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EXHIBIT. 10.8
Portions of this exhibit were omitted and filed separately with the Secretary of
the Commission pursuant to an application for confidential treatment filed with
the Commission pursuant to Rule 406 under the Securities Act of 1933. Such
portions are marked by a series of asterisks.
PRODUCTION AGREEMENT
This agreement including the Exhibits attached hereto (this "Agreement"),
dated June 9, 1998, is between
Koninklijke Utermohlen N.V., a limited liability company organized under
the laws of the Netherlands, with its registered office at Wolvega, the
Netherlands ("Seller")
and
STC Technologies, Inc., a limited liability company organized under the
laws of the State of Delaware, with its registered offices at Bethlehem,
Pennsylvania 18018, the United States of America ("Purchaser");
WHEREAS:
The Seller carries on the business of the production, sale and distribution
of a cryogenic product for the treatment of warts, marketed and sold under the
name and trademark Histofreezer (the "Histofreezer Business");
Pursuant to an agreement (the "Asset Purchase Agreement") the same date as
this Agreement, the Purchaser has purchased and accepted, and the Seller has
sold and transferred to the Purchaser certain assets belonging to the
Histofreezer Business. A copy of the Asset Purchase Agreement is attached
hereto as Exhibit A;
The Purchaser and the Seller wish to enter into a separate agreement, set
out below, to govern the production by the Seller, for the Purchaser, of
products for the Histofreezer Business;
NOW, THEREFORE, the parties here to agree as follows:
ARTICLE 1 - DEFINITIONS
In this Agreement, the following expressions have, except where the context
otherwise requires, the following meanings:
Confidential Information. The term "Confidential Information" shall mean
------------------------
customer lists, customer details, prices, designs, all data, research, know how,
recipes, ingredients, formulae, processes, sketches, specifications, samples,
reports, studies, findings, inventions and ideas relating the Products.
<PAGE>
Copyrights. The term "Copyrights" shall mean all copyrights related to the
----------
Products and the Histofreezer Business.
Cost. The term "Cost" shall mean the direct cost to the Seller excluding any
----
and all indirect costs such as, including but without limitation operating
costs.
Intellectual Property Rights. The term "Intellectual Property Rights" shall
----------------------------
mean the Patents, the Trademarks, the Copyrights and the know-how related to the
Products and the Histofreezer Business.
Materials. The term "Materials" shall mean all relevant packaging and raw
---------
materials necessary and/or desirable for the manufacture of the Products by the
Seller.
New Product. The term "New Product" shall mean a Product which has been changed
-----------
by an amendment to Specifications recommended by the Purchaser and any product
which is not a Product.
Patents. The term "Patents" shall mean the Patents as defined in the Asset
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Purchase Agreement.
Products. The term "Products" shall mean the products (together with their
--------
relevant packaging) set out in the price list attached as Exhibit 1 hereto and
produced in accordance with the Specifications.
Specifications. The term "Specifications" shall mean the specifications
--------------
previously used by Apco B.V.; current ISO 9002/46002 standards; CE Standards;
the specifications comprised in Exhibit 3.1 of this Agreement or otherwise
comprised in this Agreement; all relevant laws; all relevant regulations; all
relevant directives; best manufacturing practice and procedures; principles of
good workmanship; acknowledged standards together with specific (but reasonable)
instructions of the Purchaser in the relevant written order for any Product(s).
Trademarks. The term "Trademark" shall mean the Trademark as defined in the
----------
Asset Purchase Agreement.
Working Day. The term "Working Day" shall mean a normal working day of the
-----------
Seller.
ARTICLE 2 - PRODUCTION, ORDERS, PACKAGING
2.1. The Purchaser appoints the Seller to be its exclusive
manufacturer of the Products on a worldwide basis for the duration of this
Agreement and the Seller shall exclusively produce and the Purchaser will
purchase Products in accordance with the provisions of this Agreement.
2.2. In the first week of each calendar month the Purchaser will
provide the Seller with a production schedule (the "Production Schedule")
setting out the Purchaser's anticipated requirements for the production of
Products by the Seller for the next two (2) calendar months.
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2.3. Within five (5) Working Days after receipt by the Seller of the
Production Schedule (supplied pursuant to Section 2.2 above), the Seller shall
confirm this Production Schedule to the Purchaser. If the Seller has
insufficient Materials, the Seller will take all reasonable action to obtain
sufficient Materials to fulfill this Production Schedule.
2.4. (i) The Seller shall not hold or order Materials for more than
six (6) months production of Products under this Agreement without the written
consent of the Purchaser. If the Seller shall hold or order Materials for more
than six months production of Products without the written consent of the
Purchaser, then it shall do so at its own risk and the Purchaser will not be
obliged to buy any such Materials from the Seller as set forth in subsection
(ii) of this Section 2.4. For the avoidance of doubt the calculation of the
likely demand for Materials shall be reasonable and based upon the preceding six
months demand for Materials.
(ii) If the Purchaser gives the Seller less than six (6) months
notice of a change to the Products and certain of the Sellers stock of Materials
are therefore no longer required, the Purchaser shall, at its option, purchase
such Materials from the Seller at their Cost to the Seller or shall permit the
Seller to continue to use such Materials until they are fully used. Such
purchase shall be for such Materials required for up to a maximum of six months
production of Products or more if written consent has been given by the
Purchaser to the Seller in respect of the ordering of the same.
2.5. The Seller will at all times maintain a minimum stock of Products
equal to an average of two (2) calendar months sales of Products based upon the
preceding twelve (12) months sales.
2.6. (i) The Purchaser shall place order for Products in writing by
facsimile to the Seller. Such order shall specify the quantity of the Products
and the information specified in Article 5 of this Agreement,
(ii) If the order is:
(a) received by the Seller during a Working Day, the Seller
shall immediately confirm the order to the Purchaser and shall within five (5)
Working Days (or a longer period if specified in the relevant order) dispatch
the relevant Products to the Purchaser's customer as specified in the relevant
order.
(b) not received by the Seller during a Working Day, the
Seller shall confirm the order to the Purchaser on the first Working Day
following receipt of the facsimile by the Seller and shall within five (5)
Working Days (or a longer period if specified in the relevant order) from this
date dispatch the relevant Products to the Purchaser's customer as specified in
the relevant order.
2.7. The Seller shall be responsible for completing all the relevant
paperwork required for the dispatch of the Products to the Purchaser's customers
and the Seller shall dispatch goods to such customers in accordance with Article
5 hereof.
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2.8. Subject to Section 16.7, the Seller has the right to have the
Products manufactured by the Seller by a third party and the Seller may
subcontract its obligations to manufacture Products or any part of them under
this Agreement provided always that the Seller must obtain the written consent
of the Purchaser in respect to the appointment of any new subcontractor for the
manufacture of the Products or any part of them (for the avoidance of doubt not
being a subcontractor at the date of this Agreement), which consent shall not be
unreasonably withheld.
2.9. The Seller shall during the continuance of the agreement maintain
for its own risk and account such facilities and employ sufficient qualified
personnel as are necessary to manufacture the Products in accordance with
obligations imposed upon it by this Agreement in quantities sufficient to meet
the demands of the market or make arrangements with subcontractors in order to
effect the same.
ARTICLE 3 - SPECIFICATIONS AND QUALITY CONTROL
3.1. The Seller will produce, package and label the Products in
conformity with the Specifications. The Purchaser reserves the right to amend
the Specification and quality control procedures relating to the Products at any
time and shall notify the Seller of the same in writing upon reasonable notice
or shorter notice if required by law or any other regulatory body. For the
avoidance of doubt the Purchaser shall solely be responsible for the
Specification of the Products and any changes to the Specification of the
Products shall only be made on the written instruction of the Purchaser to the
Seller.
3.2. The Seller shall procure that such notices as the Purchaser may
require concerning the Intellectual Property Rights are affixed to or used in
connection with the Products.
3.3. The Seller shall not without Purchaser's written consent effect
or permit the removal or alteration of, or the making of any addition to, any
trademark, the trade name, notice, nameplate, serial number or patent number or
other reference to Intellectual Property Rights to be referred to or to be
affixed to any of the Products or in any accompanying documentation as per the
instructions of the Purchaser or to any packaging or other material supplied by
the Purchaser.
3.4. The Seller shall produce the Products in accordance with the then
current ISO9002/46002 and CE standards. Copies of all relevant documents related
to the production of the Products including, but without limitation, those
documents required to complete the CE mark file as approved by KEMA, will be
made available to the Purchaser upon signing this Agreement. Notwithstanding the
foregoing, the Seller will be responsible for maintaining the CE mark files and
shall ensure they are kept up to date and in accordance with good practice for
as long as the Purchaser has not obtained the CE registration in its own name.
The Seller shall supply the Purchaser with copies of all additions to the CE
file and ISO file which relate to the quality control aspects of production of
the Product(s) immediately upon their receipt by the Seller.
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3.5. The Purchaser or its designated representative shall have the
right to inspect the Seller's facilities used for the manufacturing and
warehousing of the Products and the Purchaser or its designated representative
shall have the right to examine the Products manufactured by the Seller in order
to ensure that the Projects are being manufactured in accordance with the
Specifications and procedures provided for in this Agreement.
3.6. The Seller expressly agrees to inspect the fitness, safety and
good condition of the Products prior to their delivery to the Purchaser's
customers. Further, the Products shall be delivered only with those
instructions, and warnings to accompany each individual Product as the Purchaser
consents to in writing.
ARTICLE 4 - PURCHASE PRICE AND INVOICING
4.1. The Purchaser shall purchase the Products from the Seller at the
prices set out in Exhibit 4.1 to this Agreement and shall pay for them within 45
days of the date of the relevant invoice.
4.2. The Seller shall only invoice the Purchaser for Products when
they have been dispatched to the Purchaser's customer in accordance with the
provisions of Article 5 below.
4.3. If the Cost to the Seller of Materials shall increase by more
than 30 percent, then the parties shall use their best endeavors to agree
revised prices for the Products taking into account such changes. Any such
variation shall ensure that the difference between the Seller's reasonable and
proper Cost of production of the Products and the price of the Products to the
Purchaser shall remain substantially the same as at the date of this Agreement.
ARTICLE 5 - DELIVERY
5.1. Unless otherwise instructed, the Seller will deliver the Products
directly to the customers designated by the Purchaser in the Purchaser's order.
The Purchaser's order shall indicate the time of delivery, the destination and
the customer to whom and where the delivery has to take place and whether the
Costs of transportation of the Products is for the account of the Purchaser or
the Purchaser's customer. The Seller shall inform the relevant carrier to
invoice either the Purchaser or the Purchaser's customer for the Cost of such
transportation as appropriate. It is agreed that such destination may be world
wide and the Seller hereby confirms to be able to deliver to any world-wide
destination as designated in such orders. The Seller will ensure all appropriate
and necessary documentation and other regulatory requirements are fulfilled
including transportation in order to ensure the delivery of Products to the
relevant Purchaser's customer. The costs of such documentation and compliance
with regulatory requirements are for the account of the Seller save for the Cost
of transportation which shall be borne by the Purchaser or the Purchaser's
customer.
5.2. The Purchaser shall indicate the means of transport in the
requests, mentioned under Section 5.1 and furthermore under which conditions
transport shall take place in accordance with the Incoterms 1990 of the
International Chamber of Commerce.
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5.3. Products shall be at the Purchaser's risk from the moment of
their dispatch by the Seller (Ex Works Wolvega as defined in Inctoterms 1990 of
the International Chamber of Commerce, subject to the obligations on the Seller
set out in Section 5.1 above) to the Purchaser's customer.
5.4. Immediately after the dispatch of Products to the Purchaser's
customer, the Seller shall inform the Purchaser of the same in writing together
with the estimated time and date of arrival of such Products to the Purchaser's
customer.
ARTICLE 6 - NEW PRODUCTS
6.1. If the Purchaser requests the Seller to produce a New Product,
then the procedure between the parties shall be:
(i) First, the Purchaser shall define the specifications for
the New Product together with a proposed purchase price for the same.
(ii) Second, within 20 Working Days the Seller shall notify the
Purchaser of the cost of supplying such New Products to the Purchaser and of any
additional costs to the Purchaser under its obligation to buy Materials under
Section 2.4 The Seller shall calculate the cost and price of supplying New
Products to the Purchaser upon a similar basis to the calculations used for the
existing cost structure and any such cost calculation shall be reasonable.
(iii) Third, the Parties using their reasonable endeavors, shall
attempt to agree a price for supply for New Products.
ARTICLE 7 - CONFIDENTIAL INFORMATION
7.1. Each party shall handle all Confidential Information provided
by the other party as business secrets and shall handle Confidential Information
in strict confidence. Each party is further required to take all necessary
precautions to ensure that the information and material will not be disclosed to
any third party without the written consent of the other party.
7.2. This obligation of confidentiality applies to all employees and
other persons, including any subcontractor without limitation, acting for and on
behalf of any of the Parties and each of the Purchaser and the Seller shall
ensure that such persons are placed under the same duty of confidence that the
Purchaser and the Seller have agreed to in this Agreement.
7.3. This Article 7 shall remain in force for a period of 5 years
after this Agreement has terminated.
ARTICLE 8 - R&D AND SUPPORT
8.1. The Seller will assist the Purchaser with respect to any
further research and development for the Products and will use its best
endeavors to provide the Purchaser with know-how and feedback in respect
thereof.
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8.2. The Seller shall pass on to the Purchaser, without any
compensation and for the avoidance of doubt on a royalty free basis and non-
exclusive basis any technical improvements which he has made during the duration
of this Agreement, or, where a patentable invention has been discovered by the
Seller, to grant non-exclusive licenses (with rights to assign and sublicense)
in respect of inventions relating to improvements and new applications of the
original invention, to the Purchaser for the term of the patent held by the
latter. Insofar as improvements and inventions made by the Seller during the
duration of this Agreement are incapable of being used independently of the
Purchaser's secret know-how or patent, the Seller's undertaking as referred to
in the first sentence shall be exclusive in favor of the Purchaser.
8.3. For the avoidance of doubt any improvements in and/or additions
to know-how related to the Production process for Products created by the Seller
shall belong to the Seller.
8.4. Immediately after it has come to its attention the Seller shall
report to the Purchaser any and all cases of unfair practice in connection with
the Products and of any violation of Intellectual Property Rights. The Seller
shall upon request of the Purchaser provide the Purchaser with any and all
possible assistance and cooperation in defending and securing such rights of the
Purchaser. At the request of the Purchaser, the Seller will participate in
actions including legal action before the competent courts against any third
party infringing the Purchaser's rights.
8.5. In the case of an event as referred to in Section 8.4 the
Purchaser will use its best endeavors to resolve the issue.
ARTICLE 9 - INTELLECTUAL PROPERTY RIGHTS
9.1. Except as provided hereafter, nothing contained herein shall be
construed as a transfer or a license or any patent, industrial designs,
trademark, trade names, know-how or any other intellectual property right, in
any of the Products; all such rights are to be expressly reserved to the
Purchaser as the exclusive true and lawful owner thereof.
9.2. The Purchaser herewith grants to the Seller a limited non-
exclusive license to use the Intellectual Property Rights as follows:
(i) The use is limited to the effect that the Seller may use the
Intellectual Property Rights only in direct connection with the manufacturing,
packaging and warehousing of the Products under this Agreement only for sale to
the Purchaser. This does not include the use thereof on stationery, in
advertising, at trade fairs, on radio and television, or as part of the Seller's
firm name. The Seller may only assign or sub-license the Intellectual Property
Rights with the written consent of the Purchaser.
(ii) The Seller may not use the Intellectual Property Rights for
any of the Products that have been altered or changed without the Purchaser's
prior written consent nor for other products or services which are not the
Purchaser's.
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(iii) The Purchaser reserves the right to impose additional
directions or limitations concerning the use of the Intellectual Property Rights
and such directions or limitations shall automatically become a binding part of
this Agreement upon the Purchaser having given the Seller written notice of the
same without prejudice to the rights granted to the Seller under Section 9.2
subsection (i).
9.3. The limited license granted by this Article 9 shall automatically
expire upon the termination or expiration of this Agreement and the Seller shall
have no right to whatsoever nature to use the Intellectual Property Rights
following the termination of this Agreement.
9.4. Products to be delivered under this Agreement will bear the
Trademarks.
9.5. Without prejudice to any rights which the Purchaser may have
against the Seller under the Asset Purchase Agreement if the manufacturer of
Products by the Seller or its subcontractors (collectively, the "Group") (i)
results in any claim for patent infringement against the Group or (ii) if a
member of the Group shall be sued by a third party for infringement of a third
party's patent rights, and the alleged infringing process, method or composition
is claimed under the Purchaser's Patents, the Seller shall immediately notify
the Purchaser in writing setting forth the facts in reasonable detail. The
Purchaser shall have the right in its sole discretion, to control the defense of
such claim or suit with counsel of its choice at its expense, in which event the
Seller shall have the right to be represented by advisory counsel of its own
selection at its own expense, and the Seller shall cooperate fully in the
defense of such suit, and shall furnish to the Purchaser all evidence and
assistance in its control. If the Purchaser does not elect within thirty (30)
days after such notice to so control the defense of such suit, the Seller may
undertake such control at its own expense. The Purchaser shall then have the
right to be represented by advisory counsel of its own selection at its own
expense, shall cooperate fully in the defense of such suit, and shall furnish to
the Seller all evidence and assistance in its control. The party that does not
control the defense shall be enabled to join the suit to file any counter claims
for damages in respect of the third party, provided always that it accepts the
control of and shall act in line with the defense by the other party. The Seller
shall not settle the suit or otherwise consent to an adverse judgment in such
suit that diminishes the rights or interests of the Purchaser or imposes
additional obligations on the Purchaser, without the express written consent of
the Purchaser, which consent shall not be withheld unreasonably. Without
prejudice to any rights which the Purchaser may have against the Seller under
the Asset Purchase Agreement any judgments, settlements or damages payable with
respect to legal proceedings covered by this Article 9.5 shall be paid by or to
the party which controls the defense.
ARTICLE 10 - PENALTY CLAUSE
10.1. Any breach of:
(i) Articles 7 and 9 of this Agreement and Article 11 of the
Asset Purchase Agreement shall be considered by the Parties hereto as an event
of gross default ("Gross Default"); and
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(ii) any other Article of this Agreement shall, provided that
such breach is not remedied with 30 (thirty) days of notice to the other Party
in default, from the Party not being in default, also be considered by the
Parties hereto as an event of gross default ("Gross Default").
10.2. In the event of Gross Default, the defaulting party shall
without any prior notice or court action being required forfeit to the benefit
of the other party a penalty immediately payable amounting to ** for each
violation and for ** each day that such default will continue up to an aggregate
maximum of ** without any damage or loss required to be proven, the foregoing
without prejudice to the right of the non-defaulting Party to claim full damages
and to exercise any other right available to it in addition thereto. It is
agreed that article 6:92 paragraphs 1 and 2 of the Netherlands Civil Code are
not applicable.
ARTICLE 11 - REPLACEMENT AND RECALL OF PRODUCTS
11.1. The Seller shall recall and replace, at its expense (including,
without limitation, all indirect costs such as transportation, documentation,
customs formalities and other regulatory compliance), any Products that are not
produced in accordance with the Specifications or any variation of them ("Faulty
Products"), or at the option of the Purchaser the Seller shall refund to the
Purchaser the price paid for the same in which case the Seller will acquire the
Faulty Products. The Seller's obligation to recall and to replace Faulty
Products pursuant to this Article 11 shall not apply to Products that after
delivery to the Purchaser's customer have been subjected to misuse, mishandling,
or to neglect or unusual physical or chemical stress. The Seller shall inform
the Purchaser in writing of the existence of Faulty Products as soon as it is
aware of the same, and shall recall or replace or refund Faulty Products within
5 Working Days of becoming aware of the same.
11.2. If the Seller fails to comply with its obligations pursuant to
Section 11.1 within five Working Days from the Purchaser informing the Seller in
writing of its failure the Purchaser may also recall or replace Faulty Products
and the provisions of Article 11.1 shall apply as relevant. For the avoidance of
doubt the cost of such recall and replacement or refund of Faulty Products shall
be at the Seller's expense and the Purchaser shall charge the costs of the same
to the Seller.
ARTICLE 12 - INDEMNITIES
12.1. By the Seller: The Seller hereby agrees to indemnify and hold
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Purchaser harmless from ad against any and all claims, suits, losses,
obligations, damages, deficiencies, costs, penalties, liabilities (including
strict liabilities), assessments, judgments, amounts paid in settlement, fines,
and expenses (including court costs and reasonable fees of lawyers and other
professionals) (including court costs and reasonable fees of lawyers and other
professionals) (individually and collectively, "Losses") for bodily injury,
personal injury, death, property and other damage caused by any Product which is
not manufactured in accordance with the provisions of this Agreement (and in
particular, but without limitation, the Specifications provided for in this
Agreement or as otherwise varied in accordance with the provisions of it) or
caused by the breach by the Seller of any representation, warranty, covenant or
other obligation
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of this Agreement or caused by the negligence of the Seller or any person for
whose actions the Seller is legally liable provided, however, that the Seller
shall have no liability to the Purchaser for any Losses to the extent that such
Losses resulted from or arose out of (i) the negligence or misconduct or (ii)
breach of this Agreement of/by the Purchaser or any person for whose actions the
Purchaser is liable or (iii) any occurrence for which the Purchaser has
liability to the Seller pursuant to Article 12.2 below or (iv) any occurrence
for which the Purchaser has liability to the Seller pursuant to the Asset
Purchase Agreement.
12.2. By the Purchaser. Without prejudice to any rights the Purchaser
----------------
may have against the Seller under the Asset Purchase Agreement the Purchaser
hereby agrees to indemnify and hold the Seller harmless from and against any and
all Losses, resulting from an infringement by the Product or any New Product of
the intellectual property rights of a third party, for bodily injury, personal
injury, death, property and other damage caused by the Products manufactured in
accordance with the provisions of this Agreement (and in particular the
Specifications provided for in this Agreement or as otherwise varied in
accordance with the provisions of it) or caused by the breach by the Purchaser
of any representation, warranty, covenant or other obligation of this Agreement
or caused by the negligence or the Purchaser or any person for whose actions the
Purchaser is legally liable provided, however, that the Purchaser shall have no
liability to the Seller for any Losses to the extent that such Losses resulted
from or arose out of (i) the negligence or misconduct of the Seller or any
person for whose actions the Seller is legally liable, (ii) a breach by the
Seller of this Agreement, (iii) any occurrence for which the Seller has
liability to the Purchaser pursuant to Section 12.1 above or (iv) any occurrence
for which the Seller has liability to the Purchaser pursuant to the Asset
Purchase Agreement.
12.3. Indemnification Procedure. Each party shall provide prompt
-------------------------
notice to the other of any actual or threatened Loss or claim therefor of which
the other becomes aware; provided that the failure to provide prompt notice
shall only be a bar to recovering Losses to the extent that a party was
prejudiced by such failure. In the event of any such actual or threatened Loss
or claim therefor, each party shall provide the other information and assistance
as the other shall reasonably request for purposes of the defense of such
threatened loss or claim and each party shall receive from the other all
necessary and reasonably cooperation in such defense including, but not limited
to, the services of employees or the other party who are familiar with the
transactions or occurrences out of which any such Loss or claim may have arisen.
As provided in Section 9.5 each party shall have the right to participate in the
defense of any Loss or Losses with counsel of its choosing whose reasonable and
proper fees shall be borne by the party with liability for indemnification under
Article 12.1 or 12.2 as the case may be, and no party shall have the right to
settle any claim or agree to the entry of any judgment or other relief without
the prior consent of the other party, which consent shall not be withheld
unreasonably.
ARTICLE 13 - DURATION AND TERMINATION
13.1. This Agreement shall be in force as from June 1, 1998 for a
period of 5 (five) years. Early termination of this Agreement will be possible
only as provided below and such termination shall not include the termination of
rights and obligations which are expressed herein to continue. Without prejudice
to any rights and obligations the parties may have in the
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event of breach of this Agreement, no compensation shall be due by the
terminating party in connection with any termination hereof.
13.2. Each party may terminate this Agreement with immediate effect by
giving written notice to the other party (i) in the event of Gross Default by
the other party, (ii) in the event of receivership ("faillissement") or
moratorium ("surseance van betaling") of such other party or of direct or
indirect owners of at least half of such other party's share capital and (iii)
in the event the performance of this Agreement has been suspended due to force
majeure (as specified in Article 17 below) for at least 30 (thirty) consecutive
days.
13.3. The Purchaser may terminate this Agreement with immediate effect
by giving written notice to the Seller:
(a) if there are changes to the direct or indirect control
or ownership of (the shares in the capital of) the Seller and the Purchaser does
not provide its consent for the same, such consent not to be unreasonably
withheld;
(b) in the event that the Seller cannot or does not comply
with its obligations under Article 3 of this Agreement.
13.4. Upon the termination of this Agreement
(a) all unfilled orders for the manufacturing of Products
may be cancelled at the discretion of the Purchaser;
(b) the Seller shall remove and discontinue with immediate
effect, the use of the Intellectual Property Rights and the use of all signs,
stationery, advertising and other material that would make it appear to the
public that Seller is still manufacturing the Products or has any connection
with the Purchaser;
(c) save in the event of Gross Default of the Seller the
Seller shall within 10 Working Days of termination supply the Purchaser with a
list of its inventory of Products and New Products (if any). The Purchaser shall
buy all such Products for the prices referred to in Section 4.1 up to a maximum
of the value of 2 months inventory of Products based upon sales of Products for
the preceding 6 months except for any Products older than 6 months and damaged
Products, which shall be transferred to the Purchaser at no cost. The Seller
shall deliver these Products in accordance with the Purchaser's instructions to
the Purchaser or to a third party;
(d) save in the event of Gross Default of the Seller the
Seller shall within 10 Working Days of termination supply the Purchaser with a
list of its inventory of Materials. The Purchaser shall buy all such Materials
for a price equal to their cost to the Seller up to a maximum value of 6 months
inventory of Materials, based upon sales of Products for the preceding 6 months.
In such circumstances the Purchaser shall also buy any additional Materials for
which the Purchaser has given consent to the Seller in accordance with Section
2.4 for a price equal to their cost to the Seller;
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(e) in the case of Gross Default of the Seller the Seller
shall immediately transfer all the Products and Materials in its inventory at no
cost to the Purchaser;
(f) the Seller shall forthwith return all packaging,
literature, manuals and other material supplied by Purchaser or related to the
Intellectual Property Rights or any Confidential Information to the Purchaser,
together with all copies thereof;
(g) the Seller shall refrain from using the Intellectual
Property Rights and any other proprietary rights of Purchaser for any business
and manufacturing purposes whatsoever.
ARTICLE 14 - NOTICES
14.1. Any notice or other communications required or permitted
hereunder, shall be in writing and given by any of the following methods: (i)
personal delivery; (ii) facsimile transmission and in the case of a facsimile
transmission a fax confirmation receipt report shall evidence receipt of such
facsimile transmission; (iii) registered or certified mail, postage prepaid,
return receipt requested; or (iv) overnight delivery service. Notices shall be
sent to the appropriate party at its address or facsimile number given below (or
at such other address or facsimile number for such party as shall be specified
by notice given hereunder):
If to the Purchaser:
STC Technologies, Inc.
1745 Eaton Avenue
Bethlehem, PA 18018-1799
USA
to the attention of Mr. Michael Gausling
If to the Seller:
Koninklijke Utermohlen N.V.
Frisaxstraat 1
8471 ZW Wolvega
The Netherlands
to the attention of Mr. D.T. van der Vat
ARTICLE 15 - APPLICABLE LAW AND JURISDICTION
15.1. This Agreement shall be governed by and construed in accordance
with the laws of the Netherlands.
15.2. Any disputes arising between the parties under or in connection
with the Agreement or any further agreements resulting herefrom, shall be
resolved by the court of competent jurisdiction of Amsterdam.
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ARTICLE 16 - MISCELLANEOUS
16.1. Costs. Each party to this Agreement shall pay its own costs of an
-----
incidental to the formation of this Agreement.
16.2. Complete Agreement. This Agreement, including the Schedules and
------------------
Exhibits attached thereto, represents the entire understanding and agreement
between the Purchase and the Seller with respect to the subject matter hereof.
All preceding agreements and understandings pertaining thereto have been
incorporated into this Agreement or, if not incorporated, have been superseded
by this Agreement and have lapsed from the date of the coming into force of this
Agreement.
16.3. Amendment. This Agreement can only be amended, supplemented or
---------
changed, and any provisions or conditions of the Agreement can only be waived,
in writing signed by both parties with a specific reference to this Agreement.
16.4. Recitals and Headings. Recitals (i) through (iii) shall be deemed to
---------------------
form part of this Agreement. The headings contained in this Agreement are
included for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
16.5. Severability. If any provision of this Agreement is illegal, void or
------------
unenforceable, such provision shall have no force and effect, but the illegality
or unenforceability of such provision shall have no effect upon and shall not
impair the enforceability of any other provision of this Agreement. If such
illegality, nullity or unenforceability becomes apparent, the parties shall
consult with each other as soon as practicable in order to reach agreement on a
legal, valid and enforceable replacement of such clause in such a manner that
the intention of the parties shall be approximated as much as possible.
16.6. Implementation. The parties agree to execute such further documents
--------------
or agreements as may be necessary or desirable for the implementation of this
Agreement and the consummation of the transactions contemplated hereby.
16.7. Assignment. None of the rights or obligations under this Agreement
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may be assigned or transferred by the Seller without the prior written consent
of the Purchaser which shall not be unreasonably withheld. The Seller and
Purchaser can freely assign or transfer any ("cessie") or all
("contractsoverneming") of the rights and obligations under this Agreement to an
affiliated company. The Purchaser may freely assign any ("cessie") or all
("contractsoverneming") of the rights and obligations under this Agreement to
any third party. In so far as may be required, the Seller and the Purchaser
thereby in advance give their consent to any such assignment.
16.8. Waiver. Failure or neglect by either party to enforce at any time of
------
the provisions hereof shall not be construed nor shall be deemed to be a waiver
of such parties' right hereunder nor shall in any way affect the validity of the
whole or any part of this Agreement nor prejudice the rights of such party to
take subsequent action.
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16.9. Agreement prevails over Exhibits. If there is any inconsistency
--------------------------------
between the terms and conditions in the Exhibits and the other provisions of
this Agreement, then the provisions of this Agreement shall prevail.
ARTICLE 17 - FORCE MAJEURE
17.1. No party shall be held liable or responsible to the other parties nor
be deemed to have defaulted under or breached this Agreement for failure or
delay in fulfilling or performing any term of the Agreement to the extent that
such failure or delay is caused by or results from causes beyond the control of
the affected party including but not limited to fires, earthquakes, floods,
embargoes, wars, acts of war, insurrections, riots, civil commotions and acts of
God.
SIGNED AND AGREED at Amsterdam in two original copies on the date and year
first above written.
/s/ Mr. D.T. van der Vat /s/ Michael Gausling
______________________________ _____________________________
Koninklikje Utermohlen N.V. STC Technologies, Inc.
By: Mr. D.T. van der Vat By: Michael Gausling
its: Managing Director its: President and CEO
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Exhibit A
AGREEMENT FOR SALE AND PURCHASE OF ASSETS
This agreement including the Exhibits attached hereto (this "Agreement"),
dated June 9, 1998, is between
1. Koninklijke Utermohlen N.V., a limited liability company organized under
the laws of the Netherlands, with its registered office at Wolvega, the
Netherlands ("Seller") and
2. STC Technologies, Inc., a limited liability company organized under the
laws of the State of Delaware, with its registered offices at Bethlehem,
Pennsylvania 18018, the United States of America ("Purchaser");
WHEREAS,
(i) among other activities, Seller engages in the business of the production,
sale and distribution of a cryogenic product for the treatment of skin
lesions, marketed and sold under the name and trade mark Histofreezer (the
"Histofreezer Business");
(ii) upon the terms and subject to the conditions set forth herein, Purchaser
desires to purchase and accept, and Seller desires to sell and transfer to
Purchaser certain assets relating to the Histofreezer Business;
(iii) the parties hereto desire to enter into a separate agreement that shall
govern the future relationship between the Seller and the Purchaser in
respect of the production by the Seller of the Products (the "Production
Agreement").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1 - Definitions
In this Agreement the following expressions have, except where the context
otherwise requires, the following meanings:
(1) Contracts
---------
The term "Contracts" shall have the meaning specified at Section 3.1
hereof.
(ii) Closing
-------
The term "Closing" shall mean the closing of the transactions envisaged in
this Agreement, as described in Article 6 hereof.
(iii) Closing Date
------------
The term "Closing Date" shall mean the date of the Closing.
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(iv) Effective Time
--------------
The term "Effective Time" shall mean 12:01 a.m. Amsterdam time on June 1,
1998.
(v) Patents
-------
The term "Patents" shall mean the Patents as specified in Section 2.1
(i).
(vi) Product
-------
The term "Product" shall mean the cryogenic product for the treatment of
skin lesions, marketed and sold on the date hereof, and as developed,
marketed and sold after the date hereof.
(vii) Purchase Price
--------------
The term "Purchase Price" shall have the meaning specified at Section 5.1
hereof.
(viii) Purchased Assets
----------------
The term "Purchased Assets" shall have the meaning specified at Section
2.1 hereof.
ARTICLE 2 - Sale and Purchase of Assets
2.1. Sale and Purchase of Assets
Subject to the terms and conditions stated in this Agreement, and effective as
of the Effective Time, the Seller shall sell, transfer, assign and deliver to
the Purchaser, and the Purchaser shall purchase and accept the transfer,
assignment and delivery of, all of the following assets (the "Purchased
Assets"):
(i) the patent which is described by country on Exhibit 2.1 (i) hereto (the
"Patents") and all patent applications and patent rights relating to the
Histofreezer Business, all associated technical information, shop rights,
processes, operating, maintenance and other manuals, drawings and
specifications, formulations, process flow diagrams and related data;
(ii) the trademark which is described by country on Exhibit 2.1 (ii) hereto
(the "Trademark");
(iii) all copyrights relating to the Histofreezer Business, including but not
limited to packaging designs, advertisements, slogans, technical drawings,
manuals and software (including source codes);
(iv) the registration of and all rights to the domainname histofreezer.com;
(v) all documentation relating to the production, manufacturing process, know-
how and other information relating to the Histofreezer Business, including
but not limited to commercial information, trade secrets and technical
information relating to the Patents and the Products;
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(vi) all rights to databases relating to the Histofreezer Business, including
but not limited to the list of distributors and/or customers (whether
such customers are parties to the Contracts or not);
(vii) all stock of promotional, educational and other information material
relating to the Histofreezer business, including but not limited to
brochures, leaflets, surveys of test results, CD ROM's, films, video's
and sound recordings;
(viii) such part of the accounts receivable under the Contracts as follows from
Section 3.5.
All of the Purchased Assets shall be free and clear of all liens,
encumbrances, mortgages or charges of any kind, except those liens,
encumbrances, mortgages or charges specifically identified on the
abovementioned Exhibits 2.1 (i) through 2.1 (ii).
2.2. Excluded Assets
Except for the Purchased Assets, the Seller shall not sell, transfer, assign or
deliver anassets to the Purchaser.
ARTICLE 3 - Assumption of Contracts
3.1. Assumption of Certain Contracts
The Purchaser agrees to assume all rights of the Seller as of the Effective Time
under the contracts listed on Exhibit 3.1 hereto (the "Contracts") and agrees to
assume all liabilities under the Contracts relating to the period after the
Effective Time subject to and/or in accordance with this Article 3 and Section
5.3 and Section 7.7.
3.2. Consent to transfer of Contracts
Any assignment pursuant to this Agreement of a Contract which is not assignable
without a third party consent shall be subject to such consent having been
given. The Seller and Purchaser shall use their reasonable best efforts to
obtain, after the Closing Date, the consent of the counterparties to the
Contracts to the transfer of the rights thereunder by the Purchaser and consent
to the assumption of liabilities thereunder by the Purchaser.
3.3. No Consent Obtained
If the consent from any counterparty to any of the Contracts, if and in so far
as required, will not have been obtained prior to or at the Closing, such
contract shall be deemed non-assignable and the Purchaser shall not assume any
rights and obligations of the Seller under such contract, subject to and save
for as provided in Section 3.4, Section 3.5 subsection (iii), Section 3.6,
Section 5.3 and Section 7.7.
3.4. Benefit to Contracts
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Except as otherwise provided for in Sections 3.3, 3.5 and 3.6, the Parties agree
that the benefit to the Contracts shall vest in the Purchaser with effect from
the Effective Time to the effect that:
(i) the Seller receives the benefit of all revenues and profits and bears all
costs and expenses arising in respect of the Contracts relating to the
period up to the Effective Time; and
(ii) the Purchaser receives the benefit of all revenues and profits and bears
all costs and expenses arising in respect of the Contracts relating to the
period after the Effective Time, provided, however, that the Purchaser
shall be under no obligation to bear any costs and expenses in respect of
any Contracts for which no consent to the assignment by the relevant
counterparty has been given.
3.5. Allocation of Receivables
With regard to amounts payable under the Contracts prior to or after the
Effective Time, the following is agreed:
(i) subject to Section 3.5 (ii) receivables relating to invoices sent by the
Seller under the Contracts which are dated prior to the Effective Time
shall be for the benefit of the Seller;
(ii) Seller shall ship Product and send invoices during May 1998 in the
ordinary course of business consistent with past practices, except that
the maximum amount of Product to be shipped and invoiced in May 1998 by
Seller shall be NLG 500,000 (five hundred thousand Netherlands Guilders)
(the "Limit") with any excess to be retained by Seller and shipped and
invoiced by Purchaser after the Effective Time. To the extent that the
Seller exceeds the Limit then the Seller shall credit the Purchaser with
such sum in the Seller's trading relationship with the Purchaser pursuant
to the Production Agreement;
(iii) all receivables relating to invoices sent under the Contracts whether
assigned or not pursuant to Section 3.2 and dated on or after the
Effective Time shall be for the benefit of the Purchaser but for the
avoidance of doubt the Purchaser shall not be entitled to any other right
or subject to any liability or obligation in respect of any Contract
deemed non assignable pursuant to Section 3.3 until such time as any such
Contract is assigned to the Purchaser pursuant to Section 7.7.
3.6. Allocation of Received Amounts and Payables
With regard to amounts received by the Seller or the Purchaser prior to or after
the Effective Time under the Contracts and amounts payable under the Contracts,
the following is agreed:
(i) any amount received by the Purchaser (whether prior to, at, or after the
Closing) under the Contracts shall, if and in so far such amount relates
to an invoice which is dated prior to the Effective Time, be paid by the
Purchaser to the Seller;
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(ii) any amount received by the Seller (whether prior to, at, or after the
Closing) under the Contracts shall, if and in so far as such amount
relates to an invoice which is dated after the Effective Time, be paid by
the Seller to the Purchaser.
(iii) any amount due by the Seller to a third party under the Contracts before
the Effective Time or relating to a period before the Effective Time
shall, if and in so far as the Purchaser pays such amount to such third
party, be reimbursed by the Seller to the Purchaser.
ARTICLE 4 - Assumption of Liabilities
4.1. Assumption of Certain Liabilities
The Purchaser agrees to assume only the obligations of the Seller under the
Contracts pursuant to Article 3.
4.2. Exclusion of Other Liabilities
Except as provided for in Section 4.1, it is expressly understood and agreed
that the Purchaser will not be liable for any obligations, liabilities, debts,
claims, costs or expenses of any kind or nature whatsoever (excluding the costs
to effect legal transfer of title and registration in the relevant registers of
the Patents and the Trademark which shall be for the account of the Purchaser)
related to the Seller's business, or the ownership or use of the Purchased
Assets prior to the Effective Time, or transfer of the Purchased Assets by the
Seller to the Purchaser, including, but not limited to, any obligations,
liabilities, debts, claims, costs or expenses of any kind or nature whatsoever,
related to employees or former employees of the Seller.
ARTICLE 5 - Purchase Price and Payment
5.1. Purchase Price
Subject to the terms and conditions of this Agreement, the Purchase Price for
the Purchased Assets is NLG 4,800,000 (four million eight hundred thousand
Netherlands Guilders).
5.2. Payment
The Purchase Price shall be paid on the Closing Date by the Purchaser
transferring an amount of NLG 4,800,000 to the bank account of the Seller with
ABN-AMRO Bank in Wolvega, the Netherlands, account number 540.211.087.
5.3. Adjustments to the Purchase Price
For any Contracts to which, before the date falling exactly 90 days after the
Closing Date, the counterparty has not given his consent, if and in so far as
required, to the assignment to the Purchaser in accordance with Article 3, the
Purchase Price shall be reduced with the percentage, as shown on Exhibit 5.3
hereto. However, if, during the one year period after the Effective Time there
are sales of Product in the geographic area covered by any Contracts to which
consent was not given, Purchaser shall repay to Seller such percentage
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of the penalty (but not greater than 100% of the penalty) equal to the gross
turnover of the Product sold in such area during such one year period, divided
by the total turnover of the Products sold by the Seller to such distributor in
such area during 1997 being the fiscal year of the Seller from 1 May 1997 to 30
April 1998.
ARTICLE 6 - Closing Arrangements
6.1. Time and Place of Closing
The closing of the transactions envisaged in this Agreement (the "Closing")
shall be held at the same place as and simultaneously with the closing
contemplated under the Production Agreement, or at such other time and place as
the Seller and the Purchaser mutually agree in writing.
6.2. Closing Procedure
At the Closing:
(i) the Purchaser shall pay the Purchase Price to the Seller and shall deliver
to the Seller evidence that the Purchase Price has been credited to the
bank account mentioned in Section 5.2 hereof;
(ii) the Seller and the Purchaser shall sign:
(a) the Production Agreement;
(b) deed of assignment of the rights and benefits, and
assumption of liabilities, under the Contracts, in the form of Exhibit 6.2 (ii)
(b) hereto;
(c) a deed of assignment of the Patents, in the form of
Exhibit 6.2 (ii) (c) hereto;
(d) a deed of assignment of the Trademark, in the form of
Exhibit 6.2 (ii) (d) hereto;
(e) a document acknowledging the assignment of the domain
name histofreezer.com by the Seller to the Purchaser and requesting the relevant
registrar to register the Purchaser as the holder of the registration;
(iii) the Seller shall deliver to the Purchaser:
(a) the original copies of the Contracts, including all
amendments, annexes, schedules end exhibits thereto and all correspondence and
other documentation in respect thereof;
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(b) a hard copy of as well as a floppy disc or other data
carrier containing the assigned databases, including all customer lists relating
to the Histofreezer Business;
(c) a complete copy of the CE mark files relating to the
products made under the Patents or otherwise being part of the Histofreezer
Business, including but not limited to the test report by KEMA and any relevant
correspondence on the issue of CE marks;
(d) or as soon as possible but no later than 30 days from
the Closing Date in so far as the know-how and other secret information is in
writing, copies thereof in hard copy and, if applicable, on other carriers
identifying such know-how and secret information;
(e) or as soon as possible but no later than 30 days from
the Closing Date all the necessary information to insert into Exhibit 8.1 (v) of
this Agreement.
(iv) in so far as the know-how and other secret information relating to the
Patents, the Trademark and the Histofreezer Business is not available in
writing or other carrier, the Seller will identify the key employees with
knowledge thereof.
6.3. Termination of STC Agreement
On the Closing Date the Purchaser and the Seller shall terminate the
distribution agreement between themselves dated June 4 1991 and both parties
hereby waive any rights either of them may have against the other as a
consequence of such early termination.
6.4. Both parties acknowledge that in relation to Article 85 of the EC Treaty
and the Netherlands Competition Act ("Mededingingswet"), the Netherlands Merger
Code ("SER besluit Fusiegedragsregels 1975") they share the responsibilities to
make all required notifications and provide all required information and
documents to, and obtain all required consents and appovals from, all relevant
authorities and agencies, howsoever named.
6.5. Closing Indivisible
Each of the foregoing transactions is part of a single indivisible Closing and
none of these transactions shall be deemed to have been consummated unless and
until each of them shall have been completed in accordance with the terms hereof
save in respect of Section 6.2 (iii) (d and (e) for which the Seller has 30 days
from and including the Closing Date, to comply with.
ARTICLE 7 - Post-Closing Covenants
7.1. Use of Patents, trade name and Trademark by Seller
As of the Closing Date the Seller undertakes to refrain from any use of the name
"Histofreezer" and Trademark and/or a similar trade name and trademark and
acknowledges the Purchaser has the sole right to use the same, whether or not in
combination with other indications. The Seller will also refrain from using the
Patents and
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the know-how and other secret information as well as the databases, whether or
not in a modified form, except as provided for in the Production Agreement.
7.2. Assignment of Know-How and Other Secret Information
All key employees of the Seller with knowledge of the know-how and other secret
information relating to the Patents, the Trademark and the Histofreezer Business
not available in writing or other carriers shall be made available at no cost
for the assignment thereof within three months after the Closing Date, in
consultation with the Seller and in a manner satisfactory to the Purchaser.
7.3. Delivery of Certain Materials
As soon as possible but not later than 30 days from the Closing Date, the Seller
shall deliver all stock of promotional, educational and other information
material relating to the Histofreezer Business, including but not limited to
brochures, leaflets, surveys of test results, CD ROM's, films, video's and sound
recordings, at an address designated by the Purchaser, at no cost.
7.4. CE-Mark
The Seller will use its best endeavors to assist the Purchaser with obtaining
the CE-Mark for the products made under the Patents or otherwise being part of
the Histofreezer Business.
7.5. Effort to Keep Customers
The Seller and the Purchaser shall use their best endeavors to ensure that the
present customers of the Histofreezer Business shall continue to place orders
with Purchaser at a level no less than currently made.
7.6. Further Assurances
The Seller shall, at any time and from time to time after the Closing Date, upon
request by the Purchaser, execute and deliver such documents and take such other
action as the Purchaser may reasonably request in order to consummate more
effectively the transactions contemplated hereby, including but not limited to
the production data when Seller commences production in its facility in Wolvega.
7.7. Non-Assigned Contracts
With respect to Contracts which are not assigned at the Closing Date, both
Seller and Purchaser shall use their best efforts to (i) continue to attempt to
effect such assignment, or (ii) locate an alternative distributor for the
Product for the same geographic area. Failing either of (i) and (ii) of this
Section 7.7 and during the period when such Contracts are not assigned to the
Purchaser the Seller shall make purchases of Product from the Purchaser, as
distributor of Purchaser pursuant to a distributorship agreement on ordinary and
customary terms and in particular the relevant price for the Products in the
applicable non-assigned
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Contracts, to be resold to the distributor who did not consent to the assignment
at the relevant price specified in the applicable non-assigned Contracts.
7.8. Patents
At the sole discretion of the Purchaser, the Seller shall use its best endeavors
to assist the Purchaser to add the name of Mr. Wilhelmus J.B. Swart as inventor
to the registration of the Patent. The costs relating thereto shall be borne by
the Purchaser, provided that the Seller shall bear (i) all costs relating to the
cooperation of its present employees, directors and consultants therewith, and
(ii) all reasonable costs (save that such cost shall not exceed 5,000 NLG)
relating to the cooperation of its former employees, directors and consultants
therewith.
ARTICLE 8 - Representations and Warranties of the Seller; Survival
8.1. Representations and Warranties of the Seller
The Seller hereby unconditionally represents and warrants that:
(i) Organization and Power: The Seller is a company with limited liability
duly organized and validly existing under the laws of the Netherlands. The
Seller has the corporate power and authority to own the Purchased Assets
and to carry on the Histofreezer Business now being conducted. The Seller
has the full right, power, and authority to enter into and to perform this
Agreement and all other agreements, certificates, and documents executed
or delivered, or to be executed or delivered, by the Seller in connection
herewith or to consummate the transactions contemplated hereby
(collectively, with this Agreement, "Seller's Documents"), and all
necessary corporate action with respect thereto has been taken, and no
further action is necessary therefore. Neither the authorization,
execution, delivery or performance of any of the Seller's Documents will
violate, conflict with, result in a breach of, constitute a default under,
or require any notice, consent, approval or order under the Seller's
articles of association. On the Closing Date, the Seller will have the
full right, power and authority to sell, assign, transfer, and deliver the
Purchased Assets and the Contracts (subject to the consent to assign of
the relevant contracting party) as provided in this Agreement. This
Agreement has been duly authorized, executed and delivered by the Seller,
and this Agreement and all other Seller's Documents are, or when executed
and delivered will be, legal valid, and binding obligations of the Seller,
enforceable in accordance with their respective terms.
(ii) Notification and Consultation: On or before the Closing Date, but no later
than as required by law or regulation, the Seller will have, in respect of
the transactions envisaged in this Agreement, made all required
notifications and provided all required information and documents to, and
obtained all required consents and approvals from, all relevant
authorities, agencies, works councils, labor unions and other bodies
howsoever named, under all applicable laws and regulations, including but
not limited to the Netherlands Works Council Act ("Wet op de
Ondernemingsraden") and any collective labor agreement ("CAO") applicable
to employees of the Seller.
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(iii) Purchased Assets: The Purchased Assets are in good marketable and
operating condition and repair and are suitable for use in the business
of Seller prior to the date hereof, Seller has free and unencumbered
title to the Purchased Assets, free from any liens, pledges, retentions
of title or encumbrances of any nature whatsoever, and no third parties
have any right and/or title in or to the Purchased Assets. The Seller has
taken all necessary precautions to protect it's patents, trademarks,
trade names, industrial designs and copyrights included in the Purchased
Assets. The Seller has not violated to its best knowledge any patent,
copyright, industrial design, trademark, trade name or, other
intellectual property right of a third party nor does the Seller know of
any asserted infringement by the Seller of any intellectual property
right of another. After the assignment of the Purchased Assets and the
execution of the Production Agreement, the Purchaser shall be able to
conduct the Histofreezer Business in the same manner as it was conducted
before the Closing Date. Seller has developed and has been concurrently
using the technology to manufacture the Products on a commercial basis
and there are no defects, shortcomings or technical reasons which would
prevent the manufacture and sale of the Products by the Purchaser on a
commercially feasible basis. All patent fees and all other costs in
connection with a proper registration of the Patents and Trademark for
the period ending two weeks after Closing have been paid in a timely
manner. Exhibit 8.1 (iii) hereto accurately lists, by country, the annual
patent fees and all other costs in connection with a proper registration
of the Patents and Trademark and the date on which such fees and/or costs
become due.
(iv) Contracts: Each of the Contracts is in full force and effect and there
exists no default or event of default or event, occurrence, condition or
act (including the transactions envisaged in this Agreement) which, with
the giving of notice, the lapse of time or any other event or condition,
would become a default or event of default thereunder. The Seller has not
violated any of the terms or conditions of any of the Contracts in any
material respect, and, to the best of Sellers knowledge, information and
belief, all of the covenants to be performed by any other party thereto
have been fully performed. The Seller has not received any notice that
any party to any of the Contracts intends to cancel or terminate any of
the Contracts. There are no commitments by the Seller to the
counterparties of the Contracts other than mentioned in the copies of
Contracts that have been delivered to the Purchaser on the Closing Date,
nor are there any disputes between the Seller and such parties.
(v) Permits and Compliance with Laws: The Seller has complied with all, and
is not in violation of any, laws and regulations affecting the Purchased
Assets, the Contracts and the Histofreezer Business. No permits or
licenses are required by any governmental authority for the operation of
the Histofreezer Business as currently being conducted, except as set
forth on Exhibit 8.1 (v) hereto
(vi) Legal Proceedings: there are no actions, suits, claims or proceedings
affecting the Purchased Assets or the Contracts in any court or before
any arbitrator or governmental agency, nor are, to the best knowledge of
Seller, such actions, suits, claims or proceedings threatening, with the
exception of:
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(a) patent infringement claim in the United States,
instigated by the Purchaser against Cryosurgery, Inc.; and
(b) patent infringement preliminary injunction proceedings
pending before the President of the District Court in The Hague, the
Netherlands, instigated by the Purchaser as claimant against Wartner B.V. and
Dokman en Ruizendaal B.V. as defendants.
(vii) No Inconsistent Agreements: neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated herein
will result in a violation or breach of, or constitute a default under,
any term or provision of any material mortgage, pledge, security
agreement, instrument, order, judgement, decree, rule, regulation, law,
contract, agreement or any other commitment or restriction to which
Seller is a party or by which it is subject or bound, nor will such
actions result in (a) the creation of any claim, lien, charge or
encumbrance on any of the Purchased Assets or the Contracts, or (b) the
acceleration or creation of any material obligation in connection with
the Purchased Assets or the Contracts, or (c) the forfeiture of any
material right or privilege connected to the Purchased Assets or the
Contracts.
(viii) Sufficient Insurance: Seller has, and will have for the term of the
survival of the representations and warranties as determined in
accordance with Section 8.2 hereof, insurance policies in place covering
all events that will cause any amount becoming due by the Seller to the
Purchaser under this Agreement, up to a maximum amount of no less than
NLG 2,000,000 (two million Netherlands Guilders). As of the Closing Date
and for the term of such insurance policies, Purchaser will be the named
beneficiary of each such policy such that if a claim is made successfully
under any such policy Purchaser shall receive any moneys received in
settlement of the claim from the relevant insurer.
(ix) Swart Patent: The Seller warrants that the license agreement between the
Seller and Wilhelmus J.B. Swart dated April 1987 has terminated.
(x) No Liabilities Resulting from Agreement; No Undisclosed Liabilities:
Neither the execution and delivery of this Agreement nor the consummation
of the transactions contemplated herein will result in any debt,
liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, for the
Purchaser, other than (a) such obligations under the Contracts as are
specified in Article 3 and (b) such obligations relating to the Purchased
Assets as are specified on Exhibit 8.1 (iii) hereto, and (c) the
Purchasers obligations to the Seller under this Agreement.
(xi) Accuracy of Information: Seller has disclosed to Purchaser all that is
relevant with respect to the Purchased Assets and the Contracts, and no
information provided to Purchaser is incorrect or misleading in any way
whatsoever.
8.2. Survival of Representations and Warranties
-11-
<PAGE>
All representations and warranties of the Seller contained in this Agreement
shall survive for a period of two years following the Closing Date.
ARTICLE 9 - Indemnification and Hold Harmless
9.1. General Indemnification and Hold Harmless
The Seller hereby agrees to indemnify Purchaser and to hold the Purchaser
harmless, without any right to compensation or set-off against any amount due by
the Purchaser to the Seller,
(i) against and in respect of any and all loss, damage, liability, cost and
expense (including attorney's fees), suffered or incurred as a result of
the inaccuracy of any of the Seller's representations or the breach of any
warranty or of any other obligation of the Seller pursuant to this
Agreement or in any certificate, schedule, instrument or document
delivered to Purchaser by or on behalf of Seller in connection with the
conclusion of this Agreement; and
(ii) without limitation to Section 9.1 (i), against and in respect of any and
all loss, damage, liability, cost and expense (including attorney's fees),
relating to any and all claims, including but not limited to personal
injury claims, relating to the period prior to the Closing Date and
relating to the Purchased Assets, the Contracts the Histofreezer Business
or any other business or activity of the Seller.
9.2. Indemnification and Hold Harmless Against Employment Related Claims
Without limitation to Section 9.1, Seller agrees to indemnify Purchaser and hold
Purchaser harmless against and from any and all claims of employees or former
employees of Seller, whether relating to continued employment, vacation days,
severance payments, the termination of employment, pension rights, premiums of
any kind, disability excess scheme ("WAO-excedent regeling"), disability
insurance shortfall ("WAO-gat") or any other employment related claims.
ARTICLE 10 - Reimbursement for Damages Relating to Proceedings and Claims
10.1. Reimbursement for Damages Relating to Disclosed Proceedings and Claims
Without limitation to Sections 9.1 and 9.2, Seller agrees to reimburse Purchaser
for any and all loss, damage, liability, cost, expense (including attorney's
fees), judgments and amounts paid in settlement (including attorney's fees),
resulting from the proceedings described in Sections 8.1 (vi) (a) and (b), up to
the maximum amount of USD 100,000 (one hundred thousand United States dollars)
for each of such proceedings.
10.2. Reimbursement for Damages Relating to Infringement Claims
Without limitation to Sections 9.1, 9.2 and 10.1, Seller agrees to reimburse
Purchaser for any and all loss, damage, liability, cost, expense (including
attorney's fees), judgments and amounts paid in settlement, resulting from any
and all claims and/or proceedings in which the alleged infringement occurred
prior to the Effective Time, other than those described in
-12-
<PAGE>
Sections 8.1 (vi) (a) and (b), up to the aggregate maximum amount of USD 100,000
(one hundred thousand United States dollars).
ARTICLE 11 - Non-Competition and Confidentiality
11.1. Non-Competition
The Seller hereby agrees and undertakes that it will not:
(i) at any location in the world in which the Seller has at the date of the
signing of this Agreement distributors or customers for Products, without
the prior written consent of the Purchaser during a period of five (5)
years after the Closing Date as principal, consultant, sales
representative, agent, distributor, shareholder, partner or any other
capacity whatsoever, either directly or indirectly be engaged in or
concerned with the conduct of the Histofreezer Business currently
conducted by the Seller or in any other field which is connected to such
conduct of business or which in any way can be regarded as competing with
the Histofreezer Business;
(ii) approach any employee, sales representative or agent of the Purchaser with
the aim of persuading him, her or them to terminate his or her or their
relationship with the Purchaser or take any action that may result in the
impairment of the relationship between such employee or sales
representative or agent with the Purchaser;
(iii) approach any customer, supplier of or other company or enterprise doing
business with the Purchaser with the aim of persuading it to terminate its
relationship with the Purchaser or take any action that may result in the
impairment of such relationship;
11.2. Confidentiality
The Seller further undertakes not to, and to cause all of its present and former
employees and directors not to, at any time subsequent to this Agreement
divulge or communicate to any company, person or entity (other than to the
Purchaser or to any of its directors, officers or employees who need to acquire
such knowledge in the performance of their duties or as directed or approved by
the Purchaser in writing) any confidential information or information of an
apparently confidential nature whatsoever concerning the Histofreezer Business
or the Patents, or the business, affairs, accounts, dealings, transactions,
customers, suppliers or business relations of the Purchaser.
11.3. Penalty
In the event that the Seller breaches any of its obligations contained in the
previous paragraphs of this Article 11, it shall immediately without any action
or formality being required to be taken or fulfilled forfeit for the benefit of
the Purchaser an immediately payable penalty of NLG 250,000 (two hundred fifty
thousand Netherlands guilders) for each infringement and of NLG 10,000 (ten
thousand Netherlands guilders) for each day such infringement will continue, up
until the aggregate maximum amount of NLG 500,000 (five hundred thousand
Netherlands guilders), without any damages or losses being
-13-
<PAGE>
required to be proven and without prejudice to the right of the Purchaser to
claim damages if there are grounds for so doing.
ARTICLE 12 - Notices
12.1. Any notice or other communications required or permitted hereunder,
shall be in writing and given by any of the following methods: (i) personal
delivery; (ii) facsimile transmission; (iii) registered or certified mail,
postage prepaid, return receipt requested; or (iv) overnight delivery service.
Notices shall be sent to the appropriate party at its address or facsimile
number given below (or at such other address or facsimile number for such party
as shall be specified by notice given hereunder):
If to Purchaser:
STC Technologies, Inc.
1745 Eaton Avenue
Bethlehem, Pennsylvania 18018-1799
U.S.A
to the attention of: Mr. Michael Gausling
If to Seller:
Koninklijke Utermohlen N.V.
Frisaxstraat 1
8471 ZW Wolvega
The Netherlands
to the attention of: Mr. D.T. van der Vat
All such notices, requests, demands, waivers and communications shall be
deemed received upon (i) actual receipt thereof by the addressee, (ii)
actual delivery thereof to the appropriate address or (iii) in the case of
a facsimile transmission, upon transmission thereof by the sender and
issuance by the transmitting machine of a confirmation slip confirming that
the number of pages constituting the notice have been transmitted without
error. In the case of notices sent by facsimile transmission, the sender
shall contemporaneously send a copy of the notice by registered mail to the
addressee at the address provided for above. However, such mailing shall in
no way alter the time at which the facsimile notice is deemed received.
ARTICLE 13 - Applicable law and jurisdiction
13.1. Applicable law
This agreement shall be governed by and construed in accordance with the laws of
the Netherlands.
13.2. Jurisdiction
Any disputes arising between the parties under or in connection with the
Agreement or any further agreements resulting herefrom, shall be resolved by the
court of competent jurisdiction of Amsterdam.
-14-
<PAGE>
ARTICLE 14 - Miscellaneous
14.1. Costs
Each party to the Agreement shall pay its own costs of and incidental to the
preparation of this Agreement and the sale and purchase hereby agreed to be
made.
14.2. Complete agreement
This Agreement, including the Exhibits attached thereto, represents the entire
understanding and agreement between the Purchaser and the Seller with respect to
the subject matter hereof. All preceding agreements and understanding pertaining
thereto have been incorporated into the Agreement or, if not incorporated, have
been superseded and have lapsed.
14.3. Amendment
The Agreement can only be amended, supplemented or changed, and any provisions
or conditions of the Agreement can only be waived, in a writing signed by both
parties with a specific reference to this Agreement.
14.4. Recitals and Headings
Recitals (i) through (iii) shall be deemed to form part of this Agreement. The
headings contained in this Agreement are included for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
14.5. Severability
If any provision of this Agreement is illegal, void or unenforceable, such
provision shall have no force and effect, but the illegality or unenforceability
of such provision shall have no effect upon and shall not impair the
enforceability of any other provision of this Agreement. If such illegality,
nullity or unenforceability becomes apparent, the parties shall consult with
each other as soon as practicable in order to reach agreement on a legal, valid
and enforceable replacement of such provision in such a manner that the
intention of the parties shall be approximated as much as possible.
14.6. Implementation
The parties agree to execute such further documents or agreements as may be
necessary or desirable for the implementation of this Agreement and the
consummation of the transactions contemplated hereby.
14.7. Assignment
None of the rights or obligations under this agreement may be assigned or
transferred by the Seller without the prior written consent of the Purchaser,
which consent shall not be unreasonably withheld. The Purchaser can freely
assign or transfer any ("cessie") or all ("contractsoverneming") of the rights
and obligations under this agreement to a third party.
-15-
<PAGE>
In so far as consent may be required, the Seller hereby in advance gives its
irrevocable consent to any such transfer or assignment. The Purchaser shall not
sell or transfer the Purchased Assets and the Contracts to a third party during
the (first) term of 5 years of the Production Agreement unless such party at the
same time assumes the rights and obligations of the Purchaser under the
Production Agreement, provided the Production Agreement has not been terminated
prematurely.
14.8. No Waiver
Failure or neglect by either party to enforce at any time of the provisions
hereof shall not be construed nor shall be deemed to be a waiver of such
parties' right hereunder nor shall in any way affect the validity of the whole
or any part of this Agreement nor prejudice the rights of such party to take
subsequent action.
SIGNED AND AGREED at Amsterdam in two original copies on the date and year first
above written.
Koninklijke Utermohlen N.V. STC Technologies, Inc.
/s/ Mr. D.T. van der Vat /s/ Michael Gausling
By: Mr. D.T. van der Vat By: Michael Gausling
Its: managing director Its: President and CEO
-16-
<PAGE>
Exhibit 2.1 (i)
---------------
the Patents
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------
Country National Appln. Date of ARTICLE 15 Date of Date of Renewal
Or European filing National grant expiry Fee due
Patent NO. Patent No.
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Argentina 000327298 28-01-94 05-07-96 05-07-11 05-07-98
-------------------------------------------------------------------------------------------------
Australia 005397694 25-01-94 00000664788 19-03-96 25-01-14 25-01-99
-------------------------------------------------------------------------------------------------
Belgium 000608954 27-01-94 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
Brazil 094003874 28-01-94 28-01-99
-------------------------------------------------------------------------------------------------
Germany 000608954 27-01-94 00694027316 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
Canada 002114465 28-01-94 28-01-99
-------------------------------------------------------------------------------------------------
Denmark 000608954 27-01-94 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
Finland 000940431 28-01-94 28-01-99
-------------------------------------------------------------------------------------------------
France 000608954 27-01-94 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
Great Brittain 000608954 27-01-94 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
Hungaria 009400247 28-01-94 28-01-14 28-01-99
-------------------------------------------------------------------------------------------------
India 000003794 24-01-94
-------------------------------------------------------------------------------------------------
Indonesia 000940157 28-01-94
-------------------------------------------------------------------------------------------------
Italy 000608954 27-01-94 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
Japan 002356394 27-01-94 00002106456 06-11-96 27-01-14 21-02-99
-------------------------------------------------------------------------------------------------
Luxembourg 000608954 27-01-94 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
Malaysia 009400215 27-01-94
-------------------------------------------------------------------------------------------------
Mexico 009400745 28-01-94
-------------------------------------------------------------------------------------------------
Netherlands 000608954 27-01-94 23-04-97 27-01-14 31-01-99
-------------------------------------------------------------------------------------------------
Norway 000940235 24-01-94 24-01-99
-------------------------------------------------------------------------------------------------
Ukraine 094005073 27-01-94
-------------------------------------------------------------------------------------------------
Austria 000608954 27-01-94 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
China 941010872 25-01-94 25-01-99
-------------------------------------------------------------------------------------------------
Poland 000302044 27-01-94
-------------------------------------------------------------------------------------------------
Saudi Arabia 094140653 05-04-94
-------------------------------------------------------------------------------------------------
South Africa 000940541 26-01-94 00000940541 30-11-94 26-01-14 26-01-99
-------------------------------------------------------------------------------------------------
Spain 000608954 27-01-94 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
Sweden 000608954 27-01-94 23-04-97 27-01-14 27-01-99
-------------------------------------------------------------------------------------------------
Thailand 000021368 28-01-94
-------------------------------------------------------------------------------------------------
Tsjechia 000019494 28-01-94
-------------------------------------------------------------------------------------------------
Turkye 000940053 28-01-94 0000027588 13-06-95 28-01-09 28-01-98
-------------------------------------------------------------------------------------------------
USA 008736277 24-10-96 00005738682 14-04-98 10-08-13 14-10-01
-------------------------------------------------------------------------------------------------
Russia 094002316 27-01-94
-------------------------------------------------------------------------------------------------
Venezuela 000000136 28-01-94
-------------------------------------------------------------------------------------------------
</TABLE>
-17-
<PAGE>
Exhibit 2.1 (ii)
----------------
the Trademark
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------
Country Registration Date of Renewal Class Reference
Number filing date
-----------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Benelux 430 435 15-05-87 15-05-07 5, 10 10 210
-----------------------------------------------------------------------------------
Bulgaria 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Egypt 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Russia 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Hungary 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Morocco 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Tjechie 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Romania 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Slovakia 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Viet Nam 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Byelorussia 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Austria 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Germany 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Algeria 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
France 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Italy 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Spain 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
Portugal 525 069 09-06-88 09-06-08 5, 10 10 210
-----------------------------------------------------------------------------------
China 647 331 22-11-95 22-11-15 5, 10 10 5586
-----------------------------------------------------------------------------------
Poland 647 331 22-11-95 22-11-15 5, 10 10 5586
-----------------------------------------------------------------------------------
Argentina 1470481 30-09-93 30-09-03 10 10 2304
-----------------------------------------------------------------------------------
Australia B575267 26-03-92 26-03-99 10 10 2624
-----------------------------------------------------------------------------------
Brazil 816539375 14-09-93 14-09-03 10 10 2301
-----------------------------------------------------------------------------------
Canada 409 060 05-03-93 05-03-08 10 10 1975
-----------------------------------------------------------------------------------
Switzerland 3406/97* 30-04-97 application 10 10 6607
-----------------------------------------------------------------------------------
Eastern Germ. 2007468 18-12-91 15-03-01 5, 10 10 2132
-----------------------------------------------------------------------------------
Denmark 10319-1992 06-11-92 06-11-02 10 10 2725
-----------------------------------------------------------------------------------
Finland 127 854 06-09-93 06-09-03 10 10 2728
-----------------------------------------------------------------------------------
United Kingdom 1347342 13-06-87 13-06-05 10 10 211
-----------------------------------------------------------------------------------
Hong Kong 14964/95* 25-11-95 granted 10 10 5581
-----------------------------------------------------------------------------------
Indonesia D9523881 14-12-95 application 10 10 5582
-----------------------------------------------------------------------------------
Israel 84720 04-12-94 14-09-99 10 10 2817
-----------------------------------------------------------------------------------
India 687 995* 23-11-95 application 10 10 5583
-----------------------------------------------------------------------------------
Japan 3262688 04-02-97 24-02-07 10 10 4502
-----------------------------------------------------------------------------------
Korea 381 811 12-11-97 12-11-07 10 10 5584
-----------------------------------------------------------------------------------
Mexico 441 928 13-09-93 13-09-03 10 10 3407
-----------------------------------------------------------------------------------
Malaysia 96-00312* 09-01-96 application 10 10 5579
-----------------------------------------------------------------------------------
</TABLE>
-18-
<PAGE>
Exhibit 2.1 (ii) - continued
----------------------------
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------
Country Registration Date of Renewal Class Reference
Number filing date
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Norway 177 901 14-11-96 14-11-06 10 10 2726
------------------------------------------------------------------------------------
Saudi Arabia 93/3063 21-04-93 21-04-03 10 10 3363
------------------------------------------------------------------------------------
Sweden 265 704 07-04-95 07-04-05 10 10 2727
------------------------------------------------------------------------------------
Singapore 11339/95* 24-11-95 application 10 10 5578
------------------------------------------------------------------------------------
Thailand 303 782* 06-03-96 application 10 10 5580
------------------------------------------------------------------------------------
Taiwan 8513436* 22-03-96 application 10 10 5586
------------------------------------------------------------------------------------
USA 1525479 21-02-89 21-02-09 10 10 212
------------------------------------------------------------------------------------
Paraguay trademark agent application yet to be filed
instructed
------------------------------------------------------------------------------------
Chili trademark agent application yet to be filed
instructed
------------------------------------------------------------------------------------
Venezuela trademark agent application yet to be filed
instructed
------------------------------------------------------------------------------------
Peru trademark agent application yet to be filed
instructed
------------------------------------------------------------------------------------
</TABLE>
-19-
<PAGE>
Exhibit 3.1
-----------
the Contracts
Counterparty: Effective Date: Termination Date:
Binnvar Sp.z.o.o. Warsaw May 26, 1997 May 26, 2000
Braun Medical Ltd.Lda May 8, 1995 May 8, 1998
Braun Medical S.A. July 7, 1994 July 7, 1997
Braun Biotrol November 30, 1993/ December 1, 1998
November 30, 1996 December 1, 1998
Eriphyle B.V. February 23, 1993 February 23, 1996
GrupoMH S.A. February 2, 1998 February 2, 2001
Hamilton Pharmaceutical April 14, 1992 April 14, 1995
Kingo Diagnostika, Denmark April 6, 1994 April 6, 1997
Kjemi-Diagnostikk A.S., Norway May 26, 1993 May 26, 1996
Medical Diagnostic Instruments Ltd. December 20, 1993 December 20, 1996
Medipet Oy September 17, 1992 September 17, 1995
Medway BME Corp. June 4, 1997 June 4, 2000
Petzold November 25, 1992/ November 25, 1997
November 25, 1995
Pharmachem Ltd. October 22, 1997 October 22, 2000
Pharmascience Inc. February 25, 1997 February 25, 2000
Promesan Italie March 8, 1997 March 8, 2000
Skafte & Claesson AB February 8, 1994 February 8, 1997
Smith & Nephew Ltd April 19, 1993 April 19, 1996
Thames Laboratories Ltd. May 24, 1991 May 24, 1996
Uhlmann-Eyraud S.A. January 23, 1992 January 23, 1997
United Italian Trading Corp. February 8, 1995 February 8, 1998
United Italian Trading Corp. August 15, 1996 August 15, 1999
Utermohlen Medical Care S.A. February 15, 1998 December 31, 1999
-20-
<PAGE>
Exhibit 5.3
-----------
gross turnover of each counterparty to the Contracts during the period from
May 1, 1997 through April 31, 1998, by country
Country sold to Recorded sales % of total Contract
1/5/97-31/4/98
--------------------------------------------------------------------------------
USA 1.366.000 31,9% X
--------------------------------------------------------------------------------
Germany 964.000 22,5% X
--------------------------------------------------------------------------------
UK 382.000 8,9% X
--------------------------------------------------------------------------------
France 220.000 5,1% X
--------------------------------------------------------------------------------
Spain 212.000 5,0% X
--------------------------------------------------------------------------------
Netherlands 193.000 4,5%
--------------------------------------------------------------------------------
Canada 157.000 3,7% X
--------------------------------------------------------------------------------
South Africa 150.000 3,5% X
--------------------------------------------------------------------------------
Finland 132.000 3,1% X
--------------------------------------------------------------------------------
Sweden 98.000 2,3% X
--------------------------------------------------------------------------------
Italy 56.000 1,3% X
--------------------------------------------------------------------------------
Norway 54.000 1,3% X
--------------------------------------------------------------------------------
Belgium 46.000 1,1% X
--------------------------------------------------------------------------------
Portugal 44.000 1,0% X
--------------------------------------------------------------------------------
Ireland 42.000 1,0% X
--------------------------------------------------------------------------------
Switzerland 36.000 0,8% X
--------------------------------------------------------------------------------
Australia 26.000 0,6% X
--------------------------------------------------------------------------------
Hong Kong 16.000 0,4% X
--------------------------------------------------------------------------------
Denmark 15.000 0,4% X
--------------------------------------------------------------------------------
Greece 14.000 0,3% X
--------------------------------------------------------------------------------
Saudi Arabia 14.000 0,3%
--------------------------------------------------------------------------------
UAE 13.000 0,3%
--------------------------------------------------------------------------------
Jordan 12.000 0,3%
--------------------------------------------------------------------------------
Singapore 8.000 0,2% X
--------------------------------------------------------------------------------
Iceland 7.000 0,2%
--------------------------------------------------------------------------------
Argentina 5.000 0,1%
--------------------------------------------------------------------------------
Venezuela 2.000 0,0%
--------------------------------------------------------------------------------
Quatar 1.000 0,0%
--------------------------------------------------------------------------------
Total DFl. 4.282.000 100,0%
--------------------------------------------------------------------------------
-21-
<PAGE>
Exhibit 6.2 (ii) (b)
--------------------
form of deed of assignment
of the rights and benefits, and assumption of liabilities,
under the Contracts
The undersigned,
1. Koninklijke Utermohlen N.V., a limited liability company organized under the
laws of the Netherlands, with its registered offices at Wolvega, the
Netherlands ("Seller")
and
2. STC Technologies, Inc., a limited liability company organized under the laws
of the State of Delaware, with its registered offices at Bethlehem,
Pennsylvania 18018, the United States of America ("Purchaser");
WHEREAS Seller and Purchaser have entered into an Agreement for Sale and
Purchase of Assets of the same date (hereinafter "Asset Purchase Agreement"),
pursuant to which Seller shall transfer and assign to Purchaser all its rights
to the contracts listed in Article 1 below related to the Histofreezer Business;
NOW THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
Article 1 - Contracts
Seller hereby assigns to Purchaser and Purchaser hereby transfers and accepts
the assignment subject to the consent, where required of the relevant
contracting party, of all rights and obligations relating to the following
contracts, from 1 June 1998 but excluding any rights, obligations or liabilities
arising or accruing before 1 June 1998 in respect of the same:
Counterparty: Effective Date: Termination Date:
Binnvar Sp.z.o.o. Warsaw May 26, 1997 May 26, 2000
Braun Medical Lda May 8, 1995 May 8, 1998
Braun Medical S.A. July 7, 1994 July 7, 1997
Braun Biotrol November 30, 1993/ December 1, 1998
November 30, 1996 December 1, 1998
Eriphyle B.V. February 23, 1993 February 23, 1996
GrupoMH S.A. February 2, 1998 February 2, 2001
Hamilton Pharmaceutical April 14, 1992 April 14, 1995
Kingo Diagnostika, Denmark April 6, 1994 April 6, 1997
Kjemi-Diagnostikk A.S., Norway May 26, 1993 May 26, 1996
Medical Diagnostic Instruments Ltd. December 20, 1993 December 20, 1996
Medipet Oy September 17, 1992 September 17, 1995
Medway BME Corp. June 4, 1997 June 4, 2000
-22-
<PAGE>
Petzold November 25, 1992/ November 25, 1997
November 25, 1995
Pharmachem Ltd. October 22, 1997 October 22, 2000
Pharmascience Inc. February 25, 1997 February 25, 2000
Promesan Italie March 8, 1997 March 8, 2000
Skafte & Claesson AB February 8, 1994 February 8, 1997
Smith & Nephew Ltd April 19, 1993 April 19, 1996
Thames Laboratories Ltd. May 24, 1991 May 24, 1996
Uhlmann-Eyraud S.A. January 23, 1992 January 23, 1997
United Italian Trading Corp. February 8, 1995 February 8, 1998
United Italian Trading Corp. August 15, 1996 August 15, 1999
Utermohlen Medical Care S.A. February 15, 1998 December 1, 1998
Article 2 - Purchase Price
The contracts listed in Article 1 are assigned subject to the consent of the
relevant contracting party to Purchaser for part of the consideration referred
to in the Asset Purchase Agreement. The receipt of this sum is hereby
acknowledged by Seller.
Article 3 - Power of attorney
Seller hereby gives Purchaser an irrevocable and unconditional power of attorney
to sign on behalf of Seller any deeds or documents or undertake any act or thing
that might be required to effect the above assignment in the name of Purchaser.
Article 4 - Governing Law
This agreement shall be governed by Netherlands law.
Thus agreed and signed, in twofold, on June 9, 1998 at Amsterdam
____________________________________________________________________
Koninklijke Utermohlen N.V. STC Technologies, Inc.
By: Mr. D.T. van der Vat By: Michael Gausling
Its: managing director Its: President and CEO
-23-
<PAGE>
Exhibit 6.2 (ii) (c)
--------------------
form of deed of assignment of the Patent
The undersigned,
1. Koninklijke Utermohlen N.V., a limited liability company organized under the
laws of the Netherlands, with its registered offices at Wolvega, the
Netherlands ("Seller")
and
2. STC Technologies, Inc., a limited liability company organized under the laws
of the State of Delaware, with its registered offices at Bethlehem,
Pennsylvania 18018, the United States of America ("Purchaser");
WHEREAS
Seller and Purchaser have entered into an Agreement for Sale and Purchase of
Assets of the same date (hereinafter "Asset Purchase Agreement"), pursuant to
which Seller shall transfer to Purchaser all its rights to patents and patent
applications related to the Histofreezer Business (as defined in the Asset
Purchase Agreement), as well as know-how, copyrights and all other intellectual
property rights related to the Histofreezer Business;
NOW THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
Article 1 - Patents and Patent Applications
Seller hereby transfers to Purchaser and Purchaser hereby accepts the transfer
of all rights to:
the following patents:
European patent registration no. EP 0608954 filed on 27 January 1994 and
granted on 23 April 1997, registered in the following countries: Austria,
Belgium, Germany, Denmark, France, United Kingdom of Great Britain and
Northern Ireland, Italy, Luxemburg, Netherlands, Spain and Sweden;
Australia patent registration no. 000664788 granted 19 March 1996;
Germany patent registration no. 694027316 granted 23 April 1997;
Japan patent registration no. 002106456 granted 6 November 1996;
South Africa patent registration no. 000940541 granted 30 November 1994;
Turkey patent registration no. 000027588 granted 13 June 1995;
USA patent registration no. 005738682 granted 14 April 1998;
and
-24-
<PAGE>
all related patent registrations in other countries
(hereinafter jointly: the "Patents"),
and the following patent applications and the registrations that may result
therefrom:
Argentina patent application no. 000327298 dated 28 January 1994;
Brazil patent application no. 094003874 dated 28 January 1994;
Canada patent application no. 002114465 dated 28 January 1994;
Finland patent application no. 000940431 dated 28 January 1994;
Hungary patent application no. 009400247 dated 28 January 1994;
India patent application no. 000003794 dated 24 January 1994;
Indonesia patent application no. 000940157 dated 28 January 1994;
Malaysia patent application no. 009400215 dated 27 January 1994;
Mexico patent application no. 009400745 dated 28 January 1994;
Norway patent application no. 000940235 dated 24 January 1994;
Oekraine patent application no. 094005073 dated 27 January 1994;
China patent application no. 941010872 dated 25 January 1994;
Poland patent application no. 000302044 dated 27 January 1994;
Saudi Arabia patent application no. 094140653 dated 5 April 1994;
Thailand patent application no. 000021368 dated 28 January 1994;
Czech patent application no. 000019494 dated 28 January 1994;
Russia patent application no. 094002316 dated 27 January 1994;
Venezuela patent application no. 000000136 dated 28 January 1994;
and
all applications for patents on the basis of the aforementioned patent
applications and registrations in other countries
(hereinafter jointly: the "Patent Applications").
including the rights, title and interest therein and all the rights, powers,
privileges and immunities conferred on the proprietor thereof by the grant of
the Patents and arising or accruing from the Patent Applications, free from all
encumbrances and including the right to sue for damages and other remedies in
respect of any infringement on the Patents and the Patent Applications, which
may have occurred prior to the date hereof, and to the intent that the grant of
a patent pursuant to the Patent Applications shall be in the name of and shall
vest in Purchaser.
Article 2 - Know-How and Intellectual Property Rights
Seller is the sole owner of the know-how related to the Histofreezer Business,
know-how meaning, inter alia, all information, data, techniques, procedures,
experimental results, redesigns, renewals, extensions and other secret
proprietary knowledge, including but not limited to Patents and Patent
Applications (hereinafter: the "Know-How"), and Seller is the sole owner of all
other industrial and intellectual property rights relevant to the development,
design and manufacturing of the aforementioned products and the
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<PAGE>
Histofreezer Business, including but not limited to copyrights (hereinafter: the
"Intellectual Property Rights").
Seller hereby transfers to Purchaser and Purchaser hereby accepts the transfer
of the rights relating to the Know-How and the Intellectual Property Rights,
free from all encumbrances and including the right to sue for damages and other
remedies in respect of any infringement on the Know-How or the Intellectual
Property Rights, which may have occurred prior to the date hereof.
This article obligates Seller, inter alia, to provide Purchaser as soon as
possible, but in any event within three months, with all relevant information
and documents regarding the design and manufacture of products, including but
not limited, inventions that have been patented, or for which an application for
a patent has been filed. Such information and documents, consisting of Know-How
and the Intellectual Property Rights, shall include but not be limited to
experiences, methods, techniques, skills, manufacturing secrets etc. etc. on the
basis for which a competent engineer could realize a similar invention, as well
as drawings, calculations and tolerances etc. etc.
Article 3 - Purchase Price
The Patents, the Patent Applications, Know-How and Intellectual Property Rights
will be transferred to Purchaser for the consideration referred to in the Asset
Purchase Agreement. The receipt of this sum is hereby acknowledged by Seller.
Article 4 - Power of attorney
Seller hereby gives Purchaser an irrevocable and unconditional power of attorney
to sign on behalf of Seller any deeds or documents or undertake any act or thing
that might be required to effect the above transfers and register the Patents,
the Patent Applications, Know-How and Intellectual Property Rights with the
proper authorities in the name of Purchaser as owner.
Article 5 - Governing Law
This agreement shall be governed by Netherlands law.
Thus agreed and signed, in threefold, on June 9, 1998 at Amsterdam
___________________________ ___________________________
Koninklijke Utermohlen N.V. STC Technologies, Inc.
By: Mr. D.T. van der Vat By: Michael Gausling
Its: managing director Its: President and CEO
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<PAGE>
Exhibit 6.2 (ii) (d)
--------------------
form of deed of assignment of the Trademark
The undersigned,
1 Koninklijke Utermohlen N.V., a limited liability company organized under
the laws of the Netherlands, with its registered office at Wolvega, the
Netherlands ("Seller")
and
2 STC Technologies, Inc., a limited liability company organized under the
laws of the State of Delaware, with its registered offices at Bethlehem,
Pennsylvania 18018, the United States of America ("Purchaser");
WHEREAS
Seller and Purchaser have entered into an Agreement for Sale and Purchase of
Assets of the same date (hereinafter "Asset Purchase Agreement"), pursuant to
which Seller shall transfer to Purchaser all its rights to trademarks and
trademark applications related to the Histofreezer Business (as defined in the
Asset Purchase Agreement);
NOW THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
Article 1 - Trademarks and Trademark Applications
Seller hereby transfers to Purchaser and Purchaser hereby accepts the transfer
of:
in classes 5 and 10:
--------------------
International trademark registration no. 525 069 filed on 9 June 1988,
registered in the following countries: Algeria, Austria, Belarus,
Bulgaria, Czech, Egypt, Germany, France, Hungary, Italy, Morocco, Portugal,
Romania, Russia, Slovakia, Spain and Vietnam;
International trademark registration no. 647 331 filed on 22 November 1995,
registered in the following countries: China and Poland;
Benelux trademark registration no. 430 435 dated 15 May 1987;
East-Germany trademark registration no. 2007468 dated 15 March 1991;
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<PAGE>
in class 10:
------------
Argentina trademark registration no. 1470481 dated 30 September 1993;
Australia trademark registration no. B575267 dated 26 March 1992;
Brazil trademark registration no. 816539375 dated 14 September 1993;
Canada trademark registration no. 409 060 dated 5 March 1993;
Denmark trademark registration no. 10319-1992 dated 6 November 1992;
Finland trademark registration no. 127 854 dated 6 September 1993;
UK trademark registration no. 1347342 dated 13 June 1987;
Hong Kong trademark registration no. 14964/95 dated 25 November 1995;
Israel trademark registration no. 84720 dated 4 December 1994;
Japan trademark registration no. 3262688 dated 4 February 1997;
Korea trademark registration no. 381 811 dated 12 November 1997;
Mexico trademark registration no. 441 928 dated 13 September 1993;
Norway trademark registration no. 177 901 dated 14 November 1996;
Saudi Arabia trademark registration no. 93/3063 dated 21 April 1993;
Sweden trademark registration no. 265 704 dated 7 April 1995;
USA trademark registration no. 1525479 dated 21 February 1989;
and
all related trademark registrations in other countries
(hereinafter jointly: the "Trademarks"),
and is entitled to the benefit of the following trademark applications and
registrations that may result therefrom:
in class 10:
------------
Switzerland trademark application no. 3406/97 dated 30 March 1997;
Indonesia trademark application no. D9523881 dated 14 December 1995;
India trademark application no. 687 995 dated 23 November 1995;
Malaysia trademark application no. 96-00312 dated 9 January 1996;
Singapore trademark application no. 11339/95 dated 24 November 1995;
Thailand trademark application no. 303 782 dated 6 March 1996;
Taiwan trademark application no. 8513436 dated 22 March 1996;
Paraguay trademark application ) instructed, but
Chilli trademark application ) have yet to be
Venezuela trademark application ) filed by
Peru trademark application ) trademark agent
and
all applications for trademarks on the basis of the aforementioned trademark
applications and registrations in other countries and/or in other classes
(hereinafter jointly: the "Trademark Applications");
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<PAGE>
including the rights, title and interest therein and all the rights, powers,
privileges and immunities conferred on the proprietor thereof by the grant of
the Trademarks and arising or accruing from the Trademark Applications, free
from all encumbrances and including the right to sue for damages and other
remedies in respect of any infringement on the Trademarks and the trademark
Applications, which may have occurred prior to the date hereof, and to the
intent that the grant of a trademark pursuant to the Trademark Applications
shall be in the name of and shall vest in Purchaser.
Article 2 - Purchase Price
The Trademarks and the Trademark Applications will be transferred to Purchaser
for the consideration referred to in the Asset Purchase Agreement. The receipt
of this sum is hereby acknowledged by Seller.
Article 3 - Power of attorney
Seller hereby gives Purchaser an irrevocable and unconditional power of attorney
to sign on behalf of Seller any deeds or documents or undertake any acts or
things that might be required to effect the above transfers and register the
Trademarks, the Trademark Applications, Know-How and Intellectual Property
Rights with the proper authorities in the name of Purchaser as owner.
Article 4 - Governing Law
This agreement shall be governed by Netherlands law.
Thus agreed and signed, in threefold, on June 9, 1998 at Amsterdam
--------------------------- -----------------------------
Koninklijke Utermohlen N.V. STC Technologies, Inc.
By: Mr. D.T. van der Vat By: Michael Gausling
Its: managing director Its: President and CEO
-29-
<PAGE>
Exhibit 4.1
The Prices
<TABLE>
<CAPTION>
Table A
Product Price per unit
------- --------------
<S> <C>
Unit with aerosol can and 40 applicators (medium) * *
Unit with aerosol can and 50 applicators (small, mix and long) * *
For sales to the distributor in Belgium it has been agreed upon separately
that the Products in Table A will be priced to STC at **
Other products that are part of this agreement are defined and priced as
follows:
Table B
-------
Box with 20 medium applicators * *
Box with 20 small applicators * *
Sample packaging with aerosol can and 5 applicators (3 medium
and 2 small)
</TABLE>
