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ASSET PURCHASE AGREEMENT
BY AND AMONG
HORIZON MEDICAL PRODUCTS, INC.
AND
NORFOLK MEDICAL PRODUCTS, INC.
AS OF JUNE 2, 1998
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TABLE OF CONTENTS
ARTICLE 1. ASSET PURCHASE AND SALE.........................................................................1
Section 1.1. Agreement to Sell.............................................................1
Section 1.2. Purchased Assets..............................................................2
Section 1.3. Excluded Assets...............................................................2
Section 1.4. Agreement to Purchase.........................................................2
Section 1.5. The Purchase Price............................................................3
Section 1.6. Payment at Closing............................................................3
Section 1.7. Valuation For Tax Reporting Purposes..........................................3
Section 1.8. Assumption of Assumed Obligations.............................................3
Section 1.9. Excluded Liabilities..........................................................3
ARTICLE 2. CLOSING; ITEMS TO BE DELIVERED; FURTHER ASSURANCES..............................................4
Section 2.1. Closing.......................................................................4
Section 2.2. Items to be Delivered at Closing..............................................4
Section 2.3. Further Assurances............................................................5
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS...................................................5
Section 3.1. Organization..................................................................5
Section 3.2. Authorization.................................................................5
Section 3.3. No Interest in Other Entities.................................................6
Section 3.4. Absence of Restrictions and Conflicts.........................................6
Section 3.5. Ownership of Assets and Related Matters.......................................6
Section 3.6. Financial Statements..........................................................8
Section 3.7. No Undisclosed Liabilities....................................................8
Section 3.8. Absence of Certain Changes....................................................8
Section 3.9. Legal Proceedings.............................................................9
Section 3.10. Compliance with Law...........................................................9
Section 3.11. Norfolk Material Contracts...................................................10
Section 3.12. Norfolk Client Contracts.....................................................11
Section 3.13. Tax Returns; Taxes...........................................................11
Section 3.14. Insurance....................................................................12
Section 3.15. Environmental Matters........................................................12
Section 3.16. Patents, Trademarks, Trade Names.............................................12
Section 3.17. Transactions with Affiliates.................................................13
Section 3.18. Brokers, Finders and Investment Bankers......................................13
Section 3.19. Disclosure...................................................................13
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER....................................................13
Section 4.1. Organization.................................................................13
Section 4.2. Authorization................................................................14
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Section 4.3. Absence of Restrictions and Conflicts........................................14
Section 4.4. Disclosure...................................................................14
ARTICLE 5. CERTAIN COVENANTS AND AGREEMENTS...............................................................15
Section 5.1. Insurance....................................................................15
Section 5.2. Noncompetition...............................................................15
Section 5.3. Confidentiality..............................................................16
Section 5.4. Transition Services..........................................................17
Section 5.5. Research and Development Services............................................17
Section 5.6. Licensing Agreement..........................................................17
ARTICLE 6. CONDITIONS.....................................................................................17
Section 6.1. Conditions to Each Party's Obligations.......................................17
Section 6.2. Conditions to Obligations of Purchaser.......................................18
Section 6.3. Conditions to Obligations of the Sellers.....................................19
ARTICLE 7. TERMINATION....................................................................................20
Section 7.1. Termination and Abandonment..................................................20
Section 7.2. Specific Performance and Other Remedies......................................20
Section 7.3. Effect of Termination........................................................20
ARTICLE 8. INDEMNIFICATION................................................................................21
Section 8.1. Indemnification Obligations of the Sellers...................................21
Section 8.2. Indemnification Obligations of Purchaser.....................................21
Section 8.3. Indemnification Procedure....................................................22
Section 8.4. Claims Period................................................................23
Section 8.5. Liability Limits.............................................................24
Section 8.6. Jurisdiction and Forum.......................................................24
Section 8.7. Compliance with Bulk Sales Laws..............................................26
ARTICLE 9. MISCELLANEOUS PROVISIONS.......................................................................26
Section 9.1. Notices......................................................................26
Section 9.2. Disclosure Letters and Exhibits..............................................27
Section 9.3. Time of the Essence; Computation of Time.....................................28
Section 9.4. Assignment; Successors in Interest...........................................28
Section 9.5. Investigations; Representations and Warranties...............................28
Section 9.6. Number; Gender...............................................................28
Section 9.7. Captions.....................................................................28
Section 9.8. Norfolk Executives; Knowledge................................................28
Section 9.9. Controlling Law; Integration; Amendment......................................29
Section 9.10. Severability.................................................................29
Section 9.11. Counterparts.................................................................29
Section 9.12. Enforcement of Certain Rights................................................29
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Section 9.13. Waiver.......................................................................29
Section 9.14. Fees and Expenses............................................................30
Section 9.15. Litigation Expenses..........................................................30
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ASSET PURCHASE AGREEMENT
THIS AGREEMENT, dated as of, and effective as of 12:01 a.m. on, June 2,
1998 (the "Agreement"), by and among HORIZON MEDICAL PRODUCTS, INC., a Georgia
corporation ("Purchaser"), and NORFOLK MEDICAL PRODUCTS, INC., an Illinois
corporation ("Norfolk"), and XXXXXXX X. XXXXXX, a resident of the State of
Illinois ("Xxxxxxx Xxxxxx" and Norfolk hereinafter collectively referred to as
the "Sellers").
W I T N E S S E T H:
WHEREAS, Xxxxxxx Xxxxxx owns all of the outstanding capital stock of
Norfolk;
WHEREAS, Norfolk is engaged in the business, among other things, of
manufacturing, distributing and selling products for human vascular access use,
specifically port, catheter and needle medical devices (the "Port Business");
and
WHEREAS, Purchaser and Sellers desire to enter into this Agreement
pursuant to which (a) Norfolk and Xxxxxxx Xxxxxx propose to sell to Purchaser
substantially all of its assets relating to the Port Business and (b) Purchaser
proposes to purchase such assets from Norfolk and Xxxxxxx Xxxxxx and to assume
certain liabilities of Norfolk relating to the Port Business.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
ARTICLE 1.
ASSET PURCHASE AND SALE
Section 1.1. Agreement to Sell. At the Closing (as hereinafter defined)
and except as otherwise specifically provided in this Article 1, Norfolk and
Xxxxxxx Xxxxxx shall grant, sell, convey, assign, transfer and deliver to
Purchaser, upon and subject to the terms and conditions of this Agreement, all
right, title and interest of Norfolk and Xxxxxxx Xxxxxx in and to all of the
assets, properties and rights of Norfolk and Xxxxxxx Xxxxxx used or held for use
in the Port Business (which Port Business, assets, properties and rights are
hereinafter collectively referred to as the "Purchased Assets"), free and clear
of all mortgages, liens, pledges, security interests, charges, claims,
restrictions and encumbrances of any nature whatsoever except Assumed
Obligations (as hereinafter defined).
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Section 1.2. Purchased Assets. Except as otherwise expressly set forth
in Section 1.3 hereof, the Purchased Assets shall include without limitation the
following assets, properties and rights of Norfolk and Xxxxxxx Xxxxxx used in
the conduct of, or generated by, or constituting a part of, the Port Business:
(a) All rights in and to the port, catheter and needle product
line of the Port Business, including, without limitation, the
TitanPort, the Vortex, the OmegaPort, the Norport, the BetaPort, the
OmegaCath, the Xxxxx Needle Sets and the Active Life Style Infusion
Sets, as further described on Schedule 1.2(a) hereto (the "Ports");
(b) All inventory of the Ports, including raw materials, work
in progress, and finished goods;
(c) All equipment, machinery, tools, supplies, and spare parts
relating to the manufacturing of the Ports, as further described on
Schedule 1.2(c) hereto;
(d) All intellectual property relating to the Ports, including
patent rights, copyrights, trademarks, service marks and all
applications therefor, together with all related design, know-how,
specifications, trade secrets, processes, technology, goodwill, and
other intangible property rights related thereto, as further described
on Schedule 1.2(d) hereto;
(e) All right, title, and interest in and to agreements,
instruments, commitments, undertakings, and other contracts relating to
the Port Business, as agreed to by Purchaser and as set forth on
Schedule 1.2(e) hereto, including, without limitation, Norfolk's
agreement with Columbia/HCA, to the full extent such agreements,
instruments, commitments, undertakings, and contracts are transferable;
and
(f) All Port product literature, manuals, customer lists,
sales records, and other books, records, files, and documents relating
to the Port Business; provided, however, that Sellers may retain
archival copies of all such records for their own use.
Section 1.3. Excluded Assets. Notwithstanding anything to the contrary
set forth herein, Purchaser, by consummating the transaction described in this
Agreement, shall not acquire any assets of Sellers other than the Purchased
Assets, or such other assets as are set forth on Schedule 1.3 hereto.
Section 1.4. Agreement to Purchase. At the Closing, Purchaser shall
acquire the Purchased Assets from Norfolk, upon and subject to the terms and
conditions of this Agreement and in reliance on the representations, warranties
and covenants of the Sellers contained herein, in exchange for the Purchase
Price (as hereinafter defined) and the assumption by Purchaser of the Assumed
Obligations as provided in Section 1.8 hereof.
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Section 1.5. The Purchase Price. The purchase price (the "Purchase
Price") for the Purchased Assets shall be equal to the sum of Nine Million Three
Hundred Thousand Dollars ($9,300,000.00) payable in respect of the Purchased
Assets being acquired from Norfolk and Xxxxxxx Xxxxxx.
Section 1.6. Payment at Closing. Eighty percent (80%) of the Purchase
Price shall be paid to the Sellers in cash at Closing and Purchaser shall place
the balance of the Purchase Price (the "Escrow Amount") in an interest bearing
account (the "Escrow Account") with an escrow agent pursuant to the terms of an
Escrow Agreement substantially in the form attached hereto as Exhibit 1.6 (the
"Escrow Agreement"). Ten percent (10%) of the Purchase Price which is held under
the Escrow Agreement shall be delivered to Sellers six (6) months after the
Closing Date, subject to the obligations of Sellers set forth in Section 8.1
hereof. The remaining ten percent (10%) of the Purchase Price which is held
under the Escrow Agreement shall be delivered to Sellers upon the successful
completion of the transition described in the Transition Agreement (as
hereinafter defined).
Section 1.7. Valuation For Tax Reporting Purposes. Sellers and
Purchaser agree that Exhibit 1.7, in which the parties have allocated the
Purchase Price among the Purchased Assets, has been jointly prepared by the
parties hereto. The parties agree that the allocation of the Purchase Price set
forth in Exhibit 1.7 is in accordance with ss. 1060 of the Internal Revenue Code
of 1986, as amended (the "Code"), and each will use Exhibit 1.7 in preparing and
filing their respective Forms 8594 with the Internal Revenue Service,
determining Purchaser's cost basis and Sellers' amount realized, and for all
other relevant federal and state income tax purposes. Each party will provide a
copy of the Form 8594 to the other party prior to filing.
Section 1.8. Assumption of Assumed Obligations. At the Closing and
except as otherwise specifically provided in Section 1.9 hereof, Purchaser shall
assume and agree to pay, discharge or perform, as appropriate, the following
liabilities and obligations of Norfolk (hereinafter collectively referred to as
the "Assumed Obligations"):
(a) All liabilities and obligations arising on or after the
Closing Date with respect to the items set forth on Schedules 1.2(d)
and 1.2(e) hereto; and
(b) All liabilities and obligations with respect to the Port
Business products sold by Purchaser on or after the Closing Date.
Section 1.9. Excluded Liabilities. Notwithstanding anything to the
contrary set forth herein, except for the liabilities and obligations
specifically identified in Section 1.8, in no event shall Purchaser assume or
incur or otherwise become responsible for any liability or obligation of Norfolk
or Xxxxxxx Xxxxxx of any nature whatsoever, whether express or implied, fixed or
contingent, liquidated or unliquidated, known or unknown, accrued, due or to
become due.
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ARTICLE 2.
CLOSING; ITEMS TO BE DELIVERED;
FURTHER ASSURANCES
Section 2.1. Closing. The consummation of the transactions contemplated
by this Agreement is herein referred to as the "Closing." The "Closing Date"
shall be June 2, 1998 at 12:01 a.m. The Closing shall take place at the offices
of King & Spalding, Atlanta, Georgia, or at such other place as the Purchaser
and Sellers shall mutually agree upon.
Section 2.2. Items to be Delivered at Closing. At the Closing and
subject to the terms and conditions herein contained:
(a) Sellers shall deliver to Purchaser the following:
(i) Such bills of sale with covenants of warranty,
warranty deeds, assignments, endorsements, and other good and
sufficient instruments and documents of conveyance and
transfer, in form reasonably satisfactory to Purchaser and its
counsel, as shall be necessary and effective to transfer and
assign to, and vest in Purchaser all of Norfolk's and Xxxxxxx
Xxxxxx'x right, title and interest in and to the Purchased
Assets, including, without limitation, (A) good, valid and
marketable title in and to all of the Purchased Assets owned
by Norfolk or Xxxxxxx Xxxxxx, (B) good and valid leasehold
interest in and to all of the Purchased Assets leased by
Norfolk or Xxxxxxx Xxxxxx as lessee, and (C) all of Norfolk's
and Xxxxxxx Xxxxxx'x rights under all agreements, contracts,
commitments, leases, plans, bids, quotations, proposals,
instruments and other documents included in the Purchased
Assets to which either Norfolk or Xxxxxxx Xxxxxx is a party or
by which either of them has rights on the Closing Date; and
(ii) All of the agreements, contracts, commitments,
leases, plans, bids, quotations, proposals, instruments,
manuals and guidebooks, price books and price lists, customer
and subscriber lists, supplier lists, sales records, files,
books, records, papers, files, office supplies and data
belonging to Norfolk or Xxxxxxx Xxxxxx which are part of the
Purchased Assets;
and simultaneously with such delivery, all such reasonable steps will
be taken as may be required to place Purchaser in actual possession and
operating control of the Purchased Assets.
(b) Purchaser shall deliver to Norfolk the following:
(i) The Purchase Price, less the Escrow Amount; and
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(ii) An undertaking in a form reasonably satisfactory
to Sellers and their counsel pursuant to which Purchaser will
assume and agree to pay, discharge or perform, as appropriate,
the Assumed Obligations.
(c) The parties shall execute and deliver the Escrow Agreement
and Purchaser shall deliver the Escrow Amount to the escrow agent named
therein.
(d) The parties hereto also shall deliver to each other the
documents and instruments referred to in Article 6 hereof.
Section 2.3. Further Assurances. The Sellers from time to time after
the Closing, at Purchaser's request, will execute, acknowledge and deliver to
Purchaser such other instruments of conveyance and transfer and will take such
other actions and execute and deliver such other documents, certifications and
further assurances as Purchaser may reasonably request in order to vest more
effectively in Purchaser, or to put Purchaser more fully in possession of, any
of the Purchased Assets, or to better enable Purchaser to complete, perform or
discharge any of the Assumed Obligations. Each of the parties hereto will
cooperate with the other and execute and deliver to the other such other
instruments and documents and take such other actions as may be reasonably
requested from time to time by any party hereto as necessary to carry out,
evidence and confirm the intended purposes of this Agreement.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
With such exceptions as are set forth in a letter (the "Norfolk
Disclosure Letter") delivered by the Sellers to Purchaser prior to the execution
hereof, the Sellers, jointly and severally, hereby represent and warrant to
Purchaser as of the date of this Agreement:
Section 3.1. Organization. Norfolk is a corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois
and has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as is now being conducted. Norfolk
is not qualified to transact business in any foreign jurisdiction. Norfolk has
heretofore made available to Purchaser accurate and complete copies of the
Articles of Incorporation, and Bylaws, as currently in effect, of Norfolk, and
has made available to Purchaser the minute books and stock transfer records of
Norfolk. The Norfolk Disclosure Letter contains a true and correct list of the
jurisdictions in which Norfolk is qualified to transact business as a foreign
corporation.
Section 3.2. Authorization. Norfolk has full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
under this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this
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Agreement by Norfolk and the performance by Norfolk of its obligations hereunder
and the consummation of the transactions provided for herein by Norfolk has been
duly and validly authorized by all necessary corporate action on the part of
Norfolk. The Board of Directors and the sole shareholder of Norfolk have
approved the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby in accordance with the
requirements of the Illinois Business Corporation Act and the Articles of
Incorporation and Bylaws of Norfolk. Xxxxxxx Xxxxxx has full power and capacity
to execute and deliver this Agreement and perform his obligations hereunder and
to consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Sellers and constitutes the valid and binding
agreement of the Sellers, enforceable against the Sellers in accordance with its
terms, subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable remedies.
Section 3.3. No Interest in Other Entities. The Purchased Assets do not
include any shares of capital stock or any other ownership interests or
securities of any corporation, association, partnership, joint venture or other
legal entity.
Section 3.4. Absence of Restrictions and Conflicts. The execution,
delivery and performance of this Agreement, the consummation of the transactions
contemplated by this Agreement and the fulfillment of and compliance with the
terms and conditions of this Agreement do not and will not, with the passing of
time or the giving of notice or both, violate or conflict with, constitute a
breach of or default under, result in the loss of any material benefit under, or
permit the acceleration of any obligation under, (i) any term or provision of
the Articles of Incorporation or Bylaws of Norfolk, (ii) any Norfolk Client
Contract (as hereinafter defined), (iii) any judgment, decree or order of any
court or governmental authority or agency to which the Sellers are a party or by
which the Sellers or any of their respective properties is bound, or (iv) any
statute, law, regulation or rule applicable to the Sellers so as to have in the
case of subsections (ii) through (iv) above, a material adverse effect on the
assets, liabilities, results of operations, financial condition, business or
prospects of the Port Business. No consent, approval, order or authorization of,
or registration, declaration or filing with, any governmental agency or public
or regulatory unit, agency, body or authority with respect to the Sellers is
required in connection with the execution, delivery or performance of this
Agreement by the Sellers or the consummation of the transactions contemplated by
this Agreement by the Sellers, the failure of which to obtain would have a
material adverse effect upon the assets, liabilities, results of operations,
financial condition, business or prospects of the Port Business.
Section 3.5. Ownership of Assets and Related Matters.
(a) Leases. The Norfolk Disclosure Letter sets forth a true
and complete list of all leases and agreements of Norfolk granting
possession of or rights to personal property utilized in the business
(the "Scheduled Leases"). All such Scheduled Leases are in full force
and effect and constitute the legal, valid, binding and enforceable
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obligations of Norfolk, and are legal, valid, binding and enforceable
in accordance with their respective terms with respect to each other
party thereto, in each case to the extent material to the business and
operations of the Port Business and subject, in each case, to
applicable bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable remedies.
Norfolk has physical possession of all equipment and other assets which
are covered by Scheduled Leases. There are no existing defaults of
Norfolk with respect to such Scheduled Leases or of any of the other
parties thereto (or events or conditions which, with notice or lapse of
time, or both, would constitute a default).
(b) Necessary Assets. The Purchased Assets constitute all of
the assets used to conduct the operations of the Port Business in
accordance with the past practices of the Port Business. All equipment
and other material items of tangible property and assets which would be
included in the Purchased Assets if the Closing took place on the date
hereof are in good operating condition and repair subject to normal
wear and maintenance, are usable in the regular and ordinary course of
business and conform to all applicable laws, ordinances, codes, rules
and regulations applicable thereto, except such failures to conform
which in the aggregate would not have a material adverse effect upon
the assets, liabilities, results of operations, financial condition,
business or prospects of the Port Business. No person or entity other
than Norfolk owns any equipment or other tangible assets or properties
situated on the premises of the Port Business which are necessary to
the operation of the Port Business, except for leased items disclosed
in the Norfolk Disclosure Letter and for items of immaterial value.
(c) No Third Party Options. There are no existing agreements,
options, commitments or rights with, of or to any person to acquire any
of the assets, properties or rights included in the Purchased Assets or
any interest therein.
(d) Authorized Capital Stock. The authorized capital stock of
Norfolk consists of Five Hundred One (501) shares of common stock, $.00
par value per share (the "Norfolk Stock") and there are Five Hundred
One (501) shares of Norfolk Stock issued and outstanding. Each share of
Norfolk Stock issued and outstanding is duly authorized, validly
issued, fully paid and nonassessable. Xxxxxxx Xxxxxx is the sole
shareholder of all of the issued and outstanding shares of Norfolk
Stock and there are no subscriptions, warrants, convertible securities,
calls, rights, warrants or other agreements, claims or commitments of
any nature whatsoever with respect to the ownership of the issued and
outstanding Norfolk Stock by Xxxxxxx Xxxxxx obligating Norfolk to
issue, transfer, deliver or sell additional shares of capital stock or
other securities of Norfolk. Xxxxxxx Xxxxxx is the owner of all the
issued and outstanding shares of Norfolk Stock free and clear of all
liens, pledges, security interests, charges, claims, restrictions and
encumbrances of any nature whatsoever.
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Section 3.6. Financial Statements. Norfolk has delivered to Purchaser:
(a) the unaudited balance sheets of Norfolk as of December 31, 1995, 1996 and
1997 and the related statements of revenues and expenses for the fiscal years
then ended; and (b) the unaudited balance sheet of Norfolk (the "1998 Balance
Sheet") as of April 30, 1998 (the "1998 Balance Sheet Date") and the related
unaudited statements of revenues and expenses for the four month period then
ended. All of the foregoing financial statements are hereinafter collectively
referred to as the "Norfolk Financial Statements." The Norfolk Financial
Statements have been prepared from, and are in accordance with, the books and
records of Norfolk and present fairly the financial position and results of
operations as of the dates and for the periods indicated, in each case in
conformity with consistent accounting policies, procedures, and estimates for
the Port Business ("Consistent Practices"), except as otherwise stated in the
Norfolk Financial Statements.
Section 3.7. No Undisclosed Liabilities. Norfolk has no liabilities or
obligations relating to, involving or affecting the Port Business or the
Purchased Assets which are not fairly reflected or provided for in the 1998
Balance Sheet, except liabilities and obligations incurred since the 1998
Balance Sheet Date in the ordinary course of business and consistent with past
practices of the Port Business and which in the aggregate will not have a
material adverse effect upon the assets, liabilities, results of operations,
financial conditions, business or prospects of the Port Business.
Section 3.8. Absence of Certain Changes.
(a) Since the 1998 Balance Sheet Date, there has not been (i)
any material adverse change in the assets, liabilities, business,
financial condition, results of operations or prospects of the Port
Business, or (ii) any damage, destruction, loss or casualty to property
or assets of the Port Business, whether or not covered by insurance,
which property or assets are material to the Port Business.
(b) Since the 1998 Balance Sheet Date, there have not been
with respect to the Port Business (i) any extraordinary losses
suffered, (ii) any material assets mortgaged, pledged or made subject
to any lien, charge or other encumbrance, (iii) any liability or
obligation (absolute, accrued or contingent) incurred or any bad debt,
contingency or other reserve increase suffered, except, in each such
case, in the ordinary course of business and consistent with past
practice, (iv) any claims, liabilities or obligations (absolute,
accrued or contingent) paid, discharged or satisfied, other than the
payment, discharge or satisfaction, in the ordinary course of business
and consistent with past practice of claims, liabilities and
obligations reflected or reserved against in the Norfolk Financial
Statements or incurred in the ordinary course of business and
consistent with past practice since the 1998 Balance Sheet Date, (v)
any guaranteed checks, notes or accounts receivable which have been
written off as uncollectible, except write-offs in the ordinary course
of business and consistent with past practice, (vi) any write down of
the value of any asset or investment on the books or records of
Norfolk, except for
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depreciation and amortization taken in the ordinary course of business
and consistent with past practices, (vii) any cancellation of any debts
or waiver of any claims or rights of substantial value, or sale,
transfer or other disposition of any properties or assets (real,
personal or mixed, tangible or intangible) of substantial value,
except, in each such case, in transactions in the ordinary course of
business and consistent with past practice and which in any event do
not exceed $5,000 in the aggregate, (viii) any single capital
expenditure or commitment in excess of $5,000 for additions to property
or equipment, or aggregate capital expenditures and commitments in
excess of $5,000 for additions to property or equipment, (ix) any
transactions entered into other than in the ordinary course of
business, (x) any agreements to do any of the foregoing or (xi) any
other events, developments or conditions of any character that have had
or are reasonably likely to have a material adverse effect on the
assets, liabilities, results of operations, financial condition,
business or prospects of the Port Business.
Section 3.9. Legal Proceedings. There are no suits, actions, claims,
proceedings or investigations pending, or, to the best knowledge of the Norfolk
Executives (as hereinafter defined), threatened against, relating to or
involving Norfolk, Xxxxxxx Xxxxxx, the Port Business or the Purchased Assets
before any court, arbitrator or administrative or governmental body. The Port
Business is not subject to any judgment, decree, injunction, rule or order of
any court.
Section 3.10. Compliance with Law.
(a) Norfolk has all material authorizations, approvals,
licenses and orders of and from all governmental and regulatory
offices, agencies, officers and bodies necessary to carry on the Port
Business as it is currently being conducted, to own or hold under lease
the properties and assets it owns or holds under lease and to perform
all of its obligations under all agreements to which it is a party
(collectively, the "Material Licenses") and Norfolk has been and is in
compliance with all applicable laws, regulations and administrative
orders of any country, state or municipality or of any subdivision
thereof to which its business and its employment of labor or its use or
occupancy of properties or any part thereof are subject, the failure to
obtain or the violation of which would have a material adverse effect
upon the assets, liabilities, results of operations, financial
condition, business or prospects of the Port Business. The Norfolk
Disclosure Letter sets forth a true and complete list of all Material
Licenses.
(b) Norfolk has been and is in compliance with all current and
otherwise applicable statutes, rules, regulations, standards, guides or
orders administered or issued by the Federal Food and Drug
Administration ("FDA") and all other Federal, state, local or foreign
governmental departments, regulatory agencies, authorities,
commissions, boards or courts or other law, rule or regulation-making
entities having regulatory authority over Norfolk or the Port Business
(the "Authorities"). Norfolk has not received any Notice of Adverse
Findings, Warning Letters, Section 305 notices, subpoenas or other
similar communications by any Authorities with respect to the Port
Business, and
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there have been no recalls, field notifications, alerts or seizures
requested or threatened relating to the Port Business. Sellers have
made available to Purchaser a copy of all currently active
investigational device exemptions ("IDE") filed with or approved by the
FDA by or on behalf of Norfolk in connection with the Port Business and
all premarket approval ("PMA") and premarket notification ("501(k)")
clearance or concurrence letters received from the FDA in connection
with the Port Business and comparable communications received from any
other applicable Authorities and provided Purchaser with access to all
related documents and information, including device master files and
post-market studies. Sellers also have made available to Purchaser for
review all FDA inspection reports ("Form 483s") or comparable reports
of foreign Authorities relating to the Port Business, Norfolk's
responses to such Form 483s or comparable foreign reports, and the FDA
Establishment Inspection Reports which Norfolk has obtained for all FDA
inspections of Norfolk's facility. Sellers also have made available to
Purchaser all internal inspection reports conducted by Norfolk relating
to the Port Business, as well as the written procedures for such
audits. Sellers have made available to Purchaser for review copies of
all complaint files, foreign vigilance reports and Medical Device
Reports filed and maintained by Norfolk relating to the Ports or the
Port Business, as well as copies of all related documents. Sellers have
made available to Purchaser for review copies of all labels and the
label history for all of the Ports. Sellers also have made available to
Purchaser for review copies of all regulatory approvals obtained from
any foreign regulatory agency related to the Ports.
Section 3.11. Norfolk Material Contracts. The Norfolk Disclosure Letter
contains a true and complete list of the following (hereinafter referred to as
the "Norfolk Material Contracts"):
(a) all bonds, debentures, notes, mortgages, indentures or
guarantees to which Norfolk or Xxxxxxx Xxxxxx is a party and which
relate to the Port Business or by which any of the Purchased Assets is
bound;
(b) all loans and credit commitments to Norfolk or Xxxxxxx
Xxxxxx which relate to the Port Business and which are outstanding,
together with a brief description of such commitments and the name of
each financial institution granting the same;
(c) all contracts or agreements which limit or restrict
Norfolk, Xxxxxxx Xxxxxx or the Port Business from engaging in any
business in any jurisdiction or that limit any third party from
engaging in competition with Norfolk, Xxxxxxx Xxxxxx or the Port
Business; and
(d) all existing contracts and commitments (other than those
described in subparagraphs (a), (b), or (c) of this Section 3.11, and
any Norfolk Client Contracts (as hereinafter defined) or Scheduled
Leases which relate to the Port Business or by which any of the
Purchased Assets may be bound involving an annual commitment or annual
payment by any party thereto of more than $500.00 individually.
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True and complete copies of all Norfolk Material Contracts, including
all amendments thereto, have been made available to Purchaser. The Norfolk
Material Contracts are valid and enforceable in accordance with their respective
terms with respect to Norfolk, and are valid and enforceable in accordance with
their respective terms with respect to each other party thereto, in each case to
the extent material to the business and operations of the Port Business. Except
for events or occurrences, the consequences of which, individually or in the
aggregate, would not have a material adverse effect on the assets, liabilities,
results of operations, financial condition, business or prospects of the Port
Business, there is not under any of the Norfolk Material Contracts any existing
breach, default or event of default by Norfolk or Xxxxxxx Xxxxxx or event that
with notice or lapse of time or both would constitute a breach, default or event
of default by Norfolk or Xxxxxxx Xxxxxx, nor do the Sellers know of, and Sellers
have not received notice of, or made a claim with respect to, any breach or
default by any other party thereto.
Section 3.12. Norfolk Client Contracts. The Norfolk Disclosure Letter
sets forth a true and complete: (a) list of all agreements, contracts and
commitments (whether written or verbal) pursuant to which Norfolk provides goods
or services to the clients of the Port Business (the "Norfolk Client
Contracts"); and (b) description of the terms of all verbal Norfolk Client
Contracts. The Norfolk Disclosure Letter contains an accurate description of any
and all disagreements, complaints, disputes or defaults arising under or with
respect to the Norfolk Client Contracts which could reasonably be expected to
result in a client's termination of its contract or relationship with the Port
Business or claim for damages against the Port Business. The execution, delivery
and performance of this Agreement by the Sellers and the consummation of the
transactions contemplated hereby will not, with the passing of time or giving of
notice or both, violate or conflict with or constitute a breach of or default
under, result in the loss of any material benefit under or give rise to a
termination right under any Norfolk Client Contract.
Section 3.13. Tax Returns; Taxes. Norfolk has duly filed all federal,
state, local and foreign tax returns required to be filed by them, all such
returns are accurate in all material respects, and Norfolk has duly paid or made
adequate provisions for the payment of all taxes (including any interest,
penalties and additions to tax) which are due or payable pursuant to such
returns or which otherwise are due and payable in any jurisdiction, whether or
not in connection with such returns. The liability for taxes reflected in the
1998 Balance Sheet is sufficient for the payment of all unpaid taxes of Norfolk,
whether or not disputed, that are accrued or applicable for the period ended
April 30, 1998 and for all years and periods ended prior thereto. All
deficiencies asserted as a result of any examinations by the Internal Revenue
Service or any other taxing authority have been paid, fully settled or
adequately provided for in the Norfolk Financial Statements. There are no
pending claims asserted for taxes of Norfolk or outstanding agreements or
waivers extending the statutory period of limitation applicable to any tax
return of Norfolk or outstanding agreements or waivers extending the statutory
period of limitation applicable to any tax return of Norfolk for any period.
Norfolk has made all estimated income tax deposits and all other required tax
payments or deposits and have complied for all prior periods in all material
respects with the tax withholding provisions of all applicable federal, state,
local and other laws.
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From and after the date hereof and prior to Closing, Norfolk shall make
available to Purchaser true, complete and correct copies of such federal income
tax returns, state and local income tax returns and sales tax returns and such
other tax returns concerning the Port Business or the Purchased Assets as
Purchaser shall reasonably request.
Section 3.14. Insurance. Norfolk has heretofore provided to Purchaser a
true and complete list of current insurance policies and coverages relating to
the Purchased Assets and/or the Port Business, including names of carriers,
amounts of coverage and premiums thereof. The Purchased Assets and the Port
Business have been and are insured and Norfolk will use its reasonable efforts
to maintain such insurance at least through the Closing Date. Norfolk has made
available to Purchaser true and complete copies of all insurance policies
covering the Purchased Assets and/or the Port Business.
Section 3.15. Environmental Matters. The operations of the Port
Business are in compliance in all material respects with all statutes,
regulations and ordinances relating to the protection of human health and the
environment including, without limitation, the Clean Water Act, 33 U.S.C. ss.
1251 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et
seq., the Clean Air Act, 42 U.S.C. ss. 7401 et seq., the Toxic Substances
Control Act, 15 U.S.C. ss. 2601 et seq., the Emergency Planning Community
Right-to-Know Act, 42 U.S.C. ss. 11,001 et seq., the regulations developed
pursuant to these statutes and the corresponding state and local statutes,
ordinances and regulations. There has been no release of a hazardous substance
as that term is defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ss. 9601(14) into the
environment at any property owned, leased or used in connection with the Port
Business (the "Premises") including, without limitation, any such release in the
soil or groundwater underlying the Premises. There is no asbestos,
polychlorinated biphenyls or underground storage tanks located on the Premises
and there have been no releases of asbestos, polychlorinated biphenyls or
materials stored in underground storage tanks, including, without limitation,
petroleum or petroleum-based materials. The Sellers have not received notice of
any violation of any environmental statute or regulation nor have they been
advised of any claim or liability pursuant to any environmental statute or
regulation brought by any governmental agency or private party with respect to
the Purchased Assets or the operation of the Port Business.
Section 3.16. Patents, Trademarks, Trade Names. The Norfolk Disclosure
Letter sets forth a true and complete list of (i) all patents, trademarks, trade
names and registered copyrights owned by Norfolk or Xxxxxxx Xxxxxx and used in
connection with the Port Business (collectively, the "Proprietary Intellectual
Property") and (ii) all patents, trademarks, trade names, copyrights, technology
and processes used by Norfolk in connection with the Port Business which are
used pursuant to a license or other right granted by a third party
(collectively, the "Licensed Intellectual Property", and together with the
Proprietary Intellectual Property herein referred to as "Intellectual
Property"). Norfolk or Xxxxxxx Xxxxxx owns all Intellectual Property, and, all
such rights shall be assigned and transferred to Purchaser in connection with
the consummation of the transactions contemplated hereby. No claims are pending
against Norfolk
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or Xxxxxxx Xxxxxx by any person with respect to the use of any Intellectual
Property or challenging or questioning the validity or effectiveness of any
license or agreement relating to the same, and the current use by Norfolk or
Xxxxxxx Xxxxxx of the Intellectual Property does not infringe on the rights of
any third party. The Norfolk Disclosure Letter sets forth a list of all
jurisdictions in which the Port Business is operating under a trade name, and
each jurisdiction in which any such trade name is registered.
Section 3.17. Transactions with Affiliates. No officer, director,
partner or significant employee of Norfolk, or any person with whom any such
officer, director, partner or significant employee has any direct or indirect
relation by blood, marriage or adoption, or any entity in which any such person,
owns any beneficial interest (other than a publicly held corporation whose stock
is traded on a national securities exchange or in the over-the-counter market
and less than 1% of the stock of which is beneficially owned by all such
persons) has any interest in: (i) any contract, arrangement or understanding
with, or relating to, the Port Business, the Purchased Assets or the Assumed
Obligations; (ii) any loan, arrangement, understanding, agreement or contract
for or relating to the Port Business or the Purchased Assets; or (iii) any
property (real, personal or mixed), tangible or intangible, used or currently
intended to be used in the Port Business.
Section 3.18. Brokers, Finders and Investment Bankers. Except as set
forth in the Norfolk Disclosure Letter (which shall be the Sellers' sole
responsibility), neither the Sellers nor any of their respective officers,
directors, partners or employees has employed any broker, finder or investment
banker or incurred any liability for any investment banking fees, financial
advisory fees, brokerage fees or finders' fees in connection with the
transactions contemplated hereby.
Section 3.19. Disclosure. No representation, warranty or covenant made
by any of the Sellers in this Agreement, the Norfolk Disclosure Letter or the
Exhibits attached hereto contains an untrue statement of a material fact or
omits to state a material fact required to be stated herein or therein or
necessary to make the statements contained herein or therein not misleading.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
With such exceptions as are set forth in a letter (the "Purchaser
Disclosure Letter") delivered by Purchaser to the Sellers prior to the execution
hereof, Purchaser hereby represents and warrants to the Sellers as follows:
Section 4.1. Organization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
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Section 4.2. Authorization. Purchaser has full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
under this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Purchaser, the performance by
Purchaser of their obligations hereunder and the consummation by Purchaser of
the transactions provided for herein have been duly and validly authorized by
all necessary corporate action on the part of Purchaser. This Agreement has been
duly executed and delivered by Purchaser and constitutes the valid and binding
agreement of Purchaser, enforceable against Purchaser in accordance with its
terms, subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable remedies.
Section 4.3. Absence of Restrictions and Conflicts. The execution,
delivery and performance of this Agreement, the consummation of the transactions
contemplated by this Agreement, and the fulfillment of and compliance with the
terms and conditions of this Agreement do not and will not, with the passing of
time or the giving of notice or both, violate or conflict with, constitute a
breach of or default under, result in the loss of any material benefit under, or
permit the acceleration of any obligation under, (i) any term or provision of
the Articles of Incorporation or Bylaws of Purchaser, (ii) any contract,
agreement, commitment or understanding to which Purchaser is a party or to which
Purchaser or any of its respective properties is subject, (iii) any judgment,
decree or order of any court or governmental authority or agency to which
Purchaser is a party or by which Purchaser or any of its respective properties
is bound, or (iv) any statute, law, regulation or rule applicable to Purchaser,
so as to have, in the case of subsections (ii) through (iv) above, a material
adverse effect on the assets, liabilities, results of operations, financial
condition, business or prospects of Purchaser. No consent, approval, order or
authorization of, or registration, declaration or filing with, any government
agency or public or regulatory unit, agency, body or authority with respect to
Purchaser is required in connection with the execution, delivery or performance
of this Agreement by Purchaser or the consummation of the transactions
contemplated by this Agreement by Purchaser, the failure to obtain which would
have a material adverse effect upon Purchaser and its subsidiaries taken as a
whole.
Section 4.4. Disclosure. No representation, warranty or covenant made
by Purchaser in this Agreement, the Purchaser Disclosure Letter or the Exhibits
hereto contains an untrue statement of a material fact or omits to state a
material fact required to be stated herein or therein or necessary to make the
statements contained herein or therein not misleading.
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ARTICLE 5.
CERTAIN COVENANTS AND AGREEMENTS
Section 5.1. Insurance. After the Closing Date, Purchaser will use its
reasonable efforts to maintain adequate insurance on its business operations,
including products liability insurance, to cover all liabilities assumed by
Purchaser in Section 1.8 hereof.
Section 5.2. Noncompetition.
(a) Definitions. The following terms shall have the meanings
set forth opposite each such term below:
(i) "Sellers' Activities" shall mean the business of
manufacturing, distributing, selling or licensing products
for human vascular access use, specifically port, catheter and
needle medical devices.
(ii) "Noncompete Period" shall mean the period commencing
on the Closing Date and ending on the seventh (7th)
anniversary of the Closing Date.
(iii) "Territory" shall mean the entire geographic area of
the United States of America.
(b) Noncompetition.
(i) Coverage. The parties hereto acknowledge and agree
that the Sellers are currently engaged in the Sellers'
Activities throughout the Territory. The Sellers acknowledge
that, to adequately protect the interests of Purchaser in the
Port Business, it is essential that any noncompete covenant
with respect to the Port Business cover all of the Sellers and
any company or organization in which Sellers have a
controlling equity interest (each such company or organization
hereinafter referred to as a Related Party), all of the
Sellers' Activities and the entire Territory.
(ii) Sellers' Covenants. The Sellers hereby covenant and
agree that the Sellers and any Related Party shall not, in any
manner during the Noncompete Period, directly or indirectly,
engage in, have any equity or profit interest in, make any
loan to or for the benefit of, or render services (of any
advertising, marketing, sales, administrative, supervisory,
consulting or any other nature) to, any business which engages
in the Sellers' Activities in the Territory without the prior
written consent of Purchaser.
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(iii) Excluded Activities. Notwithstanding the
foregoing, Purchaser covenants and agrees that the
development, manufacturing, distributing, selling and
licensing of products for use in the human body in the
following areas and cavities are not Sellers Activities and
are not included in the Sellers' Covenants. The areas and
cavities are Peritoneal, Spinal, Lymphatic and Subcutaneous.
Furthermore, all activities in the development, manufacture,
distribution, selling and licensing of products for use in
non-humans, veterinary use or animal research use are not
Sellers' Activities and are not included within the Sellers'
Covenants. The Sellers further acknowledge and agree that the
above described list is not an exclusive list of activities
which are outside the scope of the Sellers' Activities.
(c) Severability. If a judicial determination is made that any
of the provisions of this Section 5.2 constitutes an unreasonable or
otherwise unenforceable restriction against any of the parties hereto,
the provisions of this Section 5.2 shall be rendered void only to the
extent that such judicial determination finds such provisions to be
unreasonable or otherwise unenforceable. In this regard, each of the
parties hereto hereby agrees that any judicial authority construing
this Agreement shall be empowered to sever any portion of the
Territory, any prohibited business activity or any time period from the
coverage of this Section 5.2 and to apply the provisions of this
Section 5.2 to the remaining portion of the Territory, the remaining
business activities or the remaining time period not so severed by such
judicial authority. Moreover, notwithstanding the fact that any
provision of this Section 5.2 is determined not to be specifically
enforceable, each of the parties hereto shall nevertheless be entitled
to recover monetary damages as a result of any breach of any such
provision. The time period during which the prohibitions set forth in
this Section 5.2 shall apply shall be tolled and suspended as to each
applicable party for a period equal to the aggregate quantity of time
during which such party violates such prohibitions in any respect.
(d) Injunctive Relief. Each Seller hereby agrees that any
remedy at law for any breach of the provisions contained in Section
5.2(b) hereof shall be inadequate and that Purchaser shall be entitled
to injunctive relief in addition to any other remedy Purchaser might
have under this Agreement.
Section 5.3. Confidentiality. For a period of seven (7) years after the
Closing Date, the Sellers hereby agree that the Sellers and any Related Party
shall hold in confidence all Confidential Information and will not disclose or
publish such Confidential Information without the prior written consent of
Purchaser. The Sellers further agrees that the Sellers and any Related Party
shall not use any such Confidential Information in a manner adverse to the Port
Business, Purchaser, or any of their respective affiliates, without the prior
written consent of Purchaser. For purposes of this Section 5.3, "Confidential
Information" shall mean any data or information which is valuable to the Port
Business, which the Port Business has taken reasonable efforts to protect the
confidentiality of, and which is not generally known to competitors of the Port
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Business. To the fullest extent consistent with the foregoing and permitted by
law, Confidential Information shall include, without limitation, the customer
lists, marketing techniques, business plans, financial statements and
projections of the Port Business.
Section 5.4. Transition Services. On or prior to the Closing Date,
Purchaser and Sellers shall have entered into a mutually satisfactory transition
agreement substantially in the form attached hereto as Exhibit 5.4 (the
"Transition Agreement"), pursuant to which Norfolk shall continue to manufacture
the Ports until such time as 30,000 Ports have been manufactured or for a period
of twelve (12) months, whichever shall first occur. The Transition Agreement
also shall provide that Sellers shall assist in moving the manufacturing of the
Ports (including the assembling and validation of machinery and equipment) to
Purchaser's manufacturing facility located in Manchester, Georgia.
Section 5.5. Research and Development Services. On or prior to the
Closing Date, Sellers shall execute and deliver to Purchaser a research and
development services agreement substantially in the form attached hereto as
Exhibit 5.5 (the "Research and Development Agreement"), pursuant to which
Sellers shall agree to assist Purchaser, using best efforts, in the development
of braided catheters and valved catheters (the "Products"), for a period of
twelve (12) months following the Closing Date. The Research and Development
Agreement shall provide that Purchaser shall retain one hundred percent (100%)
ownership in and to the Products.
Section 5.6. Licensing Agreement. On or prior to the Closing Date,
Sellers shall execute and deliver to Purchaser a licensing agreement,
substantially in the form attached hereto as Exhibit 5.6 (the "Licensing
Agreement"), pursuant to which Sellers shall grant to Purchaser a license to use
the name "Norfolk Medical" in connection with the Port Business for a period of
twelve (12) months. The Licensing Agreement shall not require payment of any
compensation, in the form of royalties, licensing fees or otherwise, by
Purchaser.
ARTICLE 6.
CONDITIONS
Section 6.1. Conditions to Each Party's Obligations. The respective
obligations of each party to effect the transactions contemplated hereby shall
be subject to the absence at the Closing of any (a) effective injunction, writ
or preliminary restraining order or any order of any nature issued by a court or
governmental agency of competent jurisdiction to the effect that the purchase
and sale of the Port Business and the Purchased Assets may not be consummated as
herein provided, (b) proceeding or lawsuit by any governmental or regulatory
agency for the purpose of obtaining any such injunction, writ or preliminary
restraining order and (c) written notice from any such agency indicating an
intent to restrain, prevent, materially delay or restructure the transactions
contemplated by this Agreement.
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Section 6.2. Conditions to Obligations of Purchaser. The obligations of
Purchaser to effect the acquisition of the Port Business and the Purchased
Assets and to assume the Assumed Obligations shall be subject to the fulfillment
at or prior to the Closing of each of the following additional conditions:
(a) Representations and Warranties. The representations and
warranties of the Sellers set forth in Article 3 of this Agreement
shall be true and correct as of the date of this Agreement and as of
the Closing Date as though made on and as of the Closing Date.
(b) Performance of Obligations of the Sellers. Each of the
Sellers shall have performed in all material respects all covenants and
agreements required to be performed by him, her or it under this
Agreement.
(c) Authorization of Transaction. All corporate action
necessary by the Sellers to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby shall have been duly and validly taken.
(d) Consents. All consents, authorizations, orders and
approvals of (or filings or registrations with) any governmental
commission, board or other regulatory body required in connection with
the execution, delivery and performance of this Agreement shall have
been obtained or made, except where the failure to have obtained or
made any such consent, authorization, order, approval, filing or
registration would not have a material adverse effect on the business
of Purchaser or the Port Business following the Closing.
(e) Certificates. The Sellers shall furnish Purchaser with a
certificate as to compliance with the conditions set forth in Sections
6.2(a), (b) and (c).
(f) Escrow Agreement. Sellers shall have executed the Escrow
Agreement in the form attached hereto as Exhibit 1.6.
(g) Due Diligence. Purchaser shall be satisfied, in its sole
discretion, with the examination and review of the business,
properties, affairs, books, records, plans and other information of
Norfolk, the Port Business and the Purchased Assets.
(h) Transition Agreement. Sellers shall have executed the
Transition Agreement in the form attached hereto as Exhibit 5.4.
(i) Research and Development Agreement. Sellers shall have
executed the Research and Development Agreement in the form attached
hereto as Exhibit 5.5.
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(j) Licensing Agreement. Sellers shall have executed the
Licensing Agreement in the form attached hereto as Exhibit 5.6.
Section 6.3. Conditions to Obligations of the Sellers. The obligations
of the Sellers to effect the sale of the Port Business and the Purchased Assets
and the assignment of the Assumed Obligations shall be subject to the
fulfillment at or prior to the Closing of each of the following additional
conditions:
(a) Representations and Warranties. The representations and
warranties of Purchaser set forth in Article 4 of this Agreement shall
be true and correct as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date.
(b) Performance of Obligations of Purchaser. Purchaser shall
have performed in all material respects all covenants and agreements
required to be performed by it under this Agreement.
(c) Authorization of Transaction. All corporate action
necessary by Purchaser to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby shall have been duly and validly taken.
(d) Consents. All consents, authorizations, orders and
approvals of (or filings or registrations with) any governmental
commission, board or other regulatory body required in connection with
the execution, delivery and performance of this Agreement shall have
been obtained or made, except where the failure to have obtained or
made any such consent, authorization, order, approval, filing or
registration would not have a material adverse effect on the business
of the Sellers following the Closing.
(e) Certificates. Purchaser shall furnish the Sellers with a
certificate of their appropriate officers as to compliance with the
conditions set forth in Sections 6.3(a), (b) and (c).
(f) Leases. Purchaser shall have executed and delivered
assumption and assignments for each of the Scheduled Leases in a form
as may be required by the respective lessor;
(g) Escrow Agreement. Purchaser shall have executed and
delivered the Escrow Agreement in the form attached hereto as Exhibit
1.6;
(h) Purchase Price. Purchaser's funding of the Escrow
Agreement as required therein and payment of cash or cash equivalent of
the Purchase Price.
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(i) Transition Agreement. Purchaser shall have executed the
Transition Agreement in the form attached hereto as Exhibit 5.4.
(j) Research and Development Agreement. Purchaser shall have
executed the Research and Development Agreement in the form attached
hereto as Exhibit 5.5.
(k) Licensing Agreement. Purchaser shall have executed the
Licensing Agreement in the form attached hereto as Exhibit 5.6.
ARTICLE 7.
TERMINATION
Section 7.1. Termination and Abandonment. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual agreement of the Boards of Directors of the
Purchaser and Norfolk;
(b) by Norfolk, if the conditions set forth in Sections 6.1
and 6.3 hereof shall not have been complied with or performed and such
noncompliance or nonperformance shall not have been cured or eliminated
(or by its nature cannot be cured or eliminated) by Purchaser on or
before June 2, 1998; and
(c) by Purchaser, if the conditions set forth in Sections 6.1
and 6.2 hereof shall not have been complied with or performed and such
noncompliance or nonperformance shall not have been cured or eliminated
(or by its nature cannot be cured or eliminated) by the Sellers on or
before June 2, 1998.
Section 7.2. Specific Performance and Other Remedies. The parties
hereto each acknowledge that the rights of each party to consummate the
transactions contemplated hereby are special, unique and of extraordinary
character, and that, in the event that any party violates or fails or refuses to
perform any covenant or agreement made by it herein, the non-breaching party may
be without an adequate remedy at law. The parties each agree, therefore, that in
the event that either party violates or fails or refuses to perform any covenant
or agreement made by such party herein, the non-breaching party or parties may,
subject to the terms of this Agreement and in addition to any remedies at law
for damages or other relief, institute and prosecute an action in any court of
competent jurisdiction to enforce specific performance of such covenant or
agreement or seek any other equitable relief.
Section 7.3. Effect of Termination. In the event of termination of this
Agreement pursuant to this Article 7, this Agreement shall forthwith become void
and there shall be no
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liability on the part of any party or its respective officers, directors,
partners or stockholders, except for obligations under Section 9.14 and this
Section, all of which shall survive the termination. Notwithstanding the
foregoing, nothing contained herein shall relieve any party from liability for
any breach of any covenant or agreement in this Agreement prior to termination.
ARTICLE 8.
INDEMNIFICATION
Section 8.1. Indemnification Obligations of the Sellers. From and after
the Closing, the Sellers, jointly and severally, shall indemnify and hold
harmless Purchaser, each of their respective officers, directors, employees,
agents and representatives and each of the heirs, executors, successors and
assigns of any of the foregoing (collectively, the "Purchaser Indemnified
Parties") from, against and in respect of any and all claims, liabilities,
obligations, losses, costs, expenses, penalties, fines and other judgments (at
equity or at law) and damages whenever arising or incurred (including, without
limitation, amounts paid in settlement, costs of investigation and reasonable
attorneys' fees and expenses) arising out of or relating to: (a) any Excluded
Liability or any and all other liabilities and obligations of the Sellers of any
nature whatsoever, except the Assumed Obligations; (b) any and all actions,
suits, claims, or legal, administrative, arbitration, governmental or other
Proceedings or investigations against any Purchaser Indemnified Party that
relate to the Sellers or the Port Business to the extent the principal event
giving rise thereto occurred prior to the Closing Date or which result from or
arise out of any action or inaction prior to the Closing Date of the Sellers or
any affiliate, officer, director, partner, employee, agent, representative or
subcontractor of the Sellers; (c) any breach of any representation, warranty,
covenant, agreement or undertaking made by the Sellers in this Agreement or in
any certificate, agreement, exhibit, schedule or other writing delivered by the
Sellers to Purchaser in connection with the matters contemplated hereby or
pursuant to the provisions hereof (collectively, the "Norfolk Ancillary
Documents"); or (d) any fraud, willful misconduct, bad faith or any intentional
breach of any representation, warranty, covenant, agreement or undertaking made
by any of the Sellers in this Agreement or the Norfolk Ancillary Documents. The
claims, liabilities, obligations, losses, costs, expenses, penalties, fines and
damages of the Purchaser Indemnified Parties described in this Section 8.1 as to
which the Purchaser Indemnified Parties are entitled to indemnification are
hereinafter collectively referred to as "Purchaser Losses."
Section 8.2. Indemnification Obligations of Purchaser. From and after
the Closing, Purchaser shall indemnify and hold harmless the Sellers and each of
their respective officers, directors, partners, employees, agents and
representatives and each of the heirs, executors, successors and assigns of any
of the foregoing (collectively, the "Norfolk Indemnified Parties") from, against
and in respect of any and all claims, liabilities, obligations, losses, costs,
expenses, penalties, fines and other judgments (at equity or at law) and damages
whenever arising or
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incurred (including, without limitation, amounts paid in settlement, costs of
investigation and reasonable attorneys' fees and expenses) arising out of or
relating to: (a) the Assumed Obligations; (b) any and all actions, suits,
claims, or legal, administrative, arbitration, governmental or other Proceedings
or investigations against any Norfolk Indemnified Party that relate to the
Purchaser or the Port Business to the extent the principal event giving rise
thereto occurred after the Closing Date or which result from or arise out of any
action or inaction after the Closing Date of the Purchaser or any affiliate,
officer, director, partner, employee, agent, representative or subcontractor of
Purchaser; (c) any breach of any representation, warranty, covenant, agreement
or undertaking made by Purchaser in this Agreement or in any certificate,
agreement, exhibit, schedule or other writing delivered by Purchaser to the
Sellers in connection with the matters contemplated hereby or pursuant to the
provisions hereof (the "Purchaser Ancillary Documents"); or (d) any fraud,
willful misconduct, bad faith or any intentional breach of any representation,
warranty, covenant, agreement or undertaking made by Purchaser in this Agreement
or the Purchaser Ancillary Documents. The claims, liabilities, obligations,
losses, costs, expenses, penalties, fines and damages of the Norfolk Indemnified
Parties described in this Section 8.2 as to which the Norfolk Indemnified
Parties are entitled to indemnification are hereinafter collectively referred to
as "Norfolk Losses."
Section 8.3. Indemnification Procedure.
(a) Promptly after receipt by a Purchaser Indemnified Party or
a Norfolk Indemnified Party (hereinafter collectively referred to as an
"Indemnified Party") of notice by a third party of any complaint or the
commencement of any action or proceeding with respect to which
indemnification is being sought hereunder, such Indemnified Party shall
notify Purchaser or Sellers, whoever is the appropriate indemnifying
party hereunder (the "Indemnifying Party"), of such complaint or of the
commencement of such action or proceeding; provided, however, that the
failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party from liability for such claim arising otherwise than
under this Agreement and such failure to so notify the Indemnifying
Party shall relieve the Indemnifying Party from liability which the
Indemnifying Party may have hereunder with respect to such claim if,
but only if, and only to the extent that, such failure to notify the
Indemnifying Party results in the forfeiture by the Indemnifying Party
of rights and defenses otherwise available to the Indemnifying Party
with respect to such claim. The Indemnifying Party shall have the
right, upon written notice to the Indemnified Party, to assume the
defense of such action or proceeding, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the
payment of the fees and disbursements of such counsel. In the event,
however, that the Indemnifying Party declines or fails to assume the
defense of the action or proceeding or to employ counsel reasonably
satisfactory to the Indemnified Party, in either case in a timely
manner, then such Indemnified Party may employ counsel to represent or
defend it in any such action or proceeding and the Indemnifying Party
shall pay the reasonable fees and disbursements of such counsel as
incurred; provided, however, that the Indemnifying Party shall not be
required to pay the fees and
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disbursements of more than one counsel for all Indemnified Parties in
any jurisdiction in any single action or proceeding. In any action or
proceeding with respect to which indemnification is being sought
hereunder, the Indemnified Party or the Indemnifying Party, whichever
is not assuming the defense of such action, shall have the right to
participate in such litigation and to retain its own counsel at such
party's own expense. The Indemnifying Party or the Indemnified Party,
as the case may be, shall at all times use reasonable efforts to keep
the Indemnifying Party or the Indemnified Party, as the case may be,
reasonably apprised of the status of the defense of any action the
defense of which they are maintaining and to cooperate in good faith
with each other with respect to the defense of any such action.
(b) No Indemnified Party may settle or compromise any claim or
consent to the entry of any judgment with respect to which
indemnification is being sought hereunder without the prior written
consent of the Indemnifying Party, unless such settlement, compromise
or consent includes an unconditional release of the Indemnifying Party
from all liability arising out of such claim. An Indemnifying Party may
not, without the prior written consent of the Indemnified Party, settle
or compromise any claim or consent to the entry of any judgment with
respect to which indemnification is being sought hereunder unless such
settlement, compromise or consent includes an unconditional release of
the Indemnified Party from all liability arising out of such claim and
does not contain any equitable order, judgment or term which in any
manner affects, restrains or interferes with the business of the
Indemnified Party or any of the Indemnified Party's respective
affiliates.
(c) In the event an Indemnified Party shall claim a right to
payment pursuant to this Agreement, such Indemnified Party shall send
written notice of such claim to the appropriate Indemnifying Party.
Such notice shall specify the basis for such claim. As promptly as
possible after the Indemnified Party has given such notice, such
Indemnified Party and the appropriate Indemnifying Party shall
establish the merits and amount of such claim (by mutual agreement,
litigation, arbitration or otherwise) and, within five (5) business
days of the final determination of the merits and amount of such claim,
the Indemnifying Party shall deliver to the Indemnified Party
immediately available funds in an amount equal to such claim as
determined hereunder.
Section 8.4. Claims Period. Except as provided in this Section 8.4, no
claim for indemnification under this Agreement may be asserted by an Indemnified
Party after the expiration of the appropriate claims period (the "Claims
Period") which shall commence on the Closing Date and shall terminate on the
second (2nd) anniversary of the Closing Date; provided, however, that the Claims
Period with respect to Purchaser Losses arising under Sections 8.1(a), 8.1(b)
and 8.1(d) of this Agreement shall commence on the date hereof and shall survive
and remain in effect without limitation, except as limited by law; provided,
further, however, that if prior to the close of business on the last day of the
Claims Period, an Indemnifying Party shall have been properly notified of a
claim for indemnity hereunder and such claim shall not have
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been finally resolved or disposed of at such date, the basis of such claim shall
continue to survive with respect to such claim and shall remain a basis for
indemnity hereunder with respect to such claim until such claim is finally
resolved or disposed of in accordance with the terms hereof.
Section 8.5. Liability Limits. Notwithstanding anything to the contrary
set forth herein:
(a) Sellers shall only be liable for Purchaser Losses arising
hereunder solely to the extent that any such Purchaser Losses exceed,
in the aggregate, Twenty Thousand Dollars $20,000.00 (the "Norfolk
Basket Amount"); provided, however, that Purchaser Losses arising under
or pursuant to Sections 8.1(a), 8.1(b) and 8.1(d) of this Agreement
shall not be subject to the Norfolk Basket Amount, nor shall the amount
of any such Purchaser Losses be included with other Purchaser Losses in
determining whether such Norfolk Basket Amount has been reached.
(b) Purchaser shall only be liable for Norfolk Losses arising
hereunder solely to the extent that any such Norfolk Losses exceed, in
the aggregate, Twenty Thousand Dollars $20,000.00 (the "Horizon Basket
Amount").
(c) The indemnification obligations of the Sellers hereunder
shall not exceed in the aggregate one-half of the Purchase Price (the
"Sellers' Cap Amount"); provided, however, that Purchaser Losses
arising under or pursuant to Sections 8.1(a), 8.1(b) and 8.1(d) of this
Agreement shall not be subject to the Sellers' Cap Amount and there
shall be no limitation on the indemnification obligations of the
Sellers with respect to Purchaser Losses arising under or pursuant to
such provisions.
(d) The Indemnification obligations of the Purchaser hereunder
shall not exceed in the aggregate one-half of the Purchase Price (the
"Purchaser's Cap Amount").
Section 8.6. Jurisdiction and Forum.
(a) By the execution and delivery of this Agreement, each
Indemnifying Party irrevocably designates and appoints each of the
parties set forth under its name below as its authorized agent upon
which process may be served in any suit or proceeding arising out of or
relating to this Agreement that may be instituted in any state or
federal court in the State of Georgia.
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SELLERS:
Xxxxxx X. Xxxxx
Norfolk Medical Products, Inc.
0000 X. Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
PURCHASER:
Xxx X. Xxxxxx, Xx., Esq.
King & Spalding
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
In addition, each party agrees that service of process upon
the above-designated parties shall be deemed in every respect effective
service of process upon such Indemnifying Party in any such suit or
proceeding. Each such Indemnifying Party further agrees to take any and
all action reasonably requested by an Indemnified Party, including the
execution and filing of any and all such documents and instruments, as
may be necessary to continue such designation and appointment of the
above-designated parties in full force and effect so long as this
Agreement shall be in effect. The foregoing shall not limit the rights
of any party to serve process in any other manner permitted by law.
(b) To the extent that any Indemnifying Party has or hereafter
may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution or otherwise) with respect to
itself or its property, each Indemnifying Party hereby irrevocably
waives such immunity in respect of its obligations with respect to this
Agreement.
(c) The parties hereto hereby agree that the appropriate forum
and venue for any disputes between any of the parties hereto arising
out of this Agreement shall be any state or federal court in the State
of Georgia and each of the parties hereto hereby submits to the
personal jurisdiction of any such court. The foregoing shall not limit
the rights of any party to obtain execution of judgment in any other
jurisdiction. The parties further agree, to the extent permitted by
law, that a final and unappealable judgment against any of them in any
action or proceeding contemplated above shall be conclusive and may be
enforced in any other jurisdiction within or outside the United States
by suit on the judgment, a certified or exemplified copy of which shall
be conclusive evidence of the fact and amount of such judgment.
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Section 8.7. Compliance with Bulk Sales Laws. The Sellers and Purchaser
hereby waive compliance by Purchaser and the Sellers with the bulk sales law and
any other similar laws in any applicable jurisdiction in respect of the
transactions contemplated by this Agreement. The Sellers shall indemnify
Purchaser from, and hold Purchaser harmless against, any liabilities, damages,
costs and expenses resulting from or arising out of (a) the parties' failure to
comply with any such laws in respect of the transactions contemplated by this
Agreement and (b) any action brought or levy made as a result thereof.
ARTICLE 9.
MISCELLANEOUS PROVISIONS
Section 9.1. Notices. All notices, communications and deliveries
hereunder shall be made in writing signed by the party making the same, shall
specify the Section hereunder pursuant to which it is given or being made, and
shall be deemed given or made on the date delivered if delivered in person, on
the date initially received if delivered by telecopy transmission followed by
registered or certified mail confirmation, on the date delivered if delivered by
a nationally recognized overnight courier service or on the third (3rd) business
day after it is mailed if mailed by registered or certified mail (return receipt
requested) (with postage and other fees prepaid) as follows:
To Purchaser:
Horizon Medical Products, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx 0
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxxx X. Xxxx
Telecopy No.: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxx X. Xxxxxx, Xx., Esq.
Telecopy No.: (000) 000-0000
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00
Xxxxxxxxx & Xxxxxx
Xxxxx 0000
000 Xxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxxxx, III, Esq.
Telecopy No.: (000) 000-0000
To Norfolk:
Norfolk Medical, Inc.
0000 X. Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx
Norfolk Medical Products, Inc.
0000 X. Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
To: Xxxxxxx X. Xxxxxx
0000 X. Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx
Norfolk Medical Products, Inc.
0000 X. Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
or to such other representative or at such other address of a party as such
party hereto may furnish to the other parties in writing.
Section 9.2. Disclosure Letters and Exhibits. The recitals at the
forefront of this Agreement, the Norfolk Disclosure Letter and the Purchaser
Disclosure Letter and all Exhibits hereto are hereby incorporated into this
Agreement and are hereby made a part hereof as if set out in full in this
Agreement.
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Section 9.3. Time of the Essence; Computation of Time. Time is of the
essence for each and every provision of this Agreement. Whenever the last day
for the exercise of any privilege or the discharge of any duty hereunder shall
fall upon a Saturday, Sunday, or any date on which banks in Atlanta, Georgia or
Skokie, Illinois are closed, the party having such privilege or duty may
exercise such privilege or discharge such duty on the next succeeding day which
is a regular business day.
Section 9.4. Assignment; Successors in Interest. No assignment or
transfer by Purchaser or any of the Sellers of their respective rights and
obligations hereunder shall be made except with the prior written consent of the
other parties hereto. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their permitted successors and assigns,
and any reference to a party hereto shall also be a reference to a permitted
successor or assign.
Section 9.5. Investigations; Representations and Warranties. The
representations and warranties of the Sellers and Purchaser set forth in this
Agreement shall not be extinguished by the Closing and shall survive the Closing
Date for a period of two (2) years. Notwithstanding anything to the contrary set
forth in this Section 9.5, (i) the covenants, agreements and undertakings of the
Sellers and Purchaser set forth herein shall survive the Closing and shall
remain in full force and effect until duly satisfied or performed by the
appropriate party hereto and (ii) this Section 9.5 shall not limit or restrict
Purchaser's or Sellers' remedy against the other or any other person for fraud,
willful misconduct, bad faith or any other intentional breach of any
representation, warranty, covenant, agreement or undertaking contained herein.
The respective representations and warranties of Purchaser and the Sellers
contained herein or in any certificate, or other document delivered by any party
prior to Closing shall not be deemed waived or otherwise affected by any
investigation made by a party hereto.
Section 9.6. Number; Gender. Whenever the context so requires, the
singular number shall include the plural and the plural shall include the
singular, and the gender of any pronoun shall include the other genders.
Section 9.7. Captions. The titles, captions and table of contents
contained in this Agreement are inserted herein only as a matter of convenience
and for reference and in no way define, limit, extend or describe the scope of
this Agreement or the intent of any provision hereof. Unless otherwise specified
to the contrary, all references to Articles and Sections are references to
Articles and Sections of this Agreement and all references to Exhibits are
references to Exhibits to this Agreement and the Norfolk Disclosure Letter and
the Purchaser Disclosure Letter.
Section 9.8. Norfolk Executives; Knowledge. As used in this Agreement,
the terms "the best knowledge of Norfolk Executives," "known to the Norfolk
Executives" or words of similar import used herein with respect to the Sellers,
the Port Business or the Purchased Assets shall mean the actual knowledge of the
Norfolk Executives (as hereinafter defined) together with
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the knowledge a reasonable business person, in a similar business of similar
size to Norfolk, would have obtained after making reasonable inquiry and after
exercising reasonable diligence with respect to the matters at hand. The
"Norfolk Executives" shall consist of Xxxxxxx X. Xxxxxx, President & CEO; Xxxxxx
X. Xxxxx, General Counsel; and Xxxxx X. Xxxxxxxxx, Vice President, Sales and
Marketing.
Section 9.9. Controlling Law; Integration; Amendment.
(a) This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Georgia
without reference to that state's choice of law rules. This Agreement
and the documents and agreements delivered pursuant hereto supersede
all negotiations, agreements and understandings among the parties with
respect to the subject matter hereof and constitute the entire
agreement among the parties hereto.
(b) This Agreement may be amended by the parties hereto by or
pursuant to action duly and property taken by each of them. Without
limiting the foregoing, this Agreement may not be amended, modified or
supplemented except by written agreement executed by each of the
parties hereto.
Section 9.10. Severability. Any provision hereof which is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction will not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by law, the parties hereto waive any
provision of law which renders any such provision prohibited or unenforceable in
any respect.
Section 9.11. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and it shall not
be necessary in making proof of this Agreement or the terms hereof to produce or
account for more than one of such counterparts.
Section 9.12. Enforcement of Certain Rights. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any person, firm or corporation other than the parties hereto, and their
successors or permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, or result in such person, firm
or corporation being deemed a third party beneficiary of this Agreement.
Section 9.13. Waiver. At any time prior to the Closing, the parties
hereto, by or pursuant to action duly and properly taken by each of them, may,
to the extent legally permitted: (i) extend the time for the performance of any
of the obligations or other acts of any other party, provided the party so
extending is the party hereunder for whom such obligation or act so extended was
to be performed; (ii) waive any inaccuracies in the representations or
warranties of
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any other party contained in the Agreement or in any document or certificate
delivered pursuant hereto, provided the party so waiving is the Party hereunder
for whom such representation or warranty was made; (iii) waive compliance or
performance by any other party with any of the covenants, agreements or
obligations of such party contained herein, provided the party so waiving such
compliance or performance is the party hereunder for whom such covenant,
agreement or obligation was to be performed; and (iv) waive the satisfaction of
any condition that is precedent to the performance by the party so waiving of
any of its obligations hereunder. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party. A waiver by one party of the
performance of any covenant, agreement, obligation, condition, representation or
warranty shall not be construed as a waiver of any other covenant, agreement,
obligation, condition, representation or warranty. A waiver by any party of the
performance of any act shall not constitute a waiver of the performance of any
other act or an identical act required to be performed at a later time.
Section 9.14. Fees and Expenses. Except as otherwise provided herein
Purchaser shall pay its own fees, costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby, including, but not
limited to, the fees, costs and expenses of its accountants and counsel. Except
as otherwise provided herein, the Sellers shall pay their own fees, costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including, but not limited to, the fees, costs and expenses
of its accountants and counsel.
Section 9.15. Litigation Expenses. In the event of any litigation
between the parties hereto with respect to any dispute arising from the language
or terms of this Agreement, the non-prevailing party shall be required to pay
the prevailing party all of the prevailing party's attorneys fees, costs and
expenses. A party shall not be considered a prevailing party unless he or it
recovers in the litigation by way of judgment, settlement or otherwise, at least
90% of the claim he or it sought in the litigation, and if a party making such a
claim fails to achieve this 90% threshold, he or it shall be considered the
non-prevailing party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date first above written.
HORIZON MEDICAL PRODUCTS, INC.
Attest: By:
--------------------------------
Title:
-----------------------------
By:
-----------------------------
Title:
--------------------------
[Corporate Seal]
NORFOLK MEDICAL PRODUCTS, INC.
Attest: By:
--------------------------------
Title:
--------------------------------
By:
-----------------------------
Title:
--------------------------
[Corporate Seal]
XXXXXXX X. XXXXXX
Witness:
By: By:
---------------------------- --------------------------------
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