AGREEMENT AND PLAN OF MERGER
Among
INTEGRA LIFESCIENCES CORPORATION,
RC ACQUISITION CORPORATION,
GWC HEALTH, INC.
and
RYSTAN COMPANY, INC.
Dated as of September 28, 1998
TABLE OF CONTENTS
Page
Preamble...............................................................1
Recitals...............................................................1
ARTICLE I DEFINITIONS
SECTION 1.01. Certain Definitions 2
SECTION 1.02. Other Defined Terms 3
SECTION 1.03. Accounting Terms 5
SECTION 1.04. Singular or Plural 5
ARTICLE II THE MERGER
SECTION 2.01. The Merger 5
SECTION 2.02. Merger Consideration 5
SECTION 2.03. Closing; Effective Time; Delivery 5
SECTION 2.04. Certain Effects of the Merger 6
SECTION 2.05. Conversion of Securities 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF GWC
SECTION 3.01. Organization and Qualification; Subsidiaries 7
SECTION 3.02. Articles of Incorporation; By-laws 7
SECTION 3.03. Capitalization 8
SECTION 3.04. Authority; Due Execution 8
SECTION 3.05. No Violations 9
SECTION 3.06. Compliance with Laws; Permits 9
SECTION 3.07. Financial Statements 10
SECTION 3.08. Absence of Undisclosed Liabilities 10
SECTION 3.09. Absence of Changes or Events 10
SECTION 3.10. Litigation 10
SECTION 3.11. Material Contracts 11
SECTION 3.12. Employment and Labor Matters 11
SECTION 3.13. Employee Benefit Plans; ERISA 11
SECTION 3.14. Intellectual Property Rights 13
SECTION 3.15. Tax Matters 14
SECTION 3.16. Environmental Matters 14
SECTION 3.17. Finders or Brokers 16
SECTION 3.18. Title to Property 16
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Page
SECTION 3.19. Inventory 16
SECTION 3.20. Investment Intent 16
SECTION 3.21. Investment Experience 17
SECTION 3.22. Restricted Securities; Certain Acknowledgments 17
SECTION 3.23. Insurance 17
SECTION 3.24. Customers and Suppliers; Warranties 18
SECTION 3.25. Certain Disclosure 18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF INTEGRA
SECTION 4.01. Organization 18
SECTION 4.02. Capitalization 18
SECTION 4.03. Authority; Due Execution 19
SECTION 4.04. Integra Securities 20
SECTION 4.05. No Violations 20
SECTION 4.06. SEC Filings 20
SECTION 4.07. Litigation 21
SECTION 4.08. Finders or Brokers 21
SECTION 4.09. Certain Acknowledgments 21
SECTION 4.10. Absence of Changes or Events 21
ARTICLE V COVENANTS
SECTION 5.01. Further Assurances 22
SECTION 5.02. Public Announcements 22
SECTION 5.03. Employees and Employee Benefits 22
SECTION 5.04. Certain Restrictive Covenants 24
SECTION 5.05. Costs and Expenses 24
SECTION 5.06. Consulting Arrangement 25
SECTION 5.07. Packaging 25
ARTICLE VI INDEMNIFICATION
SECTION 6.01. Survival 25
SECTION 6.02. Indemnification by GWC 25
SECTION 6.03. Indemnification by Integra 26
SECTION 6.04. Procedure 26
SECTION 6.05. Measurement of Damages 27
SECTION 6.06. Investigations 27
SECTION 6.07. Sole Remedy 27
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Page
ARTICLE VII TAX MATTERS
SECTION 7.01. Tax Indemnification by GWC 27
SECTION 7.02. Tax Indemnification by Integra 27
SECTION 7.03. Allocation of Certain Taxes 28
SECTION 7.04. Filing Responsibility 28
SECTION 7.05. Refunds and Carrybacks 28
SECTION 7.06. Cooperation and Exchange of Information 28
SECTION 7.07. Closing Date Balance Sheet 28
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. Amendment and Modification 29
SECTION 8.02. Waiver of Compliance; Consents 29
SECTION 8.03. Tax Opinion 29
SECTION 8.04. Notices 29
SECTION 8.05. Assignment; Third Party Beneficiaries 30
SECTION 8.06. Governing Law 31
SECTION 8.07. Severability 31
SECTION 8.08. Interpretation 31
SECTION 8.09. Entire Agreement 31
SECTION 8.10. Counterparts 31
EXHIBITS
Exhibit A - Form of Registration Rights Agreement
Exhibit B - Form of Lease
Exhibit C - Forms of Integra Warrants
Exhibit D - Form of Secretary's Certificate
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Page
SCHEDULES
Section 3.01 Organization and Qualification
Section 3.02 Articles of Incorporation; Bylaws
Section 3.05 No Violations
Section 3.06 Compliance with Laws; Permits
Section 3.07 Financial Statements
Section 3.08 Absence of Undisclosed Liabilities
Section 3.09 Absence of Changes or Events
Section 3.10 Litigation
Section 3.11 Material Contracts
Section 3.12 Employment and Labor Matters
Section 3.13 Employee Benefit Plans; ERISA
Section 3.14 Intellectual Property Rights
Section 3.15 Tax Matters
Section 3.18 Title to Property
Section 3.19 Inventory
Section 3.23 Insurance
Section 3.24 Customers & Suppliers
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of September 28, 1998 (this
"Agreement") among Integra LifeSciences Corporation, a Delaware corporation
("Integra"), RC Acquisition Corporation, a New Jersey corporation ("Merger
Sub"), GWC Health, Inc., a New Jersey corporation ("GWC"), and Rystan Company,
Inc., a New Jersey corporation ("Rystan").
WHEREAS, Integra is the record and beneficial owner of all of the
issued and outstanding shares (the "Merger Sub Shares") of common stock, par
value $.01 per share, of Merger Sub (the "Merger Sub Common Stock");
WHEREAS, GWC is the record and beneficial owner of all of the issued
and outstanding shares (the "Rystan Shares") of common stock, without nominal
or par value, of Rystan (the "Rystan Common Stock");
WHEREAS, the parties hereto desire to cause Merger Sub, upon the
terms and subject to the conditions of this Agreement and in accordance with
the Business Corporation Act of the State of New Jersey ("New Jersey Law"), to
merge with and into Rystan (the "Merger");
WHEREAS, in order to induce GWC to enter into this Agreement, Integra
has agreed to execute in favor of GWC a registration rights agreement in the
form of Exhibit A (the "Registration Rights Agreement");
WHEREAS, in order to induce Integra to enter into this Agreement, GWC
has agreed to enter into a lease agreement in the form of Exhibit B (the
"Lease"); and
WHEREAS, for United States federal income tax purposes, the parties
hereto intend that the Merger shall qualify as a reorganization within the
meaning of Section 368(a) of the United States Internal Revenue Code of 1986,
as amended (the "Code").
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NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound thereby, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Definitions. For purposes of this Agreement,
the following terms shall have the following definitions:
"affiliate" of a specified person means a person who directly, or
indirectly through one or more intermediaries, controls, is controlled by, or
is under common control with, such specified person.
"control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, as
trustee or executor, by contract, credit arrangement or otherwise.
"Disclosure Schedule" means the record to be delivered herewith and
dated the date hereof containing all lists, descriptions, exceptions and other
information and materials as are required to be included therein under this
Agreement.
"Governmental Authority" means any federal, state or local, foreign
or supra-national government or governmental, regulatory or administrative
authority, agency or commission.
"GWC's knowledge" means the actual knowledge of any director or
officer of GWC or Rystan.
"Integra's knowledge" means the actual knowledge of any director or
officer of Integra or Merger Sub.
"Integra Material Adverse Effect" means any change in, or effect on,
Integra that is materially adverse to the operations, management, business,
financial condition, results of operations or assets of Integra.
"person" means an individual, corporation, limited liability company,
partnership, limited partnership, syndicate, person (including, without
limitation, a "person" as defined in Section 13(d)(3) of the Exchange Act),
trust, association or entity or government, political subdivision, agency or
instrumentality of a government.
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"Property" means the real property located at 00 Xxxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxx Xxxxxx, presently owned by GWC and leased to Rystan.
"Rystan Material Adverse Effect" means any change in, or effect on,
Rystan that is materially adverse to the operations, management, business,
financial condition, results of operations or assets of Rystan, and shall
include, without limitation, any such change in, or effect on, Rystan that
results in an Integra Loss in an amount in excess of $35,000.
"subsidiary" of any person means any corporation, partnership, joint
venture or other legal entity of which such person (either above or through or
together with any other subsidiary), owns, directly or indirectly, 50% or more
of the stock or other equity interests, the holders of which are generally
entitled to vote for the election of the board of directors or other governing
body.
SECTION 1.02. Other Defined Terms. For purposes of this Agreement,
the following capitalized terms shall have the respective meanings given them
in the indicated sections of this Agreement:
Defined Term Section
------------ -------
1997 Balance Sheet................................................ ss. 3.07
1997 Financial Statements......................................... ss. 3.07
Agreement......................................................... Preamble
Articles of Incorporation......................................... ss. 3.02
By-laws........................................................... ss. 3.02
Carnrick 401(k) Plan............................................... ss. 5.03(b)
CERCLA............................................................ ss. 3.16(d)
Certificate of Merger.............................................. ss. 2.03(a)
Claim............................................................. ss. 6.04
Closing........................................................... ss. 2.03(a)
Closing Date...................................................... ss. 2.03(a)
Closing Date Balance Sheet........................................ ss. 7.07(a)
COBRA............................................................. ss. 3.13(e)
Code.............................................................. Recitals
CSA............................................................... ss. 3.06(b)
Effective Time.................................................... ss. 2.03(a)
Employee Benefit Plans............................................ ss. 3.13(a)
Environment Law................................................... ss. 3.16
Environmental Permit.............................................. ss. 3.16
ERISA............................................................. ss. 3.13(a)
Exchange Act...................................................... ss. 4.06
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Defined Term Section
------------ -------
FDA............................................................... ss. 3.06(b)
FDCA.............................................................. ss. 3.06(b)
GWC................................................................ Preamble
GWC Indemnified Party.............................................. ss. 6.03(a)
GWC Losses......................................................... ss. 6.03(a)
Hazardous Material................................................. ss. 3.16
Integra............................................................ Preamble
Integra Common Stock............................................... ss. 2.02
Integra Indemnified Party.......................................... ss. 6.02(a)
Integra Losses..................................................... ss. 6.02(a)
Integra Securities................................................. ss. 2.02
Integra Shares..................................................... ss. 2.02
Integra Warrants................................................... ss. 2.02
Intellectual Property Rights....................................... ss. 3.14
Interim Balance Sheet.............................................. ss. 3.07
ISRA............................................................... ss. 3.16
Layer A............................................................ ss. 6.02(c)
Layer B............................................................ ss. 6.02(c)
Lease.............................................................. Recitals
Liens.............................................................. ss. 3.18
Loss............................................................... ss. 6.04
Material Contracts................................................. ss. 3.12
Merger............................................................. Recitals
Merger Sub......................................................... Preamble
Merger Sub Common Stock............................................ Preamble
Merger Sub Shares.................................................. Recitals
New Jersey Law..................................................... Recitals
PBGC............................................................... ss. 3.13(d)
PDMA............................................................... ss. 3.06(b)
Pension Plans...................................................... ss. 3.13(a)
Permitted Liens.................................................... ss. 3.18
Recipients......................................................... ss. 3.13(g)
Registration Rights Agreement...................................... Recitals
Rystan............................................................. Preamble
Rystan Common Stock................................................ Recitals
Rystan Shares...................................................... Recitals
Rystan's Predecessor............................................... ss. 3.16(a)
SEC Filings........................................................ ss. 4.06
Securities Act..................................................... ss. 3.22(a)
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Defined Term Section
------------ -------
Series A Preferred Stock........................................... ss. 4.02
Surviving Corporation.............................................. ss. 2.01
Surviving Corporation Employees.................................... ss. 5.03(a)
Surviving Corporation Welfare Plans................................ ss. 5.03(c)
Tax................................................................ ss. 3.15
Tax Returns........................................................ ss. 3.15
Transaction Costs.................................................. ss. 5.05
Treas. Reg......................................................... ss. 3.15
Welfare Plans...................................................... ss. 3.13(a)
SECTION 1.03. Accounting Terms. Accounting terms used herein which
are not expressly defined in this Agreement shall have the respective meanings
given to them in accordance with United States generally accepted accounting
principles.
SECTION 1.04. Singular or Plural. Any of the defined terms in this
Agreement, unless the context otherwise requires, may be used in the singular
or the plural, depending on the reference.
ARTICLE II
THE MERGER
SECTION 2.01. The Merger. On the terms and subject to the conditions
set forth herein, and in accordance with the applicable provisions of New
Jersey Law, at the Effective Time, Merger Sub shall be merged with and into
Rystan. As a result of the Merger, the separate corporate existence of Merger
Sub shall cease, and Rystan shall be the surviving corporation of the Merger
(the "Surviving Corporation").
SECTION 2.02. Merger Consideration. As consideration for the Merger,
Integra shall issue to GWC (a) 800,000 shares (the "Integra Shares") of common
stock, par value $.01 per share, of Integra (the "Integra Common Stock") and
(b) warrants to purchase an aggregate of 300,000 shares of Integra Common
Stock in the forms of Exhibit C (the "Integra Warrants"). The Integra Shares
and the Integra Warrants collectively are referred to herein as the "Integra
Securities."
SECTION 2.03. Closing; Effective Time; Delivery.
(a) Closing; Effective Time. The closing of the transactions
contemplated by this Agreement (the "Closing") will be held at 12:00
p.m., New York City time, on the date of signing of this Agreement
(the "Closing Date") at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Xx the Closing Date, the parties
shall file a certificate of merger (the "Certificate of Merger") with
the Secretary of State of the State of New Jersey, in such form as is
required by, and executed in accordance with, the relevant provisions
of New Jersey Law. The Merger shall be effective at the time at which
the Certificate of Merger is filed with the Secretary of State of the
State of New Jersey (the "Effective Time").
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(b) Delivery. At the Closing, (i) GWC shall deliver to
Integra (x) (1) one or more certificates representing all of the
Rystan Shares duly endorsed or accompanied by stock powers duly
endorsed in blank or (2) an affidavit of loss and indemnity with
respect to the Rystan Shares, (y) the Registration Rights Agreement
duly executed and (z) the Lease duly executed and (ii) Integra shall
deliver to GWC (w) (1) one or more certificates representing the
Integra Shares registered in the name of GWC or (2) a letter to
Integra's transfer agent irrevocably instructing such transfer agent
to issue one or more certificates representing all of the Integra
Shares registered in the name of GWC, (x) the Integra Warrants duly
executed, (y) the Registration Rights Agreement duly executed and (z)
the Lease duly executed. In addition, each of Integra, Merger Sub,
GWC and Rystan shall deliver at the Closing a duly executed
certificate of its Secretary in the form of Exhibit D.
(c) The parties hereto expressly acknowledge that damages
alone may be an inadequate remedy for any breach or violation of any
of the provisions of this Section 2.03, and that each party, in
addition to all other remedies under this Agreement, shall be
entitled to seek injunctive relief, including specific performance,
with respect to any such breach or violation, in any court of
competent jurisdiction.
SECTION 2.04. Certain Effects of the Merger.
(a) At the Effective Time, the effect of the Merger shall be
as provided in the applicable provisions of New Jersey Law.
(b) At the Effective Time, the Articles of Incorporation of
the Surviving Corporation shall be the Articles of Incorporation of
Merger Sub as in effect immediately prior to the Effective Time until
thereafter amended as provided by law.
(c) At the Effective Time, the By-laws of Surviving
Corporation shall be the By-laws of Merger Sub as in effect
immediately prior to the Effective Time until thereafter amended as
provided by law.
(d) The directors and officers of Merger Sub immediately
prior to the Effective Time shall be the directors and officers of
the Surviving Corporation, each to hold office in accordance with the
Articles of Incorporation and By-laws of the Surviving Corporation,
until their respective successors are duly elected or appointed and
qualified.
SECTION 2.05. Conversion of Securities.
(a) Merger Sub Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of the parties hereto,
each Merger Sub Share shall be converted into and become one fully
paid and non-assessable share of common stock, par value $.01 per
share, of the Surviving Corporation.
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(b) Rystan Shares. At the Effective Time, by virtue of the
Merger and without any action on the part of the parties hereto, the
Rystan Shares shall be converted into the right to receive the
Integra Securities and shall be canceled and retired and shall cease
to exist, and thereafter GWC shall have no rights with respect to the
Rystan Shares except the right to receive the Integra Securities.
Upon delivery by GWC of the certificate or certificates representing
the Rystan Shares to Integra at the Closing as provided in Section
2.03(b), Integra shall forthwith cancel such certificate or
certificates.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GWC
GWC hereby represents and warrants to Integra that:
SECTION 3.01. Organization and Qualification; Subsidiaries.
(a) Each of GWC and Rystan is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of New Jersey. Rystan has the requisite corporate power and
authority to own, lease and operate its assets and properties, to
perform its obligations, and to carry on its business as it is now
being conducted, except where the lack of such power or authority has
not had and is not reasonably likely to have, individually or in the
aggregate, a Rystan Material Adverse Effect. Rystan is duly qualified
or licensed as a foreign corporation to do business, and is in good
standing, in each jurisdiction where the character of the assets and
properties owned, leased or operated by it or the nature of its
activities makes such qualification or licensing necessary, except
for such failures to be so qualified or licensed and in good standing
that have not had and are not reasonably likely to have, individually
or in the aggregate, a Rystan Material Adverse Effect.
(b) Except as disclosed in Section 3.01 of the Disclosure
Schedule, Rystan does not directly or indirectly own any equity or
similar interest in, or any interest convertible into or exchangeable
or exercisable for any equity or similar interest in, any
corporation, partnership, limited liability company, joint venture or
other business association or entity.
SECTION 3.02. Articles of Incorporation; By-laws. Section 3.02 of the
Disclosure Schedule sets forth complete and correct copies of the Articles or
Certificate of Incorporation, as amended to date (the "Articles of
Incorporation"), certified as to a recent date by the Secretary of State of
the State of New Jersey, and the By-laws, as amended to date (the "By-laws"),
of Rystan. Such Articles of Incorporation and By-laws are in full force and
effect on the date hereof. Except as disclosed in Section 3.02 of the
Disclosure Schedule, as of the date
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hereof, Rystan is not in material violation of any provision of its Articles
of Incorporation or By-laws.
SECTION 3.03. Capitalization. The authorized capital stock of Rystan
consists of 2,500 shares of Rystan Common Stock. As of the date of this
Agreement, there are 2,500 shares of Rystan Common Stock issued and
outstanding. There are no existing options, warrants, calls, subscriptions, or
other similar rights, commitments or agreements obligating GWC or Rystan to
issue, transfer or sell any shares of capital stock of Rystan or any other
securities convertible into or evidencing the right to subscribe for any
shares of capital stock of Rystan. There are no outstanding stock appreciation
rights with respect to any Rystan Common Stock. All outstanding shares of
Rystan Common Stock are duly authorized and validly issued, fully paid and
non-assessable. GWC directly owns all of the outstanding shares of Rystan
Common Stock (i.e., the Rystan Shares) free and clear of any Liens.
SECTION 3.04. Authority; Due Execution.
(a) GWC has all necessary corporate power and authority to
execute and deliver this Agreement, the Registration Rights Agreement
and the Lease and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement, the
Registration Rights Agreement and the Lease by GWC and the
consummation by GWC of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary
corporate action and no other proceedings on the part of GWC are
necessary to authorize this Agreement, the Registration Rights
Agreement or the Lease or consummate the transactions contemplated
hereby and thereby. Each of this Agreement, the Registration Rights
Agreement and the Lease has been duly and validly executed and
delivered by GWC and, assuming the due authorization, execution and
delivery hereof and thereof by the other parties thereto, constitutes
a valid and binding obligation of GWC, enforceable against GWC in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
(b) Rystan has all necessary corporate and shareholder power
and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of
this Agreement by Rystan and the consummation by Rystan of the
transactions contemplated hereby have been duly and validly
authorized by all necessary corporate and shareholder action and no
other proceedings on the part of Rystan or its shareholder are
necessary to authorize this Agreement or consummate the transactions
contemplated hereby. This Agreement has been duly and validly
executed and delivered by Rystan and, assuming the due authorization,
execution and delivery hereof by the other parties thereto,
constitutes a valid and binding obligation of Rystan, enforceable
against Rystan in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
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moratorium or other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
SECTION 3.05. No Violations. Except as disclosed in Section 3.05 of
the Disclosure Schedule, no filing with, notification to or permit,
authorization, consent or approval of, any Governmental Authority is necessary
on the part of GWC or Rystan for the consummation by GWC and Rystan of the
transactions contemplated hereby, except for filings, notifications, permits,
authorizations, consents or approvals, the failure of which to make, receive
or obtain are not reasonably likely to, individually or in the aggregate,
impair GWC's or Rystan's ability to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement, the Registration Rights
Agreement and the Lease and the consummation of the transactions contemplated
hereby and thereby do not (i) conflict with or breach any provision of the
Articles of Incorporation or By-laws of GWC or Rystan, (ii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to GWC,
Rystan or any of Rystan's assets, (iii) result in, require or permit the
creation or imposition of any Lien upon or with respect to the Rystan Shares,
Rystan or its assets, or (iv) violate, breach or constitute a default under
any of the terms, conditions or provisions of any agreement or other
instrument to which Rystan is a party, excluding such violations, breaches or
defaults that, individually or in the aggregate, are not reasonably likely to
impair GWC's or Rystan's ability to consummate the transactions contemplated
hereby or that have not had and are not reasonably likely to have,
individually or in the aggregate, a Rystan Material Adverse Effect.
SECTION 3.06. Compliance with Laws; Permits.
(a) Except as disclosed in Section 3.06 of the Disclosure
Schedule: (i) Rystan is not in violation of any statute, law,
ordinance, regulation, rule or order of any Governmental Authority or
any judgment, decree or order of any court, applicable to its
business or operations, except for such violations that have not had
and are not reasonably likely to have, individually or in the
aggregate, a Rystan Material Adverse Effect; (ii) Rystan has not
received any written notice, order or other written communication
from any Governmental Authority of any alleged, actual or potential
violation of any such law, ordinance, regulation, rule or order,
except with respect to such violations as have not had and are not
reasonably likely to have, individually or in the aggregate, a Rystan
Material Adverse Effect; and (iii) Rystan has all permits, licenses
and franchises from Governmental Authorities required to conduct its
business as now being conducted and no proceeding is pending or, to
GWC's knowledge, threatened by any person to revoke or deny the
renewal of any such permit, license or franchise, except in each case
for such permits, licenses and franchises the absence of which has
not had and is not reasonably likely to have, individually or in the
aggregate, a Rystan Material Adverse Effect.
(b) As to each product subject to the jurisdiction of the
Food and Drug Administration under the Federal Food, Drug and
Cosmetic Act ("FDCA") or the Prescription Drug Marketing Act ("PDMA")
and the jurisdiction of the Drug Enforcement Agency under the
Comprehensive Drug Abuse Prevention and Control
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Act of 1970 ("CSA") which is manufactured, tested, distributed, held
and/or marketed by Rystan, such product is being manufactured, held and
distributed in compliance in all material respects with all applicable
requirements under the FDCA, PDMA and the CSA including, but not
limited to, those relating to investigational use, premarket clearance,
good manufacturing practices, labeling, promotion and advertising,
record keeping, filing of reports and security.
SECTION 3.07. Financial Statements. Section 3.07 of the Disclosure
Schedule contains (i) the audited financial statements of Rystan at and for
the year ended December 31, 1997 (the "1997 Financial Statements" and the
December 31, 1997 balance sheet included therein, the "1997 Balance Sheet")
and (ii) the audited balance sheet of Rystan as of May 31, 1998 (the "Interim
Balance Sheet"). The 1997 Financial Statements and the Interim Balance Sheet
were prepared in accordance with United States generally accepted accounting
principles consistently applied (except as may be indicated therein), and each
fairly presents in all material respects the financial position, results of
operations and cash flows of Rystan at the respective dates thereof and for
the respective periods indicated therein in accordance with United States
generally accepted accounting principles consistently applied (except as may
be indicated therein).
SECTION 3.08. Absence of Undisclosed Liabilities. Except as set forth
in the Interim Balance Sheet or disclosed in Section 3.08 of the Disclosure
Schedule, Rystan has no liability or obligation in an amount in excess of
$20,000, except for liabilities and obligations (i) incurred in the ordinary
course of business consistent with past practice since May 31, 1998 or (ii)
incurred pursuant to or in connection with this Agreement.
SECTION 3.09. Absence of Changes or Events. Except as disclosed in
Section 3.09 of the Disclosure Schedule, or as otherwise contemplated by this
Agreement, since December 31, 1997, Rystan has not:
(a) authorized for issuance, issued, sold, delivered or
granted any options, warrants, calls, subscriptions or other rights
for, or otherwise agreed or committed to issue, sell or deliver, or
made any distributions with respect to, any shares of any class of
its capital stock or any securities convertible into or exchangeable
or exercisable for shares of any class of its capital stock;
(b) made any payment to an affiliate;
(c) changed its accounting methods, principles or practices,
except as required by GAAP, or changed any of the assumptions
underlying, or methods of calculating, any bad debt, contingency or
other reserve;
(d) taken any other actions except in the ordinary course of
business consistent with past practice; or
(e) taken any other action or suffered any other change that
has had or is reasonably likely to have, individually or in the
aggregate, a Rystan Material Adverse Effect.
SECTION 3.10. Litigation. Except as disclosed in Section 3.10 of the
Disclosure Schedule, there are no claims, actions, proceedings or
investigations pending or, to GWC's
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knowledge, threatened against Rystan or its directors or officers in their
capacities as such or any asset of Rystan before any court, arbitrator or
Governmental Authority. No claim, proceeding, action of investigation disclosed
in Section 3.10 has had or is reasonably likely to have, individually or in the
aggregate, a Rystan Material Adverse Effect. As of the date hereof, neither
Rystan nor any asset of Rystan is subject to any order, writ, judgment,
injunction, decree, determination or award that has had or is reasonably likely
to have, individually or in the aggregate, a Rystan Material Effect.
SECTION 3.11. Material Contracts. Except as disclosed in Section 3.11
of the Disclosure Schedule, Rystan is not a party to any existing contract,
agreement or instrument of any type (a) involving amounts in excess of $20,000
or (b) with any affiliate of Rystan (collectively, the "Material Contracts").
With such exceptions as have not had and are not reasonably likely to have,
individually or in the aggregate, a Rystan Material Adverse Effect, (i) each
Material Contract is valid, binding and in full force and effect and is
enforceable by Rystan in accordance with its terms and (ii) Rystan has
performed all material obligations required to be performed by it to date
under each Material Contract.
SECTION 3.12. Employment and Labor Matters. Rystan is not a party to
any union contract or other collective bargaining agreement. Rystan is in
compliance with all applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, except for
those failures to comply that have not had and are not reasonably likely to
have, individually or in the aggregate, a Rystan Material Adverse Effect.
There is no labor strike, slowdown or stoppage pending or, to GWC's knowledge,
threatened against Rystan. Except as disclosed in Sections 3.11 and 3.12 of
the Disclosure Schedule, Rystan is not a party to any employment, management
services, or consultation contract or agreement (other than unwritten
employment agreements terminable at will without payment of any contractual
severance or other amount). Except as disclosed in Section 3.12 of the
Disclosure Schedule, to GWC's knowledge, none of Rystan's employees is a party
to, or is otherwise bound by, any agreement or arrangement with any person
other than Rystan (including, without limitation, any confidentiality,
non-competition or proprietary rights agreement) that in any way limits or
adversely affects the performance of his or her duties, his or her freedom to
engage in the business conducted by Rystan or the ability of Rystan to conduct
its business.
SECTION 3.13. Employee Benefit Plans; ERISA.
(a) Except as disclosed in Section 3.13 of the Disclosure
Schedule, there are no "employee pension benefit plans" as defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") ("Pension Plans"), "welfare benefit plans" as
defined in Section 3(1) of ERISA ("Welfare Plans"), stock option or
other stock-based plans, deferred compensation plans or other plans
or arrangements to provide benefits to employees (or former
employees) of Rystan maintained or contributed to by Rystan
(collectively, the "Employee Benefit Plans").
(b) Except where the failure to comply has not had and is
not reasonably likely to have, individually or in the aggregate, a
Rystan Material Adverse Effect:
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(i) Rystan, with respect to its operation of the Pension Plans
and Welfare Plans, and each of the Pension Plans and Welfare
Plans are in compliance in both form and operation with the
applicable provisions of ERISA, the Code and other applicable
laws; and (ii) all contributions to, and payments from, the
Employee Benefit Plans which are required to have been made in
accordance with the Employee Benefit Plans have been timely
made.
(c) With respect to any Pension Plan maintained by Rystan or
any of its controlled group affiliates (under Section 414 of the
Code) which is subject to Section 412 of the Code or Section 302 of
ERISA, (i) all contributions required to be made under Section 302 of
ERISA and Section 412 of the Code have been timely made, (ii) there
has been no application for or waiver of the minimum funding
standards imposed by Section 412 of the Code and (iii) no such plan
has incurred an "accumulated funding deficiency" within the meaning
of Section 412(a) of the Code as of the end of the most recently
completed plan year, except where such failures in (i), (ii) and
(iii) above have not had and are not reasonably likely to have,
individually or in the aggregate, a Rystan Material Adverse Effect.
(d) Except as disclosed in Section 3.13 of the Disclosure
Schedule, with respect to any Pension Plan maintained by Rystan or
any of its controlled group affiliates (under Section 414 of the
Code) which is subject to Title IV of ERISA, (i) within the five-year
period ending on the date hereof, no such plan has been terminated or
has been the subject of a "reportable event" (as defined in Section
4043 of ERISA and the regulations thereunder) for which the 30-day
notice requirement has not been waived by the Pension Benefit
Guaranty Corporation ("PBGC") and (ii) none of Rystan or any of its
controlled group affiliates (under Section 414 of the Code) has
incurred any unpaid liability under Title IV of ERISA, except where
such event in (i) and (ii) above has not had and is not reasonably
likely to have, individually or in the aggregate, a Rystan Material
Adverse Effect.
(e) None of the Welfare Plans maintained by Rystan nor any
binding contract of Rystan provides for continuing welfare benefits
or coverage for any participant or any beneficiary of a participant
following termination of employment, except as may be required under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA"), or except at the expense of the participant or the
participant's beneficiary.
(f) None of Rystan or any of its controlled group affiliates
(under Section 414 of the Code) contributes to or has any material
liability, including potential withdrawal liability, with respect to
any "multiemployer plan" (as defined in Section 3(37) of ERISA)
covering employees of Rystan.
(g) Except as provided in Section 3.13 of the Disclosure
Schedule, the transactions contemplated hereby will not, separately
or together, (i) entitle any employee, officer, or director of Rystan
to severance pay or any other payment or (ii)
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accelerate the time of payment or vesting of, or increase the
amount of, compensation due to any such employee, officer or
director. No payment made by Rystan to any officer, director,
employee or agent of Rystan (in such capacity, "Recipients")
pursuant to any employment contract, severance agreement or
other arrangement will be non-deductible to Rystan or the
Surviving Corporation because of the applicability of the
"golden parachute" provisions of Section 280G and 4999 of the
Code, nor will Rystan or the Surviving Corporation be required
to "gross up" or otherwise compensate any Recipient because of
the imposition of any excise tax (including any interest or
penalties related thereto) on the Recipient as a result of
Sections 280G and 4999 of the Code.
(h) Complete and correct copies of the following documents
have been delivered or made available by Rystan to Integra: (i) all
current plan documents and insurance contracts (if any), and
amendments thereto, with respect to each of the Employee Benefit
Plans; (ii) for each of the most recently ended three plan years, all
available IRS Form 5500 series forms (and any financial statement and
other schedules attached thereto) with respect to any Employee
Benefit Plan; (iii) the most recent IRS determination letter for each
Pension Plan; and (iv) all current summary plan descriptions and
subsequent summaries of material modifications with respect to each
of the Employee Benefit Plans subject to ERISA and any similar
documents for any other Employee Benefit Plan.
SECTION 3.14. Intellectual Property Rights. Section 3.14 of the
Disclosure Schedule contains a list of all trade names, trademarks and service
marks, and applications for the foregoing, owned or possessed by Rystan.
Except as disclosed in Section 3.14 of the Disclosure Schedule: (i) Rystan is
the sole owner of or has the right to use all Intellectual Property Rights
currently used by Rystan and in the manner so used, free and clear of any and
all Liens; (ii) such Intellectual Property Rights are sufficient for the
conduct of the business of Rystan as it is presently conducted; and (iii) the
rights of Rystan in and to all of its Intellectual Property Rights will not be
limited or otherwise affected by virtue of the transactions contemplated
hereby. No material rights or licenses to use Intellectual Property Rights
have been granted or acquired by Rystan except those disclosed in Section 3.14
of the Disclosure Schedule. Except as disclosed in Section 3.14 of the
Disclosure Schedule, Rystan has not received written notice or, to GWC's
knowledge, other notice of any claims or assertions made by others that Rystan
has infringed Intellectual Property Rights of others by the sale of products
or any other activity in the preceding five-year period. Except as disclosed
in Section 3.14 of the Disclosure Schedule, Rystan has no knowledge of any
infringement of its Intellectual Property Rights by others that has had or is
reasonably likely to have, individually or in the aggregate, a Rystan Material
Adverse Effect. "Intellectual Property Rights" means and includes rights to
use patents, trademarks, service marks, trade names, copyrights, and currently
pending applications for any thereof, and any inventions (whether or not
patentable), processes, trade secrets, know-how, secrecy or confidentiality
agreements, consulting agreements, software licenses, and any and all
information related to any of the foregoing.
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SECTION 3.15. Tax Matters.
(a) Except as disclosed in Section 3.15 of the Disclosure
Schedule: (i) all franchise, income and all other Tax returns,
information statements and reports and other filings (Tax returns,
information statements, reports and other filings are hereinafter
collectively referred to as "Tax Returns") required to be filed for
any period or portion thereof at or before the Effective Time, taking
into account any extension of time to file granted to or obtained on
behalf of Rystan, have been prepared and timely filed by or on behalf
of Rystan with the appropriate Governmental Authorities and all such
returns were complete and correct in all material respects; (ii) all
Taxes of Rystan in respect of any taxable period (or portion thereof)
ending at or prior to the Effective Time which are due have been paid
in full to the proper authorities or fully accrued for on the
financial statements of Rystan, other than such Taxes as are being
contested in good faith by appropriate proceedings and are adequately
reserved for in accordance with United States generally accepted
accounting principles; (iii) no extension of the period for
assessment or collection of any Tax is currently in effect and no
extension of time within which to file any Tax Return has been
requested, which Tax Return has not since been filed; and (iv) there
are no Tax sharing agreements or arrangements under which Rystan will
have any obligation or liability at or after the Effective Time.
(b) Except as disclosed in Section 3.15 of the Disclosure
Schedule: (i) no examination of Rystan is pending or, to GWC's
knowledge, threatened for any material amount of Tax by any
Governmental Authority, and no Tax liens have been filed with respect
to any of the assets of Rystan, except for property taxes which have
accrued but are not yet due and payable; (ii) Rystan has made timely
payments of the Taxes required to be deducted and withheld from the
wages it paid to its employees and from amounts it paid to any other
third parties; (iii) Rystan has not made an election under Section
341(f) of the Code; and (iv) Rystan has not agreed, and is not
required, to include in income any adjustment pursuant to Section
481(a) of the Code.
"Tax" means (i) all federal, state, local or foreign taxes,
charges, fees, imposts, levies or other assessments,
including, without limitation, all net income, alternative
minimum, gross receipts, capital, sales, use, ad valorem,
value added, transfer, franchise, profits, inventory,
capital stock, license, withholding, payroll, employment,
social security, unemployment, excise, severance, stamp,
occupation, property and estimated taxes, customs duties,
fees, assessments and charges of any kind whatsoever, (ii)
all interest, penalties, fines, additions to tax or other
additional amounts imposed by any Governmental Authority in
connection with any item described in clause (i), and (iii)
all transferee, successor, joint and several or contractual
liability (including, without limitation, liability pursuant
to United States Treasury Regulation ("Treas. Reg.") ss.
1.1502-6 (or any comparable state, local or foreign
provisions)) in respect of any items described in clause (i)
or (ii) above.
SECTION 3.16. Environmental Matters.
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(a) Rystan possesses all Environmental Permits required
under applicable Environmental Laws to conduct its business as
presently conducted, and is and has at all times been in compliance
with the terms and conditions of such Environmental Permits.
(b) Rystan is in compliance and, within the period of all
applicable statutes of limitation, each of Rystan and Rystan Company,
Inc., a New York corporation and the predecessor to Rystan ("Rystan's
Predecessor") has complied with all applicable Environmental Laws and
has not received notice of any liability under any Environmental Law.
(c) There are no civil, criminal, or administrative actions,
suits, demands, claims, hearings, notices of violation,
investigations, notices or demand letters, or requests for
information pending under any Environmental Law against Rystan or
Rystan's Predecessor.
(d) Neither the Property nor any other property or facility
presently or formerly owned, operated or leased by Rystan or Rystan's
Predecessor is listed or proposed for listing on the National
Priorities List or the Comprehensive Environmental Response,
Compensation and Liability Information System, both promulgated under
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), or on any comparable list
established under any
Environmental Law.
(e) There was no disposal, spill, discharge, or release of
any Hazardous Material on, at, or under the Property or any other
property or facility presently or formerly owned, leased or operated
by Rystan or Rystan's Predecessor (x) at any time during which Rystan
or Rystan's Predecessor owned, leased or operated the Property or
other such property or facility or (y) in connection with
manufacturing, packaging or other activities related to the business
of Rystan or Rystan's Predecessor performed by, for or on behalf of
Rystan or Rystan's Predecessor, in either case that could require
response, corrective or other action under any Environmental Law by
the Surviving Corporation, Rystan or Rystan's Predecessor
(f) There was no disposal, spill, discharge, or release of
any Hazardous Material on, at, or under the Property or any other
property presently or formerly owned, leased, or operated by Rystan
or Rystan's Predecessor (x) at any time during which neither Rystan
nor Rystan's Predecessor owned, leased or operated the Property or
other such property or facility or (y) other than in connection with
manufacturing, packaging or other activities related to the business
of Rystan or Rystan's Predecessor performed by, for or on behalf of
Rystan or Rystan's Predecessor, in either case that could require
response, corrective or other action under any Environmental Law by
the Surviving Corporation, Rystan or Rystan's Predecessor.
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(g) This Section 3.16 constitutes GWC's sole representation
with respect to any Environmental Law, Environmental Permit or
Hazardous Material.
"Environmental Law" means CERCLA, the Resource Conservation and
Recovery Act of 1976, as amended, the New Jersey Industrial Site Recovery Act
("ISRA"), the New Jersey Spill Compensation and Control Act, and any other
applicable federal, state, local, or foreign statute, rule, regulation, order,
decree or judgment relating to pollution or protection of the environment,
including, without limitation, release or threatened release of Hazardous
Material.
"Environmental Permit" means any permit, license, approval, or other
authorization by a federal, state, local, or foreign government or regulatory
entity pursuant to any Environmental Law.
"Hazardous Material" means any pollutant, contaminate, or hazardous
or toxic waste or substance regulated by any applicable Environmental Law.
SECTION 3.17. Finders or Brokers. Neither GWC nor any of its
affiliates has employed any investment banker, broker, finder or intermediary
in connection with the transactions contemplated hereby who may reasonably be
expected to be entitled to a fee or any commission, directly or indirectly,
from any such person.
SECTION 3.18. Title to Property. Section 3.18 of the Disclosure
Schedule lists each interest in real property leased by Rystan, including a
listing of all leases and other agreements under which any such real property
is held. Rystan does not own or have any other interest in real property other
than pursuant to such leases. Rystan has good and marketable title to all of
its (i) leasehold interests listed in Section 3.18 of the Disclosure Schedule
and (ii) personal property, including all equipment and leasehold improvements
located at Rystan's principal offices, all of which are free and clear of any
and all liens, pledges, security interests or other encumbrances of every
kind, nature and description whatsoever ("Liens"), except (i) the Liens set
forth in Section 3.18 of the Disclosure Schedule and (ii) Liens that are
matters of public record or which do not, individually or in the aggregate,
materially impair the value, marketability or operations of the interest or
property to which they relate in the operation of Rystan as currently
conducted ((i) and (ii) collectively, "Permitted Liens").
SECTION 3.19. Inventory. Except as disclosed in Section 3.19 of the
Disclosure Schedule, the Interim Balance Sheet accurately reflects the
inventory, works-in-process and raw materials owned by Rystan as of the date
thereof and Rystan's inventory, works-in-process and raw materials are in all
material respects within specifications and fit for their intended commercial
use and purpose.
SECTION 3.20. Investment Intent. Except in accordance with applicable
law: (a) GWC is acquiring the Integra Securities for investment for its own
account, not as a
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nominee or agent, and not with a view to the resale or distribution of any part
thereof; (b) GWC has no present intention of selling, granting any participation
in, or otherwise distributing the Integra Securities; and (c) GWC does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to any of the Integra Securities.
SECTION 3.21. Investment Experience. GWC has such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of the investment in the Integra Securities. GWC is an
"accredited investor" as such term is defined in Rule 501 of the General Rules
and Regulations under the Securities Act.
SECTION 3.22. Restricted Securities; Certain Acknowledgments.
(a) GWC understands that: (i) the Integra Securities are not
registered under the Securities Act of 1933, as amended (the
"Securities Act") or qualified under any state securities laws; (ii)
the Integra Securities are being issued to GWC on the ground that the
issuance of securities hereunder is exempt from registration under
the Securities Act and from applicable state securities laws; and
(iii) Integra's reliance on such exemptions is predicated on GWC's
representations set forth herein. GWC understands that these
exemptions only exempt the issuance of the Integra Securities to GWC
and not any sale or other disposition of the Integra Securities or
any interest therein by GWC. GWC acknowledges that the Integra
Securities may not be resold or transferred unless the Integra
Securities are first registered under federal securities laws or
unless an exemption from such registration is available, and that any
resale or transfer must comply with applicable state securities laws.
(b) GWC acknowledges receipt of such documents, agreements
and information concerning Integra as GWC has required and confirms
that: (i) Integra has afforded GWC the opportunity to ask questions
of and receive answers from Integra's officers concerning GWC's
investment in the Integra Securities and to obtain such additional
information as Seller has requested; and (ii) GWC has availed itself
of such opportunity to the extent it deems necessary and has received
the information requested.
SECTION 3.23. Insurance.
(a) The insurance policies disclosed in Section 3.23 of the
Disclosure Schedule are sufficient for compliance with applicable
laws, rules and regulations and agreements to which Rystan is a party
or by which it or its assets are bound, are valid and enforceable and
will not be affected by, terminate or lapse prior to the Effective
Time by reason of the transactions contemplated by this Agreement.
(b) Rystan has not received: (i) any written notice or, to
GWC's knowledge, other notice of cancellation of any insurance policy
disclosed in Section 3.23 of the Disclosure Schedule or refusal of
coverage thereunder; (ii) any written notice or, to GWC's knowledge,
other notice that any issuer of such policy has filed
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for protection under applicable bankruptcy or insolvency laws
or is otherwise in the process of liquidating or has been
liquidated; or (iii) any other written indication that any such
policy may no longer be in full force or effect or that the
issuer of any such policy may no longer be willing or able to
perform its obligations thereunder.
(c) Schedule 3.23 of the Disclosure Schedule identifies any
retrospective premium adjustments and outstanding claims or notices
of claims under the insurance policies disclosed therein.
SECTION 3.24. Customers and Suppliers; Warranties. Except as
disclosed in Section 3.24 of the Disclosure Schedule: (a) no customer that
accounted for more than 10% of the gross revenues of Rystan during 1996 or
1997 has terminated or materially reduced, or has given written notice that it
intends to terminate or materially reduce, the amount of business done with
Rystan; (b) no supplier or vendor that accounted for more than $20,000 of the
purchases of Rystan during 1996 or 1997 has terminated or materially reduced,
or has given written notice that it intends to terminate or materially reduce,
the amount of business done with Rystan; and (c) Rystan has not expressly
agreed in writing to become responsible for consequential damages or, to GWC's
knowledge, made any express written warranties to third parties with respect
to any products created, manufactured, sold, distributed or licensed, or any
services rendered, by Rystan.
SECTION 3.25. Certain Disclosure. To GWC's knowledge, there are no
obligations or liabilities of Rystan existing as of the date hereof which are
created by, or identified specifically as being obligations of Rystan in, the
Agreement and Plan Merger dated April 21, 1998 among Elan Corporation, plc,
GWC Merger Co. and GWC which have not been disclosed to Integra in this
Agreement or the Disclosure Schedule.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF INTEGRA
Integra represents and warrants to GWC that:
SECTION 4.01. Organization. Integra is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware. Merger Sub is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of New Jersey.
SECTION 4.02. Capitalization. The authorized capital stock of Integra
consists of 60,000,000 shares of Integra Common Stock and 15,000,000 shares of
Preferred Stock, par value $.01 per share, of which 2,000,000 shares have been
designated as Series A Convertible Preferred Stock ("Series A Preferred
Stock"). As of the date of this Agreement, there are 14,893,654 shares of
Integra Common Stock and 500,000 shares of Series A Preferred Stock
outstanding. Except as disclosed in the SEC Filings or issued in the ordinary
course of business under plans disclosed in the SEC Filings, there are no
existing options, warrants,
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calls, subscriptions, or other similar rights, commitments or agreements
obligating Integra to issue, transfer or sell any shares of capital
stock of Integra or any other securities convertible into or evidencing
the right to subscribe for any shares of capital stock of Integra.
Except as disclosed in the SEC Filings, no person has any registration
rights with respect to any Integra Common Stock or Series A Preferred
Stock. There are no outstanding stock appreciation rights with respect
to Integra Common Stock. Integra directly owns all of the outstanding
shares of capital stock of Merger Sub free and clear of any Liens.
SECTION 4.03. Authority; Due Execution.
(a) Integra has all necessary corporate power and authority
to execute and deliver this Agreement, the Registration Rights
Agreement and the Integra Warrants and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement, the Registration Rights Agreement and the Integra Warrants
by Integra and the consummation by Integra of the transactions
contemplated hereby and thereby have been duly and validly authorized
by all necessary corporate action and no other proceedings on the
part of Integra are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. Each of this
Agreement, the Registration Rights Agreement and the Integra Warrants
has been duly and validly executed and delivered by Integra and,
assuming the due authorization, execution and delivery hereof and
thereof by the other parties thereto, if any, constitutes a valid and
binding obligation of Integra, enforceable against Integra in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
(b) Merger Sub has all necessary corporate and shareholder
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Merger Sub and the consummation by
Merger Sub of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate and shareholder action
and no other proceedings on the part of Merger Sub or its shareholder
are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Merger Sub and, assuming the due
authorization, execution and delivery thereof by the other parties
hereto, constitutes a valid and binding obligation of Merger Sub,
enforceable against Merger Sub in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(c) The Surviving Corporation has all necessary corporate
power and authority to execute and deliver the Lease and to
consummate the transactions contemplated thereby. The execution and
delivery of the Lease by the Surviving Corporation and the
consummation by the Surviving Corporation of the transactions
contemplated thereby have been duly and validly authorized by all
necessary corporate
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action and no other corporate proceedings on the part of the
Surviving Corporation are necessary to authorize the Lease or
to consummate the transactions contemplated thereby. The Lease
has been duly and validly executed and delivered by the
Surviving Corporation and, assuming the due authorization,
execution and delivery thereof by GWC, constitutes a valid and
binding obligation of the Surviving Corporation, enforceable
against the Surviving Corporation in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
SECTION 4.04. Integra Securities. The Integra Securities are duly
authorized and validly issued, fully paid and non-assessable and free and
clear of any Liens. The Integra Securities have not been issued in violation
of or subject to any preemptive rights of any person. When issued and paid for
in accordance with the terms of the Integra Warrants, the shares of Integra
Common Stock issuable upon exercise of the Integra Warrants will be duly
authorized and validly issued, fully paid and non-assessable and free and
clear of any Liens.
SECTION 4.05. No Violations. Except for the filing of the Certificate
of Merger with the Secretary of State of the State of New Jersey, no filing
with, notification to or permit, authorization, consent or approval of, any
Governmental Authority is necessary on the part of Integra or Merger Sub for
the consummation by Integra or Merger Sub of the transactions contemplated
hereby, except for notices required to be filed with certain state and federal
securities commissions after the Effective Time, which notices will be filed
on a timely basis, and except for filings, notifications, permits,
authorizations, consents or approvals, the failure of which to make, receive
or obtain are not reasonably likely to, individually or in the aggregate,
impair the ability of Integra or Merger Sub to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby do not (i) conflict with
or breach any provision of the Articles of Incorporation or By-laws of Integra
or Merger Sub, (ii) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Integra or Merger Sub or any of their respective
properties or assets, (iii) result in, require or permit the creation or
imposition of any Lien upon or with respect to the Integra Securities or the
shares of Integra Common Stock issuable upon exercise of the Integra Warrants
or (iv) violate, breach or constitute a default under, any agreement or other
instrument to which Integra or Merger Sub is a party, excluding such
violations, breaches and defaults that, individually or in the aggregate, are
not reasonably likely to impair the ability of Integra or Merger Sub to
consummate the transactions contemplated hereby or that have not had and are
not reasonably likely to have, individually or in the aggregate, an Integra
Material Adverse Effect.
SECTION 4.06. SEC Filings. Integra has timely filed all reports,
registration statements and other documents required to be filed by it (the
"SEC Filings") under the Securities Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"). The SEC Filings were prepared in
accordance and complied in all material respects with the
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applicable requirements of the Securities Act or the Exchange Act, as
the case may be. None of such SEC Filings, including, without
limitation, any financial statements, exhibits and schedules included
therein and documents incorporated therein by reference, at the time
filed, declared effective or mailed, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
SECTION 4.07. Litigation. Except as disclosed in the SEC Filings,
there are no claims, actions, proceedings or investigations pending or, to
Integra's knowledge, threatened against Integra or Merger Sub or any asset of
Integra or Merger Sub before any court, arbitrator or Governmental Authority
that, individually or in the aggregate, would impair the ability of Integra or
Merger Sub to consummate the transactions contemplated hereby. As of the date
hereof, neither Integra nor Merger Sub nor any asset of Integra or Merger Sub
is subject to any order, writ, judgment, injunction, decree, determination or
award that would, individually or in the aggregate, impair ability of Integra
or Merger Sub to consummate the transactions contemplated hereby.
SECTION 4.08. Finders or Brokers. Neither Integra nor any of its
affiliates has employed any investment banker, broker, finder or intermediary
in connection with the transactions contemplated hereby who may reasonably be
expected to be entitled to a fee or any commission, directly or indirectly,
from any such person.
SECTION 4.09. Certain Acknowledgments. Integra acknowledges receipt
of such documents, agreements and information concerning GWC and Rystan as
Integra has required and confirms that: (i) GWC and Rystan have afforded
Integra the opportunity to ask questions of and receive answers from GWC's and
Rystan's officers concerning Integra's acquisition of Rystan and to obtain
such additional information as Integra has requested; and (ii) Integra has
availed itself of such opportunity to the extent it deems necessary and has
received the information requested.
SECTION 4.10. Absence of Changes or Events. Except as disclosed in
writing by Integra to GWC, since June 30, 1998, Integra has not taken any
action or suffered any change (other than ongoing operating losses incurred by
Integra) that has had or is reasonably likely to have, individually or in the
aggregate, an Integra Material Adverse Effect.
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ARTICLE V
COVENANTS
SECTION 5.01. Further Assurances. Subject to the terms and conditions
herein provided, each of the parties hereto shall use all commercially
reasonable efforts to take, or cause to be taken, all other actions and do, or
cause to be done, all other things necessary, proper or appropriate under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
obtaining of all necessary consents, approvals or waivers for and lifting any
legal bar to the consummation of the transactions contemplated hereby. Each of
the parties hereto shall perform all of its obligations under this Agreement
and shall not take any action that would cause any other party to fail to
perform its obligations hereunder.
SECTION 5.02. Public Announcements. Before any party hereto issues
any press release or otherwise makes any public statement with respect to this
Agreement or any of the transactions contemplated hereby, such party will
consult with the other parties hereto as to its form and substance and shall
not issue any such press release or make any such public statement prior to
obtaining the other parties' consent (which consent will not be unreasonably
withheld or delayed), except as may be required by law.
SECTION 5.03. Employees and Employee Benefits.
(a) Effective as of the Effective Time, all employees of
Rystan immediately prior to the Effective Time (other than those on
long-term disability and those that are and have been on leave of
absence for six months or longer) shall become employees of the
Surviving Corporation ("Surviving Corporation Employees") and shall
cease active participation in all Employee Benefit Plans that are not
maintained by Integra or the Surviving Corporation.
(b) Effective as of the Effective Time, Surviving
Corporation Employees who immediately prior to the Effective Time
were participants in the Carnrick Employees' Incentive and Savings
Plan (the "Carnrick 401(k) Plan") shall cease to be eligible for any
future contributions to the Carnrick 401(k) Plan, shall have a fully
vested and non-forfeitable interest in their vested and unvested
account balances in the Carnrick 401(k) Plan, and shall be entitled
to a distribution of their account balances under the Carnrick 401(k)
Plan in accordance with and to the extent permitted by Section
401(k)(10) of the Code and other applicable provisions of the Code.
Surviving Corporation Employees who receive an eligible rollover
distribution (within the meaning of Section 402(f)(2) of the Code,
including a direct rollover distribution with the meaning of Section
401(a)(31) of the Code) from the Carnrick 401(k) Plan shall, subject
to the provisions of Section 402 of the Code and upon presentation of
an IRS favorable determination letter with respect to the Carnrick
401(k) Plan and an
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opinion of counsel satisfactory to Integra, be permitted to make a
rollover contribution to a defined contribution plan of Integra.
(c) Effective as of October 1, 1998, Surviving Corporation
Employees and their covered dependents shall be eligible to enroll in
such welfare plans (as defined in Section 3(1) of ERISA) as Integra
or the Surviving Corporation shall make available to new employees
hired by the Surviving Corporation after the Effective Time (the
"Surviving Corporation Welfare Plans") and shall (except for the
obligation under the next sentence and under paragraph (d) of this
Section 5.03) be otherwise subject to the terms and conditions of
such Surviving Corporation Welfare Plans. Effective as of October 1,
1998, Surviving Corporation Employees shall be eligible to enroll in
Surviving Corporation Welfare Plans which provide medical benefits
without (i) any waiting periods, (ii) any evidence of insurability
and (iii) application of any pre-existing physical or mental
condition, restrictions, except to the extent that such waiting
periods, evidence of insurability, or pre-existing mental or physical
condition restrictions would apply under GWC's welfare plans and be
permitted by law.
(d) The Surviving Corporation shall have responsibility for
"continuation coverage" obligations with respect to Surviving
Corporation Employees and "qualified beneficiaries" of such Surviving
Corporation Employees for whom a "qualifying event" occurs on or
after October 1, 1998. The phrases "continuation coverage, "qualified
beneficiaries" and "qualifying event" shall have the meaning ascribed
to them in Section 4980B of the Code and Section 601-608 of ERISA.
(e) The parties hereto expressly acknowledge that the
Surviving Corporation shall be obligated to pay all liabilities under
the employee benefit plans that are maintained for Surviving
Corporation Employees to or in respect of any Surviving Corporation
Employee terminated for any reason at or after the Effective Time,
including, without limitation, any liability triggered under any
employment compensation or government-mandated benefits relating to
the termination of any Surviving Corporation Employee at or after the
Effective Time, including, without limitation, under the Workers
Adjustment and Retraining Notification Act of 1998.
(f) The parties hereto expressly acknowledge that Integra
and the Surviving Corporation shall not be obligated to pay any
liabilities under the employee benefit plans that were maintained for
Rystan employees to or in respect of any such employee terminated for
any reason prior to the Effective Time (but not those on short-term
disability or leave of absence), including, without limitation, any
liability triggered under any employment compensation or
government-mandated benefits relating to the termination of any such
employee prior to the Effective Time, including, without limitation,
under the Workers Adjustment and Retraining Notification Act of 1988.
The parties hereto acknowledge that Rystan employees on short-term
disability or leave of absence for fewer than six months at the
Effective
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Time shall not be deemed to have been terminated prior to the
Effective Time for purposes of this Section 5.03(f).
(g) Integra shall cause the Surviving Corporation to offer
compensation and benefits to Surviving Corporation Employees that are
substantially equivalent when taken as a whole to the compensation
and benefits that such employees enjoyed before the Effective Time;
provided that nothing in this Section 5.03(g) shall obligate the
Surviving Corporation to renew any employment agreement after its
expiration or termination or preclude the Surviving Corporation from
terminating Surviving Corporation Employees employed at will after
October 1, 1998.
SECTION 5.04. Certain Restrictive Covenants.
(a) From and after the Effective Time, GWC shall not
disclose, directly or indirectly, to any person other than directors,
officers, employees or agents of Integra or the Surviving
Corporation, without the express authorization of Integra, any
customer lists, pricing strategies, customer and employee files and
records, any proprietary data or trade secrets of the Surviving
Corporation, or any financial or other information about the
Surviving Corporation not in the public domain.
(b) For a period of two years from and after the Effective
Time, GWC shall not solicit the Surviving Corporation's customers,
suppliers, employees or independent contractors to cease doing
business, or their association or employment, with the Surviving
Corporation.
(c) GWC expressly acknowledges that damages alone may be an
inadequate remedy for any breach or violation of any of the
provisions of this Section 5.04, and that Integra, in addition to all
other remedies under this Agreement, shall be entitled to seek
injunctive relief, including specific performance, with respect to
any such breach or violation, in any court of competent jurisdiction.
(d) The invalidity or unenforceability of any provision of
this Section 5.04 shall not affect the validity or enforceability of
any other provision of this Section 5.04, which shall remain in full
force and effect, and in the event that any provision of this Section
5.04 shall be determined to be invalid or unenforceable for any
reason, such provision shall be construed by limiting it so as to be
valid and enforceable to the fullest extent compatible with and
possible under applicable law.
SECTION 5.05. Costs and Expenses. GWC shall pay its fees and expenses
and those of its agents and advisors incurred in connection with the
transactions contemplated by this Agreement (including, without limitation,
all legal and accounting fees (collectively, "Transaction Costs")); it being
agreed that the proposed acquisition of Rystan contemplated by this Agreement
is not in the ordinary course of Rystan's business, that Rystan has not
incurred or paid any Rystan Transaction Costs and that none of GWC's
Transaction Costs incurred in connection with the transactions contemplated
hereby have been or shall be borne by Rystan.
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SECTION 5.06. Consulting Arrangement. At the request of Integra, GWC
shall make Xxxxxx X. Xxxxxxxx available to Integra and the Surviving
Corporation for consulting services through June 30, 1999 at a cost of $250
per hour payable to GWC, such consulting services to be provided at such times
as will not unreasonably interfere with Xx. Xxxxxxxx'x duties as an officer
and director of GWC and, in any event, not to exceed three hours during any
calendar quarter without the mutual consent of GWC and Integra.
SECTION 5.07. Packaging. GWC agrees to utilize the Surviving
Corporation to package for GWC the products packaged by Rystan immediately
prior to the Effective Time on substantially the same terms and conditions as
in effect immediately prior to the Effective Time, unless and until either
party gives the other party 60 days prior written notice of its intention to
terminate such arrangement.
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. Survival. Notwithstanding any otherwise applicable
statute of limitations and despite any investigations made prior to the
Effective Time, the representations and warranties made by GWC and Integra in
this Agreement shall survive the Effective Time until May 1, 1999; except that
the representations and warranties set forth in (a) Section 3.15 shall survive
the Effective Time until the expiration of all applicable statutes of
limitations, (b) Section 3.16(f) shall survive the Effective Time indefinitely
and (c) Sections 3.16(a), (b), (c), (d) and (e) shall survive the Effective
Time until the latter to occur of (i) the third anniversary of the sale or
other disposition by GWC to a non-affiliate, third party of the Property and
(ii) the eighth anniversary of the date of this Agreement.
SECTION 6.02. Indemnification by GWC.
(a) Subject to the provisions of Sections 6.02(b) and (c),
GWC shall indemnify and hold harmless Integra, the Surviving
Corporation and their respective officers, directors, employees and
agents (each, an "Integra Indemnified Party") from and against any
and all losses, liabilities and damages, including, without
limitation, reasonable costs and fees of counsel, resulting from any
breach of the covenants, representations and warranties made by GWC
in this Agreement (collectively, "Integra Losses"). The Integra
Indemnified Parties shall use all commercially reasonable efforts to
mitigate all Integra Losses.
(b) Except as provided in Section 6.02(c), in no event shall
GWC be liable to any Integra Indemnified Party pursuant to this
Article VI for Integra Losses (excluding Integra Losses resulting
from a breach by GWC of Sections 3.15, 3.16, 5.01, 5.02, 5.03, 5.04,
5.05, 5.07, 7.01, 7.04 and 7.07) unless and until all Integra Losses
(excluding Integra Losses resulting from a breach by GWC of Sections
3.15, 3.16, 5.01, 5.02, 5.03, 5.04, 5.05, 5.07, 7.01, 7.04 and 7.07)
of the Integra Indemnified Parties exceed, in the aggregate, $75,000,
in which case the Integra Indemnified
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Parties shall be entitled to recover the portion of such
aggregate Integra Losses in excess of $75,000 up to an amount
which does not exceed $1,500,000.
(c) Subject to the provisions of Section 6.02(d), GWC shall
be liable to the Integra Indemnified Parties, without duplication,
for Integra Losses resulting from a breach by GWC of (i) Sections
3.15, 3.16(f), 5.01, 5.02, 5.03, 5.04, 5.05, 5.07, 7.01, 7.04 and
7.07) on a dollar for dollar basis, without limitation, and (ii)
Sections 3.16(a), (b), (c), (d) and (e), collectively, on the
following basis: (x) 50% for the first $4,000,000 of such Integra
Losses ("Layer A"); (y) 100% for the next $6,000,000 of such Integra
Losses in excess of Layer A ("Layer B"); and (z) 50% for all such
Integra Losses in excess of Layer B.
(d) The parties hereto agree that in the event an Integra
Loss results from a breach by GWC of Section 3.16(f) and one or more
of Sections 3.16(a), (b), (c) and (d), such Integra Loss shall be
deemed to result from a breach by GWC of Section 3.16(f) only and
Section 6.02(c)(i) shall govern.
SECTION 6.03. Indemnification by Integra.
(a) Subject to the provisions of Section 6.03(b), Integra
shall indemnify and hold harmless GWC and its officers, directors,
employees and agents (each, a "GWC Indemnified Party") from and
against any and all losses, liabilities and damages, including,
without limitation, reasonable costs and fees of counsel, resulting
from any breach of the covenants, representations and warranties made
by Integra in this Agreement (collectively, "GWC Losses"). The GWC
Indemnified Parties shall use all commercially reasonable efforts to
mitigate all GWC Losses.
(b) In no event shall Integra be liable to any GWC
Indemnified Party pursuant to this Article VI for GWC Losses
(excluding GWC Losses resulting from a breach by Integra of Sections
5.01, 5.02, 5.03, 5.07, 7.02, 7.04 and 7.07) unless and until all GWC
Losses (excluding GWC Losses resulting from a breach by Integra of
Sections 5.01, 5.02, 5.03, 5.07, 7.02, 7.04 and 7.07) of the GWC
Indemnified Parties exceed, in the aggregate, $75,000, in which case
the GWC Indemnified Parties shall be entitled to recover the portion
of such aggregate GWC Losses in excess of $75,000 up to an amount
which does not exceed $1,500,000; it being understood that,
notwithstanding the foregoing, Integra shall be liable to GWC on a
dollar for dollar basis, without limitation, for GWC Losses resulting
from a breach by Integra of Sections 5.01, 5.02, 5.03, 5.07, 7.02,
7.04 or 7.07.
SECTION 6.04 Procedure. Promptly after acquiring knowledge of any
Integra Loss or GWC Loss (each, a "Loss") or any suit, action, proceeding or
claim (each, a "Claim") which may result in a Loss, an Integra Indemnified
Party or GWC Indemnified Party, as the case may be, shall notify GWC or
Integra, as the case may be, of the same in writing specifying in detail the
nature of such Loss or Claim and the facts pertaining thereto. GWC or Integra,
as the case may be, shall be entitled, but not obligated, to assume the
defense of any such Claim by giving written notice to such Integra Indemnified
Party or GWC Indemnified
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Party, as the case may be, within 30 days after having received written
notice therefrom and to have the sole control of the defense and
settlement thereof (but only, with respect to any settlement, if such
settlement involves an unconditional release of such Integra Indemnified
Party or GWC Indemnified Party, as the case may be, in respect of such
claim), including the retention of counsel and the payment of all fees
and expenses.
SECTION 6.05. Measurement of Damages.
(a) If any event shall occur which would entitle an Integra
Indemnified Party or GWC Indemnified Party, as the case may be, to
indemnification under this Article VI, such Integra Indemnified Party
or GWC Indemnified Party, as the case may be, shall make claims for
recovery under any applicable insurance policy with respect to such
Loss, and no Loss shall be deemed to have been sustained to the
extent of any net proceeds received by such Integra Indemnified Party
or GWC Indemnified Party, as the case may be, from any such insurance
policy; provided, however, that such Integra Indemnified Party or GWC
Indemnified Party, as the case may be, shall not be required to
threaten or commence suit or take any similar action to compel
coverage, or receive any proceeds, under any such insurance policy in
order to be indemnified for a claim under this Article VI.
SECTION 6.06. Investigations. The indemnification obligations
contained in this Article VI shall remain in full force and effect regardless
of any investigation made or omitted by an Integra Indemnified Party or GWC
Indemnified Party, as the case may be. SECTION 6.07. Sole Remedy. Except as
otherwise provided in this Agreement, the indemnification rights set forth in
this Article VI shall be the sole remedy available to the Integra Indemnified
Parties and GWC Indemnified Parties for all matters covered by this Agreement.
ARTICLE VII
TAX MATTERS
SECTION 7.01. Tax Indemnification by GWC. GWC shall indemnify and
hold harmless Integra and the Surviving Corporation, without duplication,
against any and all losses, liabilities and damages, including, without
limitation, reasonable costs and fees of counsel, resulting from, arising out
of, relating to, in the nature of or caused by the liability of the Surviving
Corporation for the Taxes of any affiliate of Athena Neurosciences, Inc. or
GWC (not including Rystan) under Treas. Reg. ss. 1.1502-6 (or any similar
provision of state, local or foreign law) for periods during which Rystan was
a member of the affiliated group of Athena Neurosciences, Inc. or GWC for
United States federal income tax purposes.
SECTION 7.02. Tax Indemnification by Integra. Integra shall indemnify
and hold harmless GWC from and against (a) any and all Taxes (other than Taxes
referred to in Section 7.01 or attributable to a misrepresentation in Section
3.15) with respect to the Surviving Corporation for any period beginning after
the Closing Date and (b) any and all Taxes
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attributable to the acts or omissions of Integra or any affiliate of
Integra (including the Surviving Corporation) (i) after the Closing Date
or (ii) out of the ordinary course of business after the Closing but on
the Closing Date.
SECTION 7.03. Allocation of Certain Taxes. Any income Taxes for a
taxable period beginning on or prior to the Closing Date and ending after the
Closing Date with respect to the Surviving Corporation shall be apportioned
between GWC and Integra based on a closing of the books of Rystan at the close
of business on the Closing Date. For purposes of the provisions of Sections
7.01, 7.02, 7.03 and 7.05, each portion of such period shall be deemed to be a
taxable period whether or not it is in fact a taxable period.
SECTION 7.04. Filing Responsibility. GWC shall prepare and file or
shall cause Rystan to prepare and file the following Tax Returns with respect
to Rystan: (a) all consolidated or combined income Tax Returns for any taxable
period ending on or prior to the Closing Date that include GWC; and (b) all
Tax Returns required to be filed (taking into account extensions) prior to the
Effective Time. Integra and the Surviving Corporation will furnish Tax
information to GWC for inclusion in GWC's federal consolidated income Tax
Returns for the period that includes the Closing Date in accordance with
Rystan's past practice. Integra and the Surviving Corporation shall prepare
and file all other Tax Returns with respect to Rystan and/or the Surviving
Corporation.
SECTION 7.05. Refunds and Carrybacks.
(a) GWC shall be entitled to any refunds or credits of
income Taxes of GWC, Rystan or their affiliates for taxable periods
ending on or prior to the Closing Date except that GWC shall pay to
the Surviving Corporation 50% of any refunds that are attributable to
any carryback of Tax items generated by the Surviving Corporation
after the Effective Time.
(b) Integra shall or shall cause the Surviving Corporation
to forward to GWC or to reimburse GWC for any refunds or credits due
GWC pursuant to this Section 7.05, together with related interest,
promptly after receipt thereof.
SECTION 7.06. Cooperation and Exchange of Information. GWC and
Integra and their respective affiliates shall cooperate in the preparation of
all Tax Returns. Such cooperation shall include, but not be limited to,
furnishing such information within such party's possession reasonably
requested by the party filing such Tax Returns as is relevant to their
preparation.
SECTION 7.07. Closing Date Balance Sheet.
(a) As soon as practicable following the Closing Date, GWC
shall prepare and deliver to Integra an unaudited balance sheet of
Rystan as of the close of business on the Closing Date (the "Closing
Date Balance Sheet"). The Closing Date Balance Sheet shall be
prepared in accordance with United States generally accepted
accounting principles consistently applied (except as may be
indicated therein). Integra shall have 30 days to review the Closing
Date Balance Sheet, during which
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time it shall have reasonable access to all relevant books and
records, employees and accountants of Rystan to the extent
necessary to complete its review. Unless Integra shall deliver
written notice to GWC on or prior to the 30th day following
receipt of the Closing Date Balance Sheet of its objection to
the Closing Date Balance Sheet, which notice shall specify in
detail each disputed item and the basis therefor, Integra shall
be deemed to have accepted and agreed to the Closing Date
Balance Sheet. In the event Integra so notifies GWC of its
objection to the Closing Date Balance Sheet, GWC and Integra
shall attempt in good faith to resolve their differences, and
any resolution by them as to any disputed item shall be set
forth in a memorandum of agreement and shall be final, binding
and conclusive.
(b) Based on the Closing Date Balance Sheet, the Surviving
Corporation shall pay to GWC an amount equal to Rystan's liability
for income taxes for all taxable periods ended during the period
beginning January 1, 1998 and ending the Closing Date (other than
state taxes payable on a separate company basis).
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendment and Modification. Subject to applicable law,
this Agreement may be amended, modified or supplemented only by written
agreement of the parties hereto with respect to any of the terms contained
herein.
SECTION 8.02. Waiver of Compliance; Consents. Any failure of any
party hereto to comply with any obligation, covenant, agreement or condition
herein may be waived by the other parties hereto only by a written instrument
signed by the parties granting such waiver, but such waiver of or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure, except as otherwise provided in such instrument.
Whenever this Agreement requires or permits consent by or on behalf of any
party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section
8.02.
SECTION 8.03. Tax Opinion. Prior to the Effective Time, GWC shall
have received an opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel to GWC, dated the
Closing Date, to the effect that the Merger shall qualify as a reorganization
within the meaning of Section 368(a) of the Code.
SECTION 8.04. Notices. All notices and other communications hereunder
shall be in writing and shall be delivered personally, by next-day courier or
telecopied with written confirmation of receipt, to the parties at the
addresses specified below (or at such other address for a party as shall be
specified by like notice):
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if to GWC or Rystan:
Elan Corporation, plc
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx 0, XXXXXXX
Telecopy: 353-1-662-4960
Attention: General Counsel
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
and
Athena Neurosciences, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
if to Integra or the Surviving Corporation:
Integra LifeSciences Corporation
000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Drinker Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx III, Esq.
Any such notice shall be effective upon receipt, if personally delivered or
telecopied, or one day after delivery to a courier for next-day delivery;
provided that notices of a change of address shall be effective only upon
receipt thereof.
SECTION 8.05. Assignment; Third Party Beneficiaries. 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
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rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of other the
parties hereto. This Agreement is not intended to confer any rights or
remedies hereunder upon any other person except the parties hereto and,
with respect to Article VI, the respective officers, directors,
employees and agents of Integra, the Surviving Corporation and GWC.
SECTION 8.06. Governing Law. This Agreement shall be governed by the
laws of the State of New York (regardless of the laws that might otherwise
govern under applicable New York principles of conflicts of law) as to all
matters, including, but not limited to, matters of validity, construction,
effect, performance and remedies. The parties hereby irrevocably submit to the
jurisdiction of the courts of the United States of America located in the
County of New York in respect of the interpretation and enforcement of the
provisions of this Agreement, and hereby waive, and agree not to assert, as a
defense in any action, suit or proceeding for the interpretation or
enforcement hereof, that it is not subject to such jurisdiction or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that the venue thereof may not be appropriate or that this Agreement
may not be enforced in or by such courts.
SECTION 8.07. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect against a party hereto, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby and such invalidity, illegality or unenforceability shall
only apply as to such party in the specific jurisdiction where such judgment
shall be made.
SECTION 8.08. Interpretation. The Article and Section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the parties and shall not in any way affect the
meaning or interpretation of this Agreement.
SECTION 8.09. Entire Agreement. This Agreement, including all
Exhibits and the Disclosure Schedule, embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no representations, promises, warranties, covenants, or
undertakings other than those expressly set forth or referred to herein.
SECTION 8.10. Counterparts. This Agreement may be executed and
delivered (including by telecopier) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
INTEGRA LIFESCIENCES CORPORATION
By: /s/ Xxxxx X. Xxxxx
RC ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxx
GWC HEALTH, INC.
By: /s/ Xxxxxx Xxxxx
RYSTAN COMPANY, INC.
By: /s/ Xxxxxx Xxxxx
