Exhibit 2.2
Amendment No. 1
to
Asset Purchase and Sale Agreement dated as of August 13, 2000
This Amendment No. 1 (the "Amendment") to the Asset Purchase and Sale
Agreement (the "Sale Agreement"), dated as of August 13, 2000, among Trex
Medical Systems Corporation ("Seller"), Trex Medical Corporation, ThermoTrex
Corporation and Thermo Electron Corporation (each, a "Parent") and Hologic, Inc.
("Buyer"), is entered into this 15th day of September, 2000. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to such
terms in the Sale Agreement.
Recitals
WHEREAS, the Seller, the Parents and the Buyer are parties to the Sale
Agreement; and
WHEREAS, the Parties desire to effect certain amendments to the Sale
Agreement prior to the consummation of the transactions contemplated thereby;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Parties hereby amend the Sale Agreement as
follows:
1. Paragraph (x) of Section 1.1(d) of the Sale Agreement is hereby
deleted and replaced by the following:
(x) Subject to the provisions of Section 6.1(c) with
respect to the Fischer Litigation (as defined below) and Section
6.1(d) with respect to the IBM Claims (as defined below), all
liabilities with respect to all actions, suits, proceedings,
disputes, claims or investigations arising out of or related to
the Business or that otherwise arise out of or are related to the
Acquired Assets to the extent expressly set forth in the
Disclosure Schedule;
2. Section 6.1 of the Sale Agreement is hereby amended by adding a new
paragraph (d) as follows:
(d) resulting from the IBM Claims (as defined in this
Section 6.1(d) below) to the extent of any Damages (as defined in
this Section 6.1(d) below) resulting from infringement of the IBM
Patents (as defined in this Section 6.1(d) below) by any Products
(as defined in this Section 6.1(d) below) manufactured, sold,
offered for sale or used on or prior to the last expiration date
of the IBM Patents and such Damages are attributable to either
(i) the period prior to the Closing or (ii) the period from and
after the Closing, subject to the limitations set forth in
Section 6.5 below.
"IBM Claims" shall mean (i) any action or claim
brought against any Buyer Indemnified Party predicated on the IBM
Patents, but only to the extent that such action or claim
involves any Products, and (ii) any actions or claims for
indemnification or other relief brought or made by customers or
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users of Products, based on actions or claims of infringement of
the IBM Patents, based on the use or the sale of Products and
filed or made by the owner or licensees of the IBM Patents.
"IBM Patents" shall mean United States Patent Nos.
5,572,999, 5,445,166 and 4,751,507 (the "Original IBM Patents"),
and any reissues, extensions, continuations, divisions or
continuations in part thereof, provided that, in the case of any
continuation in part, the term "IBM Patents" shall mean only
those claims of such continuation in part supported by the
disclosure of any of the Original IBM Patents.
"Products" shall mean, for all purposes of
indemnification under this Agreement in connection with the IBM
Patents and notwithstanding the definition of "Products" in
Section 2.12(a)(xiv) above, any product manufactured, sold or
offered for sale by Seller on or before the date hereof, as such
product may be enhanced or improved from time to time by or on
behalf of Buyer, so long as such product as so enhanced or
improved is not alleged by IBM in good faith to infringe on any
claims of any IBM Patents which are not infringed upon by such
product as manufactured by Seller on the date hereof, or any
claims of foreign counterparts of the IBM Patents whose
corresponding U.S. claims, if any, are not alleged to be
infringed upon by such product as manufactured by Seller on the
date hereof, provided that in any such case such product is
manufactured, offered for sale or sold only for the uses offered
by Seller on or before the date hereof.
"Damages" shall mean, for all purposes of
indemnification under this Agreement in connection with the IBM
Claims and notwithstanding the definition of "Damages" in the
introductory paragraph of this Section 6.1, only (i) monetary
damages (including without limitation "enhanced damages"), fines,
fees and interest and obligations ordered by a court in
connection with the IBM Claims, (ii) all amounts payable to
International Business Machines Corporation (or its successors in
interest) ("IBM") in settlement of the IBM Claims, including,
without limitation, any future royalties required to be paid by
any Buyer Indemnified Party as a result of such settlement, (iii)
any losses, including consequential damages, suffered by any
Buyer Indemnified Party as a result of an injunction issued as a
consequence of the IBM Claims prohibiting the sale of Products,
and (iv) reasonable costs and expenses, including, without
limitation, reasonable attorneys' fees and expenses, costs of
investigation and evaluation, experts and other reasonable costs,
incurred in connection with the defense of the IBM Claims.
3. Paragraphs (b) and (c) of Section 6.2 of the Sale Agreement are
hereby deleted and replaced by the following:
(b) resulting from, relating to or constituting any
obligations or liabilities associated with the conduct of the
business or operations of the Business from and after the
Closing, except to the extent that such Damages result from a
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matter for which Buyer is entitled to indemnification from Seller
pursuant to clauses (c)(ii) or (d)(ii) of Section 6.1 above
(after giving effect Section 6.5 below);
(c) subject to the limitations set forth in Section 6.5
below, resulting from or relating to the Fischer Litigation or
the IBM Claims;
4. Paragraph (b) of Section 6.4 of the Sale Agreement is hereby deleted
and replaced by the following:
(b) Any valid claim that is properly asserted in writing
pursuant to Section 6.3 prior to the expiration as provided in
Section 6.4(a) of the representation or warranty that is the
basis for such claim shall survive until such claim is finally
resolved and satisfied; provided, however, that any valid claim
that is properly asserted in writing pursuant to any of Section
6.1(c), Section 6.1(d) or Section 6.2(c) shall survive until such
claim is finally resolved and satisfied.
5. Section 6.5(b) of the Sale Agreement is hereby amended by adding a
new clause (v) as follows:
(v) Seller shall not be liable under Section 6.1(d) unless
and until the aggregate Damages under Section 6.1(d) exceed
$250,000 (the "Threshold Amount"), provided that if such Damages
exceed the Threshold Amount, Seller shall be liable for all such
Damages without regard to the Threshold Amount.
6. All in accordance with Section 6.3(a) of the Agreement, the Buyer
Indemnified Parties shall be deemed hereby to have made a claim for
indemnification with respect to Damages resulting from the IBM Claims against
Seller and Parents pursuant to Section 6.1(d) of the Agreement, and Seller and
Parents shall be deemed hereby to have assumed control of the defense thereof
with Fish & Richardson, P.C. as counsel (which counsel is satisfactory to the
Buyer Indemnified Parties).
7. Article X of the Sale Agreement is hereby amended by adding a new
Section 10.11 as follows:
10.11 Transitional Services.
(a) Services; Fees; Terms. Buyer agrees to perform
for Seller, in accordance with the terms and provisions of
this Section 10.11, the services described in Exhibits I
and II attached hereto (collectively, the "Transitional
Services") upon the terms specified in Exhibits I and II.
From time to time, Seller may request of Buyer that
additional services not included in the Transitional
Services be provided by Buyer. Buyer and Seller shall use
good faith efforts to agree upon the provision of such
additional services and the fees therefor, and upon such
agreement, such additional services shall be deemed
"Transitional Services" for purposes of this Agreement.
Buyer shall use commercially reasonable efforts in the
timely performance of the Transitional Services and Seller
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shall use commercially reasonable efforts to cooperate
with Buyer in connection with the provision of the
Transitional Services. Seller agrees to pay to Buyer a fee
for each of the Transitional Services actually provided by
Buyer as specified in Exhibit I attached hereto.
(b) Independent Contractor Status. Buyer shall
perform all Transitional Services as an "independent
contractor" and not as an agent of Seller. Buyer is not,
in connection with the performance of Transitional
Services hereunder, authorized to assume or create any
obligation or responsibility, express or implied, on
behalf of, or in the name of Seller or to bind Seller in
any manner.
(c) Confidentiality. Each of Buyer and Seller shall
hold, and shall use reasonable efforts to cause its
Affiliates, consultants and advisors to hold, in strict
confidence all information concerning the other obtained
in connection with the provision of Transitional Services
(except to the extent that such information (i) is or
becomes generally available to the public other than as a
result of a disclosure by the receiving Party in violation
of the terms of this Section 10.11(c), (ii) was within the
possession of the receiving Party prior to it being
furnished to the receiving Party by or on behalf of the
other Party or learned by the receiving Party in
connection with the performance of Transitional Services,
provided that the source of such information was not known
by the receiving Party at the time of receipt to be bound
by a confidentiality agreement with or other contractual,
legal or fiduciary obligation of confidentiality to the
other Party or any other party with respect to such
information, (iii) is or becomes available to the
receiving Party from a source other than the other Party,
provided that such source is not, to the knowledge of the
receiving Party at the time of receipt, bound by a
confidentiality agreement with or other contractual, legal
or fiduciary obligation of confidentiality to the other
Party or any other party with respect to such information,
or (iv) was or is independently developed by the receiving
Party without utilizing any such information or violating
any of the receiving Party's obligations under this
Section 10.11(c)), and each Party shall not release or
disclose such information to any other person, including
without limitation its auditors, attorneys, financial
advisors, bankers and other consultants and advisors,
unless compelled to disclose such information by judicial
or administrative process or by other requirements of law
or so as not to violate the rules of any stock exchange;
provided, however, that in the case of disclosure
compelled by judicial or administrative process, the
disclosing Party shall (to the extent permitted by
applicable law) notify the non-disclosing Party promptly
of the request or requirement so that the non-disclosing
Party may seek an appropriate protective order or waive
compliance with the provisions of this Section 10.11(c).
If, in the absence of a protective order or the receipt of
a waiver hereunder, a Party is compelled to disclose any
such information by judicial or administrative process,
such Party may so disclose such information; provided,
however, that, at the written request of the
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non-disclosing Party, the disclosing party shall use
commercially reasonable efforts to obtain, at the expense
of the non-disclosing Party, an order or other assurance
that confidential treatment will be accorded to such
portion of such information required to be disclosed.
(d) Employment Relationships. Except to the extent
specified on Exhibits I and II, employees of Buyer engaged
in performing the Transitional Services shall under no
circumstances be, or be deemed to be, employees of Seller.
Buyer shall have full and exclusive liability for the
payment of worker's compensation or employer's liability
insurance premiums with respect to such employees and for
the payment of all taxes, contributions, withholdings or
other payments for unemployment compensation or severance,
termination, retirement, old age or other benefits,
pensions, annuities or other obligations or liabilities of
any nature now or hereafter imposed upon employers by the
relevant government in respect of such employees, measured
by the wages, salaries, compensation or other remuneration
paid to such employees or otherwise, and Buyer shall make
such payments and shall make and file all reports and
returns and do all other things necessary to comply with
the law imposing such taxes, contributions, withholdings
or other payments.
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date first above written.
SELLER:
TREX MEDICAL SYSTEMS CORPORATION
By:_________________________________
Kenneth J. Apicerno, Treasurer
BUYER:
HOLOGIC, INC.
By:_________________________________
Glen P. Muir, Chief Financial Officer
PARENTS:
The undersigned hereby enter into this
Amendment for the purpose of agreeing to
the amendment of the Agreement as set
forth herein.
TREX MEDICAL CORPORATION
By:_________________________________
Kenneth J. Apicerno, Treasurer
THERMO ELECTRON CORPORATION
By:_________________________________
Kenneth J. Apicerno, Treasurer
[Signature page to Amendment No. 1]
leonard pierce - z:\legal\891.98.699\hologic\amendment no 1-091500.doc
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Exhibit I
Trex Medical Corporation
Future Trex-Trophy/Trex Medical Support Costs
I. Facilities
37 Apple Ridge Road
Trex-Trophy 2,615 sq. ft. @ $18.03 incl. utilities $ 47,100
Trex Medical Finance
2,000 sq. ft. @ $18.03 (includes 1,000 sq. ft. of
warehouse) - a) 36,100
Receptionist at 37 Apple Ridge Road
27,000 + 30% benefits x .70 (percent of time for Trex-Trophy) 24,600
Security
$171,600/123,000 sq. ft. x 5,615 7,800
Hologic Calculation
Needs to include common area usage factor
Rate is blended with warehouse space, yet higher priced office space being
rented Needs to include o/h, administrative costs or profit allocation
Needs to include insurance Space usage and rate is an estimate, on the low
side
Hologic's Rate
4,615 sq ft at 37 Apple Ridge including security and available furniture
$15,000/month
no receptionist planned, transfer Alice to Trex Trophy payroll
Grey's Bridge - no space available, Trophy to pay full monthly rental until
vacated $5,500/month
Manufacturing
1 indirect @$29,763 + 30% benefits 38,700
assessed by Manufacturing
Hologic Calculation
Currently using 1 indirect for shipping/receiving
For up to first three months only, they need to hire a person
Additional data entry will be required due to split system
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Hologic's Rate
Will make available one person to provide shipping/receiving services on a
temporary basis, will be increased if volume increases, review after
first two months$5,000/month
Finance and MIS
5% of total Danbury MIS $646,500
(includes e-mail, voicemail, telephone) 32,300
Data Works service contract 3,000
5% of $60,500
800 Line Customer Service (three lines) 4,700
15% of $31,200
Accounts Payable, cash reporting - b)
1/4 my @ $40,000 + 30% benefits 13,000
Hologic Calculation
5% allocation and total costs are understated
international costs cannot be tracked and included
needs to include support services
Hologic's Rate
For basic MIS services, not including application support separately billed
$10,000/month
Doesn't include providing Accounts payable function, that service covered
below
IV. Engineering
(FDA Support) - man months effort
$64,500 + 30% benefits x .17 14,300
Hologic's Rate
N/A - not providing any FDA related or engineering services
If any transfer of data is necessary, the appropriate bill will be generated
at $1,000/day
V. Furniture and PC Rental
PC's - 5 @ $2,500 / 3 yr life 4,200
Furniture - 5 @ $5,000 / 5 yr life 5,000
Conf. Room Furniture - 1 @ $5,000 / 5 yr life 1,000
---------
Total $231,800
Per month fee $19,317
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Hologic's Rate
Furniture is provided in facility rental above
5 pc's are not available for rent. Include software, monitor and keyboard
and can be purchased for $4,500 apiece. Price does not include printers
or other peripherals.
One laser printer is required to be dedicated for Trophy checks, purchased
for $2,500.
VI. Services
Note: (a - warehouse space should be less expensive than office space.
Forecast assumes same cost per square foot.
(b - Forecast assumes that finance employees will be hired by Trex
Medical for direct support. Minimal allocated accounting from Hologic is
included. If direct finance employees are not hired, the following
allocated costs may apply to the above rate until employees are hired.
Accounts Receivable/Collection
1/2 my @ $40,000 + 30% benefits $26,000
Payroll, General Accounting
1/4 my @ $40,000 + 30% benefits 13,000
General Ledger Maintenance for Trex Medical and Trex-Trophy
1/4 my @ $55,000 + 30% benefits 17,900
---------
Total $56,900
Per Month $4,742
Hologic Calculation
A/P and cash reporting currently takes over 1/2 month
Time allocation for other services understated
No credit approval or collection services will be provided
Salaries are understated
NoNeed to allocate supervisory expenses and overhead costs
Separate systems will increase reporting and workload
Field service support needs to be added. Currently two people to transact
parts, handle service calls and provide dealer support. Lorad will
provide one person and supervise a person to be provided by Trophy.
Currently Trophy has two field service personnel, one is not welcome at
LoRad for work related reasons.
Hologic's Rate
For the five basic modules, the pricing is as follows:
Accounts payable and cash reporting $7,500/month
Accounts receivable and cash application $7,500/month
Payroll $3,750/month
General accounting and general ledger maintenance $10,000/month
Field service support (one person and supervision) $7,500/month
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VII. Other
Cancelable by either party with 90 day notice.
Prices indicated above are firm for the first 90 days
Prices may be adjusted after the first 90 days, with 30 day notice and by
mutual agreement, based on changes in workload from the above outline
No rights of survivorship if Trophy sold Monthly payments are due in
advance
No set off against any other amounts owed by Hologic
September's payment is due in advance and is at the full monthly rate (not
prorated), as added set-up will be incurred in September.
Agreed that Marissa, Alice and John Gemma will remain on Trex Medical's payroll
on the date of closing and not become transferred employee's to Hologic.
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Exhibit II
Request for Services to be provided by Hologic for Trex-Trophy and Trex Medical
1. System Access
No transactions may be processed on the system by non-Lorad employee's.
Lorad will process transaction's per Trophys' instructions until the
system can be segregated or a copy of the system made. Look up function
capability will be provided including reporting capabilities and inquiry
access.
2. General Ledger Maintenance
Trex Medical - will provide a separate copy of the general ledger on
Data Flow system and provide maintenance services as soon as reasonably
practical. Until then Lorad will process transactions, provide reports
requested, and provide viewing/inquiry capabilities if practical.
Trex Trophy - will provide duplicate copy of Data Works system as soon
as reasonably practical. This will allow Trophy to perform their own
transactions. Until then, Lorad will process all transactions on
Trophy's behalf, provide reports and account detail as requested. Access
to view accounts and perform inquiry functions will be provided as soon
as practical.
3. Accounts Payable
Maintain accounts payable system and process payments for Trex-Trophy
and Trex Medical. Provide requested reports and account information.
Payments will be approved by Trex Medical. Run checks with Trex Medical
logo weekly as a separate check run.
4. Billing and Cash Applications
Report cash payments received from customers through lock box
arrangement. Provide details of all miscellaneous cash receipts.
Establish general ledger accounts to track receipts for Trex-Trophy and
Trex medical. Provide customer accounts receivable details and balance
to permit follow-up collection action.
5. Training
Provide for the transfer of data and information to Trex Medical and
Trex Trophy employee's, including initial start up and initialization of
the system, system overview and system instruction. Training of Trex
Medical/Trophy finance employees in job responsibilities or job
functional areas (processing, billing, payables, payroll, general
ledger, etc.) will be provided as requested, agreed upon in advance by
Trex, and billed at $1,000/day. Provide accounting services until
temporary or permanent employees can be hired by Trex Medical to perform
the tasks.
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6. Field Service Access to Data Works System
Provide inquiry only access to Data Works system for handling customer
service calls for Trex- Trophy and tracking service history and
installed base of equipment. Provide support and supervisory function to
transact parts, handle service calls and support dealers.
7. Work Tools
Provide for the following tools to be used by Trex Medical and Trex-
Trophy employees.
a. Sell to Trex Medical/Trophy 2 lap Top PC's and 3 desk top PC's \
from current stock for finance employees
b. Provide available furniture for 5 finance employees. Senior VP
Finance Controller Collection Specialist/General Accountant
Payroll, filing, accounting administrator Secretary/Clerk
c. Furniture for conference room
d. Telephone and telephone service for all Trex-Trophy and Trex
Medical employees
e. Voice-mail and e-mail for all Trex-Trophy and Trex Medical
employees
f. On-going MIS support for Data Works system
