Exhibit 2.2
XXXXXXX HEALTHCARE INDUCEMENT AGREEMENT
This AGREEMENT, dated this 14th day of March, 1997, by and between
XXXXXXX HEALTHCARE, INC., a Delaware corporation having its principal place of
business at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx ("Xxxxxxx
Healthcare"), XXXXX XXXXX, INC., a New Jersey corporation having its principal
place of business at 00 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx ("VSI"), and MARQUEST
MEDICAL PRODUCTS, INC., a Colorado corporation having its principal place of
business at 00000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx ( "Marquest"),
WITNESSETH THAT
WHEREAS, Xxxxxxx Healthcare is the principal shareholder of Marquest;
WHEREAS, contemporaneously with the execution of this Agreement,
Marquest and VSI have entered into an agreement of even date herewith pursuant
to which VSI will acquire Marquest by means of a cash merger (the "Merger
Agreement");
WHEREAS, Xxxxxxx Healthcare is the owner of warrants to purchase
through March 31, 1999 up to 1,530,000 shares of Marquest's common stock, no par
value (the "Marquest Common Stock"), at a purchase price of $.75 per share (the
"First ABG Warrants"), which First ABG Warrants were granted to Xxxxxxx
Healthcare pursuant to an omnibus agreement, dated April 12, 1993, between
Marquest and Xxxxxxx Healthcare (the "Omnibus Agreement");
WHEREAS, Xxxxxxx Healthcare is the owner of warrants to purchase
through March 31, 2003 up to 4,250,000 shares of Marquest Common Stock at a
purchase price of $.75 per share (the "Second ABG Warrants"), which Second ABG
Warrants were granted to Xxxxxxx Healthcare pursuant to the Omnibus Agreement;
WHEREAS, Xxxxxxx Healthcare is the owner of warrants to purchase
through March 31, 1999 up to 800,000 shares of Marquest Common Stock at an
exercise price of $.75 per share (the "Current Warrants"), which Current
Warrants were granted to Xxxxxxx Healthcare pursuant to a warrant agreement
dated April 12, 1993;
WHEREAS, Xxxxxxx Healthcare has indicated that it will not vote its
shares of Marquest Common Stock in favor of the Merger Agreement and the
transactions contemplated thereby unless the shareholders of Xxxxxxx Healthcare
authorize Xxxxxxx Healthcare to take such action and to effect the transactions
contemplated hereby (such authorization being hereinafter referred to as the
"Xxxxxxx Shareholder Approval");
WHEREAS, pursuant to the Omnibus Agreement, Xxxxxxx Healthcare
purchased from Marquest the "ABG Purchased Assets" (as defined in the Omnibus
Agreement) and then agreed to lease and license the ABG Purchased Assets back to
Marquest pursuant to an "Equipment Lease" (as defined in the Omnibus Agreement)
and a "License of Intangible Property" (as defined in the Omnibus Agreement);
WHEREAS, pursuant to the Omnibus Agreement, Xxxxxxx Healthcare has
granted to Marquest a "Repurchase Option" (as defined in the Merger Agreement)
that grants to Marquest the right to repurchase the ABG Purchased Assets and
"Improvements" (as defined in the License of Intangible Property) from Xxxxxxx
Healthcare in exchange for a cash exercise price (the "Exercise Price");
WHEREAS, Xxxxxxx Healthcare desires to sell its rights in the ABG
Purchased Assets and the Improvements in exchange for a payment equal to the
Exercise Price;
WHEREAS, upon consummation of the closing described in the Merger
Agreement, VSI is willing to purchase the ABG Purchased Assets and the
Improvements from Xxxxxxx Healthcare, subject to the Equipment Lease, the
License of Intellectual Property and the Repurchase Option, for a purchase price
equal to the Exercise Price and in accordance with the terms set forth herein,
provided that Xxxxxxx Healthcare agrees to execute the covenant against
competition described herein;
WHEREAS, Xxxxxxx Healthcare is prepared to execute such covenant
against competition, provided that it receives suitable compensation therefor;
and
WHEREAS, VSI will pay such compensation provided for herein in
accordance with the terms set forth herein, provided that Xxxxxxx Healthcare
agrees to the terms set forth herein,
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto hereby agree as follows:
1. Certain Definitions. All capitalized terms set forth herein that are
not defined herein shall have the definitions set forth in the Merger Agreement.
2. Xxxxxxx Healthcare's Representations. Xxxxxxx Healthcare hereby
warrants and represents to VSI as follows:
2.1 Xxxxxxx Healthcare is a Delaware Corporation. Under
Delaware law and Xxxxxxx Healthcare's certificate of incorporation and by-laws,
the affirmative vote of a majority of Xxxxxxx Healthcare's outstanding shares of
Common Stock will be sufficient in order for the shareholders of Xxxxxxx
Healthcare to give the Xxxxxxx Shareholder Approval.
2.2 The Board of Directors of Xxxxxxx Healthcare has approved
resolutions, certified copies of which shall promptly be provided to VSI, (i)
authorizing Xxxxxxx Healthcare to vote Xxxxxxx Healthcare's shares of Marquest
Common Stock in favor of the Merger Agreement, subject to the receipt by the
Board of Directors of Marquest of the opinion of Xxxxxxx, Xxxxxx Inc. as to the
fairness of the transactions contemplated by the Merger Agreement, from a
financial point of view, to the stockholders of record of Marquest (the
"Marquest Opinion") and the receipt by the Board of Directors of Xxxxxxx
Healthcare of the opinion of Summit Investment Corporation as to the fairness of
the transactions contemplated by the Merger Agreement and the transactions
contemplated hereby, from a financial point of view, to the stockholders of
record of Xxxxxxx Healthcare (the "Xxxxxxx Healthcare Opinion"), in the case of
the Marquest Opinion as of the date hereof and in the case of the Xxxxxxx
Healthcare Opinion as of the date hereof and as of the date of the meeting at
which Xxxxxxx Healthcare's shareholders will vote on such matters, (ii)
recommending that Xxxxxxx Healthcare's shareholders vote in favor of the Merger
Agreement and the transactions contemplated hereby and (iii) submitting such
matters to Xxxxxxx Healthcare's shareholders for their approval.
2.3 The execution, delivery and performance of this Agreement
by Xxxxxxx Healthcare (A) are within the legal capacity and power of Xxxxxxx
Healthcare; (B) have been duly authorized by all requisite corporate action on
the part of Xxxxxxx Healthcare, other than shareholder approval; and (C) require
the approval or consent of, or filing with, no persons, entities or agencies
other than (i) the Xxxxxxx Shareholder Approval, (ii) approval of certain
transactions contemplated by this Agreement and the Merger Agreement pursuant to
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and (iii) any filings
required to effect the transfer of intangible assets pursuant to this Agreement.
2.4 Xxxxxxx Healthcare has reviewed the warranties and
representations made by Marquest to VSI in the Merger Agreement. Xxxxxxx
Healthcare has no actual knowledge that any of such warranties and
representations are inaccurate in any material respect. Xxxxxxx Healthcare shall
promptly notify VSI in writing (in the manner in which Marquest is required to
notify VSI pursuant to the Merger Agreement) if, between the date hereof and the
earlier of the Effective Time of the Merger and the date on which the Merger
Agreement terminates, Xxxxxxx Healthcare discovers that any of its
representations and warranties herein are inaccurate in any material respect. It
is understood that (i) this Section 2.4 shall not survive the consummation of
the Merger, (ii) Xxxxxxx Healthcare shall not be liable for monetary damages in
the event that this Section 2.4 is inaccurate in any respect and (iii) VSI's
sole right in the event that it determines that this Section 2.4 is materially
inaccurate either at the time that this Agreement is executed or as of the time
of the closings described herein shall be for VSI to assert its rights under the
Merger Agreement to terminate the Merger Agreement (in which case the
transactions contemplated hereby will not be consummated). It is further
understood that the "actual knowledge of Xxxxxxx Healthcare" shall be deemed to
be the actual knowledge of only Xxxxxx X. Xxxxxxx, Xx. and Xxx Xxxxxx.
2.5 Xxxxxxx Healthcare owns 4,778,941 shares of Marquest
Common Stock free and clear of any security interests, consignments, liens,
judgments, encumbrances, restrictions, or claims of any kind and 2,432,251
shares of Marquest Common Stock which have been pledged by Xxxxxxx Healthcare
pursuant to the terms of the Amended and Restated Non-Negotiable Note dated as
of January 17, 1997 from Xxxxxxx Healthcare to Xxxxxxx Capital Company L.L.C.
and the related Amended and Restated Stock Pledge Agreement (the "Pledge
Agreements"), which Pledge Agreements have been assigned by Xxxxxxx Capital
Company L.L.C. to the four adult children of Xxxxxx X. Xxxxxxx, Xx.
2.6 The execution, delivery and performance of this Agreement
by Xxxxxxx Healthcare neither violates nor constitutes a default under, nor
creates a lien or breach under, the terms of the certificate of incorporation
and by-laws of Xxxxxxx Healthcare or of any material agreement, document or
instrument binding upon Xxxxxxx Healthcare. This Agreement is a legal, valid and
binding obligation of Xxxxxxx Healthcare enforceable against Xxxxxxx Healthcare
in accordance with its terms, except insofar as the enforcement thereof may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally and subject to equitable principles
limiting the availability of equitable remedies.
2.7 If the Closing and the Effective Time of the Merger were
to occur on the date hereof and, immediately after the Effective Time of the
Merger, the Repurchase Option were exercised, the aggregate amount of the
Exercise Price payable by such designee upon such exercise would be $5,535,000.
2.8 Xxxxxxx Healthcare has all of the right, title and
interest in and to all of the ABG Purchased Assets and Improvements described in
Schedule 2.8 hereof (the "Scheduled Assets") that it acquired from Marquest upon
Xxxxxxx'x original acquisition of such assets pursuant to the Omnibus Agreement.
Xxxxxxx Healthcare has not granted to any third-party any security interest,
pledge or encumbrance with respect to any of the Scheduled Assets. Xxxxxxx
Healthcare does not have any ownership interest in any ABG Purchased Assets or
any Improvements other than the Scheduled Assets.
2.9 Xxxxxxx Healthcare has extended the exercise period of the
Repurchase Option through June 15, 1999 on the terms set forth in the Omnibus
Agreement as originally executed by the parties to the Omnibus Agreement.
2.10 The factual representations regarding Xxxxxxx Healthcare
and its equity interests in Marquest set forth in the "WHEREAS" clauses herein
are accurate in all material respects.
2.11 There are 4,314,223 shares of the Common Stock, par value
$.01 per share, of Xxxxxxx Healthcare (the "Xxxxxxx Healthcare Common Stock")
outstanding on the date hereof. Xxxxxxx Healthcare is obligated to issue a total
of an additional 218,056 shares of Xxxxxxx Healthcare Common Stock pursuant to
outstanding exercisable stock options, warrants, convertible securities and
other contractual arrangements entitling third-parties to acquire shares of
Xxxxxxx Healthcare Common Stock. There are no classes of capital stock of
Xxxxxxx Healthcare entitled to vote with respect to the Xxxxxxx Shareholder
Approval other than the Xxxxxxx Healthcare Common Stock.
3. Xxxxxxx Healthcare's Covenants. Xxxxxxx Healthcare hereby covenants
and agrees with VSI as follows:
3.1 Xxxxxxx Healthcare will not exercise the first ABG
Warrants, the Second ABG Warrants or the Current Warrants at any time on or
before the earlier of the Effective Time of the Merger or the date of the
termination of the Merger Agreement.
3.2 Intentionally omitted.
3.3 Promptly after this Agreement is executed, Xxxxxxx
Healthcare will cooperate with VSI in preparing a proxy statement (describing a
proposal to grant the Xxxxxxx Shareholder Approval)) for filing with the
Securities and Exchange Commission (the "SEC") and ultimately for mailing to
Xxxxxxx Healthcare's shareholders (the "Proxy Statement"). Xxxxxxx Healthcare
shall not file the Proxy Statement preliminarily or in final form unless and
until VSI consents to such filings. VSI shall not unreasonably withhold or delay
any such consent. Xxxxxxx Healthcare represents and warrants to VSI that the
Proxy Statement will comply in all material respects with the Securities
Exchange Act of 1934 and the rules and regulations promulgated thereunder, that
the Proxy Statement will not contain any untrue statements of material fact
regarding Xxxxxxx Healthcare and will not omit to state any material fact
regarding Xxxxxxx Healthcare required to be stated therein or necessary to make
the statements therein not misleading. Xxxxxxx Healthcare will promptly advise
VSI in writing if at any time prior to the Effective Time of the Merger it shall
obtain knowledge of any facts that might reasonably be expected to make it
necessary or appropriate to amend or supplement the Proxy Statement in order to
make the statements contained or incorporated by reference therein not
misleading or to comply with applicable law. After VSI consents to the mailing
of the Proxy Statement and all necessary SEC filing requirements have been
satisfied, Xxxxxxx Healthcare shall mail the Proxy Statement to its shareholders
in accordance with all applicable federal and state securities laws and, subject
to the exercise by the members of Xxxxxxx Healthcare's Board of Directors of
their fiduciary duties, shall use its reasonable best efforts to solicit proxies
in favor of the Xxxxxxx Shareholder Approval.
3.4 Xxxxxxx Healthcare shall call a special meeting of its
shareholders (the "Xxxxxxx Healthcare Meeting"), to be held as soon as
practicable after the Proxy Statement is mailed to Xxxxxxx Healthcare's
shareholders, for the purpose of seeking the Xxxxxxx Shareholder Approval from
the shareholders of Xxxxxxx Healthcare. In connection with the Xxxxxxx
Healthcare Meeting, the members of Xxxxxxx Healthcare's Board of Directors shall
recommend that Xxxxxxx Healthcare's shareholders grant the Xxxxxxx Shareholder
Approval, subject to the exercise by the members of Xxxxxxx Healthcare's Board
of Directors of their fiduciary duties.
3.5 Prior to the Effective Time of the Merger or the date on
which the Merger Agreement is terminated, Xxxxxxx Healthcare will not sell,
dispose, pledge, encumber or otherwise transfer any shares of Marquest Common
Stock; provided, however, that this Section 3.5 shall not preclude Xxxxxxx
Healthcare from pledging or transferring any of its shares of Marquest Common
Stock (i) pursuant to the requirements of the Pledge Agreements or (ii) to a
transferee (a "Xxxxxxx Permitted Transferee") if, prior to such pledge or
transfer, the Xxxxxxx Permitted Transferee executes an agreement, in form and
substance reasonably satisfactory to VSI, to vote such shares in favor of the
Merger and Merger Agreement.
3.6 If Xxxxxxx Healthcare's shareholders approve the Merger
Agreement and the transactions contemplated thereby and receive an updated
Xxxxxxx Opinion as of the date of the Xxxxxxx Healthcare Meeting, Xxxxxxx
Healthcare shall vote all of the shares of Marquest Common Stock that it owns in
favor of the Merger and the Merger Agreement..
3.7 Intentionally omitted.
3.8 Until the earlier of the Effective Time of the Merger and
the termination of the Merger Agreement, Xxxxxxx Healthcare shall, assuming that
it has an ability to pay, honor all of its obligations under the Pledge
Agreements.
4. Sale of the Scheduled Assets.
4.1 Marquest hereby consents to the sale of the Scheduled
Assets and the assignment of the Equipment Lease and License of Intellectual
Property by Xxxxxxx Healthcare pursuant to this Section 4 and acknowledges that
if it exercises the Repurchase Option subsequent to such sale, Marquest's rights
shall be to purchase the applicable assets from the purchaser of the Scheduled
Assets hereunder. Xxxxxxx Healthcare acknowledges that upon consummation of the
closing described in Section 4.3 hereof, Xxxxxxx Healthcare shall have no right
to acquire shares of Marquest's Common Stock pursuant to Section 2.05 of the
Omnibus Agreement.
4.2 During the week immediately prior to the Closing under the
Merger Agreement, Xxxxxxx Healthcare and VSI shall cooperate in calculating the
Exercise Price.
4.3 Provided that the conditions set forth in Section 4.4
hereof have been satisfied, then immediately after Xxxxxxx Healthcare and VSI
determine that the Merger is effective under Colorado law, Xxxxxxx Healthcare
and VSI shall conduct a closing (the "Scheduled Assets Closing") at the same
location as the location of the Closing under the Merger Agreement. Provided
that the conditions set forth in Section 4.4 hereof have been satisfied, at the
Scheduled Assets Closing:
4.3.1 VSI or a designee of VSI (for purposes hereof,
either such entity being referred to herein as the "Purchaser") shall purchase
from Xxxxxxx Healthcare, and Xxxxxxx Healthcare shall sell to the Purchaser, the
Scheduled Assets, at a price equal to the Exercise Price as of the date of the
Scheduled Assets Closing (such price being hereinafter referred to as the
"Closing Exercise Price") and in accordance with the terms set forth herein.
Xxxxxxx Healthcare shall assign to the Purchaser all of Xxxxxxx Healthcare's
rights as the lessor under the Equipment Lease and as the licensor under the
License of Intangible Property, and VSI shall assume all of Xxxxxxx Healthcare's
obligations as lessor under the Equipment Lease and licensor under the License
of Intangible Property, all pursuant to the terms of an assignment and
assumption agreement in form and substance reasonably satisfactory to VSI and
Xxxxxxx Healthcare.
4.3.2 Payment of the Closing Exercise Price shall be
by means of a certified or bank cashier's check payable to Xxxxxxx Healthcare.
4.3.3 Xxxxxxx Healthcare will transfer all of the
Scheduled Assets to the Purchaser by delivering to the Purchaser all such assets
and by evidencing such conveyance with a xxxx of sale and general assignment in
the form of the xxxx of sale and general assignment dated June 15, 1993 and
delivered by Marquest pursuant to the Omnibus Agreement and such other forms of
conveyance as either would be required by Section 3 of the Omnibus Agreement if
Marquest were exercising the Repurchase Agreement or as are reasonably requested
by the Purchaser to confer upon the Purchaser the same title to the Scheduled
Assets as Xxxxxxx Healthcare holds immediately prior to the Scheduled Assets
Closing. Xxxxxxx Healthcare will transfer such assets to such entity free and
clear of any security interests, pledges, encumbrances or restrictions that
Xxxxxxx Healthcare may have created. Thereafter, Xxxxxxx Healthcare shall
reasonably cooperate with the Purchaser in furnishing to the Purchaser such
further instruments as the Purchaser shall reasonably request to affirm the
Purchaser's ownership of such assets free and clear of all such security
interests, pledges, encumbrances and restrictions. XXXXXXX HEALTHCARE MAKES NO
REPRESENTATIONS, PROMISES, STATEMENTS, OR WARRANTIES, EXPRESSED OR IMPLIED, WITH
RESPECT TO THE MERCHANTABILITY, SUITABILITY, OR FITNESS FOR ANY PURPOSE OF THE
SCHEDULED ASSETS AND MAKES NO REPRESENTATION THAT SCHEDULED ASSETS ARE IN
COMPLIANCE WITH ANY APPLICABLE LAW, ORDINANCE OR OTHER GOVERNMENTAL REGULATION.
VSI agrees on behalf of itself, and on behalf of the Purchaser if VSI is not the
Purchaser, that on and after the date of the Scheduled Assets Closing, Xxxxxxx
Healthcare shall not be liable to VSI, the Purchaser or Marquest for any loss,
claim, demand, liability, cost, damage, or expense of any kind, caused or
alleged to be caused, directly or indirectly, by the condition of the Scheduled
Assets, or by any inadequacy thereof for any purpose, or by any defects therein
or in the use or maintenance thereof, or by any damage whatsoever and whosoever
caused other than damages resulting from Xxxxxxx Healthcare's failure to
transfer its ownership interest in the Scheduled Assets in the manner described
herein. VSI agrees on behalf of itself, and on behalf of the Purchaser if VSI is
not the Purchaser, that its obligations hereunder shall not in any way be
affected by any defect in the condition or failure of performance of the
Scheduled Assets. IN NO EVENT SHALL XXXXXXX HEALTHCARE HAVE ANY LIABILITY ON AND
AFTER THE DATE OF THE SCHEDULED ASSETS CLOSING FOR, NOR SHALL VSI, PURCHASER OR
MARQUEST HAVE ANY REMEDY ON AND AFTER THE DATE OF THE SCHEDULED ASSETS CLOSING
AGAINST XXXXXXX HEALTHCARE FOR, ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, ANY
LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER COMMERCIAL LOSS OF
WHATEVER NATURE ARISING FROM THE SALE OF THE SCHEDULED ASSETS.
4.3.4 Xxxxxxx Healthcare shall execute and deliver to
the Purchaser a covenant against competition in the form and substance of the
covenant against competition annexed hereto as Exhibit A.
4.3.5 In consideration for Xxxxxxx Healthcare's
executing such covenant against competition, VSI (or, if VSI is not the
Purchaser, VSI shall cause the Purchaser to) deliver to Xxxxxxx Healthcare its
certified check or a bank cashier's check in an amount equal to the amount by
which five million eight hundred and sixty thousand dollars ($5,860,000) exceeds
the Closing Exercise Price.
4.3.6 At the Scheduled Assets Closing, (i) Xxxxxxx
Healthcare shall deliver to Marquest a release, in form and substance reasonably
satisfactory to VSI and Marquest, pursuant to which Xxxxxxx shall release
Marquest from all of its obligations to provide indemnification to Xxxxxxx
Healthcare under the Equipment Lease and the License of Intangible Property and
from all of Marquest's other obligations to Xxxxxxx Healthcare arising pursuant
to the Omnibus Agreement and the agreements executed pursuant thereto and (ii)
VSI shall deliver to Xxxxxxx Healthcare an agreement, in form and substance
reasonably satisfactory to Xxxxxxx Healthcare, pursuant to which VSI shall
provide to Xxxxxxx Healthcare the indemnification provided (prior to such
release) to Xxxxxxx Healthcare under Sections 12, 13 and 14 of the License of
Intangible Property and Section 5 of the Equipment Lease; provided, however,
that the agreement furnished by VSI to Xxxxxxx Healthcare pursuant to this
Section 4.3.6 shall expressly state that the aggregate liability that VSI and
its subsidiaries (including Marquest after the Scheduled Assets Closing) shall
have to Xxxxxxx pursuant to such agreement shall not exceed two million dollars
($2,000,000) with respect to matters unrelated to the Terumo litigation
referenced in the Disclosure Letter and shall not exceed four million dollars
($4,000,000) with respect to matters related to the Terumo litigation referenced
in the Disclosure Letter, less in each such case (i.e., the $2,000,000
limitation and the $4,000,000 limitation) the attorneys' and experts' fees and
disbursements incurred by VSI and its subsidiaries subsequent to the Scheduled
Assets Closing reasonably allocable to matters undertaken on behalf of Xxxxxxx
Healthcare. It is understood that there will be no allocation of such fees and
expenses to Xxxxxxx Healthcare with respect to a matter if Xxxxxxx Healthcare is
not a party to such matter.
4.4 Notwithstanding any provision herein to the contrary, the
obligations of the parties hereto to consummate the Scheduled Assets Closing are
conditioned upon satisfaction of the following conditions:
4.4.1 The Merger shall have been consummated and
Xxxxxxx Healthcare and VSI shall have determined that the Merger is effective
under Colorado law.
4.4.2 All approvals required by law in order for
Xxxxxxx Healthcare and VSI to consummate the Scheduled Assets Closing (the "Sale
Approvals") shall have been obtained. VSI and Xxxxxxx Healthcare shall use their
respective best efforts to obtain all such Sale Approvals.
4.4.3 Each of Xxxxxxx Healthcare's representations
set forth in this Agreement shall have been true in all material respects when
made and (with the exception of the representation set forth in Section 2.7
hereof) shall be true in all material respects as of the date of the Scheduled
Assets Closing.
4.4.4 VSI shall not have discovered that Xxxxxxx
Healthcare shall have taken any action or omitted to take any action between the
date hereof and the Scheduled Assets Closing which will materially adversely
affect the title in and to the Scheduled Assets which the Purchaser will acquire
upon consummation of the Scheduled Assets Closing.
5. Cashless Exercise of Warrants. If the Merger is consummated, then
immediately after the Effective Time of the Merger, (i) Xxxxxxx Healthcare shall
tender the Current Warrants, the First ABG Warrants and the Second ABG Warrants
to VSI or the Exchange Agent and shall deliver to VSI or the Exchange Agent any
letter of transmittal reasonably requested by VSI and (ii) VSI shall, upon
receipt of such tender, deliver or cause the Exchange Agent to deliver to
Xxxxxxx Healthcare a check in an amount equal to the "Excess Amount" (as defined
herein) multiplied by the number of shares of Marquest Common Stock covered by
the First ABG Warrants, Second ABG Warrants and Current Warrants so tendered.
For purposes of this Agreement, the term "Excess Amount" shall mean the amount
by which the "Purchase Price" (as such term is defined in the Merger Agreement)
exceeds seventy-five cents ($.75). Thereafter, Xxxxxxx Healthcare shall have no
rights with respect to the First ABG Warrants, Second ABG Warrants or Current
Warrants other than to receive payment therefor in accordance with this Section
5.
6. VSI's Representations. VSI hereby warrants and represents as
follows:
6.1 The execution, delivery and performance of this Agreement
by VSI (A) are within the legal capacity and power of VSI; (B) have been duly
authorized by all requisite corporate action on the part of VSI; and (C) require
the approval or consent of, or filing with, no persons, entities or agencies
other than (i) approval of certain transactions contemplated by this Agreement
and the Merger Agreement pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1986 and approvals of the type required by VSI to consummate
the Merger Agreement and (ii) any filings required to effect the transfer of
intangible assets pursuant to this Agreement.
6.2 The, execution, delivery and performance of this Agreement
by VSI neither violates nor constitutes a default under, nor creates a lien or
breach under, the terms of the certificate of incorporation and by-laws of VSI
or, subject to the receipt of any necessary approvals, of any material
agreement, document or instrument binding upon VSI. This Agreement is, and the
indemnification agreement referenced in Section 4.3.6 will be, a legal, valid
and binding obligation of VSI enforceable against VSI in accordance with its
terms, except insofar as the enforcement thereof may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting the enforcement of creditors'
rights generally and subject to equitable principles limiting the availability
of equitable remedies.
7. VSI's Covenants With Respect to the Proxy Statement. Promptly after
this Agreement is executed, VSI will cooperate with Xxxxxxx Healthcare in
preparing the Proxy Statement. VSI shall not unreasonably withhold or delay any
consent requested by Xxxxxxx Healthcare pursuant to Section 3.3 hereof. VSI
represents and warrants to Xxxxxxx Healthcare that the information to be
supplied by VSI to Xxxxxxx Healthcare for the Proxy Statement with respect to
VSI (excluding Marquest) will not contain any untrue statements of material fact
and will not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. VSI will promptly
advise Xxxxxxx Healthcare in writing if at any time prior to the Effective Time
of the Merger it shall obtain knowledge of any facts that might reasonably be
expected to make it necessary or appropriate to amend or supplement the Proxy
Statement in order to make the statements contained or incorporated by reference
therein not misleading or to comply with applicable law.
8. Repurchase Option. Xxxxxxx and Marquest hereby confirm to VSI that
the Repurchase Option has been extended until June 15, 1999 upon the terms
originally set forth in the Omnibus Agreement.
9. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or when mailed by registered or certified
mail, postage prepaid, or when given by telex or facsimile transmission
(promptly confirmed in writing), as follows:
(a) If to Xxxxxxx Healthcare, to:
Xxxxxxx Healthcare, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Long Xxxxxxxx Xxxxxx LLP
Suite 5300
One Peachtree Center
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 404-527-4198
or to such other persons as Xxxxxxx Healthcare shall designate in writing, such
writing to be delivered to VSI in the manner provided in this Section 9;
(b) If to VSI, to:
Xxxxx Xxxxx, Inc.
00 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxx
Telephone: 000-000-0000, ext. 371
Telecopy: 000-000-0000
with a copy to:
Xxx Xxxxx, Esq.
General Counsel
Xxxxx Xxxxx, Inc.
00 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000, ext. 372
Telecopy: 000-000-0000
and with a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxxx, Sandler, Kohl,
Xxxxxx & Xxxxxx, P.C.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
or to such other persons as VSI shall designate in writing, such writing to be
delivered to Xxxxxxx Healthcare in the manner provided in this Section 9.
10. Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties
hereto.
11. Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Delaware.
12. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. Headings and References. The headings of the Sections of this
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof. All references herein to Sections are to sections of
this Agreement, unless otherwise indicated.
14. Interpretation. The parties hereto do not intend for this Agreement
to be construed against the party that drafted this Agreement merely by virtue
of the fact that such party drafted this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
XXXXXXX HEALTHCARE, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
__________________________
Xxxxxx X. Xxxxxxx, Xx.
Chief Executive Officer
XXXXX XXXXX, INC.
By: /s/Xxxxxxx X. Xxxxx
___________________________
Xxxxxxx X. Xxxxx, Executive
Vice President
MARQUEST MEDICAL PRODUCTS, INC.
By:/s/Xxxxxxx Xxxxxxxx
___________________________
Xxxxxxx Xxxxxxxx, President
