Seller agrees to give Purchaser written notice of
any damage or destruction to any of the Purchased Assets with full details of
the nature and extent thereof, and Purchaser shall have an opportunity to review
the extent of such damage and destruction. If Purchaser shall not elect in a
writing delivered to Seller to terminate this Agreement or in the event of any
destruction or damage or loss not giving rise to any right in Purchaser to
terminate this Agreement, this Agreement shall remain in full force
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and effect and all insurance proceeds payable with respect to any damaged or
destroyed or lost property, which property would have been purchased by
Purchaser hereunder on the Closing Date, shall be payable to Purchaser on the
later of the Closing Date or when received from the insurance carrier by Seller.
4.2 Covenants of Seller. During the period commencing on the date hereof
and continuing until the Closing, Seller covenants and agrees (except to the
extent that Purchaser shall otherwise expressly consent in writing) that:
(a) Seller will carry on its business at the Facility only in the
ordinary course in substantially the same manner as heretofore conducted.
(b) Seller will comply promptly with all requirements of Federal,
State or local law with respect to the transactions contemplated hereby and will
cooperate with and furnish information to Purchaser in connection with any such
requirements imposed upon Purchaser in connection with the transactions
contemplated hereby.
(c) Seller will obtain (and cooperate with Purchaser in obtaining)
any consent, authorization or approval of, or any exemption by, any governmental
authority or agency, or other third party, required to be obtained or made in
connection with the transactions contemplated hereby provided, however, that
Seller shall not be deemed in breach of its covenant under this Section 4.2(c)
with respect to any required consent or authorization required under the
Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., as amended, and its
attendant regulations ("ISPA") if
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Seller uses its best efforts to obtain such ISRA consent or authorization but,
despite such best efforts, fails to obtain the same on or prior to the Closing
Date.
(d) Seller will not lease, mortgage, pledge or encumber in any way
whatsoever any of the Purchased Assets or its interest as the lessee under the
Real Property Lease.
(e) Seller will not sell, assign, license, transfer or otherwise
dispose of any of the Purchased Assets.
(f) Seller will not terminate or amend the Real Property Lease.
(g) Seller will promptly advise Purchaser orally and in writing of
any change in its business which is or may reasonably be expected to be adverse
to any of the Purchased Assets or the Facility.
(h) Seller will not take, agree to take, or knowingly permit to be
taken any action or do or knowingly permit to be done anything in the conduct of
its business which would be contrary to or in breach of any of the terms or
provisions of this Agreement or the Real Property Lease, or which would cause
any of the representations of Seller contained herein to be or become untrue in
any material respect.
(i) If any action, suit, proceeding or investigation of the nature
specified in Section 5.1(f) hereof is commenced, Seller agrees to cooperate with
Purchaser and to use its best efforts to defend against and respond thereto.
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4.3 Access to Property and Records. At all times prior to the Closing,
Seller shall afford the officers and authorized representatives of Purchaser,
during normal business hours and upon reasonable notice, full access to the
Purchased Assets and the Facility and to such of the books and records of Seller
related to the Purchased Assets and the Facility as Purchaser shall reasonably
request. Purchaser hereby acknowledges and agrees that all information and data
disclosed to or observed by Purchaser as a result of such access shall be
subject to the provisions of Section 6.2 hereof.
4.4 Material Events. At all times prior to the Closing, Seller shall
promptly notify Purchaser in writing of the occurrence of any event which will
or may result in the failure to satisfy the conditions specified in Section 5.1
hereof.
4.5 Public Announcements. Neither Seller nor Purchaser shall issue or
permit to be issued any press release, public announcement or other information
with respect to this Agreement or the transactions contemplated hereby, without
the express prior written consent of the other party, except as may be required
by applicable securities or other laws. In the event any such disclosure is
required by applicable law, the disclosing party shall provide the
non-disclosing party with a copy of the proposed release not less than two (2)
business days prior to its proposed release and shall provide the non-disclosing
party with the opportunity to comment on the substance thereof.
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4.6 Indemnification.
(a) Seller hereby agrees to defend (utilizing counsel selected by
Seller that is reasonably acceptable to Purchaser), indemnify and hold
Purchaser, its officers, directors, and employees harmless from and against any
and all liabilities, losses, damages, costs or expenses (including, without
limitation, reasonable attorneys' and accountants' fees and expenses, court
costs and all other out-of-pocket expenses) directly or indirectly incurred by
such persons or entities arising out of or in connection with: (i) the breach of
any warranty or the inaccuracy of any representation by Seller contained in this
Agreement or in any Exhibit or Schedule hereto or in any agreement, instrument,
certificate or other document executed by or on behalf of Seller in connection
herewith, and (ii) any failure by Seller to perform any of the covenants,
agreements or obligations under this Agreement or any other agreement or
instrument executed and delivered by or on behalf of Seller pursuant hereto or
in connection herewith, and (iii) the assertion against Purchaser or any of its
officers, directors, or employees of any claim, liability or obligation relating
to or arising out of the business, operations or assets of Seller, whether
incurred before or after the Closing Date. The indemnification obligations of
Seller herein shall survive the Closing.
(b) Purchaser hereby agrees to defend (utilizing counsel selected by
Purchaser that is reasonably acceptable to Seller), indemnify and hold Seller
and its officers, directors, and
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employees harmless, from and against any and all liabilities, losses, damages,
costs or expenses (including, without limitation, reasonable attorneys' fees and
expenses, court costs and all other out-of-pocket expenses) directly or
indirectly incurred by such persons or entities arising out of or in connection
with: (i) the breach of any warranty or the inaccuracy of any representation by
Purchaser contained in this Agreement or in any Exhibit or Schedule hereto or in
any agreement, instrument, certificate or other document executed by or on
behalf of Purchaser in connection herewith, and (ii) any failure by Purchaser to
perform any of the covenants, agreements or obligations under this Agreement or
any other agreement or instrument executed and delivered by or on behalf of
Purchaser pursuant hereto or in connection herewith. The indemnification
obligations of Purchaser herein shall survive the Closing.
(c) Within thirty (30) days after Purchaser or Seller, as the case
may be (hereinafter the "Indemnified Party"), has received notice of or has
acquired knowledge of any claim by any person or entity not a party to this
Agreement of the commencement or threatened commencement of any action or
proceeding by any person or entity not a party to this Agreement ("third party
claim") or has acquired knowledge of any other claim hereunder against the other
party hereto ("first party claim) the Indemnified Party shall, if such claim is
indemnifiable by the other party pursuant hereto (hereinafter the "Indemnifying
Party"), give the Indemnifying Party written notice of such claim and the
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commencement or threatened commencement of such action or proceeding, if
any. Such notice shall state the nature and basis of such claim and, if
ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of
the Indemnified Party to give such notice shall not excuse the Indemnifying
Party's obligation to indemnify and, in the case of a third party claim, defend
the Indemnified Party, except to the extent the Indemnifying Party has suffered
damage or prejudice by reason of the Indemnified Party's failure to give or
delay in giving such notice. Within ten (10) business days of receipt of any
notice issued by the Indemnified Party pursuant to this Section 4.6(c), the
Indemnifying Party shall notify the Indemnified Party whether the Indemnifying
Party acknowledges its indemnification obligation and, in the case of a third
party claim, its defense obligation with respect to the claim which was the
subject of the Indemnified Party's notice or whether it disclaims such
obligation(s). In the event the Indemnifying Party disclaims or fails to timely
acknowledge its obligations with respect to any claim by the Indemnified Party
relating to any third party claim, the Indemnified Party shall have the right to
defend such claim, with counsel of its own selection, and compromise such claim
without prejudice to its right to indemnification hereunder. In the event the
Indemnifying Party timely acknowledges its obligations hereunder with respect to
any third party claim, the Indemnifying Party shall defend the same with counsel
in accordance with the foregoing provisions of this Section 4.6. Where the
Indemnifying Party shall have acknowledged
20
in writing its obligations hereunder with respect to any third party claim, the
Indemnified Party may, at its expense, participate in the defense of such third
party claim and no such third party claim shall be settled by the Indemnified
Party without the prior written consent of the Indemnifying Party. At any time
after the Indemnifying Party acknowledges its obligations hereunder with respect
to any third party claim, the Indemnifying Party may request the Indemnified
Party to agree in writing to the payment or compromise of such third party claim
(provided such payment or compromise has been previously approved in writing by
the third party claimant), whereupon such action shall be deemed agreed to by
the Indemnified Party and shall be agreed to in writing by the Indemnified Party
unless such settlement would involve a remedy or remedies other than the payment
of money damages by the Indemnifying Party.
(d) In the event either party makes a claim against the other party
under Section 4.6 hereof and further in the event the party receiving notice of
such claim fails to timely acknowledge its obligations hereunder with respect to
such claim or disclaims such obligations, the parties, within sixty (60) days of
the date of issuance of notice by the party making such claim, shall meet and
attempt to resolve in good faith the dispute between the parties with respect to
such claim. If the parties fail to resolve such dispute within seventy-five (75)
days of the date of issuance of notice by the party making such claim, the party
making such claim may thereafter commence litigation against the other party in
21
a court of competent jurisdiction for determination of its claim. Upon
resolution of any claim pursuant to this Section 4.6, whether by agreement
between the parties or the rendering of a final judgment from which no appeal
lies in any litigation, the appropriate party under an agreement or the party
against which judgment is rendered in litigation shall, within ten (10) days of
such resolution, pay over and deliver to the other party funds in the amount of
any claim as resolved, and any fees, including attorneys' fees, incurred by such
other party with respect to any such litigation.
(e) Notwithstanding the foregoing, any limitation on the respective
obligations of Seller or Purchaser under this Section 4.6 which are set forth in
the agreement attached hereto as Exhibit B or in the agreement attached hereto
as Exhibit C shall modify the respective obligations of the parties under this
Section 4.6.
(f) In the event Seller becomes aware of any infringement of the Methods
by a third party, Seller shall promptly notify Purchaser in writing of such fact
and the name of the third party. Thereafter, Purchaser shall have the right, but
not the obligation, to prosecute any actual or alleged infringement. Seller
shall cooperate with Purchaser and shall take, at Purchaser's expense, any
actions requested by Purchaser in connection therewith.
4.7 Other Rights and Remedies Not Affected. The indemnification rights of
any Indemnified Party under this Agreement are independent of and in addition to
such rights and remedies as any such party may have at law or in equity or
22
otherwise for any misrepresentation, breach of warranty or failure to fulfill
any agreement or covenant hereunder on the part of any other party, including,
without limitation, the right to seek specific performance, rescission or
restitution, none of which rights or remedies shall be affected or diminished
hereby.
4.8 Survival of Representations and Warranties. The respective
representations and warranties made by Seller or Purchaser in or pursuant to
this Agreement shall survive the Closing and any investigation at any time made
by or on behalf of the other party. All representations and warranties shall
terminate three (3) year from the Closing Date.
4.9 Termination.
(a) Manner of Termination. This Agreement may be terminated and the
sale and transfer provided for by this Agreement may be abandoned on or before
the Closing Date:
(1) By mutual agreement of Seller and Purchaser;
(2) By Purchaser, if Purchaser is not then in default under
this Agreement and any of the conditions provided for in Section 5.1 of this
Agreement have not been met on the Closing Date and have not been waived by
Purchaser in writing;
(3) By Seller, if Seller is not then in default under this
Agreement and any of the conditions provided for in Sections 5.2 of this
Agreement have not been met on the Closing Date and have not been waived in
writing; or
(4) By Purchaser, pursuant to Section 4.1 hereof.
23
(5) By Seller or Purchaser if the Closing does not take place
by February 26, 1999.
(b) Election to Terminate. Any election to terminate this Agreement
under this Section 4.9 shall be exercised in writing by a duly authorized
officer of Purchaser and/or Seller, as the case may be.
(c) Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to the provisions of this Section 4.9,
this Agreement shall terminate, except that the provisions of Section 6.2 hereof
shall survive the termination hereof.
4.10 Confidentiality. Seller covenants and agrees that, from and after the
Closing Date: (i) it will not disclose and will use its best efforts to prevent
any third party who previously had or has access to the same, from disclosing
any of the Methods; and (ii) it will not use or permit any third party to use
any of the Methods except to the extent specifically authorized by Purchaser in
writing. Seller agrees that any remedy at law for any breach of this Section
4.10 will be inadequate by reason of irreparable harm sustained by Purchaser in
the event of any such breach and that Purchaser shall be entitled injunctive
relief and/or specific performance with respect to such breach. Such remedies
shall not be exclusive and shall be in addition to any other remedy which
Purchaser may have.
4.11 Other Negotiations. In order to evidence Seller's commitment to the
consummation of the transactions contemplated
24
hereby, Seller agrees that, between the date hereof and the Closing, it will
not, collectively or individually, directly or indirectly through any officer,
director, shareholder or employee of Seller or through any third party, begin or
continue any discussions with or consider any proposal from any person or entity
other than Purchaser which relates to the sale, licensing or other transfer of
any of the Purchased Assets.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
5.1 Conditions Precedent to Purchaser's Obligations. The obligations of
Purchaser to purchase the Purchased Assets and to consummate the transactions
contemplated hereby are subject to and conditioned upon the performance prior to
or on the Closing Date of each of the following (unless waived in writing by
Purchaser):
(a) All the terms and conditions of this Agreement to be complied
with and performed by Seller on or before the Closing Date shall have been
complied with and performed.
(b) All representations and warranties by Seller which are contained
in this Agreement or in any written document required to be executed and
delivered by Seller pursuant hereto or in connection herewith shall be true and
correct in all material respects when made and at and as of the Closing Date as
though such representations and warranties were made at and as of the Closing
Date.
(c) WAIVED.
25
(d) Purchaser shall have received the Xxxx of Sale and Assignment
and such other assignments and instruments of transfer and conveyance for the
Purchased Assets, in form and substance reasonably satisfactory to Purchaser and
its counsel, sufficient to transfer to Purchaser the Purchased Assets as
contemplated by this Agreement and Seller shall have delivered a copy of the
Methods to Purchaser.
(e) Purchaser shall have received the resolutions of the Board of
Directors of Seller, certified by the Secretary or an Assistant Secretary of
Seller, authorizing the execution, delivery and performance by Seller of this
Agreement, all agreements, documents and instruments to be executed and
delivered by Seller pursuant hereto or in connection herewith and the
consummation of the transactions contemplated hereby.
(f) There shall be no suits, actions, litigation or other legal,
administrative, arbitration or other proceedings or governmental investigations
pending or, to the knowledge of Purchaser or its counsel, threatened to which
Purchaser is or may become a party which seek to delay, enjoin or otherwise
affect the consummation of the transactions contemplated hereby.
(g) All items described in Section 2.9 hereof which are set forth on
Schedule 2.9 hereto (other than any ISRA consent or authorization) shall have
been obtained by Seller in writing to the satisfaction of Purchaser before the
Closing Date and delivered to Purchaser on or before the Closing Date.
26
(h) The liens set forth on Schedule 2.4 hereto shall have been
released on or prior to the Closing Date.
(i) Seller shall have executed and delivered to Purchaser such
certificates and other documents as Purchaser or Purchaser's counsel may
reasonably request.
(j) The form and substance of all certificates, instruments of
transfer and other documents delivered pursuant hereto or in connection herewith
shall be satisfactory in all reasonable respects to Purchaser and its counsel.
(k) Seller shall have executed and delivered the Equipment Lease to
Purchaser.
(l) Seller shall have executed and delivered to Purchaser a License
and Supply Agreement in form and substance as set forth on Exhibit C which is
attached hereto and incorporated herein.
(m) Purchaser shall have received an opinion of Xxxxxx X. Xxxxxxxx,
General Counsel of Seller, in form and substance as set forth on Exhibit D,
which is attached hereto and incorporated herein.
(n) Hydromer and Purchaser shall have executed, on Closing Date, a
Stock Purchase Agreement pursuant to which Purchaser, among other things,
purchased Two Hundred Twenty Thousand (220,000) shares of common stock of
Hydromer.
(o) Purchaser shall have received from Seller an Incumbency
Certificate, dated the Closing Date, executed by the secretary of Seller or by
an assistant secretary of Seller which
27
shall identify the name and title and bear the signature of each officer of
Seller individually authorized to execute and deliver this Agreement and all
other documents required to be delivered by Seller pursuant thereto.
5.2 Conditions Precedent to Seller's Obligations. The obligations of
Seller to sell the Purchased Assets and to consummate the transactions
contemplated hereby are subject to and conditioned upon the performance prior to
or at the Closing Date of each of the following (unless waived in writing by
Seller):
(a) All terms and conditions of this Agreement to be complied with
and performed by Purchaser on or before the Closing Date shall have been
materially complied with and materially performed.
(b) All representations and warranties by Purchaser which are
contained in this Agreement or in any written document executed and delivered by
Purchaser pursuant hereto or in connection herewith shall be true and correct in
all material respects when made and at and as of the Closing Date as though such
representations and warranties were made at and as of the Closing Date.
(c) WAIVED.
28
(d) There shall be no suits, actions, litigation or other legal,
administrative, arbitration or other proceedings or governmental investigations
pending or, to the knowledge of Seller or Seller's counsel, threatened to which
Seller is or may become a party which seek to delay, enjoin or otherwise affect
the consummation of the transactions contemplated hereby.
(e) Purchaser shall have executed and delivered to Seller such
certificates and other documents as Seller or Seller's counsel may reasonable
request.
(f) The form and substance of all certificates and other documents
delivered pursuant hereto or in connection herewith shall be satisfactory in all
reasonable respects to Seller and its counsel.
(g) Purchaser shall have executed the Equipment Lease.
(h) Purchaser shall have executed a License and Supply Agreement in
form and substance as set forth on Exhibit C hereto.
(i) Seller shall have received from Purchaser an Incumbency
Certificate, dated the Closing Date, executed by the secretary of Purchaser or
by an assistant secretary of Purchaser which shall identify the name and title
and bear the signature of each officer of Purchaser individually authorized to
execute and deliver this Agreement and all other documents required to be
delivered by Purchaser pursuant thereto.
29
ARTICLE VI
MISCELLANEOUS
6.1 Entire Understanding; Amendment. This Agreement, including all
Exhibits and Schedules hereto, and the agreements and instruments referenced
herein, represent the entire understanding of the parties hereto with respect to
the subject matter hereof and supersede all prior and contemporaneous
negotiations, understandings and agreements, written or oral, between the
parties hereto with respect to the subject matter hereof, all of which prior
agreements and understandings are hereby rendered null and void. This Agreement
may not be amended or modified except by a writing executed by the parties
hereto.
6.2 Confidentiality. Each party and its representatives will hold in
strict confidence and not disclose any data and information with respect to the
other party and its business. If the transactions contemplated hereby are not
consummated, Purchaser will return to Seller all such data and information and
any copies thereof and will not use such data and information except as is
otherwise lawfully known or otherwise becomes lawfully known to Purchaser. This
provision shall survive termination of this Agreement for a period of six (6)
years.
6.3 Further Assurances. Purchaser and Seller each agrees that it shall, at
any time and from time to time after the Closing Date, upon request of the other
party, do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such further acts, assignments, transfers, and
assurances as may be
30
reasonably necessary to further effectuate the terms of this Agreement.
6.4 Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, and their respective successors and
permitted assigns.
6.5 Assignment. No party hereto shall assign this Agreement to any other
person, corporation, partnership or other entity without the prior written
consent of the other party.
6.6 Waiver. Subject to the provisions of Sections 5.1 and 5.2 allowing
waiver by one party, no waiver of any provision hereof shall be effective unless
set forth by a written instrument signed by the parties hereto.
6.7 Counterparts. This Agreement may be signed in counterparts, each of
which shall be considered an original and together they shall constitute one
agreement.
6.8 Section Headings; Exhibits; Schedules. Section headings contained in
this Agreement are for convenience or reference only and shall not be deemed a
part of this Agreement. Any reference to Exhibits or Schedules shall signify
that such Exhibits or Schedules are incorporated herein by reference.
6.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
6.10 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be given to the parties at their
respective addresses set forth below and shall be sent by: (a) hand delivery, or
(b) certified mail, return
31
receipt requested, postage prepaid, or (c) a recognized overnight delivery
service, or (d) telecopy or other means of facsimile. Notices sent by hand
delivery shall be deemed received when delivered to the address and/or person
set forth below; notices sent by certified mail shall be deemed received when
accepted; notices sent by overnight delivery service shall be deemed received
when delivered; and notices sent by telecopy shall be deemed received upon
receipt of confirmation of dispatch.
(a) If to Seller, to:
Biosearch Medical Products
00X Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopy No. (000) 000-0000
(b) If to Purchaser, to:
X.X. Xxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopy No. (000) 000-0000
or to such other address or telecopy number as any party may designate by
written notice in the aforesaid manner.
6.11 Expenses. Seller and Purchaser shall each pay its respective
expenses, fees and costs incident to the preparation, execution and delivery of
this Agreement and of all documents required to be delivered by or on behalf of
such party hereunder, whether or not the transactions contemplated hereunder are
consummated.
6.12 Certificates as Representations. All statements as to factual matters
contained in any certificate or other instrument
32
delivered by or on behalf of any party pursuant hereto or in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties by the party hereunder as of the date of such certificate or
instrument or as of such later or earlier date as specified in such certificate
or instrument.
6.13 Interpretation. No provision of this Agreement or any agreement
ancillary hereto shall be interpreted or construed against any party because
that party or his or its legal representative drafted such provision. Any
pronoun used in this Agreement shall be deemed to include singular and plural
and masculine, feminine and neuter gender, as the case may be.
33
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first above written.
SELLER:
BIOSEARCH MEDICAL PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
--------------------------------
PURCHASER:
X.X. XXXX, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: XXXX X. XXXXXXX
---------------------------------
Title: GROUP PRESIDENT
--------------------------------
34
Exhibits
Exhibit A Xxxx of Sale and Assignment
Exhibit B Equipment Lease
Exhibit C License and Supply Agreement
Exhibit D Opinion of General Counsel of Seller
Schedules
Schedule 1.1(a) Fixed Assets
Schedule 2.4 Liens
Schedule 2.6 Pending or Threatened Litigation
Schedule 2.9 Third Party Consents
Schedule 2.11(a) Product Liability
Schedule 2.11(b) Insurance
EXHIBIT A
XXXX OF SALE AND ASSIGNMENT
Pursuant to the Asset Purchase Agreement (the "Agreement") dated the 25th
day of February, 1999 by and between BIOSEARCH CHEMICAL PRODUCTS, INC., a New
Jersey corporation ("Seller"), and X.X. XXXX, INC., a New Jersey corporation
("Purchaser"), Seller does hereby sell, assign and transfer to Purchaser, and
Purchaser does hereby purchase and acquire from Seller, all of Seller's right,
title and interest on the Closing Date in and to the following assets, rights
and interests of Seller (collectively, the "Purchased Assets"):
(a) All equipment and other fixed assets listed in Schedule 1.1(a)
to the Agreement; and
(b) All technology, trade secrets, patent applications, issued
patents, and any continuations and divisionals thereof, know-how, manufacturing
processes and procedures, formulae, quality control procedures, test procedures,
specifications, protocols, drawings, designs and other proprietary information
relating to Seller's methods of applying hydrophilic coatings to intermittent
urological catheters in existence on or before the date of the Agreement or
thereafter invented or acquired by Seller.
Capitalized terms which are used herein but which are not otherwise
defined herein shall have the respective meanings ascribed to them in the
Agreement.
Seller hereby covenants that, from time to time, after delivery of this
instrument, at Purchaser's request and without further consideration, it will
do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, all such further acts, deeds, transfers,
assignments, powers of attorney and assurances as may be reasonably required to
more effectively transfer to or vest in Purchaser, and to put Purchaser in
possession of any of, the Purchased Assets transferred or assigned hereunder.
This Xxxx of Sale and Assignment shall be governed by and construed and
enforced in accordance with the laws of the State of New Jersey without regard
to its conflict of laws rules.
This Xxxx of Sale and Assignment shall inure to the benefit of and be
binding upon Seller and Purchaser and their respective successors and assigns.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Xxxx of Sale and
Assignment to be duly executed February, 1999.
BIOSEARCH MEDICAL PRODUCTS, INC.
By: ________________________________
EXHIBIT B
EQUIPMENT LEASE AGREEMENT
This Equipment Lease Agreement, dated as of the 25th day of
February, 1999, between X.X. XXXX, INC., a New Jersey corporation ("Lessor"),
having its principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx
Xxxxxx 00000 and BIOSEARCH MEDICAL PRODUCTS, INC., a New Jersey corporation
("Lessee"), having its principal place of business at 00X Xxxxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery hereof,
pursuant to the Asset Purchase Agreement dated the date hereof (the "Asset
Purchase Agreement") between Lessor and Lessee, Lessor has purchased from
Lessee, among other things, certain equipment used in applying hydrophilic
coatings to intermittent urological catheters; and
WHEREAS, Lessee desires to lease said equipment from Lessor, and
Lessor is willing to provide said equipment to Lessee pursuant to the terms
hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
promises hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. Lease. Lessor hereby leases to Lessee, and Lessee hereby
leases and hires from Lessor, the equipment described in Schedule A attached
hereto and made a part hereof, together with all substitutions and replacements,
replacement parts, additions, repairs and accessories from time to time
incorporated therein or
annexed thereto (collectively, the "Equipment"), upon the terms and subject to
the conditions hereinafter set forth.
SECTION 2. Term. Subject to any earlier termination pursuant to an
Event of Default (as defined herein), the term of this Lease shall begin as of
the date and year first above written and shall continue until the expiration of
the License and Supply Agreement executed concurrently herewith between Lessor
and Lessee in form and substance as set forth on Exhibit A, which is attached
hereto and incorporated herein (the "Supply Agreement"). Notwithstanding the
foregoing, Lessor hereby expressly agrees that Lessee shall have the right to
terminate this Lease at any time, without cause, upon not less than ten (10)
days notice to Lessor provided, at the time of such notice, no purchase order
issued by Lessor under the Supply Agreement remains unfilled.
SECTION 3. Rent. In consideration of the leasing of the Equipment
under this Lease, Lessee shall pay to Lessor basic rent for the Equipment during
the term of this Lease of Ten and 00/100 ($10.00) Dollars per month, payable
monthly in advance on or before the first day of each month.
SECTION 4. Title of Lessor. Lessor shall and hereby does retain full
legal title to the Equipment, notwithstanding the possession and use thereof by
Lessee, and no right, title or interest in the Equipment shall pass the Lessee.
This Lease shall constitute an agreement of lease only, and nothing herein shall
be
2
construed as conveying to Lessee any right, title or interest in the Equipment
other than as a lessee thereof.
SECTION 5. The Equipment as Personal Property. No part of the
Equipment shall at any time become a fixture or part of any real property
notwithstanding the fact that such Equipment may become nailed, screwed, bolted,
or otherwise attached or affixed to such real property. Lessee agrees to
indemnify and hold Lessor harmless from any claim asserted on the basis of any
Equipment being deemed to be a fixture or part of any real property as a result
of any acts of Lessee in connection with dealings with persons not parties to
this Lease during the term of this Lease. Lessee shall affix to the Equipment
any markings or labels requested by Lessor evidencing Lessor's interest in the
Equipment and shall cause such markings or labels to be continually affixed to
the Equipment until the Equipment is returned to Lessor.
SECTION 6. Use of Equipment. Lessee shall use the Equipment in its
business in a careful and proper manner and only for the uses for which the
Equipment is intended and only to supply Lessor with products pursuant to the
Supply Agreement. Lessee shall operate and maintain the Equipment strictly in
accordance with the provisions of this Lease and the instructions provided by
the manufacturers thereof and/or Lessor.
SECTION 7. Laws, Regulations and Rules. Lessee shall comply with all
applicable Federal, State and local laws, regulations, rules, building codes,
ordinances and orders and with
3
all requirements of insurance policies maintained in force hereunder with
respect to the possession, use, maintenance and operation of the Equipment.
SECTION 8. Maintenance, Replacement and Additions of Parts. Lessor
shall keep the Equipment in good repair and in a condition equivalent in all
respects to the condition existing on the date and year first above written,
ordinary wear and tear excepted. Lessee shall perform or cause to be performed,
at its sole cost and expense, all routine maintenance required to be performed
on the Equipment in accordance with the manufacturer's recommendations. In the
event any non-routine maintenance or repair to the Equipment is required,
Lessee shall promptly notify Lessor of the required maintenance and/or repairs
together with the estimated cost thereof. Promptly after receipt by Lessee of
written authorization from Lessor to proceed with any non-routine maintenance
or repair of the Equipment, which authorization shall not be unreasonably
delayed or withheld, Lessee shall cause such work to be promptly performed and
Lessor shall, within thirty (30) days of receipt invoice from Lessee, reimburse
Lessee for the costs of such maintenance or repair as estimated by Lessee or as
otherwise agreed upon by Lessor and Lessee in writing. Notwithstanding the
foregoing, if any non routine maintenance or repair to the Equipment is required
as a result of Lessee's negligent or willful acts or omissions, such maintenance
or repair shall be performed by Lessee at its expense. Any and all parts,
4
mechanisms, devices and labor required for such purpose shall become part of the
Equipment and the property of Lessor. Lessee shall make no alterations,
additions or improvements to or modifications of the Equipment whatsoever
without the express prior written consent of Lessor.
SECTION 9. Insurance. During the term of this Lease, Lessee shall
carry and maintain on the Equipment, at its own cost and expense, insurance with
carriers acceptable to Lessor in an amount not less than the full replacement
value thereof, less depreciation (subject to normal deductible provisions and
policies covering loss or damage) against: (a) loss or damage by fire, and (b)
such other risks and in such other amounts customarily covered with respect to
equipment similar to the Equipment, as may reasonably be deemed necessary by
Lessor. All such insurance shall name Lessor as an insured party as its interest
may appear. Lessee shall, at Lessor's request, provide Lessor with a certificate
of insurance evidencing its compliance with this Section 9, which certificate
shall provide that such insurance shall not be amended or terminated without ten
(10) days prior written notice to Lessor.
SECTION 10. No Warranties.
(a) LESSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS
OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY OF CONDITION OF THE EQUIPMENT, ITS QUALITY,
DURABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WITH RESPECT
TO INFRINGEMENT OR THE
5
LIKE. Lessor shall not be liable to Lessee or any other person for any damages
or loss whatsoever with respect to the Equipment, whether based on strict or
absolute tort liability, negligence or contract, including, but not limited to,
any defect in design, manufacture, materials or workmanship with respect to the
Equipment, or any special, incidental or consequential damages of Lessee as a
result of Lessee's leasing or operation of the Equipment.
(b) Lessee assumes all responsibility for the safe operation of the
Equipment, and Lessor shall not be responsible for any property damage resulting
from the operation of the Equipment or any personal injury to any person,
whether or not an employee or agent of Lessee, resulting from the operation of
the Equipment.
SECTION 11. Events of Default and Remedies.
(a) The occurrence of any of the following events shall, at the
option of Lessor, be a default (each, an "Event of Default") under this Lease:
(i) The nonpayment by Lessee of any sum required under this Lease to be
paid by Lessee for a period of ten (10) days after the due date thereof; or
(ii) the failure by Lessee to perform or observe any other term, covenant,
agreement or condition of this Lease which is not cured within fifteen (15) days
after written notice thereof from Lessor; or
6
(iii) any misrepresentation or breach of warranty made by Lessee in this
Lease or in any document furnished by Lessee in connection with this Lease; or
(iv) the subjection of any of Lessee's property to any levy, seizure,
assignment, application or sale for the benefit of or by any creditor or
governmental agency, or the insolvency of Lessee, or the appointment of a
trustee or receiver for Lessee or for a substantial part of its assets, or the
institution by or against Lessee of any bankruptcy, reorganization or insolvency
proceedings.
(b) Upon the occurrence of an Event of Default and at any time
thereafter, Lessor may, in its sole discretion, do one or more of the following:
(i) upon written notice to Lessee, terminate this Lease; (ii) declare the total
amount of unpaid rent and other applicable amounts due and to become due
hereunder for the term of this Lease immediately due and payable; (iii) demand
the return of the Equipment in accordance with Section 13 hereof; (iv) without
demand or legal process, enter the premises where the Equipment is located and
take immediate possession of and remove the same, without liability to Lessor or
its agents for such entry or for damage to property or otherwise; (v) sell any
or all of the Equipment at public or private sale, or otherwise dispose of,
lease to others or keep idle the Equipment, all free and clear of any rights of
Lessee to the Equipment; and/or (vi) exercise any other right or remedy
available to Lessor under applicable law or proceed
7
by court action to enforce the terms of this Lease or to recover damages or
expenses resulting from the breach of this Lease. Lessee shall be liable for and
shall pay to Lessor all legal expenses and other costs incurred by Lessor in
exercising Lessor's remedies. No remedy referred to in this Lease is intended to
be exclusive, but each shall be in addition to any other remedy referred to or
otherwise available to Lessor at law or in equity. No express or implied waiver
by Lessor of any Event of Default shall constitute a waiver of any other Event
of Default or a waiver of any of Lessor's rights and no delay by Lessor in
enforcing any right or requiring performance of any provision of this Lease by
Lessee shall be a waiver of such right or affect the right of Lessor to enforce
such provision. To the extent permitted by applicable law, Lessee hereby waives
any rights now or hereafter conferred by statute or otherwise which may require
Lessor to sell, lease or otherwise use any Equipment in mitigation of Lessor's
damages as set forth in this section or which may otherwise limit or modify any
of Lessor's rights or remedies under this section.
SECTION 12. Location of Equipment, Right of Inspection.
(a) The Equipment shall be located at Lessee's address hereinabove set forth and
shall not be removed from such location without the express prior written
consent of Lessor.
(b) Lessor shall at all times during Lessee's normal business hours
have the right to enter Lessee's premises where the
8
Equipment is located for the purpose of inspecting the Equipment and observing
its use.
SECTION 13. Return of Equipment. Upon termination of this Lease,
whether at the expiration of the term hereof or otherwise, Lessee, at Lessor's
sole cost and expense, will promptly dismantle, crate and place at Lessee's
shipping dock the Equipment, and thereupon, immediately return the Equipment to
Lessor in the same operating condition existing on the date and year first above
written, ordinary wear and tear resulting from the proper use of the Equipment
excepted. Lessee further agrees to render, at the rate of $800.00 per day,
consulting services to Lessor as an independent contractor and not as an
employee, with respect of the proper reassembly, reinstallation, startup and
operation of the Equipment at such plant as Lessor shall specify by notice given
to Lessee. Lessee shall perform such consulting services at such times (up to a
maximum of 10 man days in the aggregate) as Lessor shall reasonably request.
Lessor shall reimburse Lessee for the reasonable and necessary out-of-pocket
expenses for travel and lodging incurred by Lessee in performing the consulting
services for Lessor promptly upon the submission to Lessor of vouchers or
expense statements reasonably evidencing such expenses.
SECTION 14. Additional Documents; Financing Statements. During the
term of this Lease, Lessee shall provide Lessor such documents as Lessor shall
request to protect its interest in this Lease and the Equipment, including,
without limitation,
9
precautionary financing statements to provide notice to interested parties.
SECTION 15. Representations and Warranties of Lessee. Lessee
represents and warrants to Lessor as follows:
(a) Lessee has the corporate power and authority to enter into and
perform this Lease, and the execution, delivery and performance of this Lease
has been authorized by all necessary action of Lessee. This Lease is a valid and
binding obligation of Lessee, enforceable against Lessee in accordance with its
terms except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors rights generally or by the application of general
principles of equity.
(b) Lessee has obtained all necessary consents and approvals under
applicable laws, rules, regulations, ordinances and orders or otherwise relating
to the possession, use and maintenance of the Equipment.
SECTION 16. Representations and Warranties of Lessor. Lessor
represents and warrants to Lessee that it has the corporate power and authority
to enter into and perform this Lease, and the execution, delivery and
performance of this Lease has been authorized by all necessary corporate action
of Lessor. This Lease is a valid and binding obligation of Lessor, enforceable
against Lessor in accordance with its terms except as such enforceability may be
limited by applicable bankruptcy, insolvency,
10
reorganization, moratorium or other similar laws affecting the enforcement of
creditors rights generally or by the application of general principles of
equity.
SECTION 17. Indemnification. Lessee hereby indemnifies and agrees to
hold Lessor harmless from and against any and all losses, liabilities, damages,
claims, costs and expenses (including reasonable attorneys' and expert fees)
arising out of or in connection with (a) any breach by Lessee of any of its
representations, warranties and agreements contained in this Lease and (b) the
use, leasing and return of the Equipment. The provisions of this Section 17
shall survive the termination of this Lease.
SECTION 18. Notices. All notices required or permitted to be given
by either party hereto to the other shall be deemed to have been given when
deposited in the United States certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to Lessor: 000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
If to Lessee: 00X Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
or addressed to either party at such other address as such party shall hereafter
furnish to the other party in writing.
SECTION 19. Severability of Provisions. Any provision of this Lease
which is prohibited or unenforceable in any
11
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or thereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
SECTION 20. Prohibition of Parol Changes. No term or provision of
this Lease may be amended, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against whom the enforcement of the
amendment, waiver, discharge or termination is sought.
SECTION 21. No Assignment. This Lease and the rights and obligations
hereunder may not be assigned by Lessee without the express prior written
consent of Lessor. Any purported assignment by Lessee not otherwise permitted
hereby shall be deemed void and shall constitute a material breach hereof.
SECTION 22. Governing Law. This Lease shall be governed by, and
construed in accordance with, the laws of the State of New Jersey.
SECTION 23. Entire Agreement; Benefits. This Lease and the Schedule
and Exhibit thereto, together with Asset Purchase Agreement and the Supply
Agreement (a) constitute the entire agreement between the parties hereto and
supercede all other prior agreements and undertakings, both written and oral,
between the parties with respect to the subject matter hereof and
12
thereof; (b) shall not confer upon any other person any other rights or remedies
hereunder; and (c) shall inure to the benefit of all parties hereto and their
respective successors and permitted assigns.
SECTION 24. Execution in Counterparts. This Lease may be executed in
two or more counterparts, each of which when so executed shall be deemed to be
an original, and in each case such counterparts together shall constitute one
and the same instrument.
13
SECTION 25. Captions. The captions in this Lease are for convenience
of reference only and shall not define or limit any of the terms or provisions
hereof.
X.X. XXXX, INC.
By:
--------------------------------
Title:
BIOSEARCH MEDICAL PRODUCTS, INC.
By:
--------------------------------
Title:
14
EXHIBIT C
LICENSE AND SUPPLY AGREEMENT
THIS AGREEMENT made this 25th day of February, 1999 by and between
BIOSEARCH MEDICAL PRODUCTS, INC., a New Jersey corporation, having its principal
place of business at 00X Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
("BIOSEARCH") and X. X. XXXX, INC., a New Jersey corporation having its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000
("BARD").
WHEREAS, on the date hereof, BARD and BIOSEARCH entered into a
certain "ASSET PURCHASE AGREEMENT" (hereinafter defined) pursuant to which
BIOSEARCH, among other things, sold to BARD and BARD purchased from BIOSEARCH
the "METHODS" (hereinafter defined), and
WHEREAS, BARD desires to license the METHODS back to BIOSEARCH for
the sole and exclusive purpose of coating "CATHETERS" (hereinafter defined) with
"SUPERSLIP COATING" (hereinafter defined) manufactured by "HYDROMER"
(hereinafter defined), by BARD or by a third party, for subsequent sale
exclusively to BARD or an "AFFILIATE" (hereinafter defined), and
WHEREAS, BIOSEARCH is desirous of accepting such license and is
desirous of manufacturing CATHETERS as ordered by BARD and any AFFILIATE and
coating the same with SUPERSLIP COATING supplied to BIOSEARCH by BARD.
NOW, THEREFORE, in consideration of the terms and provisions of this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is
acknowledged by the execution and delivery thereof, BIOSEARCH and BARD agree
as follows:
1. Definitions.
1.1 AFFILIATE - means any person or entity which controls, is
controlled by, or is under common control with BARD. For purposes of this
definition, the term "control", including the correlative meanings of the terms
"controlled by" and "under common control with" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of
management or policies of such person or entity.
1.2 ASSET PURCHASE AGREEMENT - means that asset purchase
agreement which is attached hereto and incorporated herein as Exhibit A.
1.3 CATHETERS - means intermittent urological catheters of any
size specified in the SPECIFICATIONS as ordered by BARD or any AFFILIATE in
accordance with this Agreement.
1.4 HYDROMER - means Hydromer, Inc., a New Jersey corporation,
having its principal place of business at 00 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000.
1.5 METHODS - mean the methods, as defined in Section 1.1(b)
of the ASSET PURCHASE AGREEMENT, as the same exist on the date of execution of
this Agreement, as may be amended by mutual written agreement of the parties
hereto.
1.6 SPECIFICATIONS - means the specifications relating to the
manufacture of uncoated CATHETERS and the specifications relating to the coating
of CATHETERS with
2
SUPERSLIP COATING in accordance with the METHODS as set forth on Exhibit B,
which is attached hereto and incorporated herein.
1.7 SUPERSLIP COATING - means a lubricious coating as
described on Exhibit C which is attached hereto and incorporated herein.
1.8 TESTING CRITERIA - means the incoming quality assurance
testing criteria for CATHETERS coated by BIOSEARCH with SUPERSLIP COATING, as
set forth on Exhibit D, which is attached hereto and incorporated herein.
2. Limited License.
2.1 BARD hereby grants to BIOSEARCH a limited, non-exclusive,
royalty free license to use the METHODS for the sole and limited purpose of
coating CATHETERS ordered hereunder by BARD or an AFFILIATE with SUPERSLIP
COATING exclusively for sale hereunder on the terms and conditions set forth
herein.
2.2 Any improvements, enhancements, discoveries, inventions
and ideas related to any process, machine, device, manufacture, composition of
matter, plan or design, related to the METHODS to the extent applicable to
CATHETERS, whether patentable or not, made, conceived, developed or acquired by
BIOSEARCH during the term hereof, whether alone or with others, shall be deemed
to be and become the exclusive property of BARD at the time the same is so made,
conceived, developed or acquired without need for further assignment thereof by
BIOSEARCH to BARD; provided, however, that in the event BARD requests any
3
other instruments of assignment BIOSEARCH shall, at BARD's expense, promptly
execute and deliver to the same to BARD.
2.3. BIOSEARCH shall have no right to further sublicense any
of the rights licensed to it pursuant to this Agreement or to assign any of its
rights hereunder without the prior written consent of BARD. Any sublicense or
assignment of any rights licensed to BIOSEARCH pursuant to this Agreement shall
be null and void and without force and effect.
3. Manufacture of CATHETERS
3.1 During the term of this Agreement, BIOSEARCH shall
manufacture CATHETERS in accordance with the SPECIFICATIONS and shall coat the
same with SUPERSLIP COATING, all in accordance with the SPECIFICATIONS, as
ordered by BARD or any AFFILIATE of BARD in accordance with this Agreement.
SUPERSLIP COATING shall be provided to BIOSEARCH by BARD, at its expense, in
quantities sufficient to coat CATHETERS ordered hereunder. BIOSEARCH shall
manufacture and deliver all CATHETERS coated with SUPERSLIP COATING in bulk,
non-sterile form and without funnel.
3.2 If BIOSEARCH at any time deems it necessary to change any
of the SPECIFICATIONS, BIOSEARCH shall notify BARD in writing of such proposed
change prior to its implementation. Any such change may only be implemented upon
BARD's prior written consent thereto. At the time of shipment of any CATHETERS
hereunder, BIOSEARCH shall furnish BARD with a Certificate of Analysis, signed
by an authorized representative
4
of BIOSEARCH, certifying that all CATHETERS included in such shipment have been
manufactured and coated in conformity with applicable SPECIFICATIONS and conform
with applicable SPECIFICATIONS at the time of tender by BIOSEARCH to the
selected carrier.
4. Purchase and Sale of CATHETERS.
4.1 All purchases and sales of CATHETERS under this Agreement
will be initiated by issuance and delivery to BIOSEARCH by BARD or an AFFILIATE
of a purchase order. The only terms and conditions of any purchase order issued
by BARD or any AFFILIATE pursuant to this Agreement that will be binding on
BIOSEARCH shall be those establishing the quantity of CATHETERS to be coated
with SUPERSLIP COATING and purchased, the required delivery date(s) therefor and
the designated shipping destination.
5. Warranties; Acceptance; Remedies.
5.1 BIOSEARCH warrants to BARD that each CATHETER sold and delivered
hereunder: (a) will be free from defects in material, design and workmanship
(other than by virtue of a defect in SUPERSLIP COATING existing at the time of
receipt thereof by BIOSEARCH); and (b) will be manufactured and coated in
accordance with the SPECIFICATIONS, including Quality System Requirements under
the Federal Food, Drug and Cosmetics Act of 1938, as amended and regulations
promulgated thereunder.
5.2 Within thirty (30) days of receipt by BARD or an AFFILIATE at
its facility of any CATHETERS supplied by BIOSEARCH,
5
BARD or its AFFILIATE shall test the same against the TESTING CRITERIA. If,
within said thirty (30) day period, BARD or an AFFILIATE determines that any
such CATHETERS fail to meet the TESTING CRITERIA and determines that such
failure was not caused by damage in transit, BARD or the AFFILIATE, shall notify
BIOSEARCH and shall include with its notice the basis for such determination.
Within fifteen (15) days of receipt of such notice, BIOSEARCH shall notify the
entity which issued such notice whether it agrees with its determination. In the
event BIOSEARCH notifies such entity that it agrees with its determination or
fails to timely notify such entity that it disagrees with such determination,
such entity may, at any time within the six (6) month period following its
receipt at its facility of the CATHETERS which were the subject of its
determination ("Rejected Product") return all Rejected Product to BIOSEARCH at
BIOSEARCH's risk and expense. If BARD or an AFFILIATE returns Rejected Product
to BIOSEARCH and notifies BIOSEARCH that replacement is required, BIOSEARCH
shall replace the same, without charge, as promptly as possible and shall
reimburse BARD or its AFFILIATE for freight charges incurred incident to the
return. If BARD or an AFFILIATE returns Rejected Product to BIOSEARCH and
notifies BIOSEARCH that replacement is not required, BIOSEARCH, within thirty
(30) days of receipt of such notice, shall reimburse BARD or its AFFILIATE for
freight charges incurred incident to the return of Rejected Product and shall
refund the payment made thereon, if any. If no payment has
6
been made by BARD or any AFFILIATE with respect to Rejected Product at the time
of return, none shall be payable. In the event BIOSEARCH timely notifies BARD or
its AFFILIATE that it disagrees with such determination, within forty-five (45)
days of issuance of such notice by BIOSEARCH, the parties shall submit
representative samples of the CATHETERS at issue to an independent third party
testing laboratory accepted to both parties for a determination of whether or
not the CATHETERS fail to meet the TESTING CRITERIA. Any determination by the
selected testing laboratory shall be final and binding on the parties. If the
testing laboratory determines the samples submitted meet the TESTING CRITERIA,
the same shall be deemed acceptable by BARD or its AFFILIATE, and BARD shall be
responsible for the costs of the testing laboratory. If the testing laboratory
determines the samples submitted do not meet the TESTING CRITERIA, BIOSEARCH
shall be responsible for the costs of the testing laboratory, the CATHETERS
previously at issue shall be deemed Rejected Product and BARD or its AFFILIATE
shall return the same to BIOSEARCH and shall have the same rights and remedies
as if BIOSEARCH had agreed with the determination by BARD or its AFFILIATE.
Except as provided in Section 12 hereof, replacement or refund shall be the sole
remedy available to BARD and its AFFILIATES with respect to CATHETERS delivered
hereunder failing to meet BIOSEARCH's warranties hereunder.
7
6. Prices and Payment Terms.
6.1 BIOSEARCH agrees to sell BARD and its AFFILIATES CATHETERS
coated with SUPERSLIP COATING, as ordered pursuant to this Agreement, at the
following selling prices:
Units Per Purchase Order Price
------------------------ -----
500,000 to 2,000,000 $0.42/unit
2,000,001 to 3,000,000 $0.37/unit
3,000,001 or more $0.30/unit
6.2 There shall be no price increase through December 31,
1999. As of January 1, 2000, and annually thereafter during the term of this
Agreement, BIOSEARCH may increase prices annually by fifty percent (50%) of the
actual documented increase in the cost of CATHETER raw materials to BIOSEARCH
during the prior year.
6.3 BIOSEARCH shall invoice BARD or its ordering AFFILIATE
upon shipment. Payment terms are net thirty (30) days from date of receipt of
shipment at the shipping destination designated in the purchase order to which
the shipment corresponds.
6.4 BARD will, not less than once each quarter, provide
BIOSEARCH with a rolling forecast of anticipated orders, if any, by BARD and its
AFFILIATES from BIOSEARCH for the next two succeeding calendar quarters. Such
forecasts shall be in writing but shall be non-binding.
8
7. Purchase Orders.
7.1 BARD or its AFFILIATE will provide BIOSEARCH with no less
than ninety (90) days lead time for each purchase order submitted by BARD
hereunder. Each purchase order, if any, shall be for a minimum of 500,000 units
and shall be non-cancelable. The delivery date(s) set forth in any purchase
order issued hereunder shall set forth a delivery date of not more than one year
from date of issuance.
IT IS EXPRESSLY UNDERSTOOD AND AGREED BY BIOSEARCH THAT
NEITHER BARD NOR ANY AFFILIATE WILL BE OBLIGATED TO PLACE ANY PURCHASE ORDER
HEREUNDER AND MAY ELECT NOT TO PLACE ANY PURCHASE ORDER HEREUNDER.
8. Shipping Terms.
8.1 All CATHETERS ordered hereunder will be delivered to BARD
or its ordering AFFILIATE, as applicable, by tender to its selected carrier,
F.O.B. BIOSEARCH's Somerville, New Jersey facility, on the delivery date set
forth in the corresponding purchase order. Title and risk of loss shall pass
upon acceptance of tender by such carrier.
9. Term.
9.1 The term of this Agreement will commence on the date first
set forth above and will terminate on the one year anniversary of the date of
this Agreement, unless sooner terminated as provided in Section 10 below;
provided, however, that the term of this Agreement may be renewed, at BARD's
sole option, for up to four (4) additional successive one (1) year
9
renewal terms. In the event BARD intends to effect any such renewal, BARD shall
give BIOSEARCH written notice of such intention to renew not less than ninety
(90) days prior to the expiration of the then current term.
10. Termination.
10.1 Either party may terminate this Agreement by written
notice to the other party if the other party: (a) suspends payment of its debts
or enters into or becomes subject to insolvency, liquidation, dissolution or
bankruptcy proceedings; (b) makes an assignment for the benefit of its
creditors; (c) has a receiver or trustee appointed for all or a substantial
portion of its assets; (d) seeks relief under any law for debtors' relief; (e)
attempts to assign this Agreement or delegate its duties hereunder unless
authorized under this Agreement; (f) fails to perform its obligations under this
Agreement for a period of thirty (30) days (either consecutively or in the
aggregate) during any one-year term due to Force Majeure (as hereinafter
defined); or (g) fails to comply with the terms and conditions of this
Agreement in any material respect; provided, however, that in such event, with
respect to the events or circumstances set forth in subsection (g) above, the
party failing to comply with the terms and conditions of this Agreement in such
material respect shall be provided at least thirty (30) days' prior written
notice during which it may cure the failure and, in the event it does so, this
Agreement shall remain in full force and effect. This Agreement shall also
terminate automatically upon any termination of the equipment lease
10
agreement of even date between the parties hereto, which is incorporated herein
by reference.
10.2 Except as expressly set forth in this Agreement,
termination of this Agreement:
(a) will not affect or impair the rights, liabilities and
obligations of any party under any purchase order issued prior to the effective
date of termination; and
(b) will not relieve any party of any obligation or liability
incurred under this Agreement prior to the effective date of termination.
10.3 Upon any termination of this Agreement, BIOSEARCH will,
if requested in writing by BARD, promptly ship to BARD all raw materials,
work-in-process and finished goods inventories used or usable in connection with
the manufacture of CATHETERS including shipping and packing supplies. BIOSEARCH
shall invoice BARD at its cost for any such requested inventories upon shipment.
11. FORCE MAJEURE.
11.1 Failure by BIOSEARCH to make or by BARD to take or
require any delivery hereunder (or portions thereof) when due shall not subject
the non-performing party to any liability to the other party if the
non-performing party declares in writing to the other party that performance
cannot be made due to: (a) an act of God or the public enemy, fire, explosion,
perils of the sea, flood, drought, war, riot, sabotage, accident or embargo; (b)
without limiting the foregoing circumstances, any circumstances of
11
like or different character beyond the reasonable control of the party so
failing; (c) interruption of or delay in transportation beyond the reasonable
control of the party so failing; (d) inadequacy or shortage or failure of normal
sources of supply of materials, energy or equipment beyond the reasonable
control of the party so failing; (e) equipment breakdowns beyond the reasonable
control of the party so failing; (f) labor trouble from whatever cause arising
and whether or not the demands of the employees involved are reasonable and
within said party's power to concede; or (g) compliance by BIOSEARCH or BARD
with any order, action, direction or request of any governmental officer,
department, agency, authority or committee thereof (any occurrence or condition
set forth in subsections (a) through (g) above are herein referred to as "Force
Majeure"); provided, however, that in the event Force Majeure prevents such
party from performing for thirty (30) days (either consecutively or in the
aggregate) during the term of this Agreement, the non-performing party shall be
deemed to be in default hereunder and the other party may terminate this
Agreement upon written notice without further obligation.
11.2 The party claiming an excuse hereunder shall promptly
notify the other party in writing, specifying the reasons therefor and expected
duration thereof. Such party shall take reasonable steps to ensure resumption of
full performance hereunder as soon as reasonably possible.
11.3 During the pendency of any Force Majeure situation,
should BIOSEARCH retain any manufacturing capacity,
12
BIOSEARCH shall allocate a proportion of such manufacturing capacity to BARD
which is no less favorable than that granted to any other customer of BIOSEARCH.
12. Product Liability Insurance; Indemnification.
12.1 (a) During the term of this Agreement, BIOSEARCH shall
maintain, at its expense, a policy of comprehensive general liability insurance,
with products liability endorsement, in the minimum amount of $3,000,000.00 per
occurrence and in the annual aggregate. Said policy shall name BARD and its
AFFILIATES as additional insureds, as their interest may appear, only with
respect to CATHETERS sold by BIOSEARCH hereunder. BIOSEARCH shall furnish BARD
with a certificate of insurance evidencing such coverage within thirty (30) days
of the execution of this Agreement, which certificate shall provide for not less
than thirty (30) days notice to BARD prior to material change in coverage or
policy cancellation.
12.2 During the term of this Agreement, BARD shall maintain, at its
expense, a policy of comprehensive general liability insurance, with products
liability endorsement, in the minimum amount of $3,000,000.00 per occurrence and
in the annual aggregate. Said policy shall name BIOSEARCH as an additional
insured, as its interest may appear, only with respect to CATHETERS sold by
BIOSEARCH to BARD or its AFFILIATES hereunder. BARD shall furnish BIOSEARCH with
a certificate of insurance evidencing such coverage within thirty (30) days of
the execution
13
of this Agreement, which certificate shall provide for not less than thirty (30)
days notice to BIOSEARCH prior to material change in coverage or policy
cancellation.
12.3 BIOSEARCH agrees to indemnify, defend (using counsel selected
by BIOSEARCH which is reasonably acceptable to BARD) and hold harmless, BARD, if
AFFILIATES and their respective officers, directors, employees and customers,
from and against any and all liabilities, losses, damages, costs or expenses
(including, without limitation, reasonable attorneys' and accountants' fees and
expenses, court costs and all other out-of-pocket expenses) directly or
indirectly incurred by such persons or entities arising out of or in connection
with: (i) any failure by BIOSEARCH to manufacture CATHETERS in accordance with
the SPECIFICATIONS or coat CATHETERS in accordance with the SPECIFICATIONS, or
(ii) any other breach by BIOSEARCH of any of the terms or conditions of this
Agreement, or (iii) any third party claim alleging that the manufacture use,
sell, offer for sale or import of any CATHETERS sold by BIOSEARCH to BARD or any
AFFILIATE hereunder infringes the proprietary rights of the third party where
the basis of the alleged infringement is (a) the CATHETERS (without regard to
SUPERSLIP COATING applied thereto) alone and not in combination with any other
item, or (b) the METHODS.
12.4 BARD hereby agrees to indemnify, defend (using counsel selected
by BARD which is reasonably acceptable to BIOSEARCH) and hold harmless,
BIOSEARCH, its officers, directors
14
and employees, from and against any and all liabilities, losses, damages, costs
or expenses (including, without limitation, reasonable attorneys' and
accountants' fees and expenses, court costs and all other out-of-pocket
expenses) directly or indirectly incurred by such persons or entities arising
out of or in connection with: (i) any breach by BARD or any AFFILIATE of any of
the terms and conditions of this Agreement, (ii) the sale of any CATHETERS
purchased from BIOSEARCH by BARD or any AFFILIATE, subject to BIOSEARCH's
obligations under Section 12.3 of this Agreement and further subject to
BIOSEARCH's defense and indemnification obligations under the ASSET PURCHASE
AGREEMENT.
12.5 Within thirty (30) days after BARD or BIOSEARCH, as the case
may be (hereinafter the "Indemnified Party"), has received notice of or has
acquired knowledge of any claim by any person or entity not a party to this
Agreement of the commencement or threatened commencement of any action or
proceeding by any person or entity not a party to this Agreement ("third party
claim") or has acquired knowledge of any other claim hereunder against the other
party hereto ("first party claim") the Indemnified Party shall, if such claim is
indemnifiable by the other party pursuant hereto (hereinafter the "Indemnifying
Party"), give the Indemnifying Party written notice of such claim and the
commencement or threatened commencement of such action or proceeding, if any.
Such notice shall state the nature and basis of such claim and, if
ascertainable, the amount thereof. Notwithstanding the foregoing, the failure of
the Indemnified Party
15
to give such notice shall not excuse the Indemnifying Party's obligation to
indemnify and, in the case of a third party claim, defend the Indemnified Party,
except to the extent the Indemnifying Party has suffered damage or prejudice by
reason of the Indemnified Party's failure to give or delay in giving such
notice. Within ten (10) business days of receipt of any notice issued by the
Indemnified Party pursuant to this Section 12.5, the Indemnifying Party shall
notify the Indemnified Party whether the Indemnifying Party acknowledges its
indemnification obligation and, in the case of a third party claim, its defense
obligation with respect to the claim which was the subject of the Indemnified
Party's notice or whether it disclaims such obligation(s). In the event the
Indemnifying Party disclaims or fails to timely acknowledge its obligations with
respect to any claim by the Indemnified Party relating to any third party claim,
the Indemnified Party shall have the right to defend such claim, with counsel of
its own selection, and compromise such claim without prejudice to its right to
indemnification hereunder. In the event the Indemnifying Party timely
acknowledges its obligations hereunder with respect to any third party claim,
the Indemnifying Party shall defend the same with counsel in accordance with the
foregoing provisions of this Section 12. Where the Indemnifying Party shall have
acknowledged in writing its obligations hereunder with respect to any third
party claim, the Indemnified Party may, at its expense, participate in the
defense of such third party claim and no such third party claim shall be settled
by the Indemnified Party without the prior written
16
consent of the Indemnifying Party. At any time after the Indemnifying Party
acknowledges its obligations hereunder with respect to any third party claim,
the Indemnifying Party may request the Indemnified Party to agree in writing to
the payment or compromise of such third party claim (provided such payment or
compromise has been previously approved in writing by the third party claimant),
whereupon such action shall be deemed agreed to by the Indemnified Party and
shall be agreed to in writing by the Indemnified Party unless such settlement
would involve a remedy or remedies other than the payment of money damages by
the Indemnifying Party.
12.6 In the event either party makes a claim against the other party
under Section 12 hereof and further in the event the party receiving notice of
such claim fails to timely acknowledge its obligations hereunder with respect to
such claim or disclaims such obligations, the parties, within sixty (60) days of
the date of issuance of notice by the party making such claim, shall meet and
attempt to resolve in good faith the dispute between the parties with respect to
such claim. If the parties fail to resolve such dispute within seventy-five
(75) days of the date of issuance of notice by the party making such claim, the
party making such claim may thereafter commence litigation against the other
party in a court of competent jurisdiction for determination of its claim. Upon
resolution of any claim pursuant to this Section 12.6, whether by agreement
between the parties or the rendering of a final judgment from which no appeal
lies in any litigation, the
17
appropriate party under an agreement or the party against which judgment is
rendered in litigation shall, within ten (10) days of such resolution, pay over
and deliver to the other party funds in the amount of any claim as resolved, and
any fees, including attorneys' fees, incurred by such other party with respect
to any such litigation.
13. Survival.
13.1 The provisions of Section 12 of this Agreement, and all
of the representations and warranties made in this Agreement, and all terms of
this Agreement intended to be observed or performed by BARD or BIOSEARCH after
the expiration or termination hereof, shall survive the expiration or the
termination of this Agreement and continue, thereafter, in full force and
effect.
14. Entire Agreement.
14.1 This Agreement and any BARD purchase orders placed in
accordance herewith shall constitute the entire agreement between BIOSEARCH and
BARD with respect to the subject matter hereof, and this Agreement may not be
changed or modified except by an instrument in writing between them which states
that it is an amendment hereto.
15. Assignability. This Agreement may not be assigned by either
party without the prior written consent of the other party except: (a) with
respect to BARD, to a successor to all or substantially all of its assets
related to urological catheters, and (b) with respect to BIOSEARCH, to a
successor to all or
18
substantially all the assets of BIOSEARCH, (c) with respect to BARD or BIOSEARCH
to a purchaser of substantially all of its stock. The provisions of this
Agreement shall be binding on and inure to the benefit of the respective
successors and permitted assigns of each party.
16. Notices. All notices required or permitted to be given by either
party hereto to the other shall be deemed to have been given when deposited in
the United States certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to BARD: 000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
If to the BIOSEARCH: 00X Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
or addressed to either party at such other address as such party shall hereafter
furnish to the other party in writing.
17. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New Jersey.
18. Entire Agreement; Benefits. This Agreement, including the
Exhibits hereto, any purchase order delivered pursuant hereto and all agreements
specifically incorporated herein by reference: (a) constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersede all other prior agreements and undertakings, both written and
oral, between the parties with respect to the subject matter hereof; (b) shall
not confer upon any other person any
19
other rights or remedies hereunder, except for the extent specifically provided
herein; and (c) shall inure to the benefit of all parties hereto and their
respective successors and permitted assigns.
19. Execution in Counterparts. This Agreement may be executed in two
or more counterparts, each of which when so executed shall be deemed to be an
original, and in each case such counterparts together shall constitute one and
the same instrument.
20. Captions. The captions in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
21. Audit. BIOSEARCH hereby grants to BARD the right to audit only
those books and records of BIOSEARCH relating to its cost of CATHETER raw
materials for purposes of determining the accuracy of any selling price increase
taken by BIOSEARCH pursuant to Section 6.2. Any such audit shall be conducted by
BARD, at its expense, no more often than annually, upon reasonable advance
notice to BIOSEARCH, during BIOSEARCH's regular business hours.
20
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representations to execute this agreement in duplicate as first above
written.
BIOSEARCH MEDICAL PRODUCTS, INC.
By:_____________________________________
Title:__________________________________
Date:___________________________________
X.X. XXXX, INC.
By:_____________________________________
Title:__________________________________
Date:___________________________________
21
EXHIBIT D
[LOGO]
BIOSEARCH
Xxxxxx X. Xxxxxxxx
Attorney at Law
Vice President, General Counsel
and Secretary
Admitted: NJ & NY
Email: xxxxxxxx@xxxxxx.xxx
February 25, 1999
X.X. Xxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Dear Sir:
I am employed as Vice President and General Counsel for Biosearch Medical
Products, Inc., a New Jersey corporation ("Biosearch") and in that capacity I
have acted as counsel to Biosearch with respect to the sale of certain assets of
Biosearch relating to the manufacture of, sterilization of and packaging of
certain intermittent urinary catheters devices ("medical devices") to X.X. Xxxx,
Inc. ("Bard"), the sale of certain intellectual property relating to these
medical devices and a supply agreement whereby, Biosearch promises to
manufacture and supply to Bard, the medical devices for a period set forth in
the documents.
As counsel, I have examined the following:
(1) The Asset Purchase Agreement, including all Schedules and Exhibits;
(2) The Xxxx of Sale
(3) The Equipment Lease Agreement whereby, Bard agrees to lease back
certain of the purchased assets to Biosearch to enable Biosearch to fulfill the
terms of the Supply Agreement;
(4) A License and Supply Agreement whereby, Biosearch will manufacture and
coat urinary catheters for Bard with subsequent packaging and sterilization done
by Bard;
(5) Articles of incorporation of Biosearch and all amendments thereto to
date;
(6) By-laws of Biosearch and all amendments thereto to date;
The documents referred to in items (1) through (6) above are
--------------------------------------------------------------------------------
BIOSEARCH MEDICAL PRODUCTS INC. 00 XXXXXXXXXX XXXXXXX X.X. XXX 0000
XXXXXXXXXX, XX 00000-0000 (000) 000-0000 (000) 000-0000 FAX (000) 000-0000
Biosearch Medical Products, Inc. to Page-2
X.X. Xxxx, Inc.
Counsel's Opinion
--------------------------------------------------------------------------------
referred to herein as the "Transaction Documents."
I have also examined such other corporate records of Biosearch,
certificates of public officials and of officers of Biosearch, and agreements,
instruments and other documents as I have deemed necessary in order to render
the opinions expressed below. As to questions of fact material to such opinions,
I have, when relevant facts were not independently established by me, relied
upon certificates of officers of Biosearch. I have assumed the genuineness of
all signatures on all documents submitted to me as certified or photostatic
copies. I have also assumed the due authorization, execution and delivery of the
Transaction Documents by all parties thereto other than Biosearch.
On the basis of the foregoing, I am of the opinion that:
1. Biosearch is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of New Jersey and has all corporate powers,
and authority, and all material governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted, to own and
operate its properties and assets, and to enter into and perform in accordance
with the Transaction Documents. Biosearch is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where Biosearch
is required to be so qualified.
2. The execution, delivery and performance by Biosearch of the Transaction
Documents and the consummation by Biosearch of the transactions contemplated
thereby are within Biosearch's corporate powers and have been duly authorized,
executed and delivered by all necessary corporate action on the part of
Biosearch, and the Transaction Documents constitute legally binding obligations
of Biosearch, enforceable against it in accordance with their respective terms,
subject to bankruptcy, insolvency, and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles. No
stockholder approval for this transaction is required under the Laws of the
State of New Jersey.
3. The consummation of the transactions contemplated by the Asset Purchase
Agreement requires Biosearch to exercise its best efforts to obtain regulatory
consent from the New Jersey Department of Environmental Protection and Energy
("DEPE") under the law commonly known as the Industrial Site Reclamation Act
"ISRA" prior to closing. The Company has retained X.X. Xxxxx of Branchburg, New
Jersey as its ISRA consultant and expects to file for such consent or
authorization with due speed after closing.
4. The execution, delivery and performance by Biosearch of the Transaction
Documents does not and will not (i) contravene or conflict with the certificate
of incorporation or bylaws of Biosearch, (ii) contravene or conflict with or
constitute a violation of any provision
Biosearch Medical Products, Inc. to Page-3
X.X. Xxxx, Inc.
Counsel's Opinion
--------------------------------------------------------------------------------
of any law, regulation, judgment, injunction, order or decree binding upon or
applicable to Biosearch, (iii) constitute a default under or give rise to any
right of termination, cancellation or acceleration of any right or obligation of
Biosearch or to a loss of any benefit to which Biosearch is entitled under any
provision of any agreement, contract or other instrument binding upon Biosearch
or by which any of the Purchased Assets is or may be bound or of any Permit or
(iv) result in the creation or imposition of any Lien on the Purchased Assets.
Furthermore:
1. To the best of my knowledge and belief: (i) Biosearch is not in violation of
its Certificate of Incorporation or its bylaws, (ii) is not in violation of any
agreement material to the Purchased Assets or to its facility, (iii) has not
received any notice that it is in violation of any law or regulation pertaining
to or relating to any such Purchased Assets or it's facility.
2. Except as set forth in the Transaction Documents or any Schedule thereto, I
am not aware of any action, suit or proceeding pending or threatened before any
court, arbitrator or governmental agency against Biosearch which is reasonably
likely to have a material adverse effect upon Biosearch or which would seek or
enjoin or prevent the consummation of the transactions contemplated by the
Transaction Documents.
3. I have reviewed the Asset Purchase Agreement and am not aware of any other
material exceptions to the representations of Biosearch set forth in the Asset
Purchase Agreement. I have relied on representations of management of Biosearch
in this regard.
4. To the best of my knowledge and belief, Biosearch has good and valid title to
all of the purchased assets, free and clear of all liens, security interests and
other encumbrances.
5. To the best of my knowledge and belief, Biosearch has complied in all
material respects with all laws, ordinances, rules and regulations of any
governmental authority pertaining to or relating to the Purchased Assets or its
facility.
Very truly yours,
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary
*bard.rjm
Schedule 2.9 3rd Party Consents except for DEP, ISRA
NONE
Schedule 2.11(a) Third party Complaints NONE
Schedule 2.11B Insurance
ASSET PURCHASE AGREEMENT
Schedule 2.11(B)
MedMarc Casualty Insurance Co
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Policy Period 6/1/98 To 6/1/99 Product Liability Insurance
Limits of Insurance:
General Aggregate Limit Excluded
Products-Completed Operations Aggregate Limit $3,000,000
Personal & Advertising Injury Limit. Excluded
Each Occurance Limit $3,000,000.
Fire Damage Limit Excluded
Medical Expense Limit Excluded
LICENSE AND SUPPLY
Exhibit A Asset Purchase-Xxxxxxx to attach
Exhibit B, C And D. This information all contained in documents in possession of
Xxxxx Xxxxxxxx, Oct 7, 1998
PHOTOS ATTACHED
Equipment Lease -- Schedule A
ASSET PURCHASE
SCHEDULE 1.1(A)
[LOGO]
BIOSEARCH(R)
MEDICAL PRODUCTS INC.
October 13, 1998
ANDY SAAT via fax
Business Development Director ========================
BARD MEDICAL DIVISION FAX 0-000-000-0000
X.X.XXXX, Inc. pages -> 1
0000 Xxxxxxxxxx Xxxx. Phone 0-000-000-0000
Xxxxxxxxx, XX. 00000 ========================
RE: LIST OF ITEMS PER PHOTOS OF INTERMITTENT CATHETER
COATING MACHINE
Dear Andy,
Listed below are is the written list of items shown in the digitized photographs
sent to you previously. I hope that this will meet the needs of your financial
department.
Photo No.
Ref No. Units Description
------- ----- -------------------------------------------------
A 1 Intermittent Catheter Coating Machine, (Complete)
(Includes Loading, Dipping and Curing)
B 1 Tube Holder Return System
C 17 Tube Holders (aka, Tube Racks)
D 1 Coating Solution Pump & Filter System (Complete)
E 1 Coating Solution Dip Tank with fitments
F 2 Blotting Pad Holder Tray
G 1 Coating Machine wall mounted Control Panel
H 1 5 Zone Temperature Monitor, wall mounted
I 1 Dot matrix printer for "H"
Sincerely,
[GRAPHIC OMITTED]
Xxxxxx Xxxx, President,
{e-mail: xxxxxx@xxxxxxxxx.xxx}
--------------------------------------------------------------------------------
BIOSEARCH MEDICAL PRODUCTS, INC. X.X. XXX 0000 XXXXXXXXXX, XX. 00000-0000
(XXX) TEL: 000-000-0000 FAX: 000-000-0000 [GRAPHIC OMITTED] ISO 9001
ASSET PURCHASE
SCHEDULE 1.1(A)
[LOGO]
BIOSEARCH(R)
MEDICAL PRODUCTS INC.
October 13, 1998
ANDY SAAT via fax
Business Development Director ========================
BARD MEDICAL DIVISION FAX 0-000-000-0000
X.X.XXXX, Inc. pages -> 1
0000 Xxxxxxxxxx Xxxx. Phone 0-000-000-0000
Xxxxxxxxx, XX. 00000 ========================
RE: LIST OF ITEMS PER PHOTOS OF INTERMITTENT CATHETER
COATING MACHINE
Dear Andy,
Listed below are is the written list of items shown in the digitized photographs
sent to you previously. I hope that this will meet the needs of your financial
department.
Photo No.
Ref No. Units Description
------- ----- -------------------------------------------------
A 1 Intermittent Catheter Coating Machine, (Complete)
(Includes Loading, Dipping And Curing)
B 1 Tube Holder Return System
C 17 Tube Holders (aka, Tube Racks)
D 1 Coating Solution Pump & Filter System (Complete)
E 1 Coating Solution Dip Tank with fitments
F 2 Blotting Pad Holder Tray
G 1 Coating Machine wall mounted Control Panel
H 1 5 Zone Temperature Monitor, wall mounted
I 1 Dot matrix printer for "H"
SINCERELY,
[GRAPHIC OMITTED]
Xxxxxx Xxxx, President,
{e-mail: xxxxxx@xxxxxxxxx.xxx}
--------------------------------------------------------------------------------
BIOSEARCH MEDICAL PRODUCTS, INC. X.X. XXX 0000 XXXXXXXXXX, XX. 00000-0000
(XXX) TEL: 000-000-0000 FAX: 000-000-0000 [GRAPHIC OMITTED] ISO 9001
Schedule 1.1 B Hydromer BMP Lease
LEASE
HYDROMER, INC. TO BIOSEARCH MEDICAL PRODUCTS, INC.
PREMISES-35 INDUSTRIAL PARKWAY, SOMERVILLE, NJ
36 MONTHS
COPY OF LEASE SIGNED ON JUNE 12, 1998
Schedule 2.4 Liens
NONE
Schedule 2.6 Litigation - NONE
