EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
(LUMIDOR SAFETY CORPORATION)
This ASSET PURCHASE AGREEMENT ("Agreement") is entered into
effective as of May 30, 2002, among Zellweger Analytics, Inc., a Texas
corporation ("Buyer"), Lumidor Safety Corporation, a Delaware corporation
("Seller"), and Invivo Corporation, a Delaware corporation and the sole
shareholder of Seller ("Shareholder").
RECITALS:
Seller is engaged in the design, manufacture, marketing,
distribution and sale of gas detection and indoor air quality control systems
including all activities, operations, services, and products related to the
business operations of Seller as now conducted ("Business"). Buyer desires to
purchase from Seller and Shareholder and Seller and Shareholder desire to sell
to Buyer the Business and associated business and operating assets, product
lines, intellectual and personal properties, goodwill and other assets related
to the Business, as a going concern, and excepting only the Excluded Assets (as
hereinafter defined) upon the terms and conditions and for the consideration set
forth in this Agreement. In connection with this purchase, Buyer has required
that Seller and Shareholder enter into a Noncompetition Agreement as set forth
herein for purposes of enabling an orderly transition of the Business and Assets
(as hereinafter defined) to Buyer and protecting Buyer's investment under this
Agreement. Further, in connection with this transaction, Buyer has required that
Shareholder perform certain Transition Services (as hereinafter defined) for
Buyer for the periods set forth herein.
AGREEMENT:
In consideration of the premises and the representations and
covenants contained herein, it is agreed as follows:
(1) Purchase and Sale of Assets.
(a) Asset Purchase. Buyer hereby purchases from Seller and
Shareholder and Seller and Shareholder hereby sell or assign to Buyer all of the
assets and properties (excepting only the Excluded Assets) of every kind and
description, wherever located, personal or mixed, tangible or intangible,
related to the conduct of the Business by Seller as of the date of this
Agreement including, but not limited to: equipment and other fixed assets;
accounts receivable; prepayments; rolling stock; supplies; all inventory of
goods and products of the Business ("Inventory"); licenses; permits; contracts;
leases; business files and records; goodwill; know-how; technical information;
specifications; manufacturing procedures; research and product development
information; customer, supplier, vendor, sales representative and distributor
information and lists (including, but
not limited to, the "Distributor/Sales Representative Information" referenced in
Section 3(h) hereof); no less than three (3) years of detailed information
regarding contracts or arrangements, names, addresses, territories, sales
volumes, purchase information, telephone/telefax numbers, email addresses,
communications, and all other pertinent information, records, and files
possessed by Seller and Shareholder used or useful in Business dealings with
such vendors, distributors, and sales representatives ("Vendor/Distributor
Information"),; all rights to manufacture, market, distribute, and sell the
product lines set forth on Schedule 1(a)-A and future product line extensions
thereof ("Products") and trademarks, tradenames, copyrights, and goodwill
associated therewith (including common law rights to such intellectual
property); all existing purchase orders for the Products or services of the
Business; supplier and contract manufacturing agreements, written sales
representative and distributorship agreements, customer agreements or unwritten
arrangements of Seller or Shareholder with sales representatives, distributors,
customers, and vendors relating to the Products, and such other contracts set
forth on Schedule 1(a)-A ("Contracts"); and all such other assets and properties
as are described in Schedule l(a)-A or in other schedules to this Agreement
(collectively, the "Assets"). Notwithstanding the above, and for all purposes of
this Agreement, the term "Assets" shall exclude only those assets described on
Schedule l(a)-B hereto (the "Excluded Assets"), which Excluded Assets shall
remain the property of Seller.
(b) Purchase Price. The purchase price for the Assets, including
Transition Services, and the Noncompetition Agreement shall be the sum of Twelve
Million Dollars U.S. ($12,000,000) ("Purchase Price"), which shall be payable as
follows:
(i) To U.S. Bank, N.A. (the "Escrow Agent") One Million Five Three
Hundred Fifty Thousand Dollars ($1,5350,000) (the "Escrow Amount"), to be held
as collateral ("Escrow") for a period of eighteen twelve (12) months following
the date hereof (the "Escrow Period") solely with respect to the obligations of
Seller and the Shareholder under Section (85) of this Agreement and to be paid
to Seller (or payable to Shareholder as directed by Seller) or Buyer as set
forth under the terms of the Escrow Agreement attached as Exhibit A hereto and
incorporated by reference herein; and
(ii) To Seller the balance, payable by wire transfer at the Closing.
(c) Assumed Liabilities. Buyer hereby assumes and agrees to
perform, pay or discharge the following liabilities of Seller or Shareholder:
(i) all accounts payable of Seller reflected on the Statement of Net Assets (as
defined in Section (1)(e)), excluding intercompany or other accounts payable
owed by Seller to Shareholder or its Affiliates (as hereinafter defined in
Section (8)) including, but not limited to any charge-backs for administrative
and other services performed by Shareholder on behalf of Seller; (ii)
responsibility for the performance and expense of warranty work and services and
acceptance of returned products and goods, excluding warranty claims related to
chronic or latent defects or design defects as described in Section 9(d),
resulting from the Business through (as well as prior to and after) the date of
this Agreement (but subject to the indemnification obligations of Seller and
Shareholder under Section (5)(a)(viii)) provided
that warranty work and services and acceptance of returned products or goods
attributable to the period prior to Closing shall be at the expense of Seller
and Shareholder to the extent such expense exceeds an amount equal to two times
the reserves established for warranty work pursuant to generally accepted
accounting principals ("GAAP") on the March 31, 2002 Balance Sheet of Seller as
set forth in Section 9(d) of this Agreement; provided, further, that in no event
shall Buyer be responsible for any consequential damages or product liability
claims of Seller, Shareholder, or a third party related to any claim for goods,
services or Products, or operations of the Business with an origin prior to the
signature of this Agreement; (iii) liabilities of Seller and Shareholder to
perform under Contracts except as limited under Section 1(d)(i) as arise in the
ordinary course of business after Closing; (iv) the obligation to provide each
employee of Seller and Shareholder that is hired by Buyer with credit for
vacation, sick and personal days that he or she accrued but did not use (Buyer's
obligation to provide credit shall include only such days as have been accrued
during the current year and carryovers from the twelve month period immediately
preceding the current year of accrual) during his or her employment with Seller
or Shareholder as set forth on Schedule 1(c) or as specified in the Statement of
Net Assets, (including cash compensation for such accrued days upon the
termination of such employee's employment with Buyer, based on each such
continuing employee's base salary rate as of the date hereof), provided that
Buyer shall have no obligation to hire or retain any employee of Seller or
Shareholder, provided that Buyer shall have no obligation to hire or retain any
employee of Seller or Shareholder; and (v) those other liabilities and
obligations of Seller set forth on Schedule 1(c) (collectively, "Assumed
Liabilities").
(d) Excluded Liabilities. Buyer is not assuming and shall not be
liable for any payables or other liabilities of Seller or Shareholder, other
than those specifically set forth above in this Section 1(c), whether related or
unrelated to the Business or the Assets, and shall not be liable for any debt,
tax, account payable, obligation, claim or liability of Seller or Shareholder of
any kind or description whatsoever, contingent or otherwise, known or unknown,
whether related or unrelated to the Business or the Assets, and whether incurred
by Seller or Shareholder prior to, subsequent to or at the Closing, other than
those specifically set forth above in this Section (1)(c) (all such excluded
liabilities and payables are referred to as "Seller Liabilities"). Not as a
limitation of the foregoing, it is understood that Buyer is not assuming the
following, which shall remain liabilities of Seller and Shareholder (the
following liabilities constitute a portion of the Seller Liabilities): (i)
payables of Seller or Shareholder under Contracts as of the date hereof which
were not included on the Statement of Net Assets (except for those payables
incurred by Seller or Shareholder under Contracts in the ordinary course of
business between May 24, 2002 and the Closing); (ii) any other liabilities or
payables of Seller, Shareholder, or their Affiliates existing prior to or
arising after the date of this Agreement (which would be required to be listed
on a balance sheet pursuant to GAAP) which are excluded from the Statement of
Net Assets and not otherwise listed or described in this Section 1(c) or Section
3(s) or other portions of this Agreement or as limited under this Agreement,
such as, warranty claims as set forth above; (ii) consequential damages or
product liability claims of Seller, Shareholder, or a third party related to any
claim for goods, services or Products, or operations of the Business which are
based upon events or conditions existing prior to the
date hereof; (iii) accrued payroll liabilities of Seller or Shareholder unless
included in the Assumed Liabilities and included on the Statement of Net Assets;
(iv) any and all tax liabilities or obligations of Seller or Shareholder
regardless of source but including all income, franchise or other taxes for all
taxable periods through (as well as after) (as well as after) the date hereof,
provided that Buyer shall be responsible for any and all tax liabilities
resulting from Buyer's operation of the Business after the date hereof; (v)
existing or potential liabilities under existing retirement, pension and profit
sharing plans of Seller or Shareholder; (vi) responsibility for the disposal and
any costs of disposal of hazardous waste attributable to operations of Seller
prior to the date hereof; (vii) any contingent liabilities of Seller or
Shareholder existing prior to the Closing which are not listed on Section 1(c);
(viii) Transaction Taxes (as defined in Section (6)(a); (ix) any and all
liabilities under employment agreements of Seller or Shareholder with F. Xxxxx
Xxxxx and Xxxx Xxxx, including without limitation, any severance payments set
forth therein; and (x) any and all liabilities resulting from or related to the
lawsuit pending against Seller in the United States District Court for the
Western District of Louisiana, CV 01: 2527, as described in further detail in
Schedule 3(l). including, but not limited to, product liability or other third
party claims which have an origin arising prior to Closing.; and (vii) any and
all city, county or state transfer or similar taxes incurred or imposed with
respect to the conveyances of the Assets, including, but not limited to, revenue
stamps or similar charges, fees or taxes on the transfer of properties
constituting part of the Assets ("Transaction Taxes")
(ede) Statement of Net Assets. Attached hereto as Exhibit B is
an accounting by Seller of the Assets dated as of May 24, 2002 (the "Statement
of Net Assets"), including the total fixed assets, accounts receivable,
prepayments, and Inventory incorporated as part of the Assets, offset by the
reserves established for uncollectible accounts receivable, obsolete inventory
and warranty work (the Statement of Net Assets includes no other offsets for
reserves), less the accounts payable (including accounts payable under Contracts
as of May 24, 2002) and accrued expenses included in the Assumed Liabilities.
The values assigned as a result of such inventory and accounting by Seller and
Shareholder are in accordance with GAAP and consistent with any valuation rules
agreed by the parties as set forth in Schedule 1(d) Exhibit B. The parties
acknowledge and agree that there have been changes to the Net Tangible Assets
(as shown on the Statement of Net Assets) as a result of Seller's continued
operation of the Business since May 24, 2002. Accordingly, the Purchase Price
shall be decreased on a dollar-for-dollar basis by the amount of any decrease in
the Net Tangible Assets in excess of $100,000 as of the Closing, which shall
result in a reimbursement to Buyer by Seller and Shareholder upon a final
determination of such adjustment.
(ef) Allocation of Consideration. The total consideration paid
by Buyer shall be allocated as set forth on Schedule 1(ef), attached hereto.
Seller and Buyer agree to use such allocations on all tax or other required
filings related to the transactions contemplated in this Agreement.
(2) Closing.
(a) Time and Place. The Closing shall take place at the offices of Xxxxxx &
Xxxxxx, L.L.P., 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx,
00000, at 9:00 a.m. Pacific Time on the date of this Agreement or as otherwise
mutually agreed. The time and day of the Closing are referred to herein as the
"Closing".
(b) Obligations of Seller and Shareholder. Concurrently with the signing of this
Agreement, Seller and/or Shareholder have delivered or have caused to be
delivered to Buyer the following:
(i) a xxxx of sale and assignment in the form set forth in Exhibit C attached
hereto, collectively covering all of the Assets;
(ii) an assignment and assumption agreement in the form set forth in Exhibit D
attached hereto (the "Assignment and Assumption Agreement"), covering all of the
Contracts and Assumed Liabilities;
(iii) an assignment and consent agreement substantially in the form of Exhibit E
whereby Buyer is assigned all of Shareholder's rights as lessee under that
certain lease of real property currently used by Seller as the manufacturing and
warehousing facility for the operations of the Business ("Leasehold
Assignment");
(iv) all certificates of title to the Assets endorsed to Buyer for which such
certificates are used or required to be issued;
(v) all other documents, assignments, consents, certificates of title and
instruments of conveyance and transfer and opinions of counsel required to be
delivered to Buyer to receive the full benefit of the Assets, including the
Contracts, purchased hereunder;
(vi) the Escrow Agreement executed by Seller and Shareholder;
(vii) the Noncompetition Agreement attached hereto as Exhibit F executed by
Seller and Shareholder
(viii) the opinion of Fenwick & West LLP, legal counsel to Seller and the
Shareholder, addressed to Buyer and attached hereto as Exhibit G;
(x) a comprehensive summary of the Vendor/Distributor Information; and (ix) the
Distributor/Sales Representative Information; and
(xi) certificates executed by the secretaries of Seller and Shareholder
attaching resolutions of the Boards of Directors of Seller and Shareholder
authorizing the execution, delivery and performance by Seller and Shareholder of
this Agreement and each of the agreements contemplated hereby.
(c) Obligations of Buyer. Concurrently with the signing of this Agreement, Buyer
has delivered or has caused to be delivered to Seller the following:
(i) the Purchase Price, minus the Escrow Amount;
(ii) the Escrow Agreement, executed by Buyer;
(iii) the Noncompetition Agreement, executed by Buyer;
(iv) the Leasehold Assignment, executed by Buyer;
(v) the Assignment and Assumption Agreement, executed by Buyer;
(vi) a certificate executed by the Secretary of Buyer attaching resolutions of
the Board of Directors of Buyer authorizing the execution, delivery and
performance by Buyer of this Agreement and each of the agreements contemplated
hereby; and
(vii) the opinion of Xxxxxx & Xxxxxx, LLP attached hereto as Exhibit H.
In addition, Buyer has delivered the Escrow Amount to the Escrow Agent.
(3) Representations and Warranties of Seller and Shareholder.
Seller and Shareholder, jointly and severally, represent and warrant to Buyer
that the following are true and correct as of the date of this Agreement, except
as set forth in the disclosure letter of Seller that has been delivered by
Seller to Buyer concurrently with the parties' execution of this Agreement and
dated as of the date hereof (the "Seller Disclosure Letter"):
(a) Corporate Structure; Qualification. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and is qualified to do business as a foreign corporation and
is in good standing in Florida and in any other states where Seller is required
to qualify to do business, except where the failure to be so qualified or in
good standing would not have a Material Adverse Effect (as defined below in
Section (8)). Shareholder is a corporation duly organized, validly existing and
in good standing under the laws of the state of Delaware, and is qualified to do
business as a foreign corporation and in good standing in any other states where
Shareholder is required to qualify to do business, except where the failure to
be so qualified would not have a Material Adverse Effect. Seller and Shareholder
have full power and authority (corporate and other) to own the assets they own,
including the Assets, to lease the properties they lease, including the property
subject to the Assignment, and to carry on the Business as now conducted. The
certificates of incorporation and the bylaws of Seller and Shareholder,
certified by the secretary of each, have been delivered to Buyer, and are true
and complete copies as in effect on the date hereof. Seller and Shareholder does
not have any subsidiaries. The Affiliates of Seller and Shareholder are but do
have Affiliates as set forth in the Seller Disclosure Letter.
(b) Authority. Seller and Shareholder have the legal power and
authority to execute and deliver this Agreement and the other agreements
referred to herein and to
consummate the transactions contemplated on their part hereby and thereby. The
execution and delivery of this Agreement and the other agreements referred to
herein to be executed and delivered by Seller and Shareholder have been duly and
legally approved and authorized as may be required by the Board of Directors of
Seller or Shareholder, and no further individual, corporate, shareholder, or
other authorization or approval in respect thereof is necessary. This Agreement
has been duly executed and delivered by Seller and Shareholder and constitutes
the valid and binding agreement of Seller and Shareholder, subject to: (i)
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, or
other laws affecting any rights, powers, privileges, remedies and interest of
creditors, generally; and (ii) rules or principles of equity affecting the
enforcement of obligations generally, whether at law, in equity or otherwise,
including without limitation rules governing specific performance, injunctive
relief and other equitable remedies. No consent, authorization, approval, or
filing by or with any third party (excluding courts and governmental and
regulatory authorities which are covered later in this Section 3(b)) is required
in connection with the execution, delivery, and consummation of the transactions
contemplated in this Agreement except as otherwise provided herein. The
execution and delivery by Seller and Shareholder of this Agreement and the other
agreements referred to herein do not, and the consummation of the transactions
contemplated hereby and thereby by Seller and Shareholder will not, (i) violate
or result in a default under (A) any provisions of Seller's certificates of
incorporation or bylaws, or (B) any agreements or instruments to which
Shareholder or Seller is a party, or (C) any order, judgment, ruling, decree,
statute, rule, or regulation of any court or governmental authority, to which
Shareholder or Seller is a party, or which is applicable to Shareholder or
Seller, which (with respect to each of (A), (B) and (C)) would have a Material
Adverse Effect; (ii) result in any lien, claim, charge, restriction, or
encumbrance of any kind whatsoever upon (other than Permitted Liens as
hereinafter defined), or, except as contemplated hereby, give to any person any
interest or right (including any right of acceleration, termination, or
cancellation) in or with respect to any of the Assets or the Business, except as
would not have a Material Adverse Effect; (iii) violate any provision of law,
rule, or regulation to which Seller, the Business or the Assets are subject; or
(iv) require the consent, approval, authorization, or act of, or the making by
Seller, Shareholder, or the Business of any declaration, filing, or registration
with, any third party or any foreign, federal, state, or local court,
governmental authority, or regulatory body unless such failure would not have a
Material Adverse Effect. There is no action, suit, proceeding (including,
without limitation, all arbitrations and alternative dispute resolution
proceedings) or governmental investigation pending or, to the knowledge of
Seller or Shareholder, threatened against Seller or Shareholder which relates to
the transactions contemplated by this Agreement, nor do Seller or Shareholder
have knowledge of any reasonably likely basis or set of circumstances for any
such action, suit, proceeding, claim or investigation, the result of which could
adversely affect the transactions contemplated hereby or could impair the
ability of Seller and Shareholder to consummate the transactions contemplated
hereby.
(c) Share Ownership. The authorized capital stock of Seller
consists of 3,000 shares of common stock of which 1,000 shares are issued and
outstanding. Shareholder is the owner, free and clear of any liens, pledges,
encumbrances, security interests, or other
restrictions, of all of the issued and outstanding shares of all classes of
stock in Seller. There are no authorized or outstanding securities convertible
into, exchangeable for, or carrying the right to acquire, any securities of
Seller, or subscriptions, warrants, options, rights or other arrangements or
commitments obligating Seller to issue or dispose of any of its securities or
any ownership interest therein.
(d) Financial Statements. The financial statements of Seller for
the fiscal years 1998, 1999, 2000 and 2001 and interim statements as of March 31
and March 31 and April 30, 2002, which are attached hereto as Schedule 3(d): (i)
are true and complete in all material respects; (ii) are in accordance with the
books and records of Seller in all material respects and are prepared in
accordance with GAAP (except for the absence of footnotes required by GAAP and,
with respect to the interim statements, subject to customary year-end
adjustments, none of which, if disclosed, would have a Material Adverse Effect
on said financial statements); (iii) fairly present in all material respects the
financial condition of Seller as of the dates therein indicated and the results
of operations of Seller for the periods therein specified; and (iv) have been
prepared using the accrual basis of accounting applied on a consistent basis
throughout the periods involved. All the books, records, and accounts of Seller
are in all material respects accurate and complete, are in all material respects
in accordance with good business practice and all laws, regulations, and rules
applicable to Seller, the Assets, and the conduct of the Business and accurately
present and reflect in all material respects all of the transactions described
therein.
(e) Subsequent Liabilities. Neither Seller nor Shareholder on
behalf of Seller has incurred any liabilities which would have a Material
Adverse Effect that are not either fully reflected or reserved against or
otherwise described in the Statement of Net Assets.
(f) Labor Agreements and Policies. Seller is not a party to or
bound by any collective bargaining agreement or other union contract nor, to the
best knowledge of Seller, has any attempt been made to organize any of the
employees of Seller. There are no strikes or other organized labor disputes
pending nor, to the best knowledge of Seller and Shareholder, threatened against
Seller.
(g) ERISA Plans. Seller has in existence no plan within the
meaning of the Employee Retirement Income Security Act of 1974 ("ERISA") and has
no unfunded liability under any such plan (or potential unfunded liability under
any such plan of Shareholder or its Affiliates). No prohibited transaction,
accumulated funding deficiency or Reportable Event (each as defined under ERISA)
has occurred or currently exists with respect to any plan within the meaning of
ERISA; and all amounts required to be paid or accrued under the terms of any
such plan have been accrued. Seller or Shareholder shall retain and assume all
responsibility and obligations for the existing retirement, pension and profit
sharing plans of Seller or Shareholder, and Buyer shall have no liability or
obligation under same.
(h) Absence of Certain Changes and Conditions. Since April 30,
2002 (provided that the representations contained in subsections (iv) and (v)
below shall not be limited to
the time period beginning March 31, 2002) (provided that the representations
contained in subsection (vi) below shall not be limited to the time period
beginning April 30, 2002) (provided, further, that the representations contained
in subsection (v) below shall be limited to the time period ending May 29,
2002), (i) Seller has not entered into any material transaction (other than this
Agreement) or incurred, assumed or guaranteed any material indebtedness or
discharged or satisfied any material lien or encumbrance which was not in the
ordinary course of business and not consistent with past practices and policies;
(ii) there has been no Material Adverse Change; (iii) there has been no material
damage, destruction, or loss of physical property of Seller (whether or not
covered by insurance) from any cause whatsoever; (iv) there are no conditions
existing with respect to Seller's markets (i.e., the market which comprises
Seller's particular business but excluding general market conditions),
products, services, or facilities, which are known to Seller or to Shareholder
which would have a Material Adverse Effect on the present Business, operations,
Assets, properties, or condition (financial or otherwise) of Seller or the
Assets or the Business, except as typically incurred in the ordinary course of
business; (v) there are no other facts, developments, or, to the best of
Seller's and Shareholder's knowledge, threatened developments that have occurred
or will occur prior to or after the signature of this Agreement which Seller or
Shareholder have not disclosed in the Seller Disclosure Letter which may have a
Material Adverse Effect on the Assets or the present assets, Business, products,
services, operations, or condition (financial or otherwise) of Seller or the
Business (v) there are no conditions existing with respect to Seller's
personnel, officers, or employees (excluding Xxxxx Xxxxxx, Xxxx Xxxxxxxx and
Xxxx Xxxx), which are known to Seller or to Shareholder which would have a
Material Adverse Effect on the present Business, operations, Assets, properties,
or condition (financial or otherwise) of Seller or the Assets or the Business,
except as typically incurred in the ordinary course of business; (vi) there are
no conditions existing with respect to Seller's clients, customers, licensors,
licensees, agents, distributors, sales representatives, vendors, or suppliers or
others having material business dealings with Seller which are known to Seller
or to Shareholder which would have a Material Adverse Effect, except as
typically incurred in the ordinary course of business; (vii) there has been no
cancellation or compromise by Seller of any debt or claim, or waiver or release
of any right, of material value; (viii) there has been no change in the
accounting principles, methods, or practices followed by Seller; (ix) Seller has
not declared, set aside, or paid any dividend (whether in cash, stock, or
property) or made any distribution on its securities except as disclosed to
Buyer; (x) there has been no increase in the salary or other compensation
payable or to become payable to any employee, officer, or agent of Seller or any
declaration, payment, or commitment or obligation of any kind for the payment by
Seller of a bonus or other additional salary or compensation to any such person
or any other change in the employment terms with respect to any such person,
except in the ordinary course of business and consistent with past practices;
(xi) Seller has not redeemed, purchased or otherwise acquired any of its
securities; (xii) Seller has not materially modified, amended, or cancelled any
existing contracts or agreements pertaining to the Business, other than in the
ordinary course of Seller's business and consistent with past practices which
modifications, amendments or cancellations would not result in a Material
Adverse Change; (xiii) neither Seller nor the Shareholder has amended, modified
or otherwise changed the certificate of incorporation or bylaws of Seller or
otherwise
changed the business organization of Seller; (xiv) no action has been taken by
Seller or its directors, officers, or shareholders to authorize any of the
actions set forth above; or (xv) to Seller's and Shareholder's knowledge,
nothing has occurred that would make any statement contained in this Agreement
or any certificate, schedule, statement, document or instrument furnished to
Buyer pursuant hereto, or in connection with the execution or performance of
this Agreement, except as would not have a Material Adverse Effect.
Schedule 3(h) includes (i) a complete list of all distributors and sales
representatives related to the Business of Seller, including names, addresses,
telephone/telefax numbers, e-mail addresses and principal contacts, together
with summaries of the Products purchased by each such distributor or sales
representative for the previous three (3) years ("the Distributor/Sales
Representative Information"), and (ii) together with a list of Seller's top
twenty-five customers based on revenues during the first nine months
of Seller's current fiscal year ("Major Customers") and Seller's top twenty-five
ten suppliers, vendors, accounts, and contractors based on purchases by Seller
during the first nine months of Seller's current fiscal year ("Major
Suppliers"). To Seller's and Shareholder's knowledge, no Major Customer or Major
Supplier or sales representative or distributor (except as would not have a
Material Adverse Effect) intends to cease doing business with Seller or
materially alter the amount of business such entity is presently doing with
Seller.
(i) Title to and Condition of Assets. Seller has good and
marketable title to all of the Assets free and clear of any mortgage, charge,
lien, claim or other encumbrance, except for Permitted Liens. (A) any liens for
taxes, assessments, judgments and similar charges not yet due and payable and
for which any required reserves have been established as reflected on the
Statement of Net Assets, and (B) Assumed Liabilities (as defined below),
including without limitation licenses of intellectual property rights that are
being assigned by Seller and Shareholder and assumed by Buyer and conditions,
covenants and restrictions under other Contracts (collectively, "Permitted
Liens") as set forth in Schedule 3(i). All of the tangible Assets of Seller are
in good working order and condition, are free from material defect, and are fit
for the purpose for which such property is presently being used, subject to
normal wear and tear. To any material extent, no such tangible Assets are in
need of repair or replacement, except for maintenance in the ordinary course of
business. All Major Customer purchase orders for the Products or services of
the Business included in the Assets have arisen only in the ordinary course of
the Business, and have arisen only in the ordinary course of the Business, and
are not subject to special discounts, pricing or return policies except in the
ordinary course of business, and to Seller's and Shareholder's knowledge will
generate a gross profit margin consistent with past practices and policies. All
of the Assets are currently in the possession of Seller. Each lease of material
personal or real property related to the Business is included in the Assets,
unless listed as an Excluded Asset, is in full force and effect, and is valid,
binding, and enforceable in accordance with its terms, subject to: (i)
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, or
other laws affecting any rights, powers, privileges, remedies and interest of
creditors, generally; and (ii) rules or principles of equity affecting the
enforcement of obligations generally, whether at law, in equity or
otherwise, including without limitation rules governing specific performance,
injunctive relief and other equitable remedies. In the case of each such lease,
there is no existing default that would have a Material Adverse Effect by Seller
or Shareholder or to Seller's and Shareholder's knowledge by the lessor, nor to
the knowledge of Seller and Shareholder does there exist any event which, with
notice or lapse of time or both, would constitute grounds for termination
thereof or re-entry thereunder, in each case except as would not have a Material
Adverse Effect. The real estate and improvements thereto and the personal
property subject to such leases included in the Assets are in good working order
and condition, free from material defect, and fit for the purpose for which such
property is presently being used, subject to normal wear and tear. The sale of
the Assets hereunder will not permit an acceleration of rent, result in a
default, or require consent under any such lease.
(j) Taxes. Seller and Shareholder have filed any and all
federal, state, and other tax returns that are required by any and all tax
authorities to have been filed (taking into account any available extensions of
time for filing) except where such failure would not have a Material Adverse
Effect; (ii) all such returns are accurate and complete in all respects; and
(iii) Seller and Shareholder have paid in full or made adequate provision for
all taxes, interest, penalties, assessments or deficiencies shown to be due on
such returns or claimed to be due by any taxing authority, including, without
limitation, those due in respect of properties, income, franchises, licenses,
sales, excise, and payrolls, in each case under (i), (ii) and (iii) except as
would not have a Material Adverse Effect. Seller has made all withholding of tax
required to be made under all applicable United States, state, and local tax
laws and regulations for the taxable periods ending on or before the date of
this Agreement except where such failure would not have a Material Adverse
Effect, and such withholdings have either been paid to the respective government
agencies or set aside in accounts for such purpose or accrued, reserved against
and entered upon the books of Seller, in each case except where such failure
would not have a Material Adverse Effect. Since January 1, 1999, neither Seller
nor Shareholder has received any notice that the federal or state income tax
returns of Seller or Shareholder with respect to the Business have been examined
by the Internal Revenue Service ("IRS") or any other taxing authority.
Notwithstanding any other provisions of this Agreement, any potential or
existing or future tax assessment or liability against Seller or Shareholder or
their Affiliates for taxable periods before or after Closing, which liabilities
constitute a portion of the Seller Liabilities, shall be the sole responsibility
of Seller or Shareholder, and Buyer shall not assume such tax liability or any
future tax liability attributable to the operations of Seller or to Shareholder
before or after Closing. No deficiencies or assessments, including interest and
penalties thereon, have been claimed or made by the IRS or any other taxing
authority with respect to Seller or Shareholder with respect to the Business,
except deficiencies or assessments which have already been paid or otherwise
settled or where such deficiencies or assessments would not have a Material
Adverse Effect. There are no claims or investigations by any taxing authority
pending or, to the knowledge of Seller or Shareholder, threatened against Seller
or Shareholder with respect to the Business, for any past due taxes, and there
has been no waiver of any applicable statute of limitations or extension of time
for the assessment of any tax against Seller or Shareholder with respect to
the Business. There are no pending or, to Seller's knowledge, threatened tax
actions or proceedings or, tax liens (except for Permitted Liens), or agreements
which would apply to the Assets or to Seller or Shareholder with respect to the
Business.
(k) Agreements. Schedule 3(k) attached hereto lists all (i)
bonus, pension, profit sharing, retirement, share purchase, stock option,
hospitalization, insurance, or similar plans providing employee benefits of
Seller; (ii) employment contracts and other arrangements or undertakings, with
respect to the employees of Seller; (iii) loan agreements or similar instruments
or similar instruments relating to the debts of Seller; (iv) contracts not made
in the ordinary course of business of Seller providing for the receipt or
payment of any singular amount in excess of $25,000 or aggregate amounts in
excess of $75,000 under such contracts; (v) contracts between Seller and
Shareholder; and (vi) any other material agreements to which Shareholder (with
respect to the Business or Assets) or Seller are parties including, but not
limited to, the Contracts and material joint venture, partnership or operating
agreements, or other business contractual relationships and contracts with
vendors, suppliers, distributors, customers, contractors, governmental agencies,
health care entities, etc. in each case providing for the receipt or payment of
any singular amount in excess of $25,000 or aggregate amounts in excess of
$75,000 except as otherwise set forth herein. Each such agreement is valid,
binding, and enforceable against Seller or Shareholder in accordance with its
terms, subject to: (i) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, or other laws affecting any rights, powers, privileges, remedies
and interest of creditors, generally; and (ii) rules or principles of equity
affecting the enforcement of obligations generally, whether at law, in equity or
otherwise, including without limitation rules governing specific performance,
injunctive relief and other equitable remedies, and each such agreement is in
full force and effect, and, except as otherwise provided, was entered into in
the ordinary course of business, and, except as otherwise provided, was entered
into in the ordinary course of business. Neither Seller, Shareholder, nor, to
Seller's and Shareholder's knowledge, any supplier, distributor, contractor,
customer, or other party thereto, is in default under any such contract, except
as would not have a Material Adverse Effect.
(l) Litigation. There is no known or noticed investigation,
claim, action, suit, or proceeding, or judgment, decree, injunction, award, rule
or order outstanding, at law or in equity or before any arbitrator or
administrative authority (including, but not limited to, actions or claims
before the EEOC or other governmental agency), pending, nor, to the knowledge of
Seller and Shareholder, threatened, against or in any manner involving Seller or
the Business or any of the Assets which would have a Material Adverse Effect, or
seeking to enjoin, or otherwise prevent the consummation of, or to recover any
damages or obtain other relief as a result of, the transactions contemplated by
this Agreement. The litigation described in Schedule 3(l) shall be handled by
Seller and Shareholder in a prudent manner and at their expense; provided that
Seller and Shareholder shall obtain Buyer's consent as to any matters effecting
the Assets or the Business as conducted by Buyer after the date hereof.
(m) Proprietary Rights. Schedule 3(m) attached hereto contains a
list of all registered trademarks and service marks, patents and patent
applications, and registered copyrights, owned by Seller or in which Seller has
an interest by license, agreement, shop right, or otherwise and which are used
or contemplated for use in the Business and which are among the Assets to be
acquired by Buyer pursuant to this Agreement. All material trademarks, service
marks, trade dress, patents and patent applications, confidential information
and trade secrets, trade names, corporate names and copyrights, whether
registered or not, which are currently owned by Seller and Shareholder and are
necessary for, primarily related to or contemplated for use in the Business and
which are among the Assets to be acquired by Buyer pursuant to this Agreement
are either owned entirely by Seller or Seller has the right to use such property
which right is transferable to Buyer. No material proprietary rights related to
such intellectual property have been abandoned by Seller or licensed to any
other party, except in the ordinary course of business. To Seller's and
Shareholder's knowledge, there is no infringement, or claim of infringement or
any other claim of right by a third party to any patent, trademark or trade name
of Seller, nor, to Seller's knowledge, is there infringement or claims of
infringement on the patents, trademarks, or trade names of any third party by
Seller. In addition, any common law rights of Seller to such intellectual
property shall be transferred to Buyer as part of the Assets. All formulations,
processes, manufacturing and production specifications and techniques, know-how,
marketing and advertising rights (including customer and supplier lists),
marketing research data, and all other information, trade secrets, confidential
information, and data relating to the Business and the Products, including any
new products in development and the right to manufacture, distribute, promote
and sell such Products, and all other proprietary rights used by Seller in the
Business operations are owned by Seller and are among the Assets to be acquired
by Buyer pursuant to this Agreement. With respect to intellectual property that
has been registered, all required maintenance filings and payments have been
timely completed with respect to each, and, to the knowledge of Seller and
Shareholder, are subject to no claims whatsoever. All Llists, schedules, files,
and records containing such formulations, processes, manufacturing
specifications, know how, marketing and advertising rights, marketing research
and all other information, trade secrets, proprietary rights, and data that are
currently in existence are part of the Assets and Business provided by Seller or
Shareholder to Buyer upon signature of this Agreement.
(n) Environmental Compliance; Hazardous Materials. Shareholder,
Seller or representatives of Seller or Shareholder have not caused or otherwise
permitted the Assets or other properties owned, leased, or used by Seller in the
Business or any part thereof, including the property subject to the Assignment,
to be used to generate, manufacture, refine, transport, produce, use or process
hazardous substances, or other dangerous or toxic substances, or solid waste,
except in compliance with all applicable federal, state, and local laws. For
this purpose, "hazardous substances" and other terms used in this paragraph
shall mean those substances or wastes as are defined by the Resource
Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act, or any other applicable federal,
state, or local law, regulation, or requirement, as amended, or hereafter
amended. No notice has been served
on Seller or Shareholder from any entity, governmental body or individual
claiming any violation of any law, regulation, ordinance or code by Seller or
Shareholder or identifying Seller or Shareholder as a potentially responsible
party with respect to any substance alleged to have been discharged, stored,
treated, generated, disposed of or allowed to escape on said properties, or
requiring compliance with any law, regulation, ordinance or code or demanding
payment or contribution for environmental damage or injury to natural resources.
Neither Seller nor Shareholder has disposed of, nor has any knowledge of the
disposal of, any hazardous substance involving the foregoing properties which
would violate any environmental laws, regulations, orders, or codes. There is no
hazardous waste, as defined by RCRA, on site at the Seller's facilities,
including, but not limited to, spent acid, lead or any other materials from
production.
(o) Insider Loans. Seller is not indebted to Shareholder or to
any of those persons who are, on the date hereof, officers or directors or
former shareholders of Seller, or to their respective spouses or children in any
amount whatsoever, except for salaries or fees for services rendered and
expenses previously incurred, nor shall any insider loan be considered as part
of the Assets.
(p) Insurance. Schedule 3(p) hereto sets forth a list of all
policies of insurance covering the Business, the employees of Seller and the
Assets, including general liability, product liability, workers compensation,
and other forms of insurance maintained by Shareholder. Since January 1, 2002,
neither Seller nor Shareholder has failed to give any notice or present any
claim under any such policy in a timely fashion or in the manner or detail
required by the policy with respect to any material claim, and all existing
notices or claims are listed on Schedule 3(p). Since January 1, 2002, no notice
of any cancellation or nonrenewal with respect to, or disallowance of any claim
under, any such policy has been received by Seller or Shareholder. To the
knowledge of Seller and Shareholder, there are no outstanding unpaid premiums or
claims, and there are no provisions for retroactive or retrospective premium
adjustments. Neither Seller nor Shareholder has knowledge of any state of facts
or the occurrence of any event which Seller or Shareholder reasonably believes
will form the basis of any material claim against Seller or which might
materially increase the insurance premiums payable under any such policy
Schedule 3(p) also contains a true and complete description of all outstanding
bonds and other surety arrangements issued or entered into in connection with
the Business and operations of Seller. Seller and Shareholder have provided, at
their expense, evidence to Buyer in the form of a certificate of insurance
indicating continuous product or other liability coverage for the Assets owned,
products sold, services provided, and employees employed by Seller or
Shareholder related to the Business through the date hereof.
(q) Inventory. All Inventory of the Business was acquired and is
maintained in accordance with regular business practices of Seller, consists of
items of a quality usable and salable in the ordinary course of business
consistent with past practice, is valued on Seller's financial statements
attached as Schedule 3(d) in compliance with GAAP. The Inventory is listed on
Schedule 3(q), including the location of the Inventory as of the date hereof.
There have been no material changes to Inventory from the values indicated on
Seller's balance sheet dated April 30, 2002 except for the purchase, manufacture
and sale of Inventory in the ordinary course of business. There are no
warranties applicable to such Inventory except for warranties implied by law or
as set forth in Schedule 3(q).
(r) Accounts Receivable. Schedule 3(r) provides a list of all
accounts receivable of the Business as of the date hereof. All such accounts
receivable have been acquired or have arisen only in the ordinary course of
business of Seller consistent with past practices.
(s) Payables and Liabilities. Schedule 3(s) provides a list of
all accounts payable that are part of the Assumed Liabilities. All such accounts
payable and other payables of the Business, including payables as reflected on
the Statement of Net Assets provided by Seller (but excluding intercompany or
other payables or liabilities owed by Seller to Shareholder or its Affiliates
and the Seller Liabilities), and other liabilities of Seller or Shareholder
related to the Business under contracts, leases, or other agreements that are
Assumed Liabilities have arisen only in the ordinary course of business
consistent with past practices, , and other matters as set forth in schedules to
this Agreement existing as of the date hereof are attached hereto as Schedule
3(s) and have arisen only in the ordinary course of business consistent with
past practices, are not in dispute with the applicable payee, are clearly
related to the Business and are to be considered at face amount for the purpose
of determining the Assumed Liabilities.
(t) Real Property. Schedule 3(t) contains a brief description of
each parcel of real property owned or leased by Seller, whether or not it is
used in the conduct of the Business. Seller is not in default under any such
lease, except where any such default would not have a Material Adverse Effect.
The real property will be used by Buyer under the terms of the Leasehold
Assignment, executed by the parties as of the date hereof, with quiet,
undisturbed enjoyment.
(u) Condemnation. As of the date of this Agreement (i) neither
the whole nor any part of any real property owned, leased or used by Seller is
subject to any pending suit for condemnation or other taking by any public
authority, and (ii) to the knowledge of the Seller, no such condemnation or
other taking is threatened.
(v) No Notice of Violation. Neither Seller nor Shareholder has
received any notice of violations of any federal, state, or local laws,
ordinances, or orders relating to the Assets or the Business which have not been
resolved, except where such notice of violations would not have a Material
Adverse Effect.
(w) Removal of Assets. Neither Seller nor Shareholder has
removed nor possesses any tangible or intangible assets of Seller or the
Business which removal or possession would prevent Buyer's continuance and
commencement of a business similar to the Business as presently being conducted
following the consummation of the transactions contemplated hereby. There are no
other assets or properties, except for the Excluded Assets, which are used by
Seller in the Business that are not owned, leased or licensed by Seller or the
Shareholder and included in the Assets.
(x) Compliance. Seller and the Shareholder, as applicable, have
complied or ensured compliance with all licenses, franchises, permits,
judgments, orders, rulings, laws, statutes, ordinances and regulations, whether
federal, state or local, with respect to the Business or the Assets, except
where failure to comply would not have a Material Adverse Effect, and there are
no proceedings, to the knowledge of Seller and Shareholder, threatened as to
such items.
(y) Licenses and Permits. Except to the extent that it would not
have a Material Adverse Effect, Seller or Shareholder possess all approvals,
authorizations, consents, licenses, orders of governmental,
nongovernmental,quasi- governmental and regulatory agencies and authorities
required or necessary to permit the operation of the Business and the use of the
Assets as presently conducted and, the foregoing shall, to the extent permitted
by their terms and by applicable law, be assigned to Buyer such as to allow the
continuous operation of the Assets and the Business by Buyer after the date
hereof. Attached hereto as Schedule 3(y) is a list of all licenses and permits
currently held by Seller or Shareholder with respect to the Business, except for
such licenses and permits the absence of which would not have a Material Adverse
Effect.
(z) Prepayments. Seller has not received any pre-payments prior
to the date hereof relating to the sale of products or the performance of
services or works to be effected after the date hereof, other than as set forth
in Schedule 3(z).
(4) Representations and Warranties of Buyer. Buyer hereby
represents and warrants to Seller and the Shareholder that Buyer is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Texas and has full power and authority to enter into and
perform its obligations under this Agreement and the transactions contemplated
hereby. The execution, delivery and performance by Buyer of this Agreement and
the other agreements referred to herein including, without limitation, the
payment of the Purchase Price as provided herein, have been duly and legally
approved and authorized by the board of directors of Buyer, and no further
individual, entity, director, shareholder or other authorization or approval in
respect thereof is necessary. This Agreement has been duly executed and
delivered by Buyer and constitutes the valid and binding agreement of Buyer,
subject to: (i) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, or other laws affecting any rights, powers, privileges, remedies
and interest of creditors, generally; and (ii) rules or principles of equity
affecting the enforcement of obligations generally, whether at law, in equity or
otherwise, including without limitation rules governing specific performance,
injunctive relief and other equitable remedies. The execution and delivery by
Buyer of this Agreement and the other agreements referred to herein do not, and
the consummation of the transactions contemplated hereby and thereby will not,
violate or result in a default under (i) the articles of incorporation or bylaws
of Buyer or (ii) any agreement, instrument, mortgage, loan, license, franchise,
permit, trust, judgment, order, ruling, statute, or regulation of any court or
governmental authority, to which Buyer is a party or which is applicable to
Buyer. No authorization, approval, or consent, and no registration or filing
with, any governmental, regulatory, or administrative official, body, or
authority is required in connection with the execution, delivery, and
performance of this Agreement by Buyer. There is no action, suit, proceeding
(including, without limitation, all arbitrations and alternative dispute
resolution proceedings) or governmental investigation pending or, to the
knowledge of Buyer, threatened against Buyer which relates to the transactions
contemplated by this Agreement, nor does Buyer have any knowledge of any
reasonably likely basis or set of circumstances for any such action, suit,
proceeding, claim or investigation, the result of which could adversely affect
the transactions contemplated hereby or could impair the ability of Buyer to
consummate the transactions contemplated hereby. [NOTE: WILL NEED TO RE-NUMBER
SECTIONS]
(85) Indemnification.
(a) Seller's and the Shareholder's Indemnity. For a period of
three eighteen (18) months from date hereof or the applicable statute of
limitations period for the matter, whichever is longer, [(except that such
period shall be unlimited three years where any Loss or Expense (as defined
below) results from Seller's or Shareholder's misrepresentations or breach of
representations and warranties in the first sentence of Section 3(i) or in
Sections 3(i), 3(j) or 3(n) of this Agreement and shall be unlimited where any
Loss or Expense results or from the Seller Liabilities or from fraud by Seller's
or Shareholder's fraud or intentional misconduct or intentional concealment for
which indemnification to Buyer under this Section 8(5)(a) is available (all of
such exceptions, "Special Claims"))], Seller and Shareholder shall, jointly and
severally, indemnify and hold Buyer, its affiliates, successors and assigns (the
"Buyer Indemnified Persons"), harmless, and will reimburse the Buyer Indemnified
Persons for, any and all (x) loss, liabilities, obligations, costs, claims,
taxes, penalties, assessments, damages ("Loss") and (y) expenses related thereto
(including reasonable attorneys' fees and any other dispute resolution expenses)
("Expense") resulting from (i) Seller Liabilities, including without limitation,
(A) any and all liabilities of Seller and Shareholder past, present or future,
other than Assumed Liabilities and (B) environmental claims arising from
Seller's ownership of the Assets and operation of the Business prior to the date
hereof; (ii) any misrepresentations made by Seller or Shareholder herein; (ii)
the breach of any of the representations or warranties made by Seller and
Shareholder in this Agreement; (iii) the breach or default in performance by
Seller or Shareholder of any of the covenants which Seller and Shareholder are
to perform under this Agreement; (iv) any liability arising from noncompliance
by Seller or Shareholder with any bulk sales or similar law applicable to the
transactions contemplated by this Agreement, and any action brought or claim
made (other than claims by creditors with respect to Assumed Liabilities) or
lien or encumbrance imposed as a result; (v) accounts receivable of Seller as of
the date hereof that are not paid within six months of the date hereof for any
reason, other than the fault of Buyer (including failure to comply with Section
6(f)),for any reason including, but not limited to,, but not limited to, the
existence of any defenses, set-offs or counterclaims based on events or
conditions arising prior to the date hereof, but only to the extent that such
unpaid accounts receivable exceed the reserve established pursuant to GAAP for
unpaid accounts on the Statement of Net Assets, and subject to Section (96)(f);
(vi) obsolete Inventory (but
excluding obsolete Solomat Inventory which is covered by Section 5(a)(vii)) as
of the date hereof which exceeds the $80,000 reserve established pursuant to
GAAP for such obsolete Inventory as set forth on the March 31, 2002 financial
statement, and subject to Section 9(g); (vii) obsolete Solomat Inventory as of
the date hereof which exceeds the $205,295 reserve established pursuant to GAAP
for such obsolete Solomat Inventory as set forth on the Statement of Net Assets;
(viii) Buyer's reasonable costs and expenses related to warranty work, services
and returned goods related to the Products (excluding the costs of replacement
sensors for sensors originally obtained from Buyer) performed on behalf of
Seller pursuant to Section 96(d) to the extent that such reasonable costs and
expenses exceed $130,000 (an amount equal to two times the reserves established
pursuant to GAAP for such warranty work, services, and returned goods on
Seller's April 30, 2002 balance sheet), provided that once Buyer's reasonable
costs and expenses for such warranty work have reached $130,000, Buyer's
indemnity obligations shall apply only to warranty claims in excess of $150
(based upon Buyer's reasonable costs of labor and materials) which claims shall
be indemnified by Seller and Shareholder from the first dollar; provided,
however, that for warranty claims related to fundamental design defects (as
distinguished from batch or manufacturing-related defects), Seller's and
Shareholder's indemnity obligation shall begin to accrue when Buyer's total
reasonable costs and expenses for all warranty claims pursuant to Section 6(d)
resulting from the Business (excluding the costs of replacement sensors for
sensors originally obtained from Buyer) exceeds $65,000 (an amount equal to the
reserves established pursuant to GAAP for such warranty work, services and
returned goods on Seller's April 30, 2002 balance sheet) (Buyer agrees to seek
indemnification for its reasonable warranty costs and expenses in the
chronological order in which such reasonable costs and expenses were incurred by
Buyer.); or (ix) any claim made against Buyer with respect to a material
misstatement of fact or an omission to state a material fact in any notices or
filing by Seller or Shareholder related to the transaction set forth herein
required under the Securities Exchange Act of 1934 as amended or by any other
regulatory or legal authority applicable to Seller or Shareholder. or (ix) any
notices or filing by Seller or Shareholder required under the Securities
Exchange Act of 1934 as amended or by any other regulatory or legal authority
applicable to Seller or Shareholder.
(b) Buyer's Indemnity. For a period of eighteen (18) months
three s from the date hereof or the applicable statute of limitations period for
the matter, whichever is longer, [except that such period shall be unlimited
where any Loss or Expense results from the Assumed Liabilities or from Buyer's
fraud or intentional misconduct or intentional concealment for which
indemnification to Seller and Shareholder under this Section 8(5)(b) is
available], Buyer shall indemnify and hold Seller and the Shareholder, their
affiliates, successors and assigns (the "Seller Indemnified Persons") harmless
and will reimburse the Seller Indemnified Persons for any and all Loss and
Expense resulting from (i) Buyer's ownership of the Assets and the Business and
operation of the Business after the date hereof, including, but not limited to,
liability and environmental claims resulting therefrom; (ii) any Assumed
Liability; (iii) any misrepresentation made by Buyer herein; (iv) the breach of
any of the representations or warranties made by Buyer in this Agreement; (iv)
the breach or default in performance by Buyer of any of the covenants or
agreements which Buyer is to perform under this Agreement; (v) the operations,
business,
products or services of Solomat Air conducted by Zellweger U.K. (as hereinafter
defined) prior to May 31, 2001, which operations, business, products and
services were acquired by Seller from Zellweger U.K. in the Acquisition (as
hereinafter defined); and (vi) any claim or liability under the Workers
Adjustment and Retraining Act arising from Buyer's layoff or termination of any
employees of Seller hired by Buyer on or after the date hereof.
(c) Notice of Claims. (i) If Buyer on the one hand, or Seller or
Shareholder on the other, believes that it (or the Buyer Indemnified Persons or
Seller Indemnified Persons, respectively) has suffered or incurred any Loss or
Expense for which indemnification is provided hereunder, such party shall so
notify the other promptly in writing describing such Loss or Expense, the
amounts thereof, if known, and the method of computation of such Loss or
Expense, all with reasonable particularity and containing a reference to the
provisions of this Agreement or other agreement, instrument, or certificate
delivered pursuant hereto in respect of which such Loss or Expense shall have
occurred. If any action at law or suit in equity is instituted by or against a
third party with respect to which any of the indemnified persons intends to
claim any liability or expense as a Loss or Expense under this Section (85), any
such indemnified person shall promptly notify the indemnifying party of such
action or suit. Should the indemnified party fail to promptly notify the
indemnifying party of such action or suit, and such failure materially
prejudices the ability of the indemnifying party to defend such action or suit,
the indemnifying party shall be absolved of its indemnity obligation with
respect to such action or suit to the extent of any such prejudice.
(ii) In calculating any Loss or Expense there shall be deducted any
insurance recovery, tax benefit or reimbursement received in respect thereof
(and no right of subrogation shall accrue hereunder to any insurer).
(iii) The amount to which an indemnified person shall be entitled under
this Section (85) shall be determined by the written agreement between the
indemnified person and the indemnifying party. If the parties are unable to
agree upon such amount, any unagreed remainder shall be determined by either
binding arbitration pursuant to Section 119(c) hereof (in which case the
indemnified party shall have the burden of proof in establishing the amount of
the Loss and Expense suffered by it).
(d) Third Party Claims.
(i) Indemnified Party Control of Defense Under Limited Circumstances.
The party eligible to be indemnified under this Section (85) shall have the
right to conduct and control, through counsel of its choosing, any third party
claim, action or suit in which (A) the third party seeks injunctive relief
against the indemnified person, (B) the Loss or Expense sought by the third
party can be reasonably expected to exceed the Indemnification Limit (as defined
below), or (C) would have a continuing Material Adverse Effect on the business
of the indemnified party, excluding the effect of claims for monetary damages
which claims are subject to (B) above or (C) would have a continuing effect on
the business of the indemnified party, provided that the legal fees incurred by
the indemnified
party shall be reasonable based upon the complexity of the claim, action or suit
and the interests at issue, and the parties indemnified may compromise or settle
the same (subject to the qualification in the last sentence of this Section
(85)(d)(i); provided that any of the indemnified parties shall give the
indemnifying party at least ten business days' advance notice of any proposed
compromise or settlement. The indemnified party shall permit the indemnifying
party to participate in the defense of any such action or suit through counsel
chosen by it, provided that the fees and expenses of such counsel shall be borne
by the indemnifying party. Any failure to provide the notice referenced above,
or any compromise or settlement with respect to such a claim effected by the
indemnified party over the objection of the indemnifying party, shall discharge
the indemnifying party from all liability with respect to the subject matter
thereof, and no amount in respect thereof shall be claimed as Loss or Expense
under this Section (85).
(ii) Indemnifying Party has Right to Control Defense Generally. Other
than with respect to a claim, action or suit referred to in Section (85)(d)(i)
above, the indemnifying party shall have fifteen (15) business days after
receipt of the notice referred to in the last sentence of Section (85)(c)(i) to
notify the indemnified parties that it elects to conduct and control such action
or suit. If the indemnifying party does not give the foregoing notice, the
indemnified parties shall have the right to defend, contest, settle, or
compromise such action or suit in the exercise of their reasonable discretion
which shall not preclude the indemnified parties from seeking indemnification
from the indemnifying parties in accordance with the other terms of this Section
(5), and the indemnifying party shall, upon request from any of the indemnified
parties, agree to pay to such indemnified parties, in accordance with the other
terms of this Section (8), the amount of any Loss resulting from its liability
to a third party claimant and all related Expense. If the indemnifying party
gives the foregoing notice, the indemnifying party shall have the right to
undertake, conduct and control, through counsel of its own choosing and at the
sole expense of the indemnifying party, the conduct and compromise or settlement
of such action, suit or claim, and the indemnified party shall cooperate with
the indemnifying party in connection therewith; provided that (x) the
indemnifying party shall not thereby permit to exist any lien, encumbrance, or
other adverse charge upon any asset of any indemnified party; (y) the
indemnifying party shall permit the indemnified parties to participate in such
conduct or settlement through counsel chosen by the indemnified parties, but the
fees and expenses of such counsel for such representation shall be borne by the
indemnified persons except as provided in clause (z) below; and (z) the
indemnifying party shall agree promptly to the reimbursement to the extent
required under this Section 8(5) of the indemnified parties for the full amount
of any Loss resulting from such action or suit and all related Expense incurred
by the indemnified parties, except fees and expenses of counsel for the
indemnified parties incurred after the assumption of the conduct and control of
such action or suit by the indemnifying party. So long as the indemnifying party
is contesting any such action or suit in good faith, the indemnified parties
shall not pay or settle any such action or suit. Notwithstanding the foregoing,
the indemnified parties shall have the right to pay or settle any such action or
suit as it relates to such indemnified party, provided that in such event the
indemnified parties shall waive any right to indemnity therefore by the
indemnifying party, and no amount in respect thereof shall be claimed as Loss or
Expense under this Section (85).
(e) Offset Against Escrow. Buyer, Seller, and Shareholder agree
that, if Buyer should make a claim for any Loss or Expense under this Section
(85) prior to the expiration of the Escrow Period, Buyer, Seller, and the
Shareholder shall give notices required under the Escrow Agreement to the Escrow
Agent related to such Loss and Expense. In the event the parties agree on the
claim or upon the resolution of any dispute between the parties as to the
reimbursement required for the claim pursuant to the dispute resolution
procedures under this Agreement, as set forth above under this Section (5),
Buyer shall first obtain reimbursement for any such Loss or Expense from the
Escrow Fund, pursuant to the terms of the Escrow Agreement, and if the amount to
be reimbursed exceeds the amount remaining in the Escrow Fund, then Seller and
Shareholder shall pay such additional amount (subject to the limitations set
forth in Section (5)(f) and elsewhere herein), even to the extent of exhaustion
of said Escrow Fund. If said Escrow Fund shall be exhausted, Seller and
Shareholder shall continue to be liable for such additional, unreimbursed Loss
and Expense of Buyer as reflected in this Section (8), which shall be payable to
Buyer within thirty (30) days of the final determination thereof.
(f) Limitations on Indemnification.
(i) Seller and Shareholder shall have no liability for indemnification with
respect to any Loss or Expense under this Agreement until the aggregate of all
Loss and Expense with respect to claims for indemnification under this Agreement
exceeds ___________ One Hundred Thousand Dollars ($_______) ($100,000) (the
"Liability Threshold"), and then after the Liability Threshold has been exceeded
Seller and Shareholder shall be responsible for all Losses and Expenses based
thereon from the first dollar, without regard to the Liability Threshold.
Anything to the contrary in this Agreement notwithstanding, Seller and
Shareholder shall have no liability for indemnification under this Agreement for
any amount in excess of _______ Four Million Eight Hundred Thousand Dollars
(_______) $4,800,000) for claims made by Buyer during the first twelve (12)
months from the date hereof ("Indemnification Limit 1") and, thereafter, shall
have no liability for indemnification under this Agreement for any claims in
excess of Three Million Nine Hundred Sixty Thousand Dollars ($3,960,000)
("Indemnification Limit 2"; Indemnification Limit 2 together with
Indemnification Limit 1, the "Indemnification Limits") (for purposes of
clarification, any indemnity claims made by Buyer during the first twelve (12)
months from the date hereof and applied against Indemnification Limit 1 shall
also be applied against Indemnification Limit 2). Notwithstanding the above,
neither the Liability Threshold nor the Indemnification Limits shall apply to
Seller's and Shareholder's obligations pursuant to Sections (85)(a)(v),(vi),
(vii), and (viii), Seller Liabilities or fraud by Seller or Shareholder. or to
Special Claims.
(ii) Buyer shall have no liability for indemnification with respect to any Loss
or Expense under this Agreement until the Liability Threshold has been exceeded,
and then after the Liability Threshold has been exceeded Buyer shall be
responsible for all Losses and
Expenses based thereon from the first dollar without regard to the Liability
Threshold. Anything to the contrary in this Agreement notwithstanding, Buyer
shall have no liability for indemnification under this Agreement for any amount
in excess of the Indemnification Limit. Notwithstanding the above, neither the
Liability Threshold nor the Indemnification Limit shall apply to any Loss or
Expense resulting from Buyer's fraud or intentional misconduct or intentional
concealment or the Assumed Liabilities.
(g) Indemnification is Sole Recourse. Absent fraud with respect
to a breach of a representation or warranty or any covenant, agreement or
obligation under this Agreement, indemnification pursuant to this Section (85)
shall be the exclusive remedies of Seller, Shareholder and the other Seller
Indemnified Persons, on one hand, and Buyer and the other Buyer Indemnified
Persons, on the other.
(9)(6) Additional Agreements.
(a) Transaction Taxes. Any and all city, county or state
transfer or similar taxes incurred or imposed with respect to the conveyances of
the Assets, including, but not limited to, revenue stamps or similar charges,
fees or taxes on the transfer of properties constituting part of the Assets
shall be the sole responsibility of Seller and Shareholder ("Transaction
Taxes"). the any and all city, county or state transfer or similar taxes
incurred or imposed with respect to the conveyances of the Assets, including,
but not limited to, revenue stamps or similar charges, fees or taxes on the
transfer of properties constituting part of the Assets ("Transaction Taxes").
(b) Fees. Each party to this Agreement will pay all fees
(including, but not limited to, legal, accounting, etc.) of such party incurred
in connection with the transactions contemplated by this Agreement.
(c) Access and Information. After the date hereof, Buyer on one
hand, and Seller and the Shareholder on the other, shall afford to each other
and their respective accountants, counsel and other representatives, access
during normal business hours and at such times as mutually agreed by the parties
(in good faith) to all of such party's properties, books, contracts,
commitments, and records related to the Business and the Assets for periods
prior to the date hereof, and shall permit such persons to examine and copy such
records to the extent reasonably requested, as necessary for tax and financial
reporting matters (including without limitation filings required to be made with
the Securities and Exchange Commission), audits, legal proceedings, governmental
investigations and other business purposes, which examination and review shall
be conducted so as to not unreasonably interfere with the business operations of
the disclosing party. The parties hereto agree that any and all information
obtained from or supplied pursuant to this Section (96)(c) or elsewhere in this
Agreement shall be considered confidential and governed by the terms of the
confidentiality agreement entered into by and between Seller and Buyer dated
Xxxxx 00, 0000 ("Xxxxxxxxxxxxxxx Xxxxxxxxx").
(x) Xxxxxxxx Work; Returned Goods. Except as otherwise set forth
herein, Buyer agrees to undertake and perform all warranty work and services and
to accept returned products or goods resulting from the Business of Seller prior
to (as well as following) the date hereof Closing and shall promptly notify
Seller of the occurrence of same and permit Seller to participate in any
decisions or actions regarding this work; provided, however, that Buyer shall
not perform warranty work or accept returns determined in Buyer's reasonable
discretion to have resulted from chronic or latent defects, whether caused by
the design or manufacture of such products or goods or by other causes, or
related to any product liability claim. Such warranty work and services provided
by Buyer and product returns shall be conducted in a prudent manner consistent
with Buyer's business practice as of the date hereof. In the event that Buyer's
reasonable costs and expenses related to warranty work, services and returned
products and goods resulting from the Business exceeds $130,000 at the expense
of Seller to the extent such expense is reasonable and in the aggregate, Seller
shall reimburse Buyer's reasonable costs and expenses (excluding the costs of
replacement sensors for sensors originally obtained from Buyer) in accordance
with Section (5)(a), provided that once Buyer's reasonable costs and expenses
for such warranty work have reached $130,000, Buyer's reimbursement obligations
shall apply only to warranty claims in excess of $150 (based upon Buyer's
reasonable costs of labor and materials) which claims shall be reimbursed by
Seller and Shareholder from the first dollar; provided, however that for
warranty claims related to fundamental design defects (as distinguished from
batch or manufacturing related defects), Seller's obligation to reimburse
Buyer's reasonable costs and expenses in accordance with Section (5)(a) shall
begin when Buyer's reasonable costs and expenses for all warranty claims
pursuant to Section 6(d) resulting from the Business (excluding the costs of
replacement sensors for sensors originally obtained from Buyer) exceeds $65,000.
In this regard, Buyer agrees to seek reimbursement for its reasonable costs and
expenses for warranty work in accordance with Section (5)(a) in the
chronological order in which such reasonable costs and expenses were incurred by
Buyer. In addition, Buyer shall use its best efforts to perform and account for
warranty work, for which reimbursement from Seller and Shareholder is required
under Section (5)(a), in the chronological order in which such claims are
received. exceeds $________. An accounting of all costs and expenses, both
internal and external, incurred by Buyer for such warranty work, services, and
returned goods, including customer financial accommodations and all other direct
or indirect net costs and expenses shall be provided to Seller on a quarterly
basis.
Buyer shall use its best efforts to provide Seller and Shareholder with notice
of a proposed recall of any of the Products, for which reimbursement from Seller
and Shareholder is required under Section (5)(a), which notice shall include a
summary of any action plans of Buyer as to such recall. Buyer agrees to conduct
any such recalls in good faith.
(e) Further Assurances. In case, at any time after the date
hereof, any further action is reasonably necessary or desirable to carry out the
purposes of this Agreement, the proper officers and/or directors of the parties
hereto or the parties themselves shall take all such necessary action and
execute any necessary documents or certificates.
(f) Accounts Receivable. Buyer shall use reasonable commercial
efforts in collecting all unpaid accounts receivable of Seller within six months
following the date hereof. Buyer agrees to assign to Seller and Shareholder any
and all unpaid accounts receivable of Seller for which Buyer makes a claim for
indemnification, and that Seller and Shareholder shall be entitled to pursue
collection of and enforce such accounts receivable.
(g) Brokers. The parties warrant that no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission hereby in connection with the transactions contemplated hereby. The
parties indemnify and hold each other harmless from any breach of this
representation.
(h) Bulk Sales Laws. Seller, Shareholder, and Buyer hereby waive
compliance with the Bulk Sales Law or any other similar laws in applicable
jurisdictions with respect to the transactions contemplated by this Agreement;
provided, however, that, Seller and Shareholder shall jointly and severally pay
and discharge when due all claims of creditors asserted against Buyer or the
Assets by reason of such noncompliance (except to the extent such claims are
part of the Assumed Liabilities to be paid by Buyer) and shall take promptly all
necessary actions required to remove any lien or encumbrance which may be placed
upon any of the Assets by reason of such noncompliance. (i) Materiality. The
parties hereto agree that the term "materiality" or "material" as used in this
Agreement shall mean an amount equal to $ in the aggregate.
(i) Non-Assignable Contracts, Licenses and Permits. To the
extent that the assignment of any Contract, license or permit included in the
Assets, which is to be assigned to Buyer, shall require the consent of any other
person or entity, this Agreement shall not constitute a contract to assign the
same if an assignment of such Contract, license or permit would constitute a
breach or violation thereof. Seller and Shareholder shall use commercially
reasonable efforts, for a period of ninety (90) days following the date hereof,
and Buyer shall cooperate where appropriate, to obtain any consent required to
assign and transfer each Contract, license or permit to Buyer, unless otherwise
agreed by Buyer. During such ninety (90) day period and for an additional ninety
(90) days thereafter, Seller and Shareholder will use reasonable efforts to
assist Buyer in obtaining substantial performance by the other party to any such
non-assignable Contract, license or permit. Thereafter, neither Seller nor
Shareholder shall have any further obligation to Buyer (but Seller will remain
obligated to the other party to the Contract and responsible for the license or
permit) with respect to any such Contracts, licenses or permits that were not
assigned.
(j) Solomat Air. Effective as of May 31, 2001, Seller acquired
the operating assets related to the business of Solomat Air from Zellweger
Analytics Limited, a corporation formed under the laws of the United Kingdom and
an affiliate of Buyer ("Zellweger U.K."), including all rights to manufacture,
market and sell certain product lines included in the business and the rights to
related intangible assets and intellectual property ("Acquisition"), which
assets are included in the Assets acquired by Buyer hereunder. To consummate the
Acquisition, the parties entered into an Asset Purchase Agreement dated
May 31, 2001 and related ancillary documents (the "Acquisition Documents").
Seller, Buyer, and Zellweger U.K. hereby agree that all representations,
warranties, covenants and obligations, including indemnity obligations, of
Zellweger U.K. included in the Acquisition Documents shall terminate and have no
further force and effect as of Closing, and Seller shall rely exclusively upon
the indemnity provisions in Section 85(b) of this Agreement for claims related
to the Acquisition.
(k) Transition Services. Shareholder currently provides and
performs certain services for and on behalf of Seller related to the Business,
including information and technology support, trade payables management, and
accounting services. Shareholder hereby agrees to continue to perform these
services, at the same level as currently provided to Seller, for and on behalf
of Buyer for the conduct by Buyer of the Business from the period beginning the
date hereof through August 31, 2002, unless sooner terminated or reduced by
Buyer, as such services are more fully described on Schedule 96(k) ("Transition
Services"). In this regard, the parties acknowledge that Shareholder's
performance of the Transition Services is significant and important to Buyer,
and indemnification of Buyer is available for a breach or failure to perform
such Transition Services under Section (85) of this Agreement for Loss and
Expense of Buyer.
(l) Business Files and Records. Within seven days after the
signature of this Agreement, Seller and Shareholder shall provide to Buyer no
less than three (3) years of detailed information (provided that such
information shall be limited to no less than one (1) year of detailed
information for Major Customers and Major Suppliers) regarding contracts or
arrangements, names, addresses, territories, sales volumes, purchase
information, telephone/telefax numbers, email addresses, communications, and all
other pertinent information, records, and files possessed by Seller and
Shareholder used or useful in dealings with distributors, sales representatives,
Major Customers and Major Suppliers related to the Business.
(m) Change of Name of Lumidor Safety Corporation. Seller and
Shareholder shall execute such documents and make all filings required to change
Seller's corporate name so as not to conflict with Buyer's use of the trade
marks or tradenames purchased as part of the Assets, including Lumidor and its
derivatives, in the conduct of the Business after Closing.
(107) Amendment, Waiver.
(a) Amendment. This Agreement may not be amended except by an
instrument in writing signed by or on behalf of each of the parties hereto.
(b) Extension; Waiver. The parties hereto may (i) extend the
time for performance of any of the obligations or other acts of the other
parties hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto, and
(iii) waive compliance with any of the agreements or conditions
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid if set forth in an instrument in writing
signed on behalf of such party.
(8) Certain Definitions. For the purposes of this Agreement, the
following terms shall be defined as follows:
(a) "Affiliate" means, with respect to any person or entity, any
other person or entity directly or indirectly controlling, controlled by, or
under common control with, such person or entity (for the purpose of this
definition, Seller and Shareholder shall be tested both separately and
together). For purposes of this definition, "control" (including "controlling"
and "controlled") means the possession, directly or indirectly, of power to
direct or cause the direction of the management and policies of such person or
entity, whether through ownership of voting securities, by contract, or other.
(b) "GAAP" means generally accepted accounting principles in
effect in the United States of America at the time of any determination, and
which are applied on a consistent basis. All accounting terms used in this
Agreement which are not expressly defined in this Agreement shall have the
meanings given to those terms by GAAP, unless the context of this Agreement
otherwise requires.
(c) "knowledge" means (i) with respect to Seller, the actual
knowledge of Seller's officers and directors or knowledge that could have been
gained by such persons after reasonable and diligent inquiry, and (ii) with
respect to Shareholder, the actual knowledge of Seller's Chief Executive Officer
and Chief Financial Officer or knowledge that could have been gained by such
persons in the prudent exercise of such person's duties.
(d) "Material Adverse Effect" and "Material Adverse Change"
shall mean a material adverse effect or change (as applicable) on the
properties, financial condition or operations of Seller, the Business or the
Assets.
(e) "Permitted Liens" means (i) any liens for taxes,
assessments, judgments and similar charges not yet due and payable (each of
which taxes, assessments, judgments and similar charges are Seller Liabilities
subject to indemnification under Section 5(a) of this Agreement), and (ii)
Assumed Liabilities, including without limitation licenses of intellectual
property rights that are being assumed and conditions, covenants and
restrictions under other Contracts.
(119) Miscellaneous.
(a) Survival of Representations and Warranties. Each and every
representation, warranty, covenant and agreement of Seller, Shareholder and
Buyer contained in this Agreement or in any Exhibit, Schedule, or Certificate
shall survive Closing for (i) a period of eighteen (18) months three following
the signature date of this Agreement (or longer with respect to Special Claims
as provided in Section 5(a)), or (ii) the applicable statute of limitations
period for that matter, if longer [except that such period shall be unlimited as
to
Seller and Shareholder for Special Claims], whereupon all such representations,
warranties, covenants and agreements will expire and no claims for
indemnification may be made by either party against the other. Notwithstanding
the above, the Non-Competition Agreement and the agreements and provisions
therein shall survive for the period of time specified in that agreement..
(b) Investigations. The respective representations and
warranties of the parties contained herein or in any certificates or other
documents delivered before or upon signature of this Agreement shall not be
deemed waived or otherwise affected by any investigation made by any party
hereto (other than disclosure provided in the Seller Disclosure Letter).
(c) Governing Law. This Agreement shall be governed by the laws
of the State of Delaware as to all matters, including, without limitation,
matters of validity, construction, effect, and performance, but without regard
to any principles of conflicts of laws or other laws which would result in the
application of the laws of another jurisdiction.
(d) Dispute Resolution. EACH OF THE PARTIES UNCONDITIONALLY AND
IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE
ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP OF THE BUYER ON THE ONE HAND,
AND SELLER AND/OR SHAREHOLDER ON THE OTHER. Instead, any such dispute shall be
submitted to binding arbitration conducted in accordance with the rules and
procedures of the American Arbitration Association ("AAA") in Atlanta, Georgia,
before an arbitrator as mutually agreed between the parties (or if the parties
are unable to agree, such arbitrator shall be selected pursuant to the
procedures of the AAA), which decision shall be final and binding on the
parties. Each party shall bear its own costs (including attorney's fees and
expert witness fees) in connection with the arbitration described herein but
shall equally share the costs of the arbitration proceeding including the fees
and expenses of any arbitrator or other arbitration expense, unless the
arbitrator shall determine a different award or allocation of such expenses or
fees in the discretion of such arbitrator considering the ruling issued or the
settlement reached and other circumstances.
(e) Counterparts; Facsimile Signatures. This Agreement may be
executed in several counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement. Facsimile signatures
shall have the full legal effect of original signatures.
(f) Notices. Any notice, request, waiver, instruction, consent
or other document or communication required or permitted to be given pursuant to
this Agreement shall be in writing and shall be deemed to have been duly given
and received as follows: (a) if delivered by hand, on the business day of such
delivery, (b) received by the addressee, if sent by a nationally-recognized
overnight delivery service, on the next business day, (c) received by the
addressee, if mailed by registered or certified mail, postage prepaid, return
receipt requested, three days after being mailed or (d) if delivered by
facsimile, on such
business day (with confirmation of receipt). All such notices, requests,
waivers, instructions, consents or other documents or communications shall be
sent to the following addresses or facsimile numbers:
To Buyer:
Zellweger Analytics, Inc.
000 Xxxxxxx Xxxx.
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx XxXxxxx
With copy to:
Xxxxxx Xxxx
Zellweger Luwa AG
Xxxxxxxxxx 00
Xxxxx, Xxxxxxxxxxx
Telephone: 011 41 1/000 00 00
Facsimile: 011 41 1/943 38 31
X. X. Xxxxxx, Xx.
Xxxxxx & Xxxxxx, LLP
000 Xxxxxxxxx Xx., Xxx 000
Xxxxxxx-Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Seller:
Lumidor Safety Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
To Shareholder:
Invivo Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
With copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(f) Headings. The headings used in this Agreement are for
administrative purposes only and do not constitute substantive matter to be
considered in construing the terms of this Agreement.
(g) Entire Agreement; Assignment; Binding Effect. This Agreement
and the Schedules and Exhibits hereto, and other documents and agreements
provided for herein (i) constitute the entire agreement and supersede all other
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof and thereof and (ii) are not intended
to confer upon any person other than the parties hereto and their successors and
permitted assigns any rights or remedies hereunder. The terms and conditions of
this Agreement shall inure to the benefit of, and be binding upon, the
respective successors and assigns of the parties hereto.
THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY. IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed, all as of the day
and year first above written.
SELLER:
Lumidor Safety Corporation
By:
Xxxxxxx Xxxxxxxx Xxxxx
President
SHAREHOLDER:
Invivo Corporation
By:
Xxxxx X. Xxxxxxx
Chief Executive Officer and President
BUYER:
Zellweger Analytics, Inc.
By:
Title:
