Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of this 11th day of June, 2001 by and between CONMED Corporation, a New
York corporation (the "Buyer" or "CONMED"), and Imagyn Medical, Inc., a Delaware
corporation, Imagyn Medical Technologies California, Inc., a California
corporation, Imagyn Medical Technologies, Inc., a Delaware corporation,
Microsurge, Inc., a Delaware corporation, and Dacomed Corporation, a Minnesota
Corporation, individually and as successor by merger to Advanced Surgical, Inc.,
formerly a Delaware corporation, (collectively the "Seller" or "Imagyn);
WHEREAS, Imagyn engages in the business of the development, manufacture
and sale of disposable, reposable and/or reusable minimally invasive surgical
("MIS") products, certain of which disposable products were sold to CONMED
pursuant to an Asset Purchase Agreement dated as of October 30, 2000;
WHEREAS Imagyn retained the rights to develop, manufacture and sell
disposable, reposable and/or reusable products including certain other surgical
products, not sold to CONMED (or to any third party), with such retained
products known as the Imagyn Products (as hereinafter defined) (the design,
development, manufacture, distribution and sale of such Imagyn Products being
herein called the "Business");
WHEREAS, Imagyn now desires to exit the Business and Buyer desires to
purchase and acquire the assets of the Business, in a manner that causes as
little disruption as possible to customers of, and the profitability of, the
Business, all on the terms and conditions set forth in this Agreement; and
WHEREAS, Imagyn either owns, or holds licenses to, the patents and
other Intellectual Property (as hereinafter defined) necessary for the
manufacture, distribution and sale of the Products (as hereinafter defined), and
intends to convey or assign all of its right, title and interest in such
Intellectual Property (as hereinafter defined) in connection with this
Agreement, all on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, agreements and conditions contained herein, the
parties agree as follows:
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Article 1
Definitions
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1.01 Assumed Liabilities.
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The term "Assumed Liabilities", or any variation thereof as used in
this Agreement, shall mean the liabilities and obligations, if any, to be
assumed by the Buyer pursuant to Article IV hereof.
1.02 Excluded Assets.
---------------
The term "Excluded Assets", or any variation thereof as used in this
Agreement, shall mean the assets specified in Schedule 2.01(a)(ii) or Section
2.02 as not to be sold, assigned, transferred and conveyed by Imagyn to the
Buyer pursuant to Article II hereof.
1.03 Imagyn Products.
---------------
The term "Imagyn Products" or "Imagyn Product Line", or any variation
thereof as used in this Agreement, shall mean those Imagyn products related to
the Business, manufactured or sold through Imagyn, or any of its Affiliates (as
hereinafter defined), relating to Imagyn's disposable, reposable and/or reusable
laparoscopic devices, including products employing similar or related
technology, including any improvement or modification to the Imagyn Technologies
(as hereinafter defined), including those products described in the attached
Schedule 1.03.
1.04 Imagyn Technologies.
-------------------
The term "Imagyn Technologies" shall refer to any know-how,
Intellectual Property (as hereinafter defined), including United States and the
corresponding foreign patents, patent applications, reissues, continuations or
extensions, trade secrets, manufacturing or design processes owned by or
otherwise licensed to Imagyn relating to the Imagyn Products, including any
improvement or modification to the aforementioned know-how and Intellectual
Property (as hereinafter defined).
1.05 Intellectual Property.
---------------------
The term "Intellectual Property" means patents, patent applications,
utility model registrations, design patents, trademarks trade secrets and
know-how relating to the Business as of the Closing Date (as hereinafter
defined), including those that are listed in
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Schedule 1.05, including any improvements or modifications thereto that
are discovered before or after the Closing Date.
1.06 Intellectual Property Agreements.
--------------------------------
The term "Intellectual Property Agreements" shall mean those agreements
listed in Schedule 1.06.
1.07 Inventors.
---------
The term "Inventor" shall refer to each individual who, or corporation
which, other than Imagyn, owns the rights to any Intellectual Property
Agreements.
1.08 Inventory.
---------
The term "Inventory" shall refer to Raw Material (as hereinafter
defined), and current, non-obsolete work-in-process and finished goods of the
Business in quantities required, for each product, to ensure a smooth transition
and, with respect to the Imagyn Products, in the aggregate to be valued in an
amount specified in Sections 2.01(b), 5.01(q) and 7.09.
1.09 Key Employees.
-------------
The term "Key Employees" shall refer to employees to be identified by
CONMED, with Imagyn's assistance, after the execution of this Agreement and up
until Closing (as hereinafter defined), who are, in CONMED's reasonable
estimation, important to the research and development, manufacture, marketing
sale, or design of products used in, manufactured in, or under development in,
the Business.
1.10 Material Adverse Effect.
-----------------------
The term "Material Adverse Effect" shall mean any event, including any
action by a regulatory agency, customer or other person or entity, that presents
a reasonable probability of an adverse impact on the operations or profitability
of the Business such that a reasonable buyer could consider the event to be
material.
1.11 Purchased Assets.
----------------
The term "Purchased Assets", or any variation thereof as used in this
Agreement, shall mean the assets to be sold, assigned, transferred and conveyed
by Imagyn to the Buyer pursuant to Article II hereof.
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1.12 Raw Material.
------------
The term "Raw Material" shall mean all current, non-obsolete supplies
and raw materials used in manufacturing the Imagyn Products, including any
allocated share of raw materials used in manufacturing, on one hand, the Imagyn
Products or in the Business and also used, on the other hand, in the manufacture
by Imagyn of other products unrelated to the Business.
1.13 Transfer Period.
---------------
The term "Transfer Period" shall mean that period of time, which shall
extend until three (3) months after the termination of the Supply Agreement (as
hereinafter defined) and in no event beyond nine (9) months after the Closing
(as hereinafter defined), during which CONMED may request, and will receive,
assistance from Imagyn with warehousing, regulatory matters such as CE marking,
establishing validation protocols, investigation of complaints, and product
registrations, invoicing and processing orders, sales and sales reports with
respect to the Business, as well as the design, manufacture and distribution of
the Imagyn Products
1.14 U.S. Surgical Settlement.
------------------------
The term "U.S. Surgical Counterclaims" shall refer to any and all
claims that were or could have been asserted by U.S. Surgical with respect to
certain Imagyn Products, that were the subject of a certain lawsuit between U.S.
Surgical and Imagyn, namely the lawsuit initially captioned Imagyn Medical
Technologies California, Inc. v. United States Surgical Corp., initially pending
in the United States District Court of the Eastern District of Virginia (No.
97-1644-A), involving claims and/or counterclaims, including (without
limitation) those relating to patents 5,336,206; 5,304,143; 5,104,383;
5,144,942; 5,611,780; 5,327,318; and 5,423,835.
Article 2
Sale of Assets
--------------
2.01 Purchased Assets.
-----------------
Subject to the terms and conditions hereof, Imagyn agrees to sell,
assign, transfer and convey to the Buyer, and the Buyer agrees to purchase and
acquire from Imagyn, at
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the Closing (as hereinafter defined), all of Imagyn's right, title and
interest in and to the following assets, wherever located:
(a) fixed assets, machinery, manufacturing equipment (including
manufacturing and inspection equipment), laboratory and test equipment, tooling,
computers, work stations, molds, vehicles, furniture, Imagyn Product
specifications, drawings and manufacturing processes documents and office
equipment used in the Business, wherever located, including, without limitation,
those listed on Schedule 2.01(a)(i), but excluding those specified in Schedule
2.01(a)(ii);
(b) the Inventory and parts relating to the Imagyn Products, which
shall be in amount valued at no less than $8.394 million, subject to and
including reserves for obsolete, slow-moving and any other impairments of value
with such reserves valued at $4.161 million, as provided for in Section 5.01(q)
and Section 7.09, and product prototypes and developments, samples,
demonstration units, product labels and packaging materials, as well as obsolete
inventory and raw material;
(c) the technology and know-how related to the manufacture of the
Imagyn Products, including documents reflecting the current manufacturing
process;
(d) the records related to the Imagyn Products and the Purchased
Assets;
(e) the patents, applications for patents, utility model registrations,
design patents, patent continuations and extensions that are related to the
Business as conducted on the Closing Date, including the Intellectual Property
identified on the attached Schedule 1.05;
(f) the customer purchase orders to the extent related to the Imagyn
Products, the Purchased Assets or the Business issued to Imagyn in the ordinary
course of business;
(g) the rights of Imagyn relating to the leases, contracts and written
agreements related to the sales and manufacture of the Imagyn Products, the
Purchased Assets or the Business as conducted on the Closing Date, including
customer lists and sales tracings, to the extent transferable (all
non-assignable contracts are identified in Schedule 2.01(g)), with Imagyn being
required to undertake all commercially reasonable efforts, at its own expense,
to secure the assignment or transfer of all such agreements;
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(h) any registered or unregistered trademarks including the Xxxxxxx
Xxxxx name or xxxx, except
(i) with respect to certain products distributed domestically and in
Europe by Aspen Surgical Products, Inc., and (ii) the trade name Xxxxxxx Xxxxx
Scientific, in both cases as further specified on Schedule 2.01(h), (and the
goodwill of the business in which any such trademarks are used and which is
symbolized by said trademarks), copyrights, XX xxxxx, patent licenses and trade
secrets that are related to the Business as conducted on the Closing Date owned,
licensed or used by Imagyn to the extent transferable by Imagyn, with Imagyn
being required to undertake all commercially reasonable efforts, at its own
expense, to secure the assignment or transfer of all such agreements, trademarks
and other matters to Buyer following the Closing; (i) all documents or other
tangible materials embodying technology or intellectual property rights owned
by, licensed to or otherwise controlled by Imagyn and to the extent that they
are used in connection with the Business, whether such properties are located on
Imagyn's business premises or on the business premises of Imagyn's suppliers or
customers, including, without limitation, all personal computers, work stations,
terminals, software programs (including both source and object codes) and
related documentation for software to the extent used in or developed for
support of the Business and all master device records;
(j) All (i) patterns, plans, designs, research data, trade secrets and
other proprietary know-how, formulae and manufacturing processes, commercially
practiced processes and inventions, in each case whether or not patentable in
any jurisdiction and (ii) operating manuals, drawings, technology, manuals,
data, records, procedures and research and development records, and any right to
use or exploit any of the foregoing, in each case to the extent that they relate
to the Business on the Closing Date;
(k) Imagyn's warranty repair reserve, its reserve for product returns
and/or allowances and amounts relating to prepaid sales and deposits related to
sales;
(l) The release and covenant not to xxx provided by United States
Surgical Corporation to Imagyn Medical Technologies California, Inc., as well as
the concurrent obligations and rights, as set forth in a Settlement Agreement
dated as of September 29, 1999;
(m) All marketing, labelling, printed materials, including materials
for displays at tradeshows;
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(n) All notebook or other computers used by the sales force or
otherwise related to the Endocap Program or otherwise related to or used in the
Business; and
(o) The website text, graphics and images relating to the Imagyn
Products.
2.02 Excluded Assets.
---------------
The following assets of the Business are excluded from the Purchased
Assets: (i) cash; (ii) accounts receivable; (iii) accounts payable; (iv)
corporate minute books of Imagyn; and (v) any items listed in Schedule
2.01(a)(ii).
2.03 No Assumption of Liabilities.
----------------------------
Except as expressly set forth in Article IV and as contemplated by the
indemnity provision set forth in Section 10.03 (a) (iv), it is understood and
agreed that, other than the obligations for warranty claims relating to the
Imagyn Products, CONMED assumes no liabilities as a result of this Agreement
that existed prior to the Closing Date.
2.04 Trade Name and Trademark Restrictions.
-------------------------------------
It is understood and agreed that this Agreement does not constitute an
agreement to transfer to the Buyer the right to use: (i) Imagyn names and/or
marks, (ii) any Imagyn corporate logo alone, or (iii) any combination of any
other xxxx or symbol with any of the marks in this section, except during the
Transfer Period, or as provided for in this Section. Notwithstanding any other
provision in this Agreement to the contrary, Buyer shall be entitled to continue
to use the Imagyn corporate name, logo and any other xxxx for so long as such
use may be required to maintain product registrations for the Imagyn Products,
provided that CONMED shall have made reasonable efforts to obtain registrations
for products without such trademark or trademarks, it being understood that
reasonable efforts in any particular country shall require CONMED or its
distributors to have filed for registration within six (6) months following
Closing. In addition, with respect to Italy, CONMED shall be permitted to use
the Imagyn trade name and xxxx, along with the Imagyn logo, for so long as the
distribution agreement between CONMED and InnovaMedica srl remains in effect and
to the extent reasonably necessary to maintain product registrations.
Notwithstanding any other provision of this Agreement, CONMED agrees to
indemnify Imagyn for any losses or claims as a result of Buyer's sale of
products with the Imagyn xxxx, with CONMED's obligation to indemnify Imagyn
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under this section to end six (6) months following Buyer's last sale of
product with the Imagyn xxxx, unless Imagyn can demonstrate that the specific
product involved in a particular claim was sold by CONMED.
2.05 Retention of Certain Records.
----------------------------
It is understood and agreed that Imagyn reserves the right to retain
copies or written records for the purpose of defending any claims, losses,
causes of action or lawsuits, including those related to the sale of the Imagyn
Product Line and Articulating Technologies Products by Imagyn, and for the
purpose of preparing any tax returns or financial statements or reports,
provided that Imagyn shall maintain the confidentiality of such documents and
shall promptly notify CONMED of any lawsuit or claim served upon Imagyn relating
to the Business and/or records or documents.
Article 3
Purchase Price and Other Payments
3.01 Purchase Price, Assignment and License Fee and Commission Payments.
------------------------------------------------------------------
In consideration for the Purchased Assets, the Buyer agrees to pay to
Imagyn one million three hundred thousand (1,300,000) shares of Conmed
Corporation common stock (the "Shares") (the "Purchase Price"), subject to
adjustment as provided in Section 3.04, and further subject to the terms of this
Agreement;
3.02 Allocation of Total Purchase Price.
----------------------------------
It is understood and agreed by the parties that, except as hereinafter
provided, the Purchase Price shall be allocated among the Purchased Assets in
accordance with the attached Schedule 3.02, which Schedule is to be completed
within 90 days after the Closing, and that said allocation will be used for
state and federal tax purposes. Each party acknowledges that such allocation is
consistent with the requirements of Section 1060 of the Internal Revenue Code
1986, as amended, and the regulations thereunder. Each party agrees (i) to
jointly complete and separately file Form 8594 with its federal income tax
return for the tax year in which the Closing Date occurs, and (ii) that such
party will not take a position on any income, transfer or gains tax return
before any governmental agency charged with the collection of any such tax or in
any judicial proceeding, that is in any manner inconsistent with the terms of
such allocation without the written consent of the
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other party. Notwithstanding anything to the contrary provided herein,
neither party shall be bound by such allocation in the event the Internal
Revenue Service or another tax authority successfully challenges the allocation.
In the event of any challenge to such allocation by the Internal
Revenue Service or another tax authority, the parties will give each other
notice of the challenge and advise each other periodically of the status of such
challenge and reasonably cooperate with each other with respect to such
challenge.
3.03 Sales, Use and Transfer Taxes.
-----------------------------
The Seller shall be responsible for all sales, use and transfer taxes,
deed taxes and recording fees, if any, in each case applicable to the sale and
transfer of the Purchased Assets hereunder. If requested, the Buyer will furnish
Imagyn at the Closing with properly executed exemption certificates, dated the
Closing Date, relating to the Inventory, supplies and manufacturing equipment
being transferred pursuant to this Agreement as to which Buyer is claiming an
exemption from sales, use or other transfer taxes.
3.04 Purchase Price Adjustment - Inventory;
-------------------------------------
(a) In conjunction with the payment called for in Section 3.01, the
Buyer shall be entitled to offset any other of its obligations owed to Imagyn in
the transactions contemplated by this Agreement by an amount equal to the value
by which the Inventory of Imagyn Products is at the Closing less than the amount
provided for in Section 2.01(b), provided that any such shortage is greater than
$100,000 (any shortage less than $100,000 is not subject to offset) but not
greater than $400,000 in value (in which case the parties will renegotiate) with
Buyer being entitled to withhold such amount for a period of up to thirty (30)
days following the Closing or until the Parties shall have completed an
inventory reconciliation relating to the Inventory of Imagyn Products. Any
amount withheld or to be paid under this Section shall correspond, to the
dollar, the amount by which the Inventory is less than or more than the amount
specified in Section 2.01(b) , respectively.
(b) Any disputes as to the reconciliation of Inventory shall be
resolved pursuant to Section 11.12, with Buyer being entitled to withhold
payment until such dispute, if any, shall be resolved.
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3.05 Setoff Rights.
-------------
All payment terms under this Agreement or any related agreements are
subject to setoff by CONMED and Imagyn.
Article 4
Assumption of Liabilities
-------------------------
4.01 Assumption of Liabilities.
-------------------------
Subject to the terms and conditions thereof, and other than the
indemnification obligation set forth in Section 10.03 (a) (iv), at the Closing,
the Buyer shall assume and agree to carry out and perform only the following
liabilities and obligations which have not been paid, performed or discharged
prior to the effective time of the Closing by Imagyn:
(a) Those obligations, and only those obligations, of Imagyn payable or
performable after the Closing Date under any of the purchase orders for sales of
Imagyn Products, leases, contracts, or written agreements included in the
Purchased Assets and that are specified in Schedule 4.01(a);
(b) All warranty obligations of Imagyn with respect to Imagyn Products
sold on or prior to the Closing Date, as set forth in Imagyn's Standard Warranty
Agreement and
(c) Such other liabilities related to the Purchased Assets or the
Business arising after the Closing.
(d) The language of Section 4.01(a)-(c) notwithstanding, Buyer shall
not be responsible for any taxes, liens or claims upon the Purchased Assets that
arise from pre-Closing facts or circumstances. If any third party asserts any
right arising under lien laws and/or federal, state, local or other tax laws,
Imagyn shall be responsible to pay to Buyer, or Buyer may claim as a setoff, an
amount equal to the asserted lien or tax obligation, which payment shall also be
reflected in the adjustment to the Purchase Price contemplated by Section 3.04.
Imagyn also agrees to complete any other documents necessary to show that Buyer
did not assume assets with liens or outstanding tax obligations.
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Article 5
Representations and Warranties
------------------------------
5.01 Imagyn Representations.
----------------------
Imagyn hereby represents and warrants that, except as discussed in the
attached disclosure schedules, as follows:
(a) Organization of Imagyn. Each of the individual corporations named
as Seller is a corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation.
(b) Authority of Seller. Imagyn has full corporate power and authority
to execute, deliver and perform this Agreement and each of the Transaction
Documents (as hereinafter defined) to be entered into by it at the Closing, and
such execution, delivery and performance have been duly authorized by all
necessary and proper corporate action of Imagyn. This Agreement has been duly
executed and delivered by Imagyn, and (assuming due authorization, execution and
delivery hereof by the Buyer) is the valid and binding obligation of Imagyn
enforceable against Imagyn in accordance with its terms. Upon execution and
delivery thereof by Imagyn at the Closing (and assuming due authorization,
execution and delivery thereof by the Buyer, to the extent applicable), each of
the Transaction Documents to be entered into by Imagyn at the Closing will be
the valid and binding obligation of Imagyn enforceable against Imagyn in
accordance with its terms.
(c) Title to Purchased Assets. Except as set forth in Schedule 5.01(c)
or elsewhere in this Agreement, Imagyn has or will have at the Closing title to
the Purchased Assets, free and clear of all mortgages, liens, security
interests, claims, tax liabilities, charges and encumbrances.
(d) Contracts. The attached Schedule 5.01(d) lists, as of the date of
this Agreement, all leases, contracts, agreements and commitments related to the
Imagyn Products other than these IP agreements listed on Schedule 1.06, the
Purchased Assets or the Business to which Imagyn is a party or by which Imagyn
is bound and which involve payments of more than $10,000 per annum, excluding
purchase orders issued by or to Imagyn in the ordinary course of business.
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(e) Brokers. With respect to the transactions contemplated by this
Agreement, Imagyn has not dealt with or been contacted by any finder or broker
and is not in any way obligated to compensate any such persons. To the extent
that any broker or similar entity asserts any claim for fees, Imagyn agrees that
it alone is liable for any commissions or other amounts that may be due as a
result of this Agreement being consummated.
(f) Intellectual Property. Imagyn has title to the patents, patent
applications and utility model registrations listed in Schedule 1.05, and, to
its knowledge, such patents are valid. In addition, such title is subject to or
encumbered by the agreements listed in Schedule 5.01(c). To its knowledge,
neither the Imagyn Products nor Imagyn's operations of the Business infringe,
misuse or misappropriate any intellectual property rights not owned by or
licensed to Imagyn, no third party has accused or otherwise suggested that the
Imagyn Products or Imagyn's operations of the Business infringe, misuse or
misappropriate any intellectual property rights not owned by or licensed to
Imagyn, and no third party is infringing any intellectual property rights of
Imagyn used in connection with the Business.
(g) Compliance with Law. The Business is not in violation of any law,
ordinance or regulation of any governmental entity, including, without
limitation, environmental, occupational, employment, medical device, property or
other laws and/or regulations, which violations reasonably could have a Material
Adverse Effect. Moreover, Seller represents, warrants and agrees that this
transaction has been negotiated at arms' length for fair market value. All
governmental approvals, permits, licenses and other authorizations required in
connection with the manufacture or sale of the Imagyn Products or in the conduct
of any material aspect of the Business (collectively, "Authorizations") have
been obtained and are in full force and effect and are being complied with in
all material respects. Seller has not received any written notification of any
asserted past or present violation, nor is it otherwise aware of violations, in
connection with the conduct of the Business of any law, ordinance or regulation,
which violation could have a Material Adverse Effect, or any written complaint,
inquiry or request for information from any governmental entity relating
thereto. Seller represents that none of the Products are currently subject to
recall, none have been voluntarily recalled or removed, nor is Imagyn
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aware of any facts that would require a recall or that could support a
finding that the products do not comply with the requirements for medical
devices.
(h) FDA and Foreign Regulatory Approval Status. Seller warrants that
all Imagyn Products, including any accessories to be sold, are marketable, and
currently are being marketed, in compliance with all material Food and Drug Act,
Medical Device Directive and other legal requirements.
(i) Completeness of Purchased Assets; Condition of Purchase Assets. The
Purchased Assets constitute all assets that were used in the conduct of, or
necessary to, the Business, particularly the manufacture and sale of the Imagyn
Products, except those assets identified on Schedule 2.01(a)(ii) as the Excluded
Assets. The Purchased Assets are, in all material respects, suitable for the
uses for which they are presently used by the Business, in normal operating
condition and free from any known significant defects, excepting ordinary wear
and tear. With respect to the manufacturing equipment and tooling, on the
Closing, Seller will provide to Buyer its most current maintenance schedule.
(j) Financials. The financial statements provided by Seller and those
attached hereto as schedule 5.01(j) are true and accurate in all material
respects, have been derived from the books and records of Imagyn and have been
prepared and maintained in accordance with Generally Accepted Accounting
Principles ("GAAP")
(k) Claims Status. Seller is unaware of any pending or threatened
material claims that are being asserted other than those already disclosed, with
respect to product liability, intellectual property, regulatory or other claims
related to the Business.
(l) Lender and Other Approval. Seller and each of the parties to this
Agreement have consulted all of their lenders and shareholders whose consent is
required, or any other persons, entity or constituency whose consent is
required, and said lenders, shareholders, persons, entities and/or
constituencies have indicated that they consent to this transaction.
(m) Execution, Delivery; Valid and Binding Agreement. The execution,
delivery and performance of this Agreement by Imagyn and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Imagyn, and no other proceedings on the part of Imagyn
(including, without
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limitation, approval of the shareholders of Imagyn) are necessary to
authorize the execution, delivery and performance of this Agreement.
(n) Authority; No Breach. The execution, delivery and performance of
this Agreement by Imagyn and the consummation of the transactions contemplated
hereby do not conflict with or result in any material breach of any of the
provisions of, or constitute a default under, result in a violation of, result
in the creation of a right of termination or acceleration or any lien, security
interest, charge or authorization, consent, approval, exemption or other action
by or notice to any court or other governmental body, under the provisions of
the Certificate or Articles of Incorporation or by-laws of Imagyn or any
indenture, mortgage, lease, loan agreement or other agreement or instrument by
which Imagyn or the Purchased Assets are bound or affected , , or any law,
statute, rule or regulation or order, judgment or decree to which Imagyn, or the
Assets, are subject.
(o) Governmental Authorities; Consents. Except as expressly
contemplated by this Agreement, Imagyn is not required to submit any notice,
report or other filing with any governmental authority in connection with the
execution or delivery by it of this Agreement or the consummation of the
transactions contemplated hereby. No consent, approval or authorization of any
governmental or regulatory authority is required to be obtained by Imagyn in
connection with its execution, delivery or performance of this Agreement or the
transactions contemplated thereby.
(p) Absence of Certain Developments. Since the date of the financial
statement attached as Schedule 5.01(j), Imagyn has not, in each case, with
respect to the Assets or the Business: (a) borrowed any amount or incurred or
become subject to any liability except (i) current liabilities incurred in the
ordinary course of business of the Business and (ii) liabilities under contracts
entered into in the ordinary course of business of the Business; (b) mortgaged,
pledged or subjected to any lien, charge or any other encumbrance ("Liens"), any
of the Purchased Assets; (c) discharged or satisfied any Liens or paid any
liability, other than current liabilities paid in the ordinary course of
business of the Business; (d) sold, assigned or transferred (including, without
limitation, transfers to any employees, affiliates or shareholders) any tangible
assets of the Business or canceled any debts or claims, other than in the
ordinary course of business of the Business; (e) sold, assigned or transferred
(including, without limitation, transfers to any employees, affiliates or
shareholders) any patents, trademarks, trade names, copyrights, XX xxxxx, trade
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secrets or other intangible assets used in or held for use in the
Business; (f) disclosed, to any person other than Buyer and authorized
representatives of Buyer, any proprietary confidential information of the
Business or otherwise related to the Purchased Assets, other than pursuant to a
confidentiality agreement or other obligation to maintain confidentiality
prohibiting the use or further disclosure of such information, which agreement
or other obligation either has been identified to Buyer and is in full force and
effect on the date or will be enforced by Imagyn (at Buyer's cost) for up to two
years following the Closing upon the reasonable request for such enforcement by
Buyer notwithstanding any other time requirements imposed by this Agreement; (g)
waived any rights of material value or suffered any extraordinary losses or
adverse changes in collection loss experience, whether or not in the ordinary
course of business or consistent with past practice; (h) taken any other action
or entered into any other transaction other than in the ordinary course of
business and in accordance with past custom and practice; (i) suffered any
material theft, damage, destruction or loss of or to the Assets or any property
or properties owned or used by it in connection with the Business, whether or
not covered by insurance; (j) made any single capital expenditure or commitment
therefor in excess of $10,000; (k) made any loans or advances to, or guarantees
for the benefit of, any persons such that the aggregate amount of such loans,
advances or guarantees at any time outstanding is in excess of $10,000; or (l)
agreed or committed to any of the actions referred to in clauses (a) through (k)
above.
(q) Inventory. All Inventory, other than inventory to be conveyed to
Buyer that is subject to reserves or inventory subject to material review board
review in amounts which are consistent with past practices and the ordinary
course of business, consists of items of a quality and quantity usable and, with
respect to finished goods only, salable at Imagyn's normal profit levels, in
each case, in the ordinary course of the business. Imagyn has on hand such
quantities of finished goods sufficient to meet the normal demand and
operational requirements for each of the Imagyn Products and in an amount not
less than the amount reflected in the Imagyn Surgical Condensed Balance Sheet as
of April 30, 2001, as adjusted to reflect assets not being transferred. Imagyn
has on hand, or has ordered, and expects timely delivery prior to Closing of
such quantities of Raw Materials as are reasonably required timely to fill
current orders on hand with respect to each product sold by the Business that
require delivery within 60 days and to
15
maintain the manufacture and shipment of products at its normal level
of operations. As of the date of the Imagyn Surgical Condensed Balance Sheet as
of April 30, 2001, as adjusted to reflect assets not being transferred, attached
hereto as Schedule5.01(j), the values at which such inventory is carried on the
Latest Balance Sheet have been determined in accordance with GAAP consistently
applied.
(r) Contracts and Commitments. (a) Schedule 5.01(r) lists the following
contracts, commitments or binding understandings, whether oral or written, to
which Imagyn is a party, which are currently in effect and which relate to the
operation of the Business or the Assets: (i) Each confidentiality agreement,
non-compete agreement or any contract that would prohibit Imagyn or Buyer from
freely engaging in Business or in the manufacture, sale or distribution of the
Imagyn Products anywhere in the world; (ii) Each agreement not made in the
ordinary course of the conduct of the Business; (iii) Each agreement not
otherwise discussed to which Imagyn or any affiliate is a party or which has, or
may have, a material effect on the Business; and (iv) Each agreement relating to
the sale, license or development of any Purchased Asset, except for purchase
orders, but including any and all EndoCap Agreements (b) Imagyn has performed
all material obligations required to be performed by it in connection with the
contracts or commitments listed on any of the Schedules to this Agreement or
otherwise required to be disclosed and are not in receipt of any claim of
default under any contract or commitment required to be disclosed under such
caption; Imagyn has no present expectation or intention of not fully performing
any material obligation pursuant to any such contract or commitment, and Imagyn
has no knowledge of any breach or anticipated breach by any other party to any
such contract or commitment. (c) Ten (10) days prior to the Closing of this
Agreement, Buyer will have been supplied with a true and correct copy of each
written contract or commitment, and a written description of each oral contract
or commitment, listed on any of the Schedules to this Agreement, together with
all amendments, waivers or other changes thereto.
(s) Litigation. Except as set forth in Schedule 5.01(s), there are no
actions, suits, proceedings, orders or investigations pending or, to the best
knowledge of Imagyn, threatened against Imagyn, at law or in equity, or before
or by any federal, state, municipal or other governmental department,
commission, board, bureau, court, agency or instrumentality, domestic or
foreign, which (i) relate to the Business or the Assets
16
(including but not limited to bankruptcy filings by or against Imagyn),
or (ii) seek to enjoin or otherwise prevent the consummation of the transactions
contemplated by this Agreement, and there is no reasonable basis known to Imagyn
for any of the foregoing. Nor is Imagyn aware of any facts that could result in
a finding that Imagyn Products are subject to regulatory action or patent
infringement or invalidity claims.
(t) Customers and Suppliers. Schedule 5.01(t) lists the twenty-five
(25) largest domestic and international customers, and twenty-five (25) largest
suppliers of Imagyn relating to the Business for the most-recent fiscal year and
for the six-month period ended March 31, 2001, and sets forth opposite the name
of each such customer or supplier the approximate percentage of net sales or
purchases attributable to such customer or supplier for each such period. Since
January 1, 2001, no customer or supplier of the Business listed on Schedule
5.01(t) has indicated that it will stop or materially decrease the rate of
business done with Imagyn, nor is Imagyn aware of any collection matters
relating to such customers except as disclosed on such Schedules. Schedule
5.01(t) also lists any customers which regularly receive scheduled shipments of
any of the Imagyn Products.
(u) ISO 9001 Certification. Imagyn represents and warrants that
Imagyn's facilities used in connection with the Business are ISO 9001 certified
and comply with all requirements for such ISO 9001 certification.
(v) Due Diligence Responses. Imagyn represents and warrants that its
responses to due diligence requests have been true, accurate and complete in all
material respects.
(w) Utility Accounts Current. Imagyn is current with payments due any
and all companies supplying utilities (electricity, gas, water, etc.) to the
facility in Richland, Michigan, and will remain so through Closing and
throughout the term of the Supply Agreement (as hereinafter defined).
(x) Vendor Accounts Current. Imagyn's accounts with vendors to the
Business are current, and will remain so during through Closing and throughout
the term of the Supply Agreement.
(y) Securities Related Representations.
----------------------------------
(i) Imagyn: (A) understands that the Shares have not been registered
under the Securities Act or under any state securities law or blue sky law of
any
17
jurisdiction ("Blue Sky Law") and that the Shares are being offered and
sold in reliance upon federal and State exemptions for transactions not
involving a public offering; (B) is an "accredited investor" as that term is
defined under Rule 501 promulgated under the Securities Act; (C) has received
the Conmed SEC Documents (as hereinafter defined) and has had the opportunity to
obtain additional public information as desired in order to evaluate the merits
and risks inherent in holding the Shares; (D) is able to bear the economic risk
in holding the Shares; and (E) is acquiring the Shares solely for investment and
not with a view to the distribution or resale thereof; (F) has conducted its own
due diligence investigation of the shares and Conmed Corporation, and
acknowledges that it has been provided with no non-public information concerning
Conmed Corporation's financial condition or performance. The term "solely for
investment" used in this Section has the meaning given to that term for purposes
of determining the availability of an exemption from registration under Section
4(2) of the Securities Act.
(ii) Imagyn will not sell, assign, transfer or otherwise dispose of the
Shares without registration under the Securities Act and under applicable Blue
Sky Law unless an exemption from registration thereunder is available, and
provided further that such transferee has consented in writing to the
restrictions set forth in this Section. Imagyn acknowledges the stock
certificates evidencing such Shares will bear a legend to the effect of the
foregoing.
Imagyn agrees that: (1) it will not sell, transfer, assign, encumber or
enter into any transaction involving the Shares for 90 days following the
Closing (the "Lock-up Period") unless it shall have received the prior written
consent of CONMED, which will not be unreasonably withheld; and (2) following
the Lock-up Period, Imagyn, or any transferee of Imagyn, will not sell or
otherwise transfer more than twenty percent (20%) of the Shares in any 60 day
period (the "Transfer Restriction"), except with respect to block sales in
private transactions where any transferee of Imagyn or financial intermediary
counter-party to such transaction agrees to be bound by the Transfer
Restriction.
5.02 Buyer Representations.
---------------------
The Buyer hereby represents and warrants as follows:
(a) Organization of Buyer. The Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York.
18
(b) Authority of Buyer. The Buyer has full corporate power and
authority to execute, deliver and perform this Agreement and each of the
Transaction Documents to be entered into by it at the Closing, and such
execution, delivery and performance have been duly authorized by all necessary
and proper corporate action of the Buyer. This Agreement has been duly executed
and delivered by the Buyer, and (assuming due authorization, execution and
delivery hereof by Imagyn) is the valid and binding obligation of the Buyer
enforceable against the Buyer in accordance with its terms (except as such
enforceability may be limited by bankruptcy, reorganization, insolvency
moratorium and other similar laws affecting creditors' rights generally or by
general principles of equity). Upon execution and delivery thereof by the Buyer
at the Closing (and assuming due authorization, execution and delivery thereof
by Imagyn, to the extent applicable), each of the Transaction Documents to be
entered into by the Buyer at the Closing will be the valid and binding
obligation of the Buyer enforceable against the Buyer in accordance with its
terms (except as such enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity).
(c) Brokers. With respect to the transactions contemplated by this
Agreement, the Buyer has not dealt with or been contacted by any finder or
broker and is not in any way obligated to compensate such persons.
(d) Conmed Shares. The Shares have been authorized and, when issued and
delivered in accordance with the terms of this Agreement, will have been validly
issued and be fully paid and non-assessable and the issuance thereof is subject
to any preemptive or other similar right.
(e) Securities and Exchange Commission Filings. Conmed has made
available to Imagyn (i) Conmed's annual report on Form 10-K for its fiscal years
ended December 31, 1999 and December 31, 2000; and (ii) all of its other
reports, statements, schedules and registration statements filed with the SEC
pursuant the Exchange Act since December 31, 1999 (the documents, as, referred
to in this Section collectively, the "Conmed SEC Documents"). As of its filing
date, each Conmed SEC document filed pursuant to the Exchange Act did not
contain any untrue statement of a material fact or
19
omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading, except as the same may have been corrected, updated or
superceded by means of a subsequent filing with the SEC.
(f) Private Offering. Based on the representations set forth Section
5.01(z), the offer, and delivery to Imagyn pursuant to the terms of this
Agreement of the Common Stock Consideration is exempt from under the Securities
Act.
Article 6
Conditions to Closing
---------------------
6.01 Conditions to the Buyer's Obligations.
-------------------------------------
The obligations of the Buyer to be performed at the Closing shall be
subject to the satisfaction or the waiver in writing by the Buyer at or
prior to
the Closing of the following conditions:
(a) Each of the representations and warranties of Imagyn contained in
this Agreement shall be true in all material respects as of the Closing with the
same effect as though such representations and warranties have been made as of
the Closing, except for any variations therein resulting from actions
contemplated or permitted by this Agreement, and each of the covenants to be
performed by Imagyn at or before the Closing pursuant to the terms hereof shall
have been duly performed in all material respects. The Buyer shall have been
furnished with a certificate of Imagyn, executed on its behalf by an appropriate
officer of Imagyn and dated the Closing Date, certifying to the foregoing
effects.
(b) No action, suit or proceeding by any governmental authority shall
be pending against the Buyer or Imagyn which seeks to prevent the consummation
of the transactions contemplated by this Agreement, and no injunction or order
for any court or administrative agency of competent jurisdiction shall be in
effect which restricts or prohibits the consummation by the Buyer or Imagyn of
the transactions contemplated by this Agreement.
(c) Imagyn and Buyer shall have executed a Registration Rights
Agreement in the form of Schedule 6.01(c) (the "Registration Rights Agreement").
20
(d) Imagyn and Buyer shall have executed a Supply Agreement in the form
of Schedule 6.01(d);
(e) Buyer shall have received from Imagyn:
(i) A Xxxx of Sale in the form of Schedule 6.01(e)(i);
(ii) Certificates of Good Standing, as to each corporate entity
involved in the transaction contemplated by this Agreement;
(iii) Certified copies of Imagyn's corporate resolutions and those of
each corporate entity involved in the transaction contemplated by this
Agreement authorizing the transactions contemplated hereby;
(iv) UCC-3 lien releases and any other documents reasonably requested
by Buyer to reflect that the Purchased Assets are free of liens, claims
or security interests, as well as such other documents as Buyer may
reasonably require for precautionary filings to provide notice of
Buyer's ownership of the Purchased Assets, or as Buyer's lenders may
reasonably require to establish their security interests in such
Purchased Assets;
(v) An opinion from Imagyn's counsel, in a form reasonably acceptable
to Conmed, as to the authority of Imagyn to enter into this Agreement;
(vi) Access to and/or an assignment of the right to market, sell and
distribute the Imagyn Products under the CE certification issued to
Imagyn, and access to the sterilization provider used by Imagyn for the
Imagyn Products, on at least as favorable terms, during the Transfer
Period or as CONMED may reasonably require;
(vii) An assignment of the release and covenant not to xxx referred to
in Section 2.01(l), together with proof that any required notice to
United States Surgical Corporation has been provided; and
(viii) Signed customer notification letters in the form referred to in
Section 7.14.
(f) CONMED shall have received an executed written agreement, in form
and substance reasonably acceptable to CONMED, from the Inventors to the effect
that any licensed Intellectual Property included in the Intellectual Property or
covered by the Intellectual Property Agreement(s) may be and is/are assigned to
CONMED.
21
(g) CONMED shall be satisfied, which shall be determined in its sole
discretion, with further due diligence review concerning, among other things,
the patents relating to the Imagyn Products and inventory levels.
(h) With respect to the Business and the Purchased Assets, no event
which would encompass a Material Adverse Effect shall have occurred, since
January 1, 2001.
(i) Imagyn shall have delivered to CONMED Inventory, as set forth in
Section 7.09, which CONMED shall verify on the day prior to the Closing, which
Inventory shall not be less than the value set forth in Section 2.01(b), such
value being measured according to the cost of manufacture.
(j) All of Imagyn's accounts with CONMED and any of its Affiliates (as
hereinafter defined) shall have been said in full on or before the Closing.
(k) The parties shall have reached a mutually acceptable agreement with
respect to the Xxxxxxx License.
6.02 Conditions to Obligations of Imagyn.
-----------------------------------
The obligations of Imagyn to be performed at the Closing shall be
subject to the satisfaction or the waiver in writing by Imagyn at or prior to
the Closing of the following conditions:
(a) Each of the representations and warranties of the Buyer contained
in this Agreement shall be true in all material respects as of the Closing with
the same effect as though such representations and warranties had been made as
of the Closing, except for any variations therein resulting from actions
contemplated or permitted by this Agreement, and each of the covenants to be
performed by the Buyer at or before the Closing pursuant to the terms hereof
shall have been duly performed in all material respects. Imagyn shall have been
furnished with a certificate of the Buyer, executed on its behalf by an
appropriate officer of the Buyer and dated the Closing Date, certifying to the
foregoing effects.
(b) No action, suit or proceeding by any governmental authority shall
be pending against the Buyer or Imagyn which seeks to prevent the consummation
of the transactions contemplated by this Agreement, and no injunction or order
of any court or administrative agency of competent jurisdiction shall be in
effect which restricts or
22
prohibits the consummation by the Buyer or Imagyn of the transactions
contemplated by this Agreement.
(c) Imagyn shall have received an opinion from CONMED's in-house
counsel as to the authority of CONMED to enter into this Agreement.
(d) Buyer shall have executed all documents required by this Agreement.
Article 7
Certain Agreements
------------------
7.01 Conduct of Business; No Material Adverse Change.
-----------------------------------------------
Except as expressly contemplated by this Agreement, from the date
hereof until the Closing, Imagyn will conduct the Business in the usual and
ordinary course. Imagyn specifically agrees that it will not (i) enter into any
agreements with respect to the Business that are less favorable than contracts
currently in place, (ii) enter into new contracts without the prior written
consent of Buyer, (iii) give away or commit to give away any products or
services associated with the Business without the prior written consent of Buyer
(iv) offer or provide its products to customers, distributors or others in any
special incentive pricing packages, including any bundled sales of the Products
with other medical or other products, except as may be necessary to meet
competitive pricing in the markets for the Product being sold as part of the
Business and only then after receiving proof of approval from Buyer; (v) offer
discounted pricing or free products in connection with any effort to sell other
Imagyn products; (vi) cancel, terminate, rescind or allow to lapse any insurance
policy relating to the Business, unless it is simultaneously replaced with a
policy with equal or more coverage for the same or less premium; (vii) ship or
deliver any products to customers or distributors any sooner or in amounts that
are greater than would be the case in the ordinary course. Imagyn agrees that it
will make all commercially reasonable efforts to maintain the Business at its
current levels up to and through Closing, and that there will be no Material
Adverse Change in the Business prior to and up to the Closing.
7.02 Unassignable Contracts.
----------------------
Notwithstanding anything to the contrary stated in this Agreement, if
any Contract cannot be assigned to or assumed by the Buyer without the approval,
consent or waiver of another party thereto, and such approval, consent or waiver
has not been obtained at or
23
prior to the Closing, then (i) such Contract shall not be assigned to
or assumed by the Buyer at the Closing, (ii) Imagyn and the Buyer shall, if such
approval, consent or waiver is obtained following the Closing, promptly
thereafter execute all documents necessary to complete the assignment and
assumption of such Contract (at Buyer's expense), and (iii) unless and until
such approval, consent or waiver is obtained and such assignment and assumption
occurs, Imagyn shall hold the benefits and privileges of such Contract arising
after the Closing Date in trust for the Buyer and the Buyer will indemnify and
hold harmless Imagyn against and with respect to all obligations of Imagyn
payable or performable after the Closing Date under such Contract. Each of
Imagyn and the Buyer agrees to use reasonable efforts to promptly obtain all
approvals, consents and waivers from third parties to the Contracts which are
necessary to permit the Contracts to be assigned to and assumed by the Buyer,
provided that neither Imagyn nor the Buyer shall be obligated to make any
payment or offer or grant any accommodation (financial or otherwise) in exchange
for any such approval, consent or waiver.
7.03 Removal of Imagyn Trade Names.
-----------------------------
Within a reasonable period of time but no later than one (1) year after
the end of the Transfer Period, the Buyer shall remove all trade names and
trademarks of Imagyn not included in the Purchased Assets from all assets
transferred to the Buyer hereunder; provided, however, that it is understood and
agreed the Buyer need not remove the Imagyn xxxx from Inventory transferred as
part of this Agreement.
7.04 Record Retention.
-----------------
The Buyer shall retain all business files and documents included in the
Purchased Assets for a period of five (5) years after the Closing Date, and the
Buyer shall make available to Imagyn any such records for inspection and
copying, upon reasonable notice from Imagyn.
7.05 [Intentionally Blank]
7.06 Further Assurances.
------------------
For a period of five (5) years following the Closing Date, Imagyn shall
promptly execute, acknowledge and deliver any further assignments, conveyances
and other instruments of transfer reasonably requested by Buyer and necessary to
effectuate the
24
transfer of title to the Purchased Assets to Buyer and, at Buyer's
expense, will take any other action consistent with the terms of this Agreement
that may be reasonably be requested by Buyer for the purpose of assigning,
transferring, granting, and confirming ownership in or to buyer, or reducing to
Buyer's possession, any or all of the Purchased Assets.
7.07 Product Liability Claims.
------------------------
Imagyn will assist Buyer with the defense of any and all future product
liability actions, and will make reasonably available any retained employees to
assist in the defense of any such actions, with Buyer being responsible only for
out-of-pocket travel expenses, if any, incurred by such Imagyn employees
therewith.
7.08 Imagyn's Non-Competition Agreement.
----------------------------------
For a period of five (5) years following the Closing Date, neither
Seller, nor any of the Affiliates of the Seller shall sell directly or
indirectly anywhere within the United States or U.S. territory and any foreign
country any products that compete with any of the Imagyn Products being sold in
this Agreement. If at the time of enforcement of this Section, the court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area, but in no event in excess of
the stated duration, scope or area. In an action in law or in equity for breach
or enforcement of this Section brought in any court having competent
jurisdiction over the parties to such an action, the prevailing party shall be
entitled to recover from the other party or parties its reasonable attorneys
fees, costs and expenses associated with prosecuting or defending such an action
to its final disposition (including final dispositions by summary adjudication,
judge or jury verdict or final appeal).
7.09 Delivery of Inventory.
---------------------
Imagyn agrees to deliver to Buyer upon Closing, Inventory of Imagyn
Products in an amount equal to or greater than the amounts referred to in
Section 2.01(b)as provided in the April 30, 2001 Condensed Balance Sheet as
adjusted to reflect assets not being purchased, attached hereto as Schedule
5.01(j) which Imagyn represents and warrants to
25
be a true and accurate statement of finished goods inventory relating
to the Imagyn Products as of that date compiled in accordance with GAAP.
7.10 Misdirected Payments.
--------------------
The parties anticipate that certain third parties, including customers
and vendors, may misdirect payments or goods to Seller rather than to Buyer.
Seller agrees to notify and to forward to Buyer promptly any such misdirected
payments or goods. Likewise, Buyer agrees to forward to Seller any payments
misdirected to Buyer.
7.11 Vendor Assignments or Assistance.
--------------------------------
Seller shall assist Buyer in transferring or assigning, or entering
into supply agreements with vendors or with Imagyn or its affiliates, as Buyer
may reasonably require.
7.12 Agreement Not To Solicit Offers.
-------------------------------
Imagyn agrees that it will not solicit any offers from other companies
for the Business, and further agrees that it shall not enter into or conduct any
discussions with any other prospective purchaser of the Business, and that it
will deal exclusively with Buyer for the purchase of the Business, for so long
as this Agreement remains in effect.
7.13 Transition Assistance.
---------------------
Imagyn will provide CONMED with reasonable assistance, at Buyer's cost,
with the manufacture of the Imagyn Products, and the relocation of manufacturing
to Buyer's facilities, for up to nine (9) months following the Closing,
including making available to CONMED the Key Employees, to the extent still
employed by Imagyn, with Buyer responsible for reasonable travel expense and any
applicable overtime pay (only) for such Imagyn employees. Imagyn shall provide
transition assistance, including such assistance as is set forth on Schedule
7.13, during the Transition Period or as CONMED may reasonably request. In
addition, and without limiting the foregoing, Imagyn shall permit CONMED, or
cause CONMED to be permitted, to use Imagyn's CE xxxx for the Imagyn Products
pending CONMED's receipt of permission to apply the CE xxxx to the Imagyn
Products as manufactured by CONMED, and shall permit CONMED, or cause CONMED to
be permitted, to contract with Imagyn's third party sterilizer on terms at least
as favorable as those provided to Imagyn until CONMED shall have validated its
own sterilization process. Moreover, Imagyn shall provide assistance by
providing access to buildings on
26
weekends if requested by Buyer, and shall be responsible to the extent
required, for moving its own equipment or scheduling production so as to permit
Buyer to remove the Purchased Assets upon Buyer's request, provided that Buyer
shall have provided reasonable notice, it being understood that Imagyn shall not
be required to maintain the Michigan building for more than two weeks following
the termination of the Supply Agreement for warehousing or other purposes for
Buyer.
7.14 Customer Notification Letter.
-----------------------------
Promptly following the Closing, Imagyn and/or CONMED shall send a
letter to customers of the Business informing customers that Buyer has purchased
the Business of Seller. Said letter shall be substantially in the form of the
letters attached hereto at Schedule 7.14.
7.15 Post-Closing Customer Referrals.
-------------------------------
The parties anticipate that after the Closing, customers may
communicate with Seller seeking to purchase products of the Business. For a
period of twenty-four (24) months following the Closing Date, Seller shall use
reasonable efforts to notify those customers that said products are available
from Buyer.
7.16 Due Diligence and Other Cooperation.
-----------------------------------
Imagyn shall cooperate with, and respond fully to, CONMED's reasonable
due diligence requests from the date of the execution of this Agreement through
Closing, and will also cooperate with other requests for reasonable assistance
with the transfer during the period between the execution of this Agreement and
Closing by, among other things, assisting with training for marketing and sales
personnel, with CONMED being responsible for reasonable travel expense, if any,
incurred by personnel of Imagyn who may conduct such training.
Article 8
EMPLOYEES
---------
8.01 Employment Offers.
-----------------
(A) Buyer shall be under no obligation to offer employment to any of
Imagyn's manufacturing or Michigan employees, although Buyer shall have the
option to offer
27
employment to those employees whom Buyer shall identify within twenty
(20) days of the execution of this Agreement, in Schedule 8.01(a). In addition,
Buyer agrees to offer employment or to cause an affiliated entity to offer, as
of the Closing Date, to those persons employed by Imagyn in connection with the
Business purchased and whose names are listed on Schedule 8.01(b) (such persons
listed on Schedule 8.01(b) to be referred to hereinafter as the "Business
Employees"). Imagyn agrees to exercise reasonable efforts to encourage all
Business Employees who are offered employment by Buyer, or Buyer's affiliate, to
accept such offers of employment. Those Business Employees who accept employment
with Buyer or Buyer's affiliate, pursuant to this Agreement shall be referred to
as "Transferred Employees". Business Employees of Imagyn who are on long-term
disability as of the Closing Date will remain employees of Imagyn. Should any
Transferred Employee who is absent from work on the Closing Date due to a
short-term disability remain absent long enough to qualify for benefits under
the long-term disability plan of Buyer or Buyer's affiliate, Imagyn shall
reimburse Buyer for its cost of providing benefit coverages to such Transferred
Employee for as long as such Employee continues to receive long-term disability
benefits under the long-term disability plan of Buyer or Buyer's affiliate
(B) Imagyn shall remain responsible for the employment of all Imagyn
employees who are employed by Imagyn at its Richland, Michigan facility, subject
to Buyer's indemnification obligation in Section 10.03 (c).
8.02 Benefits.
--------
From and after the Closing Date, Buyer, or an affiliate of Buyer, will
provide coverage and benefits to the Transferred Employees under the pension and
welfare benefit plans covering its employees, and Imagyn shall have no
responsibility therefor on and after such date (except for payment of any
amounts incurred or accrued but not yet due, such as workmen's compensation and
other employment-related claims to the extent related to pre-Closing matters, or
commission except to the extent that accrued commissions are paid as part of
Article 2 to Buyer,). Except as provided in Section 8.04, Imagyn shall remain
responsible to the Transferred Employees for all benefits accrued pursuant to
Imagyn compensation and benefit plans prior to the Closing Date and commissions,
expenses and bonuses payable under the provisions of such plans (except to the
extent
28
transferred to Buyer under Article 2), and Buyer assumes no liability
or obligation to provide coverage for any pre-Closing benefits or liabilities.
8.03 Group Health Plans.
------------------
Buyer will cause the group health benefit plans for the Transferred
Employee, to (i) waive any exclusions for pre-existing conditions affecting
Transferred Employees and their eligible family members, and (ii) recognize any
out-of-pocket medical and dental expenses incurred by Transferred Employees and
their eligible family members during 2001, but prior to the Closing Date, for
purposes of determining their deductibles and out-of-pocket maximums under the
plans of Buyer or its affiliate.
8.04 Vacation Benefits.
-----------------
From and after the Closing Date, the Transferred Employees will be
covered by and begin accruing benefits under the vacation plan of Buyer or its
affiliate. Buyer's vacation plan shall recognize all of the Transferred
Employees' years of service with Imagyn for the purpose of determining their
future vacation benefits. On or immediately following the Closing Date, Imagyn
will (i) pay in cash to the Buyer, the amount of their accrued and unused
vacation benefits under Imagyn's vacation plan through the Closing Date, and
(ii) provide Buyer with a list of Transferred Employees and the days of unused
vacation benefits for which Buyer shall receive payment from Imagyn. During the
remainder of 2001, Buyer, or it affiliate, will cause its vacation plan to
permit the Transferred Employees to take paid absences equal in time to the
number of days of unused vacation benefits for which Buyer shall have received
payment from Imagyn.
8.05 Service Credit.
--------------
Buyer shall cause the pension and welfare benefit plans to be provided
for the Transferred Employees to recognize all of the service that the
Transferred Employees completed with Imagyn for purposes of determining their
eligibility to participate in, eligibility for benefits under, and vesting in
accrued benefits. Accrual of benefits under such plans shall commence on the
date of Closing.
8.06 Non-Solicitation.
----------------
Imagyn agrees not to seek to hire, or to hire, any Transferred
Employee, except as may be permitted with Buyer's prior written consent or in
the event Buyer terminates the
29
employment of such Transferred Employee, for a period of two (2) years following
the Closing Date.
Article 9
Closing
-------
9.01 Closing Date.
------------
The closing of the purchase and sale of the Business and the Purchased
Assets and the assumption of the Assumed Liabilities pursuant to this Agreement
(the "Closing") shall take place on July 2,2001, at the offices of Xxxxxxxx &
Xxxxxxxx in New York City, at 10:00 a.m., or, if the conditions to Closing set
forth in Article VI shall not have been satisfied or waived by the appropriate
party by such time of day on such date, at the same time of day on the first
business day to occur following the date on which all of the conditions to
Closing set forth in Article VI shall have been satisfied or waived as provided
therein (subject to the provisions of Section 11.01), or at such other date,
place or time as the Buyer and Imagyn may agree upon in writing. The date on
which the Closing shall be required to occur, as determined in accordance with
this Section 9.01, is herein referred to as the "Closing Date". The Closing
shall be deemed to have become effective as of the start of business on the
Closing Date.
9.02 Closing Deliveries.
------------------
(a) Imagyn agrees to deliver to the Buyer at the Closing such bills of
sale, assignments and other instruments of transfer (excluding transfer of
Intellectual Property or IP Agreements), in form and substance reasonably
satisfactory to the Buyer, as shall be necessary or appropriate to effect the
conveyance to the Buyer of the Purchased Assets, duly executed by Imagyn, as
well as a certificates of good standing and certified corporate resolutions.
(b) The Buyer agrees to pay or deliver, as the case may be, to Imagyn
at the Closing the following:
(i) the Purchase Price and appropriate stock certificate paid in the
manner provided in Section 3.01;
(ii) Certificate of Good Standing; and
(iii) Certified Corporate Resolutions.
30
(c) The certificates, instruments and documents executed and delivered
by the parties at the Closing pursuant to this Agreement are herein collectively
referred to as the "Transaction Documents".
9.03 Post-Closing Deliveries.
-----------------------
Each of the Buyer and Imagyn will, at the request and sole cost and
expense of the other such party, do, make, execute, acknowledge and deliver
after the Closing all such other and further acts and instruments of conveyance,
assignment, transfer, consent and assumption as the Buyer may reasonably require
to confirm conveyance and transfer to the Buyer of any of the Purchased Assets
or as Imagyn may reasonably required to confirm assumption by the Buyer of any
of the Assumed Liabilities. Nothing contained herein shall be construed to
require Imagyn to acquire any intellectual property license from any third
party.
Article 10
Indemnity
---------
10.01 Survival.
--------
The representations and warranties of the Buyer and Imagyn herein or in
any of the Transaction Documents shall survive the Closing, but, as to any
claim, only for so long as the indemnification obligations under this Agreement
with respect to such claim remain in force as provided in Sections 10.02 and
10.03, as the case may be.
10.02 Indemnity by Imagyn.
-------------------
(a) Imagyn hereby agrees to indemnify and hold harmless the Buyer
against and with respect to any and all claims, losses, injuries, damages,
deficiencies, liabilities, obligations, assessments, judgments, costs and
expenses, including (except as otherwise expressly provided in this Agreement)
costs and expenses of litigation and reasonable attorneys' fees ("Losses"),
suffered or incurred by the Buyer to the extent caused proximately by:
(i) any material breach of any representation or warranty of Imagyn
contained in this Agreement;
(ii) any material non-fulfillment of any covenant or agreement of
Imagyn contained in this Agreement;
31
(iii) any failure by Imagyn to pay taxes when due only to the extent
that any such unpaid taxes may serve as the basis for a lien upon any
of the Purchased Assets;
(iv) (a) any product liability claim for death, personal injury, other
injury to persons, property damage, loss or deprivation of rights, or
other product liability claim (whether based on statute, negligence,
breach of warranty, strict liability or any other theory) caused by or
resulting from Imagyn Products sold by Imagyn prior to the Closing and
(b) any recall of Imagyn Products sold by Imagyn prior to the Closing.
(v) Any claim by United States Surgical Corporation, or its successors
or assigns, that the U.S. Surgical Settlement was not assigned to Buyer
or that the Imagyn Products infringe the patents referred to in Section
1.14. Imagyn's indemnification obligation hereunder will also include,
at CONMED's option, the obligation for Imagyn to defend Buyer and to
seek to intervene in any suit involving claims by U.S. Surgical or its
successors or assigns, to assert that the U.S. Surgical Settlement was
assigned to Buyer as to the Imagyn Products, except to the extent that
any such claim arises in a counterclaim in a suit brought by CONMED.
(vi) Any claim by any employee, agent or other person that such
employee, agent or other person is entitled to be employed by CONMED
following the Closing as a result of foreign employment laws or
regulations, including, without limitation, the Transfer of
Undertakings (Protection of Employment) Regulations 1981, as amended.
(b) The obligations of Imagyn under this Agreement to indemnify the
Buyer with respect to any claim pursuant to clause (i) of Section 10.02(a) shall
be of no force unless the Buyer has given Imagyn written notice of such claim
prior to the eighteen (18) months after the Closing Date, except for certain
claims listed in Section 10.02(d).
(c) Notwithstanding anything to the contrary provided elsewhere in this
Agreement, in no event shall Imagyn be liable to the Buyer for amounts payable
under clause (i) of Section 10.02(a) unless and to the extent that until such
amounts exceed in the aggregate $150,000.
32
(d) Notwithstanding any language in this Agreement to the contrary,
Imagyn shall have certain continuing obligations that will continue beyond the
eighteen (18) month period including without limitation with respect to the
representation that the Business is not in any violation of any law or
regulation, as set forth in Section 5.01(j). This continuing duty shall include
the obligation on the part of Imagyn to indemnify Buyer for all of Buyer's costs
included with any recall of the Products that Buyer may be required, or
requested to make, or that Buyer may deem appropriate because of the risk of
non-marketability of the Products under the Food and Drug Act or other
applicable laws.
(e) Imagyn agrees on its own behalf, and on behalf of any successor,
assign, or trustee appointed in respect of Imagyn, to indemnify and hold Buyer
harmless from any claims that this transaction should be rescinded or otherwise
the subject of any claim relating to the validity or finality of this Agreement.
(f) In no event shall Imagyn's liabilities to Buyer under Section 10.02 exceed
the Purchase Price, which shall be calculated for these purposes as if the Stock
were valued as being equal to the closing price of Conmed stock on NASDAQ on the
execution date of this Agreement.
10.03 Indemnity by the Buyer.
----------------------
(a) The Buyer hereby agrees to indemnify and hold harmless Imagyn
against and with respect to any and all Losses suffered or incurred by Imagyn to
the extent caused proximately by:
(i) any material breach of any representation or warranty of the Buyer
contained in this Agreement or in any of the Transaction Documents.
(ii) any material non-fulfillment of any covenant or agreement of the
Buyer contained in this Agreement or in any of the Transaction
Documents.
(iii) any claims which are brought against Imagyn as a result of the
retention by the Buyer after the Closing of any assets transferred to
the Buyer hereunder or Buyer's use of any trade names or trademarks of
Imagyn not included in the Purchased Assets after the Closing as
provided for in Section 2.04.
(iv) fifty percent (50%) of the severance costs incurred by Seller in
connection with the termination of the Imagyn employees within the
33
Business pursuant to the previously disclosed severance policy of
Imagyn, which is listed on Schedule 10.03.
(b) Notwithstanding anything to the contrary provided elsewhere in this
Agreement the obligation of Buyer under this Agreement to indemnify Seller with
respect to any claim pursuant to Section 10.03(a) shall be of no force unless
Seller has given Buyer written notice of such claim within eighteen (18) months
after the Closing Date.
(c) Notwithstanding anything to the contrary provided elsewhere in this
Agreement, in no event shall Buyer be liable for amounts payable under the first
clause of Section 10.03(a) until such amounts exceed $150,000.
10.04 Third Party Claims.
------------------
In order for a party (the "indemnified party") to be entitled to any
indemnification provided for under this Agreement in respect of, arising out of
or involving a claim or demand made by any third party against the indemnified
party (a "Third Party Claim"), such indemnified party shall notify the other
party (the "indemnifying party") in writing of the Third Party Claim, and
deliver to the indemnifying party copies of all notices and documents
accompanying or constituting the Third Party Claim, within ten business days
after obtaining notice thereof; provided, however, that failure to give such
notification shall not affect the indemnification provided hereunder, except to
the extent the indemnifying party shall have been actually prejudiced as a
result of such failure and except that the indemnifying party shall have been
actually prejudiced as a result of such failure and except that the indemnifying
party shall not be liable for any expenses incurred during the period in which
the indemnified party failed to give such notice. Thereafter, the indemnified
party shall deliver to the indemnifying party, within five business days after
the indemnified party's receipt thereof, copies of all notices and documents
(including court papers) received by the indemnified party relating to the Third
Party Claim; provided, however that failure to deliver such copies shall not
affect the indemnification provided hereunder except to the extent the
indemnifying party shall have been actually prejudiced as a result of such
failure. If a Third Party Claim is made against an indemnified party, the
indemnifying party will be entitled to participate in the defense thereof and,
if it so chooses, to assume the defense thereof with counsel selected by the
indemnifying party and reasonably satisfactory to the indemnified party. Should
the indemnifying party so elect to assume the defense of a Third Party Claim,
which election must be made within 30 days after the
34
indemnifying party receives notice of the Third Party Claim from the
indemnified party, the indemnifying party will not be liable to the indemnified
party for legal expenses incurred by the indemnified party in connection with
the defense thereof. If the indemnifying party assumes such defense, the
indemnified party shall have the right, but not the obligation, to participate
in the defense thereof and to employ counsel, at its own expense, separate from
the counsel employed by the indemnifying party, it being understood that the
indemnifying party shall control such defense. If the indemnifying party has not
assumed the defense of a Third Party Claim, the indemnifying party shall be
liable for the fees and expenses of counsel employed by the indemnified party.
If the indemnifying party chooses to defend or prosecute any Third Party Claim,
the indemnified party shall cooperate in the defense or prosecution thereof with
reimbursement by the indemnifying party only of reasonable out-of-pocket
expenses of the indemnified party incurred in connection therewith. Such
cooperation shall include the retention and (upon the indemnifying party's
request) the provision to the indemnifying party of records and information
which are reasonably relevant to such Third Party Claim, and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder. Whether or not the indemnifying
party shall have assumed the defense of a Third Party Claim, the indemnified
party shall not admit any liability with respect to, or settle, compromise or
discharge, such Third Party Claim without the indemnifying party's prior written
consent, which consent shall not be unreasonably withheld.
Article 11
Miscellaneous
-------------
11.01 Termination.
-----------
This Agreement may be terminated and the transactions contemplated
hereby abandoned prior to the Closing:
(a) by the Buyer giving written notice to Imagyn, if Imagyn shall be in
breach in any material respect of any representation, warranty or covenant
contained in this Agreement (provided that no such termination shall occur
unless the Buyer shall have given notice to Imagyn of such breach, specifying in
reasonable detail the nature of such breach, and such breach shall not have been
cured in all material respects within 30 days after such notice is given), or if
the conditions set forth in Section 6.01 shall become
35
impossible to fulfill other than for reasons totally within the control
the Buyer and shall not have been waived in writing by the Buyer;
(b) by Imagyn giving written notice to the Buyer, if the Buyer shall be
in breach in any material respect of any representation, warranty or covenant
contained in this Agreement (provided that no such termination shall occur
unless Imagyn shall have given notice to the Buyer of such breach, specifying in
reasonable detail the nature of such breach, and such breach shall not have been
cured in all material respects within 30 days after such notice is given);
(c) by mutual agreement of Imagyn and the Buyer;
(d) by Imagyn or the Buyer giving written notice to the other such
party, if the purchase and sale of the Purchased Assets and the assumption of
the Assumed Liabilities contemplated hereby shall not have been consummated by
July 30, 2001, unless such failure shall be due to the failure of the party
seeking to terminate this Agreement to perform or observe any covenants
contained in this Agreement required to be performed or observed by such party
at or before the Closing; and
(e) by the Buyer, if there is any Material Adverse Effect on the
Business. 11.02 Effects of Termination.
If this Agreement is terminated pursuant to any of the provisions
hereof, each of the parties hereto shall thereupon be released from all
liabilities hereunder, except (i) liabilities for any default under this
Agreement which shall have occurred prior to the effective date of such
termination, (ii) all confidentiality obligations pursuant to the Agreement
dated March 15, 2001, and (iii) obligations set forth in Sections 11.03 and
11.13.
11.03 [ Intentionally Blank ]
11.04 Dispute Resolution.
------------------
(a) Any disagreement or dispute between the parties arising out of or
related to this Agreement or the breach or making hereof (a "Dispute") shall be
resolved in the manner provided in this Section 11.04. Should there develop any
Dispute, either party may, by written notice to the other party, request that
such Dispute be referred to the General Counsel of Imagyn and the General
Counsel of the Buyer (the "Principals"), who shall negotiate in good faith to
attempt to resolve the Dispute. No settlement reached
36
under this Section 11.02(a) shall be binding on the parties until reduced to a
writing signed on behalf of the parties by the Principals.
(b) Should the procedure outlined in Section 11.04(a) fail to bring
about a resolution of each outstanding Dispute within 30 days following the
giving of the notice referred to therein, then the parties shall promptly
initiate a voluntary, non-binding mediation conducted by a mutually-agreed
mediator. Should the parties for any reason be unable to agree upon a mediator,
they shall request the American Arbitration Association ("AAA") to appoint a
capable mediator for them. The Buyer and Imagyn shall each bear one-half of the
costs and expenses of the mediation and shall endeavor in good faith to resolve
therein each outstanding Dispute. No settlement reached under this Section
11.04(b) shall be binding on the parties until reduced to a writing signed on
behalf of the parties by the Principals.
(c) Notwithstanding anything to the contrary provided in this Section
11.04, and without prejudice to the above procedures, either party may at any
time, in connection with any Dispute, apply to a for temporary injunctive or
other provisional judicial relief if in such party's sole judgment such action
is necessary to avoid irreparable damage or to preserve the status quo until
such time as the Dispute is otherwise resolved in accordance with this Section
11.04.
11.05 Expenses.
--------
Except as otherwise expressly provided herein, each party hereto shall
pay its own legal, accounting and other expenses incident to the preparation of,
and consummation of the transactions contemplated by, this Agreement
11.06 Titles.
------
The titles of the Articles and Sections of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.
11.07 Entire Agreement.
----------------
This Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof, superseding all negotiations, prior
discussions and preliminary agreements.
37
11.08 Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which shall be considered an original and all of which shall constitute one and
the same instrument.
11.09 Waivers, Consents and Amendments.
--------------------------------
Any failure of either of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the other party only by
a written instrument signed by such other party, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent
by or on behalf of either party hereto, such consent shall be given in writing
in a manner consistent with the requirements for a waiver of compliance as set
forth herein. This Agreement may be amended only by an agreement, in writing,
signed by the parties hereto.
11.10 Governing Law.
-------------
This Agreement shall be governed in all respects by, and construed
under, the internal laws of the State of New York, without regard to any
conflicts of laws principles
11.11 Waiver of Jury Trial.
---------------------
Each of Imagyn and the Buyer acknowledges that the time and expense
required for trial by jury exceed the time and expense required for a bench
trial and hereby waive, to the extent permitted by law, trial by jury.
11.12 Resolution of Inventory Counting and Valuation Disputes.
-------------------------------------------------------
Any disputes regarding the counting of the Inventory will be resolved
in good faith by the Buyer and Seller during such count or immediately following
the completion of such count or following such adjustments as the case may be.
Any dispute relating to the Inventory Balance or Purchase Price Adjustment not
resolved by Buyer and Seller and their respective accountants within sixty (60)
days after the Closing shall, upon written request by either Buyer or Seller, be
referred to a nationally recognized accounting firm which shall be selected by
and from a list of such firms which neither Buyer or Seller have had any
business dealings during the three (3) year period preceding selection, or such
other independent public accounting firms selected jointly by Buyer and Seller,
for final
38
resolution. Each party shall, within twenty (20) business days after submission
of such dispute, deliver to such firm the information such party wishes to have
considered by such firm in making its determination. Such firm shall present its
determination and resolution of any such disputes within thirty (30) business
days after the submission of such dispute to the firm. Buyer and Seller agree
that the resolution reached by such firm shall be binding and conclusive between
the parties. The fees of the accounting firm selected to resolve any such
dispute shall be borne one-half by Seller and one-half by Buyer.
11.13 Special Damages.
---------------
Buyer and Imagyn have each agreed to waive any right to receive
punitive, consequential, special or indirect damages relating in any way to this
Agreement or the purchase/sale of the Business and/or the Purchased Assets,
irrespective of the legal theory asserted.
11.14 Severability of this Agreement.
------------------------------
In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
11.15 Assignment.
----------
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto, provided that this Agreement may
not be assigned by either party without the prior written consent of the other
party. Except as expressly provided herein, this Agreement is for the sole
benefit of the parties hereto and nothing herein shall give or be construed to
give to any person other than the parties any legal or equitable rights under
this Agreement.
11.16 Notices.
-------
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given upon delivery in
person, or one day after the same shall have been sent by overnight messenger
service, or three days after the same shall have been mailed by registered or
certified mail, postage prepaid, return receipt requested, to the respective
parties at the following addresses:
39
If to the Buyer: CONMED Corporation
000 Xxxxx Xx.
Xxxxx, Xxx Xxxx 00000
Attention: President
with copies to: CONMED Corporation
000 Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
Attention: General Counsel
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to Imagyn: Imagyn Medical Technologies, Inc.
0 Xxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: President
and copy to: Imagyn Medical Technologies, Inc.
0 Xxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: General Counsel
Xxxxxxxx & Xxxxxxxx
00000 XxxXxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
11.17 Public Announcements.
--------------------
No press releases or public announcements regarding the terms of this
Agreement shall be made by either party without the prior written approval of
the other party (which approval shall not be unreasonably withheld), except as
may be necessary, in the opinion of counsel for such party, to meet the
requirements of any law or governmental regulation or any applicable exchange
regulation (in which event the other party will be notified before, if practical
under the circumstances, and after any action is taken thereon), or as may be
necessary or appropriate in connection with a party's communications with its
independent auditors and lenders.
40
11.18 Tax Treatment.
-------------
It is expressly understood and agreed that none of Imagyn, the Buyer or
any of their respective officers or agents have made any warranty or agreement,
express or implied, as to the tax consequences of the transactions contemplated
hereby.
11.19 Specific Performance.
--------------------
Each of the parties hereto acknowledges and agrees that the other party
would be damaged irreparably in the event any of the covenants contained in this
Agreement are not performed in accordance with their specific terms or otherwise
are breached. Accordingly, each of the parties hereto agrees that the other
party shall be entitled to an injunction or injunctions to prevent breaches of
the covenants contained in this Agreement and to enforce specifically this
Agreement and the covenants contained herein in any action properly instituted,
in addition to any other remedy to which such other party may be entitled under
this Agreement or at law or in equity.
11.20 Disclosures.
-----------
(a) Matters disclosed by Imagyn to the Buyer in this Agreement or the
Schedules hereto are not necessarily limited to matters required to be disclosed
by this Agreement. Any such additional matters are set forth for informational
purposes and do not necessarily include other matters of a similar nature.
Matters disclosed by Imagyn to the Buyer in any provision of this Agreement or
any Exhibit hereto shall be deemed to be disclosed with respect to each
provision of this Agreement to the extent such provision requires such
disclosure.
(b) From time to time prior to the Closing, Imagyn will promptly
supplement or amend the Schedules hereto with respect to any matter hereafter
arising which would make any representation or warranty inaccurate if updated as
of the Closing, or as is otherwise necessary to correct any information in such
Exhibits or Schedules or in any representation or warranty of Imagyn. For
purposes of determining the satisfaction of the condition set forth in Section
6.01(a) at or prior to the Closing and the accuracy of the representations and
warranties contained in Section 5.01 if the Closing does not occur, the Exhibits
hereto shall be deemed not to include any information contained in any
subsequent supplement or amendment thereto. In addition, for purposes of
determining whether the
41
condition of 6.01(h) has been triggered, the Exhibits hereto shall be deemed not
to include information contained in any subsequent supplement or amendment
thereto.
11.21 Interpretation.
---------------
In this Agreement:
(a) words denoting the singular include the plural and vice versa and
words denoting any gender include all genders;
(b) the word "including" shall mean "including without limitation";
(c) the word "Affiliate" shall have the meaning set forth in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended;
(d) the word "person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof;
(e) the word "business day" shall mean any day other than a Saturday,
Sunday or a day which is a statutory holiday under the laws of the United States
or the State of New York;
(f) when calculating the period of time within which or following which
any act is to be done or step taken, the date which is the reference day in
calculating such period shall be excluded and, if the last day of such period is
not a business day, the period shall end on the next day which is a business
day; and
(g) all dollar amounts are expressed in United States funds.
42
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed of the day and year first above written.
ATTEST: IMAGYN MEDICAL, INC.
__________________ By: ___________________________________
Its: ___________________________________
ATTEST: IMAGYN MEDICAL TECHNOLOGIES, INC.
___________________ By:
--------------------------------------
Its:
---------------------------------------
ATTEST: IMAGYN MEDICAL TECHNOLOGIES CALIFORNIA, INC.
___________________ By:
----------------------------------------
Its:
---------------------------------------
ATTEST: MICROSURGE, INC.
____________________ By: ___________________________________
Its: ___________________________________
ATTEST: DACOMED CORPORATION
_____________________ By ___________________________________
Its: ___________________________________
43
ATTEST: CONMED CORPORATION
___________________ By:
-------------------------------------------------
Its:
---------------------------------------
44
Schedules and Exhibits
--------------------------------------------------------------------------------
1.03 Imagyn Products
1.05 Intellectual Property Patents Trademarks
1.06 Intellectual Property Agreements
2.01(a)(i) Included Assets
2.01(a)(ii) Excluded Assets
2.01(g) Non-Assignable Contracts
2.01(h) Non-Transferred Trademarks
3.02 Purchase Price Allocation
Registration Rights Agreement
4.01(a) Assumed Liabilities
5.01(c) Clouded Title
5.01(d) Contracts Involving More Than $10,000 A Year
5.01(j) Financials
5.01(r) Contracts and Commitments
5.01(s) Litigation
5.01(t) 25 Largest Customers and Suppliers; Scheduled
Shipments
6.01(c) Registration Rights Agreement
6.01(d) Supply Agreement
6.01(e)(l) Xxxx of Sale
7.13 Transition Assistance
45
7.14 Customer Notification Letters
8.01(a) Post-Closing Selected Employees
8.01(b) Business Employees
10.03 Imagyn Severance Costs
46
Schedule 1.03
Imagyn Products: Laparoscopic Devices
Product Order No.
------- ---------
DetachaPort Cannula 1-7001
1-7002
1-7003
1-7005
1-7006
Threaded Cannula 1-7007
1-7008
1-7009
1-7011
1-7012
DetachaPort Seal 1-7013
1-7044
DetachaPort UCSII (Universal Converter) 1-7045
DetachaPort Obturator & Seal Sets 1-7016
1-7017
1-7018
1-7019
1-7020
1-7021
1-7024
1-7025
1-7026
1-7028
DetachaPort Open Entry Obturator 1-7055
1-7056
DetachaPort Open Entry Trocar Wedge 1-7057
1-7052
PortSaver Ghost Stick 1-7042
PermaClip Endoscopic Clip Applier 1-1082
PermaClip Cartridge 1-1081
47
DetachaTip Scissors 1-1003
1-1004
1-1013
8-1001
1-4301
DetachaTip Scissors(w/Tip Tracker) 1-1021
1-1022
1-4306
DetachaTip Grasper 1-1008
1-1019
1-1028
1-4307
1-1014
DetachaTip Dissector 1-1009
1-1018
1-4308
DetachaTip Handle 1-1010
1-1015
1-1024
DetachaTip/DetachaPort (Instrument Tray) 1-1027
Excel Insufflation Needle RPN120
RPN150
XXX000
XXX000
Xxxxxx Xxxxxxxxx XX0000
MC0005
KM0005
MK0010
MC0010
48
Accessories/Replacement Parts RS05
RS10
M0005A
MK0005B
MC0005B
KM0005B
M0010A
MK0010B
MC0010B
Director Thoracoscopic Clamp 8-1011
8-1012
8-1013
8-1014
Knot Pusher 1-7041
Articulator 35(Endoscopic Stapler) 4325
4335
TU4325
TU4335
Articulator 35 Cartridge 4025
4035
Open Clip Applier 3522
Expose Inflatable Retractor IT0010
IU0010
Puncture Closure Device PCD10
Excel Insufflation Needle 392
395
Exhale Lung Plication Clamp 8-1009
Extract Specimen Bag SB31110
SB51112
SB71112
Examine Cholangiography Catheter ECC01
PCC01
49
Bipolar Cable 5-1004
5-1005
Bipoligator (Bipolar Irrigating Grasper) 5-1002
XxxxxXxx Xxxx Xxxxxxxxxxx XX-XXXX
XX-0000
XX-0000
VS-2350
VS-2240
MicroLap Access 3 Introducer MK-3500
MicroLap Access 3 Instruments MI-3120
MI-3140
MI-3300
IA-3000
MI-3000
MicroLap Access 2 Introducer LI-1500
MK-1500
VN-1500
VN-1510
MicroLap Access 2 Instruments MI-2100
MI-2120
MI-1800
MI-2200
MI-2300
MI-2400
MI-2000
IA-1000
MicroLap Bipolar Instruments BP-1000
BP-3000
BP-1500
BP-3500
MicroLap Monopolar Instruments MP-1010
MP-1020
MP-1030
MB-1000
MB-1001
50
Reposable Kits: 1-7040
Cholecystectomy 1-7101
XXXX/Xxx Xxxxx 0-0000
XXXX/Xxx Appy 1-7103
Xxxxxx 1-7104
LAVH 37041
LAVH 37040
Laparoscopic Appendectomy 8535
8035
Reflex One Skin Stapler
8735
8635
Refllex TL Skin Stapler(w/tissue lift)
3031
Reflex Extractor
All Imagyn Products included in Schedule 1 to Supply Agreement
All Imagyn Products included in the Inventory as valued on the Balance Sheet and
included in the Sales in Financials in Schedule 5.01(j)
51
Schedule 2.01(a)(ii)
Excluded Assets
52
