ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT (the "Agreement")
is
made and entered into and effective as of this 30th
day of
June, 2008, by and among Bioanalytical Systems, Inc., an Indiana corporation
("Parent"),
BASi
Maryland, Inc., a Maryland corporation ("Seller"),
and
Algorithme Pharma USA Inc., a Delaware corporation ("Buyer")
and
Algorithme Pharma Holdings, Inc., a Quebec company ("Holdings").
PRELIMINARY
STATEMENT
Seller
desires to sell to Buyer, and Buyer desires to purchase from Seller,
substantially all of the non-cash property and assets owned by Seller that
are
used in connection with the operations of the Baltimore Clinical Pharmacology
Research Unit (the "CPRU")
by
Seller, on the terms and conditions hereinafter set forth.
Seller
is
a wholly-owned subsidiary of Parent and Buyer is a wholly-owned subsidiary
of
Holdings.
NOW,
THEREFORE, in consideration of the mutual representations, warranties, covenants
and conditions hereinafter set forth, the parties hereto agree as
follows:
Article
I
Purchase
and Sale
Section
1.1. Purchased
Assets.
Subject
to the terms and conditions of this Agreement on the Closing Date and at the
Effective Time (as hereinafter defined), Seller shall sell, transfer, assign,
convey and deliver to Buyer, and Buyer shall purchase and acquire from Seller,
free and clear of all liens, encumbrances, claims, restrictions, security
interests, obligations and liabilities ("Liens"),
all
of the property and assets of every kind and description that are owned by
Seller and used or held for use in connection with the operations of the CPRU
at
the Effective Time except the Excluded Assets (as hereinafter defined)
(collectively, the "Purchased
Assets"),
including:
1.1.1. all
machinery, equipment (including clinical equipment), supplies of all kinds,
computers (including screens, printers and other hardware), furniture,
furnishings and accessories, shelving, storage, leaseholds and any other fixed
assets currently owned by Seller for use in connection with the operations
of
the CPRU,
including all such assets listed on Schedule
1.1.1,
and
all
documentation associated with the use, maintenance, calibration, repair and
validation of such assets;
1.1.2. all
inventories (including consumables, raw materials and new and unused supplies)
on hand at the CPRU;
1.1.3. all
of
Seller's or Parent's right, title and interest in and to the all operating
leases with respect to any of the Purchased Assets, including the operating
leases described in Schedule
1.1.3
(the
"Operating
Leases");
1.1.4. the
leasehold interest of Parent in and to the real property located at 000 X.
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (the
"Leased
Property")
and all
right, title and interest of Parent in and benefits of Parent to and under
the
real property lease between 000 X. Xxxxxxxxx Xxxxxx, LLC and Parent dated May
4,
2007 in respect of the Leased Property (the "Real
Property Lease");
1.1.5. all
prepaid expenses exclusively related to the business of the CPRU, including
all
such prepaid expenses listed on Schedule
1.1.5;
1.1.6. all
customer and supplier lists, customer and supplier contact information
(including telephone numbers) and purchase and sale records regarding purchases
by Seller during the twelve (12) months prior to the Closing;
1.1.7. all
databases, data collections, information and records with respect to volunteers
of Seller (including their medical history and participation in studies, to
the
extent permitted by law);
1.1.8. all
personnel files and records held by Seller with respect to all Hired Employees
(as such term is hereinafter defined), including all records relating to (i)
training received by such employees, (ii) insurance benefits provided by Seller
(including group health, dental, life, long-term disability and short-term
disability insurance benefits), and (iii) Seller’s defined contribution
retirement plan under Section 401(k) of the Internal Revenue Code;
1.1.9. all
computer software and programs listed in Schedule
1.1.9,
together with all software licenses, maintenance contracts and other agreements
relating thereto (the "Software
Contracts"
and
together with the Real Property Lease and the Operating Leases, the
"Purchased
Contracts")
all
program codes and proprietary rights in such software and programs and all
documentation and other materials related to such software and programs
(including all validation documentation);
1.1.10. all
documentation associated with the installation, site servicing, clinical
configuration and implementation of telemetry systems forming part of the
Purchased Assets;
1.1.11. all
books
and records (or appropriate extracts therefrom) of Seller relating to the
Purchased Assets and the operations of the CPRU (other than those required
by
law to be retained by Seller, copies of which will be made available to Buyer)
(together with, in the case of any such information that is stored
electronically, the media on which the same is stored), including standard
operating procedures (SOP's) required to operate the CPRU, employee manuals
and
other standard employee documentation;
1.1.12. all
orders, permits, approvals, consents, waivers, licenses or similar
authorizations ("Licenses")
of any
Governmental or Regulatory Authority having any regulatory authority over the
Seller or Parent or the CPRU, owned, held for use or used by Seller in
connection with the operation of CPRU, including those listed in Schedule
1.1.12;
and
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1.1.13. all
assets described on Schedule
1.1.13
hereto.
Section
1.2. Excluded
Assets.
Seller
is retaining and is not selling, transferring, conveying, assigning or
delivering to Buyer the following assets (hereinafter collectively called the
"Excluded
Assets"):
1.2.1. any
cash
and cash equivalents of Seller on hand or in bank accounts at the Effective
Time;
1.2.2. all
accounts receivable of Seller for work invoiced and performed by Seller whether
prior to or after the Effective Time;
1.2.3. all
in-process inventory;
1.2.4. all
minute books of Seller, all books and records of Seller relating to the
Purchased Assets and the operations of the CPRU which are required by law or
contract to be retained by the Seller and all data and records relating to
any
studies which have been completed, are in the process of being performed or
are
to be performed by Seller or Parent;
1.2.5. all
automobiles, trucks, trailers, material handling equipment and other rolling
stock owned or used in connection with the operations of the CPRU;
and
1.2.6. all
of
Seller's and Parent's right, title and interest in and to all agreements signed
prior to the Closing Date pertaining to the performance of studies (whether
such
studies have been completed, are in the process of being performed or are to
be
performed by Seller or Parent);
1.2.7. all
assets described on Schedule
1.2
hereto.
Article
II
Purchase
Price
Section
2.1. Purchase
Price and Payment Method.
The
total purchase price for the Purchased Assets (the "Purchase
Price")
shall
be $850,000.00, and shall be satisfied by Buyer at the Closing
by
paying to Seller
$850,000
by wire
transfer of immediately available funds to an account designated in writing
by
Seller
no later
than 48 hours prior to the Closing Date.
Article
III
Assumption
of Liabilities
Section
3.1. Assumed
Liabilities.
Subject
to the Closing and with effect as of the Effective Time, Buyer hereby assumes
and agrees to pay, perform or discharge, to the extent not theretofore paid,
performed or discharged the following liabilities and obligations of Seller
with
respect to the CPRU and the Purchased Assets (collectively, the "Assumed
Liabilities"):
all
liabilities and obligations under the Purchased Contracts arising in respect
of
the period after the Effective Time and not related to any matter, circumstance
or default existing at, prior to, or as a consequence of the
Closing.
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Section
3.2. Excluded
Liabilities.
Except
as specifically provided for in Section
3.1
above,
Buyer shall not assume and shall not have any obligation to pay, perform or
discharge any of the liabilities or obligations of Seller or Parent, whether
or
not relating to the CPRU, including, Seller's or Parent's liabilities or
obligations which are known or unknown, direct or indirect, fixed or contingent,
existing on or prior to the Closing Date or arising thereafter (collectively,
the "Excluded
Liabilities").
For
greater certainty, the Excluded Liabilities shall include (i) all liabilities
and obligations of Seller or Parent relating to the performance of studies
by
Seller or Parent which have been completed, are in the process of being
performed or are to be performed as of the Closing Date, (ii) all liabilities
and obligations of Seller or Parent relating to Seller Employees (as such term
is hereinafter defined), except as specifically provided in Section
5.4,
and
(iii) all liabilities and obligations relating to the failure to comply with
Bulk Transfer Laws (as such term is hereinafter defined).
Article
IV
Closing
and Effective Time
Section
4.1. Closing;
Effective Time.
The
taking of various actions in connection with this Agreement as provided herein
with respect to the transaction of purchase and sale contemplated hereby (the
"Closing")
shall
take place on June 30, 2008 at 9:00 a.m. at the offices of Ice Xxxxxx LLP,
Indianapolis, Indiana (the "Closing
Date")
or at
such other place, on such other date and at such other time as may be agreed
upon in writing between the parties. The transaction of purchase and sale
contemplated hereby shall be effective as of the Closing (the "Effective
Time").
Time
is of the essence in this Agreement, and this Agreement shall terminate if
the
Closing has not occurred by July 11, 2008.
Section
4.2. Buyer's
Conditions to Close.
Buyer's
obligation to purchase the Purchased Assets, assume the Assumed Liabilities
and
otherwise consummate the transactions contemplated by this Agreement shall
be
subject to the satisfaction at or prior to the Closing of each of the following
conditions, which conditions are for the exclusive benefit of Buyer and may
be
waived, in whole or in part, by Buyer in its sole discretion:
4.2.1. Title
to Purchased Assets.
Seller
shall take such actions and execute and deliver to Buyer such bills of sale,
certificates of title, endorsements, assignments, or other instruments, with
all
documentary or transfer taxes applicable thereto duly paid by Buyer or otherwise
provided for, as shall be necessary to vest in Buyer on the Closing Date good
title to the Purchased Assets, subject to no Liens.
4.2.2. Representations
and Warranties.
Each of
the representations and warranties made by Seller in this Agreement shall be
true and correct on and as of (i) the date hereof, and (ii) the Closing Date
with the same force and effect as if made on and as of the Closing Date, except
for such representations and warranties as are made as of an earlier date,
which
shall be true and correct as of such earlier date.
4.2.3. Performance.
Each of
Parent and Seller shall have performed and complied with the agreements,
covenants and obligations required by this Agreement to be so performed or
complied with by Parent and/or Seller at or before the Closing.
4
4.2.4. Closing
Deliveries.
At or
before the Closing, Parent and/or Seller shall deliver to Buyer:
(i) possession
of the Purchased Assets;
(ii) a
certificate, dated the Closing Date, duly executed by an authorized officer
of
Seller stating that all representations and warranties made by Seller in this
Agreement are true and correct as at such date;
(iii) a
certificate, dated the Closing Date, duly executed by an authorized officer
of
Seller and Parent stating that Seller and Parent have performed, complied with
or fulfilled all covenants, agreements, obligations and conditions required
by
this Agreement and acknowledging receipt of all deliveries contemplated by
Section
4.3.4.;
(iv) copies
of
all the resolutions adopted by the Boards of Directors of Seller and Parent
and
the shareholder of Seller authorizing and approving the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby,
certified to be true, complete, correct and in full force and effect by the
Secretary of Seller and the Assistant Secretary of Parent;
(v) a
xxxx of
sale executed by Seller with respect to the Purchased Assets;
(vi) a
counterpart to the assignment and assumption agreement executed by Seller with
respect to the Assumed Liabilities;
(vii) Articles
of Transfer substantially in the form attached hereto as Exhibit
A;
(viii) counterparts
to the assignment of the Real Property Lease, executed by the landlord and
Parent (the "Leasehold
Assignment")
and a
non-disturbance agreement in favour of Buyer, with respect to its possession
of
the Leased Property following the Closing, executed by secured creditors of
the
landlord under the Real Property Lease;
(ix) counterparts
to the non-competition and non-solicitation agreements (the "Non-Competition
Agreements")
executed by Seller, Parent, each in the form agreed to between the
parties;
(x) a
Certificate of Good Standing of
Seller
issued by the Secretary of State of the State of Maryland and a Certificate
of
Existence of Parent issued by the Secretary of State of the State of Indiana,
dated within ten (10) calendar days of the Closing Date;
(xi) true
and
complete copies of the articles of incorporation of Seller and of Parent,
including all amendments thereto, certified as true, complete and correct by
the
Secretary of State of Maryland and Indiana, respectively, and a copy of the
Bylaws of Seller and of Parent, including all amendments thereto, certified
as
true, complete and correct and in full force and effect by the Secretary of
Seller and the Assistant Secretary of Parent, respectively; and
5
(xii) such
other documents as Buyer may reasonably request for the purpose of otherwise
facilitating the consummation or performance of any of the transactions
contemplated by this Agreement.
4.2.5. Reserved.
4.2.6. Reserved.
4.2.7. Orders
and Laws.
There
shall not be in effect on the Closing Date any writ, judgment, decree,
injunction or similar order (in each such case whether preliminary or final)
(each, an "Order")
of any
court, tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of Canada or the United States, or any state, province, county,
city, town or other political subdivision thereof (each, a "Governmental
or Regulatory Authority")
or any
laws restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this
Agreement.
4.2.8. No
Legal Action.
There
shall be no actions, claims, investigations, arbitrations or other proceedings
(whether or not on behalf of Seller or Parent) on the Closing Date pending
or
threatened to restrain, enjoin or otherwise prohibit or invalidate the
consummation of any of the transactions contemplated by this
Agreement.
4.2.9. Consents
and Approvals.
Any
consents, approvals, waivers and actions of, filings with and notices to any
Governmental or Regulatory Authority or third party (including pursuant to
the
Purchased Contracts) necessary to permit Seller or Buyer to perform their
obligations under this Agreement and to consummate the transactions contemplated
hereby on the Closing Date, shall have been duly obtained, made or given on
terms acceptable to Buyer, acting reasonably, and
shall
be in full force and effect and all terminations or expirations of waiting
periods imposed by any Governmental or Regulatory Authority or third party,
as
the case may be, necessary for the consummation of the transactions contemplated
by this Agreement shall have occurred.
Section
4.3. Seller's
and Parent's Conditions to Close.
Seller's and Parent's obligation to sell the Purchased Assets, assign the
Assumed Liabilities and otherwise consummate the transactions contemplated
by
this Agreement shall be subject to the satisfaction at or prior to the Closing
of each of the following conditions, which conditions are for the exclusive
benefit of Seller and Parent and may be waived, in whole or in part, by Seller
and Parent in their sole discretion:
4.3.1. Payment
of Purchase Price.
Buyer
shall pay to Seller the Purchase Price at the Closing as provided in
Section
2.1.
4.3.2. Representations
and Warranties.
Each of
the representations and warranties made by Buyer in this Agreement shall be
true
and correct on and as of (i) the date hereof and (ii) the Closing Date with
the
same force and effect as if made on and as of the Closing Date, except for
such
representations and warranties as are made as of an earlier date, which shall
be
true and correct as of such earlier date.
6
4.3.3. Performance.
Buyer
shall have performed and complied with the agreements, covenants and obligations
required by this Agreement to be so performed or complied with by Buyer at
or
before the Closing.
4.3.4. Closing
Deliveries.
At or
before the Closing, Buyer shall deliver to Parent and Seller:
(i) a
certificate, dated the Closing Date, duly executed by an authorized officer
of
Buyer stating that Buyer has performed, complied with or fulfilled all
covenants, agreements, obligations and conditions (considered collectively
and
individually) required by this Agreement and acknowledging receipt of all
deliveries contemplated by Section 4.2.4.;
(ii) copies
of
all the resolutions adopted by the Board of Directors of Buyer authorizing
and
approving the execution and delivery of this Agreement and the consummation
of
the transactions contemplated hereby and thereby, certified to be true,
complete, correct and in full force and effect by the Secretary of
Buyer;
(iii) copies
of
all the resolutions adopted by the Board of Directors of Holdings authorizing
and approving the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby and thereby, certified to be true,
complete, correct and in full force and effect by the Secretary of
Holdings;
(iv) a
counterpart to the assignment and assumption agreement executed by Buyer with
respect to the Assumed Liabilities;
(v) a
counterpart to the Leasehold Assignment executed by Buyer;
(vi) a
Certificate of Attestation
of
Holdings issued by the Enterprise Registrar of
the
Province of Quebec, dated
within ten (10) calendar days of the Closing Date;
(vii) a
Certificate of Good
Standing
of Buyer
issued by the Secretary
of State of the State of Delaware,
dated
within ten (10) calendar days of the Closing Date;
(viii) true
and
complete copies of the certificate and articles of incorporation of Buyer,
including all amendments thereto and a copy of the bylaws of Buyer, including
all amendments thereto, each certified as true, complete and correct and in
full
force and effect, as applicable, by the Secretary of Buyer; and
(ix) true
and
complete copies of the certificate and articles of incorporation of Holdings,
including all amendments thereto and a copy of the bylaws of Holdings, including
all amendments thereto, each certified as true, complete and correct and in
full
force and effect, as applicable, by the Secretary of Holdings.
4.3.5. Orders
and Laws.
There
shall not be in effect on the Closing Date any Order or law of any Governmental
or Regulatory Authority restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by
this
Agreement.
7
4.3.6. Regulatory
Consents and Approvals.
Any
consents, approvals and actions of, filings with and notices to any Governmental
or Regulatory Authority necessary to permit Seller or Buyer to perform their
obligations under this Agreement and to consummate the transactions contemplated
hereby, shall have been duly obtained, made or given and shall be in full force
and effect and all terminations or expirations of waiting periods imposed by
any
Governmental or Regulatory Authority necessary for the consummation of the
transactions contemplated by this Agreement shall have occurred.
Article
V
Other
Actions, Agreements and Covenants of the Parties
Buyer,
Seller and Parent covenant and agree as follows:
Section
5.1. Reserved.
Section
5.2. Delivery
of Property Received After Effective Time.
From
and after the Effective Time (i) Parent and Seller each agrees that it will
promptly transfer and deliver to Buyer any cash or other property that Parent
or
Seller may receive from time to time after the Effective Time relating to the
Purchased Assets (or otherwise for the benefit and account of Buyer), and (ii)
Buyer agrees that it will transfer and deliver to Seller or Parent any cash
or
other property that Buyer may receive from time to time after the Effective
Time
relating to the Excluded Assets (or otherwise for the benefit and account of
Seller or Parent).
Section
5.3. Execution
of Further Documents.
From
time to time after the Closing, upon the reasonable request of Buyer or Seller
and Parent, Seller and Parent or Buyer, as the case may be, shall take such
additional actions and execute, acknowledge and deliver all such further
documents and instruments, including without limitation bills of sale,
assignments, transfers, conveyances, powers of attorney and assurances, as
may
be required to convey, assign, and transfer to and vest in Buyer and protect
Buyer's right, title and interest in and to all of the Purchased Assets or
as
may be appropriate otherwise to carry out the transactions contemplated by
this
Agreement.
Section
5.4. Employee
Matters.
5.4.1. Buyer
will offer employment to the full-time or part-time employees of Seller that
Buyer desires to employ at the end of the period (the "Transition Period")
following the Closing during which the Seller shall provide leased employee
services to Buyer under that certain Employee Leasing Agreement ("Employee
Leasing Agreement") of even date herewith. All Seller Employees (as defined
herein) who have accepted Buyer’s offer of employment at or prior to the end of
the Transition Period shall constitute the "Hired
Employees."
At or
immediately prior to the Closing, Seller will terminate the employment of any
Seller Employee who has not been identified by Buyer as an employee to whom
Buyer has made or will make an offer of employment. At or immediately prior
to
the end of the Transition Period, Seller will terminate the employment of all
Seller Employees employed by Seller at the end of the Transition Period who
are
Hired Employees. Seller and Buyer shall cooperate with one another to
communicate with Seller Employees regarding this hiring by Buyer and termination
by Seller, and Seller shall use reasonable efforts to encourage its employees
who receive an offer from Buyer to accept Buyer’s offer of
employment.
8
5.4.2. Effective
as of the end of the Transition Period, for purposes of determining eligibility
and vesting under benefit plans, programs and arrangements maintained by Buyer
or its affiliates in which similarly situated employees of Buyer are generally
eligible to participate, Hired Employees shall receive recognition for service
accrued or deemed accrued prior to the end of the Transition Period with Seller,
Parent or Parent’s subsidiaries.
5.4.3. Effective
as of the end of the Transition Period, for purposes of determining accrual
of
vacation and other paid time off benefits for Hired Employees, Buyer may, in
its
sole discretion and on a case by case basis, recognize service accrued or deemed
accrued prior to the end of the Transition Period with Seller, Parent or
Parent’s subsidiaries; provided, however, that such recognition of service, if
any, shall not operate to duplicate any benefit or funding of any such benefit
for any period of service.
5.4.4. Except
as
set forth in Section 5.4.7, Buyer shall not assume any of the obligations or
liability for accrued benefits (including vacation and other paid time off
benefits) or any other liability under or in respect of any of the benefit
plans, programs and arrangements maintained by Seller or Parent. Except as
set
forth in Section 5.4.3, the Hired Employees shall, as of the end of the
Transition Period, in respect of their employment by Seller, cease to accrue
further benefits under such benefit plans, programs and arrangements.
5.4.5. Reserved.
5.4.6. Buyer
shall not be responsible for any liability to any Hired Employees resulting
from
or relating to workers' compensation claims made by any of the Hired Employees
for exposures or injuries suffered by them on or prior to the end of the
Transition Period. Buyer shall not be responsible for any liability to any
Terminated Employees resulting from or relating to workers' compensation claims
made by any of the Terminated Employees for exposures or injuries suffered
by
them at any time.
9
5.4.7. Except
as
otherwise required in the Employee Leasing Agreement, Buyer shall not be
responsible for any liability or obligation to (A) any Hired Employees relating
to the employment of such Hired Employees by Seller or Parent or any of Parent’s
subsidiaries on or prior to the end of the Transition Period, or (B) those
employees of Seller who do not accept Buyer’s offer of employment at the end of
the Transition Period or who are not offered employment with Buyer
("Terminated
Employees"),
relating to the employment or termination of employment of such Terminated
Employees by Seller or Parent or any of their respective affiliates whether
arising prior to, on or after the end of the Transition Period. Seller
shall be solely responsible and liable for providing any and all severance
termination, change of control or other similar payments or any other benefits
and related costs to Hired Employees or Terminated Employees, including any
medical and/or health benefits required under Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"),
arising from any qualifying event (as defined under COBRA) which occurred on
or
prior to the end of the Transition Period. Seller agrees to provide continuing
health benefit coverage as described in Sections 601 through 608 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")
and
Section 4980B of the Internal Revenue Code of 1986, as amended (hereinafter
referred to as "COBRA
Coverage")
to all
persons who are "M&A qualified beneficiaries" (as described in IRS
Regulation Section 54.4980B-9, Question and Answer 4) with respect to the
transactions contemplated by this Agreement (hereinafter referred to as
"COBRA
Beneficiaries").
As of
the end of the Transition Period, if Buyer desires to assume the group health
plan maintained for the Seller Employees, Seller shall cause the group health
plan to be transferred to and with sponsorship assumed by Buyer. Buyer and
Seller agree that, regardless of whether Buyer assumes Seller’s group health
plan, all obligations to provide COBRA Coverage to COBRA Beneficiaries are
being
allocated to Buyer as of the end of the Transition Period, as permitted by
Question and Answer 7 of IRS Regulation Section 54.4980B-9. After the Transition
Period, if Buyer's obligation to provide COBRA Coverage to COBRA Beneficiaries
shifts to Seller as a result of IRS Regulation Section 54.4980B-9, Question
and
Answer 8(c), then, notwithstanding any other provision of this Agreement to
the
contrary, Buyer shall reimburse Seller for any and all expenses (including
claims, costs, administrative expenses and insurance costs), after deduction
of
COBRA premiums and stop loss reimbursements, which Seller incurs in providing
COBRA Coverage to COBRA Beneficiaries. Seller shall invoice Buyer monthly with
respect to such expenses following payment by Seller of such expenses and Buyer
shall be obligated to make full payment of each such invoice within twenty
(20)
Business Days of the date of such invoice and, if Buyer should fail to timely
pay, Buyer shall also be obligated to provide interest with respect to the
unpaid amounts at the rate of eight percent (8%) per annum.
5.4.8. Seller
shall be responsible for, and shall, in a timely manner, pay or discharge when
and as due, all compensation, termination, severance, change of control and
other similar payments, wages, bonuses, accrued and unused vacation pay and
paid
time off, claims, charges, penalties, assessments, complaints or suits of any
nature whatsoever by Hired Employees or Terminated Employees that arose out
of
or in the course of the employment or other relationship, or termination of
such
employment or other relationship, with Seller, Parent or any of their respective
affiliates on or prior to the Closing Date.
5.4.9. Neither
the terms of this Section
5.4
nor any
agreement by Buyer or any of its affiliates to provide any employee benefit
to
Hired Employees shall: (i) create any employment contract, agreement or
understanding with or employment rights for, or constitute a commitment or
obligation of employment to, any of the Hired Employees; or (ii) prohibit or
restrict a Buyer or its affiliates, whether before or after the Closing Date,
from changing, amending, or terminating any employee benefits provided to its
employees from time to time.
Section
5.5. Assumed
Liabilities.
Buyer
shall, in a timely manner, pay, perform or discharge, as the case may be, the
Assumed Liabilities in accordance with their terms.
10
Section
5.6. Assignment
of Contracts.
Nothing
in this Agreement shall be construed as a sale, assignment, conveyance or
transfer of, or an attempt to sell, assign, convey or transfer, any Purchased
Contracts, Licenses, or other Purchased Assets (collectively, the "Rights")
if:
5.6.1. such
Right is not saleable, assignable, conveyable or transferable without the
consent of another person (unless such consent has been obtained on terms
satisfactory to Buyer, acting reasonably) and such sale, assignment, conveyance
or transfer or attempted sale, assignment, conveyance or transfer would
constitute a breach of such Right; or
5.6.2. the
remedies for the enforcement of such Right available to Seller would not pass
to
Buyer.
In
order,
however, that the full value of any Right may be realized for the benefit of
Buyer, Seller shall, at its expense and at the request and under the direction
of Buyer, in the name of Seller or as otherwise specified by Buyer, acting
reasonably, take all such action and do or cause to be done all such things
which are necessary and advisable from Seller in order that the obligations
of
Seller in connection with such Right may be performed in such manner that the
value of such Right shall be preserved and shall enure to the exclusive benefit
of Buyer. Buyer may at any time thereafter request a sale, assignment,
conveyance or transfer of any Right notwithstanding that the third party consent
necessary for such sale, assignment and transfer has not been obtained, provided
that such sale, assignment or transfer shall not cause Seller to be in default
under any Purchased Contract with such third party or to be in default under
this Agreement.
Seller
shall use commercially reasonable efforts to obtain all third party consents
necessary for the sale, assignment, transfer and conveyance by Seller to Buyer
of the Rights. Buyer shall cooperate in obtaining such consents. If any person
whose consent is required does not consent to the sale, assignment, transfer
and
conveyance of a Right from Seller to Buyer, then Seller shall, to the extent
permitted by law and to the extent the same does not constitute a breach of
any
Purchased Contract, carry out and comply with the terms and provisions of any
such Right as agent for Buyer at Buyer's expense and for Buyer's exclusive
benefit.
Section
5.7. IRS
Form 8594.
Seller
and Buyer agree that the Purchase Price shall be allocated in a manner to be
agreed between them within sixty (60) days following Closing, and that neither
party will report an allocation inconsistent therewith on Form 8594 subsequently
filed with the Internal Revenue Service.
Section
5.8. No
Solicitation.
From
the date hereof through the Closing Date or earlier termination of this
Agreement pursuant to Section
4.1,
neither
Parent nor Seller shall, nor shall Parent or Seller knowingly permit its
affiliates, officers, directors, employees, representatives and agents to,
directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or encourage the submission of any inquiry,
proposal or offer from any person or entity related to the acquisition of any
of
the Purchased Assets.
11
Section
5.9. Waiver
of Bulk Transfer Laws.
Buyer
and
Seller hereby waive compliance with the bulk sales or bulk transfer laws and
any
other similar laws in any applicable jurisdiction ("Bulk
Transfer Laws")
in
respect of the transactions contemplated by this Agreement. The waiver shall
not
modify the obligations of Buyer with respect to the Assumed
Liabilities.
Section
5.10. Further
Assurances.
If any
further action is necessary or desirable to carry out the purposes of this
Agreement, each of the parties hereto will take such further action (including,
without limitation, the execution and delivery of such further instruments
and
documents) as any other party reasonably may request, all at the sole cost
and
expense of the requesting party (unless the requesting party is entitled to
indemnification therefor under Article
VIII
below).
Section
5.11. True-Up
of Real Estate Lease Estimated Expenses.
The
parties hereto recognize that, pursuant to the terms of the Real Estate Lease,
Parent has paid certain amounts to the landlord representing monthly
installments of the landlord's estimate of the Additional Rent, including,
without limitation, with respect to Operating Costs (as such terms are defined
in the Real Estate Lease) payable by Parent, as tenant under the Real Estate
Lease, for the 2008 calendar year, and that at the end of the 2008 calendar
year, when the actual Additional Rent for such year is finally determined,
certain amounts may be payable by the landlord to the tenant (if the amount
of
Additional Rent paid by the tenant based on the landlord's estimate was greater
than actual Additional Rent for such year) (an "Overpayment"),
or by
the tenant to the landlord (if the actual amount of Additional Rent payable
for
such year exceeded the estimated amount of Additional Rent that was paid by
the
tenant) (an "Underpayment").
Buyer
shall
provide to Parent, within ten (10) days of receipt thereof, copies of any and
all calculations, reconciliations or other statements received from the landlord
under the Real Estate Lease in respect of the reconciliation between the actual
Additional Rent payable in respect of the 2008 calendar year and the estimated
amount of Additional Rent actually paid by Buyer or
Parent
(in each case as tenant under the Real Estate Lease) during such year. In the
case of an Overpayment for the 2008 calendar year, Buyer
shall
pay to Parent, within ten (10) days of receipt thereof from landlord or within
ten (10) days of such amount being receivable from landlord, Parent's share
of
any and all amounts received from the landlord in respect of such Overpayment
(taking into account the portion of estimated Additional Rent actually paid
by
Parent as tenant under the Real Estate Lease during the first half of 2008).
In
the case of an Underpayment for the 2008 calendar year, Parent shall pay to
Buyer
within
ten (10) days of receipt of written confirmation from Buyer
that it
has verified and confirmed with the landlord the accuracy of the amount of
the
Underpayment, Parent's share (taking into account the portion of estimated
Additional Rent actually paid by Parent as tenant under the Real Estate Lease
during the first half of 2008) of any and all amounts payable to
the
landlord in respect of such Underpayment.
Article
VI
Representations
and Warranties by Seller
In
order
to induce Buyer to enter into this agreement and to consummate the transactions
contemplated hereby, Seller and Parent jointly and severally make the following
representations and warranties and acknowledge and agree that Buyer is relying
upon such representations and warranties in connection with its purchase of
the
Purchased Assets and its assumption of the Assumed Liabilities:
12
Section
6.1. Corporate
Existence and Qualification.
Parent
is a corporation duly incorporated and validly existing under the laws of the
State of Indiana. Seller is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Maryland. Each of Parent
and
Seller has all requisite corporate power and authority to execute, deliver
and
perform its obligations under this Agreement, to consummate the transactions
contemplated hereby and to own its properties, including the Purchased Assets,
and to carry on its business, including the operation of the CPRU, as it is
now
being conducted.
Section
6.2. Authorization
of Agreement by Parent and Seller.
The
execution, delivery and performance of this Agreement by Seller and Parent
and
the consummation by Seller and Parent of the transactions contemplated hereby
have been duly and effectively authorized by all requisite corporate and other
action and this Agreement constitutes a legal, valid and binding obligation
of
Seller and Parent, enforceable against Seller and Parent in accordance with
its
terms, except as may be affected by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights generally
or by equitable principles. Except as set forth on Schedule
6.2,
neither
the execution, performance or delivery of this Agreement nor the consummation
of
the transactions contemplated hereby will (i) violate, conflict with, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) or allow any other person to exercise any rights
under, any of the terms, conditions or provisions of the articles of
incorporation or bylaws of Seller or Parent or any note, bond, mortgage,
indenture, deed of trust, license, agreement, or other instrument or obligation
to which Seller or Parent is a party or is bound or pursuant to which any of
its
assets or property may be affected, (ii) result in a breach of, or cause the
termination or revocation of, any License held by Seller or necessary to the
ownership of the Purchased Assets or the operation of the CPRU, (iii)
result
in the
creation or imposition of any Lien upon any of the Purchased Assets; or (iv)
violate any law applicable to Seller or Parent.
Section
6.3. Title
to the Assets and Related Matters.
Seller
is the sole and unconditional owner of the Purchased Assets. Except as set
forth
on Schedule 6.3
and
except for the Leased Property and the personal property leased by Seller
pursuant to the Purchased Contracts, no other person owns any property and
assets which are being used in connection with the operations of the CPRU.
Seller has good title to all of the Purchased Assets, free and clear of all
Liens. Except as set forth on Schedule
6.3,
the
Purchased Assets are in good operating condition and repair, subject to normal
wear and tear and
include
all rights and property of every kind, tangible and intangible, necessary to
enable Buyer to operate the CPRU after the Closing substantially in the same
manner as it was previously conducted by Seller (except for such accounting,
finance, human resources and other administrative services which were provided
in West Lafayette, Indiana).
Section
6.4. Personal
Property – Leased.
The
Operating Leases constitute all leases under which Seller leases personal
property from others. Seller has furnished Buyer with a true and complete copy
of the Operating Leases. The property described in the Operating Leases are
presently used by Seller as lessee under the terms of such leases and such
leases are in full force and effect. Neither Seller nor, to Seller's knowledge,
any other party to any of the Operating Leases is in default under such
Operating Leases. Except as set forth on Schedule
6.4,
no
consent of any third party is required to assign any of the Operating Leases
to
Buyer hereunder.
13
Section
6.5. Real
Property – Leased.
Seller
has furnished Buyer with a true and complete copy of the Real Property Lease.
The Real Property Lease is in good standing, creates a good and valid interest
in the Leased Property and is in full force and effect. Neither Seller nor,
to
Seller's knowledge, any other party to the Real Property Lease is in default
under such Real Property Lease. Except as set forth on Schedule
6.5,
no
consent of any third party is required to assign the Real Property Lease to
Buyer hereunder.
Section
6.6. Inventory.
Since
June 1, 2008, Seller has not sold or otherwise in an way alienated any
inventory, other than in the ordinary course of business.
Section
6.7. No
Options, etc.
to
Purchase Assets.
Except
for Buyer under this Agreement, no person has any written or oral agreement,
option, understanding or commitment, or any right or privilege capable of
becoming such for the purchase or other acquisition from Seller of any of the
Purchased Assets, other than inventory to be sold in the ordinary course of
business.
Section
6.8. Compliance
with Laws. Seller
operates the CPRU in compliance, in all material respects, with the provisions
of all health and safety laws governing the Purchased Assets and Seller's
business and is and has always been in material compliance with all other laws
governing the Purchased Assets and the business of the CPRU, and there are
not
now any outstanding citations, notices or orders of violation or noncompliance
issued to Seller or relating to the Purchased Assets under any such laws.
Section
6.9. Collective
Agreement.
There
is no collective agreement in force with respect to the employees of Seller,
no
collective agreement is currently being negotiated by Seller, no union or
employee bargaining agent holds or has held within the last 3 years bargaining
rights with respect to any employees of Seller and there are no current or,
to
Seller's knowledge, threatened attempts to organize or establish any trade
union
or employee association with respect to or campaigns in relation
thereto.
Section
6.10. Employee
Claims.
Seller
is not subject to any claim, grievance, complaint or litigation relating to
employment, discrimination or termination of employment of any of its employees
or former employees or relating to any failure to hire a candidate for
employment or any claim, grievance, complaint or litigation relating to
psychological harassment of any employee or former employee.
Section
6.11. Environmental
Matters.
Except
as set forth on Schedule 6.11,
Seller
currently is,
and
at
all times has been, in compliance with all federal, state and local
environmental laws, including all laws relating to the production, storage
and
disposal of medical and/or biological waste, governing the Purchased Assets
except where the failure to comply with such laws would not have a material
adverse effect on the Purchased Assets taken as a whole or on the Buyer's
ability to operate the CPRU after the Closing in substantially the same manner
as it was previously conducted by Seller. Except as set forth on Schedule 6.11,
and
except where the failure to comply with such laws would not have a material
adverse effect on the Purchased Assets taken as a whole or on the Buyer's
ability to operate the CPRU after the Closing in substantially the same manner
as it was previously conducted by Seller, Seller does not now, nor has it ever,
produced, stored, or disposed of, in connection with the operation of its
business or the use of the Purchased Assets, any hazardous substances or wastes
except in compliance, in all material respects, with all applicable
environmental laws. No environmental approval, clearances or consents are
required under applicable law from any governmental entity or authority in
order
for the parties to this Agreement to consummate the transactions contemplated
herein or for Seller to conduct its business as presently conducted. Seller
has
delivered to Buyer all audits, tests, reports or other reviews conducted on
Seller or its business, if any, which relate to environmental
impact.
14
Section
6.12. Governmental
Approvals and Filings.
Except
as set forth on Schedule 6.12,
no
consent, approval, waiver or action of, filing with or notice to any
Governmental or Regulatory Authority on the part of Parent or Seller is required
in connection with the execution, delivery and performance of this Agreement
or
the consummation of the transactions contemplated hereby.
Section
6.13. Debarment.
Seller
represents and warrants to Purchaser that Seller is not debarred and, to
Seller's knowledge, none of its employees have been (i) convicted of any
criminal offense designated as a felony under United States federal or state
law, or (ii) excluded, suspended, debarred or otherwise declared ineligible
to
participate in activities or programs related to the services previously
performed or contemplated to be performed by the CPRU, including under the
provisions of the Food Drug and Cosmetic Act (21 U.S.C. Sections 335a(a) and
(b)), as amended from time to time.
Section
6.14. Required
Consents.
No
consent, approval, waiver or action of, filing with or notice to a party under
any Purchased Contract to which Seller is a party in connection with the
Purchased Assets or the CPRU is required in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, and the Purchased Contracts are assignable
to
Buyer without payment of penalties or impositions of restrictions or other
adverse effects of any kind.
Section
6.15. Licenses
and Permits.
Seller
has obtained and maintained in full force and effect all material Licenses
that
relate directly or indirectly to, or are necessary for, the ownership of the
Purchased Assets or the conduct of the CPRU and all pending applications
therefor or renewals thereof required to operate the CPRU as presently conducted
and a complete list of all such Licenses is set forth in Schedule
6.15.
The
consummation of the transactions contemplated hereby shall not give any
Governmental or Regulatory Authority the right to terminate or revoke any of
the
material Licenses or the conduct of the business of the CPRU, except for such
terminations which would not have a material adverse effect on the Purchased
Assets or the operations of the CPRU as performed by Seller. Seller is in
compliance in all material respects with all terms, conditions and requirements
of all material Licenses and no proceeding is pending or, to the knowledge
of
Seller or Parent, threatened relating to the revocation or limitation of any
of
the material Licenses.
15
Section
6.16. Exclusivity.
THE
REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS AGREEMENT ARE IN LIEU
OF
AND ARE EXCLUSIVE OF ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR ADEQUACY
FOR
ANY PARTICULAR PURPOSE OR USE. SELLER HEREBY EXCLUDES AND DISCLAIMS ANY SUCH
OTHER OR IMPLIED REPRESENTATIONS OR WARRANTIES, NOTWITHSTANDING THE DELIVERY
OR
DISCLOSURE TO BUYER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, STOCKHOLDERS, AGENTS,
ADVISORS OR REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION BY SELLER
OR ANY OTHER PERSON IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. Without limiting the generality of the foregoing, Seller
makes no representation or warranty to Buyer with respect to (a) any
projections, estimates or budgets delivered or made available to Buyer or its
representatives before or after the date of this Agreement, or (b) except as
expressly covered by a representation and warranty contained in this
Article
VI,
any
other information or documents (financial or otherwise) made available to Buyer
or its representatives before or after the date of this Agreement.
Article
VII
Representations
and Warranties by Buyer
and Holdings
In
order
to induce Seller to enter into this Agreement and consummate the transactions
contemplated hereunder, Buyer and Holdings make the following representations
and warranties and acknowledge and agree that Seller is relying upon such
representations and warranties in connection with its sale of the Purchased
Assets:
Section
7.1. Valid
Existence and Qualification of Buyer.
Buyer
is a company duly incorporated and validly existing under the laws of the State
of Delaware.
Holdings
is a company duly incorporated and validly existing under the laws of the
Province of Quebec. Each of Buyer and Holdings has all requisite corporate
power
and authority to perform its obligations under this Agreement including, in
the
case of Buyer, to acquire and own the Purchased Assets, and to assume, pay,
perform and discharge the Assumed Liabilities.
Section
7.2. Authorization
of Agreement by Buyer and Holdings.
The
execution, delivery and performance of this Agreement by Buyer and Holdings
and
the consummation by Buyer and Holdings of the transactions contemplated hereby
have been authorized by all requisite corporate and other action and this
Agreement constitutes a legal, valid and binding obligation of Buyer and
Holdings, enforceable against Buyer and Holdings in accordance with its terms,
except as may be affected by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally or by
equitable principles. Neither the execution, performance or delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
(i)
violate, conflict with, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) or allow any other person
to exercise any rights under, any of the terms, conditions or provisions of
the
articles of incorporation or bylaws of Buyer or any note, bond, mortgage,
indenture, deed of trust, license, agreement, or other instrument or obligation
to which Buyer or Holdings is a party or is bound, or (ii) violate any law
applicable to Buyer or Holdings.
16
Section
7.3. Governmental
Approvals and Filings.
No
consent, approval or action of, filing with or notice to any Governmental or
Regulatory Authority on the part of Buyer or Holdings is required in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
Article
VIII
Expenses
of the Parties; Indemnification; Dispute Resolution
Section
8.1. Expenses.
Each
party shall pay its expenses, including the expenses of its legal and accounting
representatives, in connection with the origin, negotiation, execution and
performance of this Agreement, except as otherwise provided herein. Buyer shall
pay any and all sales and transfer taxes with respect to the transactions
contemplated hereby. Seller shall pay any and all federal and state income
or
other taxes attributable to Seller arising as a result of the transactions
contemplated hereby.
Section
8.2. Survival
of Representations and Warranties.
The
representations and warranties contained in Article
VI
and
Article
VII
shall
survive the Closing for one (1) year. Notwithstanding the above limitations
(i)
the representations and warranties set out in Section
6.3
(Title
to Purchased Assets) and Section
6.7
(No
Options, etc. to Purchase Assets) shall survive Closing and continue in full
force and effect without limitation of time, and (ii) indemnification for
matters involving fraud by any party hereto shall extend until the applicable
statute of limitations period, if any.
An
obligation to indemnify for Losses (as hereinafter defined) shall continue
after
the end of the applicable survival period set forth in this Agreement if a
claim
for indemnification with respect to such Losses was made in accordance with
this
Agreement before the end of the applicable survival period.
Section
8.3. Indemnification
by Seller and Parent.
Seller
and Parent jointly and severally shall indemnify and hold harmless the Buyer
and
its successors, assigns, shareholders, employees, officers, directors, members,
representatives, affiliates and agents (each a "Buyer
Indemnified Party")
from
and against any and all damages, losses, obligations, liabilities, claims,
encumbrances, penalties, costs and expenses, including reasonable attorneys'
fees (and costs and reasonable attorneys' fees in respect of any suit to enforce
this provision) (collectively, "Losses"),
arising from or relating to (a) any misrepresentation in or breach of any
representation or warranty made by Seller in this Agreement or the certificate
to be delivered pursuant to Section
4.2.4(iii);
(b) nonfulfillment of any of the covenants or agreements of either of
Parent or Seller in this Agreement; (c) any third party claims naming the Buyer
relating to the operation of the CPRU on or prior to the Closing Date or arising
out of transactions entered into or events occurring on or prior to the Closing
Date, including any work performed by Parent or Seller; (d) the Excluded
Liabilities, (e) Seller’s non-compliance with the Bulk Transfer Laws, and
(f) any and all actions, suits, investigations, proceedings, demands,
assessments, audits and judgments arising out of any of the
foregoing.
Section
8.4. Indemnification
by the Buyer and Holdings.
The
Buyer and Holdings shall indemnify and hold harmless the Parent and Seller
and
their respective successors and assigns and their respective shareholders,
officers, directors, representatives, affiliates and agents (each a
"Seller
Indemnified Party")
from
and against any and all Losses resulting from or relating to (a) any
misrepresentation in or breach of any representation or warranty made by Buyer
and Holdings in this Agreement; (b) nonfulfillment of any of the covenants
or agreements of the Buyer or Holdings in this Agreement; (c) any third
party claims naming any Seller Indemnified Party relating to the operation
or
use of the Purchased Assets or the operation of the CPRU by or on behalf of
Buyer, Holdings or any of their respective affiliates or successors after the
Effective Time or arising out of transactions entered into or events occurring
after the Effective Time; (d) the Assumed Liabilities; and (e) any and all
suits, actions, investigations, proceedings, demands, assessments, audits and
judgments arising out of any of the foregoing.
17
Section
8.5. Procedure.
If a
claim for Losses (a "Claim")
is to
be made by a
Buyer
Indemnified Party or a Seller Indemnified Party (the maker of such Claim being
referred to herein as the "Indemnified
Party"),
such
Indemnified Party shall give written notice (a "Claim
Notice")
to (i)
the Parent, in the case of indemnification pursuant to Section
8.3
and (ii)
Buyer in the case of indemnification pursuant to Section
8.4
(the
recipient of such notice referred to below as the "Indemnifying
Party"),
in
either case as soon as practicable after such Indemnified Party becomes aware
of
any fact, condition or event which may give rise to Losses for which
indemnification may be sought under this Article
VIII.
The
Claim Notice shall contain detail describing the basis for the Claim and, to
the
extent available, the calculation of the amount thereof. The
failure of any Indemnified Party to give timely notice hereunder shall not
affect such Indemnified Party's rights to indemnification hereunder, except
to
the extent of actual damage caused by such failure. The
Indemnified Party shall give the Indemnifying Party such information and
cooperation as the Indemnifying Party may reasonably request to enable the
Indemnifying Party to perform its obligations hereunder.
(i) Third
Party Claims.
If
any
lawsuit or other action is filed or instituted by
a
third party against
any Indemnified
Party
with
respect to a matter subject to indemnity hereunder, notice thereof (a
"Third
Party Notice")
shall
be given to the Indemnifying Party as promptly as practicable (and in any event
within fifteen (15) business days after the service of the citation or summons).
The failure of any Indemnified Party to give timely notice hereunder shall
not
affect such Indemnified Party's rights to indemnification hereunder, except
to
the extent of actual damage caused by such failure. After receipt of a Third
Party Notice, the Indemnifying Party shall have the right to (i) take control
of
the defense and investigation of such lawsuit or action, (ii) employ and engage
attorneys of its own choice to handle and defend the same, at the Indemnifying
Party's sole cost, risk and expense, and (iii) compromise or settle such claim,
which compromise or settlement shall be made only with the written consent
of
the Indemnified Party,
which
consent shall not be unreasonably withheld or denied,
the
whole provided that (A)
the
claim seeks only monetary damages and does not seek any injunctive or other
relief against, or requires any admission of wrongdoing or waiver of rights
by,
the Indemnified Party; (B) the Indemnifying Party unconditionally acknowledges
in writing that it will indemnify and hold the Indemnified Party harmless with
respect to the claim; and (C) the attorneys chosen by the Indemnifying Party
are
satisfactory to the Indemnified Party, acting reasonably.
The
Indemnified Party shall cooperate in all reasonable respects with the
Indemnifying Party and such attorneys in the investigation, trial and defense
of
such lawsuit or action and any appeal arising therefrom, and the Indemnified
Party may, at its own cost, participate in the investigation, trial and defense
of such lawsuit or action and any appeal arising therefrom. The parties shall
also cooperate with each other in any notifications to insurers. If the
Indemnifying Party fails to assume the defense of such claim within thirty
(30)
calendar days after receipt of the Third Party Notice, the Indemnified Party
against which such claim has been asserted will (upon delivering notice to
such
effect to the Indemnifying Party) have the right to undertake the defense,
compromise or settlement of such claim (all at the cost and expense of the
Indemnifying Party) and the Indemnifying Party shall have the right to
participate therein at its own cost. Notwithstanding the foregoing, the
Indemnifying Party shall not be liable for the reasonable fees and expenses
of
more than one separate firm of attorneys at any time for any and all Indemnified
Parties (which firm shall be designated in writing by such Indemnified Party
or
Parties, subject to the approval of the Indemnifying Party which shall not
be
unreasonably withheld or delayed) in connection with any one such action or
proceeding arising out of the same general allegations or circumstances and
in
no event shall any compromise or settlement be made without written consent
of
the Indemnifying Party (which consent shall not be unreasonably withheld or
delayed).
18
Section
8.6. Limitations
on Indemnity.
Notwithstanding any other provision of this Article
VIII,
the
following limitations and adjustments shall apply to any Claim for
indemnification under this Agreement:
8.6.1. No
Buyer
Indemnified Party shall be entitled to recover for any Losses under Section
8.3(a)
until
the aggregate amount of such Losses suffered by all Buyer Indemnified Parties
exceeds $50,000, in which case the Buyer Indemnified Parties shall be entitled
to recover for all such Losses from the first dollar. Notwithstanding
the foregoing, losses
arising from a misrepresentation in or breach of the representations and
warranties set out in Section
6.3
(Title
to Purchased Assets) and Section
6.7
(No
Options, etc. to Purchase Assets) and any claims based on fraud or fraudulent
or
willful misrepresentations shall not be subject to the limitation in this
Section 8.6.1
and
shall not count towards determining whether the limitation amount in this
Section 8.6.1
has been
exceeded;
8.6.2. No
Seller
Indemnified Party shall be entitled to recover for any Losses under Section
8.4(a)
until
the aggregate amount of such Losses suffered by all Seller Indemnified Parties
exceeds $50,000, in which case the Seller Indemnified Parties shall be entitled
to recover for all such Losses from the first dollar;
8.6.3. The
aggregate liability of Parent and Seller to indemnify the Buyer Indemnified
Parties under Section
8.3(a)
shall
not exceed the amount of the Purchase Price;
8.6.4. The
aggregate liability of Buyer to indemnify the Seller Indemnified Parties under
Section
8.4(a)
shall
not exceed fifty percent (50%) of the amount of the Purchase Price.
8.6.5. No
Buyer
Indemnified Party shall be entitled to indemnification for any Losses under
Section 8.3(a)
to the
extent such Losses arise out of any matter which would otherwise constitute
a
breach of a representation or warranty herein, which matter was actually known
to Buyer or Holdings as of the date of this Agreement and would have given
Buyer
or Holdings the right not to proceed with the Closing had Buyer or Holdings
elected to exercise such right. As used in this Section
8.6.5,
"actually known to Buyer or Holdings" means the current actual knowledge of
Xxxxx Xxxxxx and Xxxxxxxx Xxxxxx, without the necessity for additional
investigation or inquiry.
19
Section
8.7. Miscellaneous
Indemnification Matters.
In
determining the amount of any Losses suffered by an Indemnified Party, there
shall be taken into account any insurance proceeds or other similar amounts
received or receivable by the indemnitee and attributable to or derived from
such loss.
Article
IX
Brokers'
Commission
The
parties hereby agree and represent and warrant to each other that there are
no
claims for brokerage commissions, or placement or finders' fees in connection
with the transactions contemplated by this Agreement, other than to Xxxxxxxx
Xxxxxxx Partners, which fees shall be paid by Seller and/or Parent.
Article
X
Miscellaneous
Section
10.1. Waivers
and Amendments.
This
Agreement or any of the provisions hereof may be amended or modified, and its
terms or conditions may be waived, only by a written instrument executed by
the
parties hereto, or in the case of a waiver, by the party waiving compliance.
The
failure of any party at any time or times to require performance of any
provision hereof or delay in exercise of any rights hereunder shall in no manner
affect its right at a later time to enforce the same. No waiver by any party
of
the breach of any term or condition contained in this Agreement in any one
or
more instances shall be deemed to be, or construed as, a further or continuing
waiver of any breach, or a waiver of the breach of any other term or condition
contained herein.
Section
10.2. Entire
Agreement.
This
Agreement (and the Schedules hereto which are hereby incorporated and made
a
part hereof) and all certificates, agreements, documents and instruments
delivered contemporaneously and in connection herewith constitute the entire
understanding of the parties relative to the subject matter hereof and supersede
all prior agreements and undertakings between or among any of the parties
relating to the subject matter hereof, including the letter of intent dated
May
7, 2008 executed by Buyer and Parent. Any reference herein to this Agreement
shall be deemed to include the Schedules hereto.
Section
10.3. Interpretation.
10.3.1. The
table
of contents and descriptive headings in this Agreement and on the Schedules
are
inserted for convenience only and shall not constitute a part of, nor affect
the
meaning or interpretation of, this Agreement or any section or subsection
hereof.
20
10.3.2. Any
reference in this Agreement to gender includes all genders (including neuter)
and words denoting the singular number only shall include the plural and vice
versa.
10.3.3. All
references in this Agreement to "dollars"
or to
"$"
are
expressed in United States dollars, unless otherwise specifically indicated.
10.3.4. Any
reference in this Agreement to the words "including"
and
"includes"
mean
"including (or includes) without limitation".
10.3.5. Any
reference in this Agreement to the word "person"
shall
be construed so as to include any individual, firm, corporation, government,
state or agency of a state or any joint venture, trust, association or
partnership (whether or not having separate legal personality) and pronouns
having a similarly extended meaning.
10.3.6. Unless
the context suggests otherwise, any reference in this Agreement to the word
"party"
or the
"parties"
mean a
party or the parties to this Agreement
10.3.7. Any
reference in this Agreement to the word "laws"
means
(i) all
statutes of common law, rules and regulations or other requirements having
the
force of law whether in the United States of America or elsewhere, (ii) all
judgments, orders, injunctions, decisions, rulings, decrees, writs, directions,
instructions, penalties, sanctions and awards of any Governmental or Regulatory
Authority, and (iii) all
policies, practices and guidelines of any Governmental or Regulatory Authority
which, although not actually having the force of law, are considered by such
Governmental or Regulatory Authority as requiring compliance as if having the
force of law, in each case binding on or affecting the party or person referred
to in the context in which such word is used;
10.3.8. In
the
computation of periods of time from a specified date to a later specified date,
unless otherwise expressly stated, the word "from" means "from and including"
and the words "to" and "until" each mean "to but excluding".
10.3.9. With
respect to the representations, warranties, certifications and other statements
made by Seller and Parent in this Agreement, any reference to the "knowledge"
of
Seller or Parent and to things "known"
to
Seller or Parent shall mean the current actual knowledge of Xxxxxxx X. Xxxxxxxx,
Xxxxxxx X. Xxx and Xxxxxx X. Xxxxx, following due inquiry of such Persons as
they reasonably consider necessary as to the matters that are the subject of
such representations, warranties, certifications and other
statements.
10.3.10. As
used
in this Agreement, "Seller
Employees"
means
all part time and full time employees of Seller.
Section
10.4. Notices.
Any
notice, election or demand to be given hereunder to any of the parties by
another shall be in writing and personally delivered, telecopied or sent by
prepaid same day or overnight courier or registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
21
|
If
the Buyer,
|
c/o
Algorithme Pharma Inc.
|
|
addressed
to:
|
575
Xxxxxx – Xxxxxxxx Xxxx
|
|
Xxxxx,
Xxxxxx, X0X 0X0
|
|
|
Xxxxxx
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Attn:
Xxxxx Xxxxxx and Xxxxxxxx Xxxxxx
|
|
with
a copy to:
|
Xxxxxx
Capital Partners
|
|
Scotia
Plaza, Suite 2700
|
|
|
00
Xxxx Xxxxxx Xxxx
|
|
|
Xxx 000
|
|
|
Xxxxxxx,
Xxxxxxx
|
|
|
X0X 0X0
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Attn:
André La Forge and Xxxxxxx Xxxxxxxxx
|
|
|
with
a copy to:
|
Stikeman
Elliott LLP
|
|
0000
Xxxx-Xxxxxxxx Xxxx. Xxxx
|
|
|
Xxxxx
0000
|
|
|
Xxxxxxxx,
Xxxxxx
|
|
|
X0X
0X0
|
|
|
|
Facsimile:
(000)
000-0000
|
|
Attn:
Xxxx Xxxxxxx and Xxxxx Xxxxx
|
|
|
If
to Seller or Parent,
|
Bioanalytical
Systems, Inc.
|
|
addressed
to:
|
0000
Xxxx Xxxxxx
|
|
Xxxx
Xxxxxxxxx, XX 00000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Attn:
Xxxxxxx X. Xxxxxxxx, President & Chief Executive
Officer
|
|
|
with
a copy to:
|
Ice
Xxxxxx LLP
|
|
Xxx
Xxxxxxxx Xxxxxx
|
|
|
Xxxxx
0000
|
|
|
Xxxxxxxxxxxx,
XX 00000-0000
|
|
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Facsimile:
(000) 000-0000
|
|
|
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
|
Any
such
notice or communication shall be deemed to have been delivered and received
(i) in
the
case of personal delivery, on the date of such delivery, (ii) in
the
case of telecopier, on the date sent if confirmation of receipt is received,
(iii) in
the
case of same day or overnight courier, on the next business day after the date
when sent and (iv) in
the
case of mailing, on the third
business
day following that on which the envelope containing such communication is
posted
22
Any
party
may change the address or facsimile number to which notices are to be sent
to it
by giving written notice of such change of address or facsimile number to the
other parties in the manner herein provided for giving notice.
Section
10.5. Severability.
In case
any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision
hereof and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
Section
10.6. Public
Announcements.
Parent,
Seller and Buyer agree that no public release or announcement concerning the
transactions contemplated hereby shall be issued by either party without the
prior consent of the other party (which consent shall not be unreasonably
withheld, conditioned or delayed), except as such release or announcement may
be
required by law or the rules or regulations of any securities exchange, in
which
case the party required to make the release or announcement shall use its
reasonable efforts to allow the other party an opportunity to review and comment
on such release or announcement in advance of its issuance.
Section
10.7. Expenses.
Except
as otherwise expressly provided in this Agreement, each party will pay for
its
own costs and expenses incurred in connection with this Agreement and the
transactions contemplated herein. The costs and expenses referred to in this
Section are those incurred in connection with the transactions contemplated
by
this Agreement, including the fees and expenses of legal counsel, investment
advisers and accountants.
Section
10.8. Governing
Law.
This
Agreement shall be governed by and construed and interpreted in accordance
with
the laws of the State of Indiana
notwithstanding the choice of law rules of Indiana or any other state or
jurisdiction.
Section
10.9. Court
Proceedings.
Any
action or proceeding permitted by the terms of this Agreement to be filed in
a
court, which the action or proceeding is brought to enforce, challenge or
construe the terms or making of this Agreement, and any claims arising out
of or
related to this Agreement, shall be exclusively brought and litigated
exclusively in a state court having subject matter jurisdiction and located
in
Tippecanoe County, Indiana or the U.S. District Court for the Northern District
of Indiana. For the purpose of any action or proceeding instituted with respect
to any claim arising out of or related to this Agreement, each party hereby
irrevocably submits to the exclusive jurisdiction of the state courts having
subject matter jurisdiction and located in Tippecanoe County, Indiana or the
U.S. District Court for the Northern District of Indiana. Each party hereby
irrevocably waives any objection or defense which it may now or hereafter have
of improper venue, forum non conveniens or lack of personal
jurisdiction.
Section
10.10. Waiver
of Jury Trial.
For any
action or proceeding which is permitted under this Agreement to be filed in
a
court, each party hereby expressly and irrevocably waives any right to a trial
by jury in such action or proceeding, including but not limited to those actions
or proceedings to enforce or defend any rights under this Agreement or under
any
amendment, consent, waiver, instrument, document or agreement delivered or
which
may in the future be delivered in connection with any of them or arising from
any relationship existing in connection with this Agreement. Each party agrees
that in any such action or proceeding, the matters shall be tried to a court
and
not to a jury.
23
Section
10.11. Third
Parties.
Except
as otherwise provided herein, nothing herein expressed or implied is intended
or
shall be construed to confer upon or give to any person or entity other than
the
parties hereto and their respective successors or assigns, any rights or
remedies under or by reason of this Agreement.
Section
10.12. Counterparts.
This
Agreement may be executed to multiple counterparts, each of which shall be
deemed an original and all such counterparts taken together shall be deemed
to
constitute and the same instrument.
Section
10.13. Successors
and Assigns.
All the
terms, covenants, and conditions of this Agreement shall be binding upon, and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. Neither this Agreement nor any of the rights
or obligations under this Agreement shall be assignable or transferable by
Seller or Parent without the prior written consent of Buyer, which consent
shall
not be unreasonably withheld, conditioned or delayed. Buyer may assign and
transfer this Agreement and any of its rights and obligations under this
Agreement, in whole
or
in part, to
an
affiliate thereof without the prior written consent of Seller and Parent,
provided that Buyer shall not by reason of any such assignment and transfer
be
released from its obligations hereunder. Buyer may assign its rights under
this
Agreement, in whole or in part, without consent, to any subsequent purchaser
of
Buyer or any material portion of its assets, whether any such sale is structured
as a sale of shares, a sale of assets, a merger or otherwise, provided that
such
purchaser (and any guarantor of such purchaser's obligations under any purchase
agreement) expressly agrees to assume all obligations thereunder of the assignor
arising after the date of the assignment and to be bound by the terms
thereof.
[Signatures
on following pages.]
24
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
|
BASI
MARYLAND, INC.
|
BIOANALYTICAL
SYSTEMS, INC.
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxx
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxx
|
|
|
Xxxxxxx
X. Xxxxxxxx, President &
|
Xxxxxxx
X. Xxxxxxxx, President &
|
|||
|
Chief
Executive Officer
|
Chief
Executive Officer
|
|||
|
ALGORITHME
PHARMA USA INC.
|
ALGORITHME
PHARMA HOLDINGS, INC.
|
|||
|
By:
|
/s/
Xxxxx Xxxxxx
|
By:
|
/s/
André La Forge
|
|
| Xxxxx Xxxxxx, President | André La Forge, President | |||
|
By:
|
/s/Xxxxxxx
Xxxxxxxxx
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
|
Xxxxxxx
Xxxxxxxxx, Authorized Signatory
|
Xxxxx
Xxxxxx, Authorized Signatory
|
|||
The
following schedules to the Asset Purchase Agreement have been omitted from
this
Exhibit 2.1. The registrant agrees to furnish supplementally a copy of any
such omitted schedule to the Commission upon request.
|
Equipment,
Machinery etc.
|
|
|
Schedule
1.1.3
|
Operating
Leases
|
|
Schedule
1.1.5
|
Prepaid
Expenses
|
|
Schedule
1.1.9
|
Computer
Software
|
|
Schedule
1.1.12
|
Licenses
|
|
Schedule
1.1.13
|
Other
assets
|
|
Excluded
Assets
|
|
|
Schedule
6.2
|
Defaults,
Consents
|
|
Schedule
6.3
|
Title
to Purchased Assets
|
|
Schedule
6.4
|
Consents
under Operating Leases
|
|
Schedule
6.5
|
Consent
under Real Property Lease
|
|
Schedule
6.11
|
Environmental
Matters
|
|
Schedule
6.12
|
Governmental
Approvals and Filings
|
|
Schedule
6.15
|
Licenses
& Permits
|
