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Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
DATED AS OF JUNE 12, 2000
BY AND AMONG
PERKINELMER, INC.
("PARENT"),
NANCY ACQUISITION CORPORATION
("MERGER SUB")
AND
NEN LIFE SCIENCES, INC.
(THE "COMPANY")
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS....................................................................................1
SECTION 1.1 CERTAIN DEFINITIONS............................................................1
SECTION 1.2 CERTAIN ADDITIONAL DEFINITIONS.................................................6
ARTICLE II. THE MERGER....................................................................................7
SECTION 2.1 THE MERGER.....................................................................7
SECTION 2.2 CLOSING........................................................................8
SECTION 2.3 EFFECTIVE TIME.................................................................8
SECTION 2.4 EFFECTS OF THE MERGER..........................................................8
SECTION 2.5 CERTIFICATE OF INCORPORATION AND BYLAWS; DIRECTORS AND OFFICERS................8
SECTION 2.6 CONVERSION OF SECURITIES.......................................................8
SECTION 2.7 CANCELLATION OF COMPANY OPTIONS...............................................10
SECTION 2.8 COMPANY WARRANTS..............................................................11
SECTION 2.9 ESCROW........................................................................12
ARTICLE III. EXCHANGE OF CERTIFICATES....................................................................12
SECTION 3.1 EXCHANGE OF CERTIFICATES;.....................................................12
SECTION 3.2 DISSENTING SHARES.............................................................14
SECTION 3.3 NO FURTHER OWNERSHIP RIGHTS IN SHARES OF COMPANY COMMON STOCK; CLOSING OF
COMPANY TRANSFER BOOKS........................................................14
SECTION 3.4 WITHHOLDING RIGHTS............................................................15
SECTION 3.5 FURTHER ASSURANCES............................................................15
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY................................................15
SECTION 4.1 AUTHORITY.....................................................................15
SECTION 4.2 ORGANIZATION..................................................................16
SECTION 4.3 COMPANY CAPITAL STOCK.........................................................16
SECTION 4.4 COMPANY SUBSIDIARIES..........................................................17
SECTION 4.5 CONFLICTS.....................................................................18
SECTION 4.6 CONSENTS, APPROVALS, ETC......................................................18
SECTION 4.7 FINANCIAL STATEMENTS..........................................................19
SECTION 4.8 UNDISCLOSED LIABILITIES.......................................................19
SECTION 4.9 CERTAIN CHANGES OR EVENTS.....................................................19
SECTION 4.10 TAX MATTERS...................................................................21
SECTION 4.11 LITIGATION AND GOVERNMENTAL ORDERS............................................22
SECTION 4.12 COMPLIANCE WITH LAWS..........................................................22
SECTION 4.13 PERMITS.......................................................................22
SECTION 4.14 ASSETS........................................................................23
SECTION 4.15 INTELLECTUAL PROPERTY.........................................................23
SECTION 4.16 CERTAIN CONTRACTS.............................................................24
SECTION 4.17 EMPLOYEE BENEFIT MATTERS......................................................25
SECTION 4.18 LABOR MATTERS.................................................................27
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SECTION 4.19 ENVIRONMENTAL MATTERS.........................................................28
SECTION 4.20 TRANSACTIONS WITH AFFILIATES..................................................28
SECTION 4.21 BROKERS.......................................................................28
SECTION 4.22 CUSTOMERS AND SUPPLIERS.......................................................29
SECTION 4.23 OWNED REAL PROPERTY...........................................................29
SECTION 4.24 REAL PROPERTY LEASES..........................................................29
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB.......................................29
SECTION 5.1 AUTHORITY.....................................................................30
SECTION 5.2 ORGANIZATION..................................................................30
SECTION 5.3 CONFLICTS.....................................................................30
SECTION 5.4 CONSENTS, APPROVALS, ETC......................................................31
SECTION 5.5 LITIGATION AND GOVERNMENTAL ORDERS............................................31
SECTION 5.6 DUE DILIGENCE INVESTIGATION...................................................31
SECTION 5.7 BROKERS.......................................................................32
SECTION 5.8 NO PRIOR ACTIVITIES...........................................................32
SECTION 5.9 PARENT WARRANTS...............................................................32
ARTICLE VI. ADDITIONAL AGREEMENTS........................................................................33
SECTION 6.1 NO SOLICITATION...............................................................33
SECTION 6.2 CONDUCT OF THE COMPANY PRIOR TO THE EFFECTIVE TIME............................33
SECTION 6.3 ACCESS TO INFORMATION.........................................................36
SECTION 6.4 CONFIDENTIALITY...............................................................36
SECTION 6.5 EFFORTS; CONSENTS; REGULATORY AND OTHER AUTHORIZATIONS; FINANCING.............36
SECTION 6.6 FURTHER ACTION................................................................38
SECTION 6.7 INDEMNIFICATION; OFFICERS' AND DIRECTORS' INSURANCE...........................38
SECTION 6.8 EMPLOYEE BENEFIT MATTERS......................................................39
SECTION 6.9 ADVISORY AGREEMENTS...........................................................39
SECTION 6.10 DUPONT AND ABL AGREEMENTS.....................................................39
SECTION 6.11 PARENT FINANCING..............................................................39
SECTION 6.12 NOTICE OF BREACHES............................................................40
ARTICLE VII. CONDITIONS TO CLOSING.......................................................................41
SECTION 7.1 CONDITIONS TO OBLIGATIONS OF THE COMPANY......................................41
SECTION 7.2 CONDITIONS TO OBLIGATIONS OF PARENT AND MERGER SUB............................42
ARTICLE VIII. INDEMNIFICATION............................................................................43
SECTION 8.1 SURVIVAL OF REPRESENTATIONS...................................................43
SECTION 8.2 INDEMNIFICATION...............................................................43
ARTICLE IX. TERMINATION, AMENDMENT AND WAIVER............................................................48
SECTION 9.1 TERMINATION...................................................................48
SECTION 9.2 EFFECT OF TERMINATION.........................................................49
ARTICLE X. GENERAL PROVISIONS............................................................................49
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SECTION 10.1 EXPENSES......................................................................49
SECTION 10.2 COSTS AND ATTORNEYS' FEES.....................................................49
SECTION 10.3 NOTICES.......................................................................49
SECTION 10.4 PUBLIC ANNOUNCEMENTS..........................................................50
SECTION 10.5 INTERPRETATION................................................................51
SECTION 10.6 SEVERABILITY..................................................................51
SECTION 10.7 ENTIRE AGREEMENT..............................................................51
SECTION 10.8 ASSIGNMENT....................................................................52
SECTION 10.9 NO THIRD PARTY BENEFICIARIES..................................................52
SECTION 10.10 WAIVERS AND AMENDMENTS........................................................52
SECTION 10.11 EQUITABLE REMEDIES............................................................52
SECTION 10.12 GOVERNING LAW; CONSENT TO JURISDICTION........................................53
SECTION 10.13 WAIVER OF JURY TRIAL..........................................................53
SECTION 10.14 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES.................................53
SECTION 10.15 COUNTERPARTS..................................................................54
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EXHIBITS
Exhibit 1.1 Parent Warrant
Exhibit 2.6 Investment Letter
Exhibit 2.6(e) Merger Consideration Spreadsheet
Exhibit 2.9 Escrow Agreement
Exhibit 6.5(d) Voting Agreement
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (as amended from time to time
pursuant to the terms hereof, this "AGREEMENT") is made and entered into as of
June 12, 2000 by and among PerkinElmer, Inc., a Massachusetts corporation
("PARENT"), Nancy Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of Parent ("MERGER SUB"), and NEN Life Sciences, Inc., a
Delaware corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Parent, Merger
Sub and the Company have each determined that the merger of Merger Sub with and
into the Company (the "MERGER") is advisable and in the best interests of their
respective stockholders, and such Boards of Directors have approved the Merger,
upon the terms and subject to the conditions set forth in this Agreement,
pursuant to which each share of common stock, par value $0.01 per share, of the
Company (the "COMPANY COMMON STOCK") issued and outstanding immediately prior to
the Effective Time (as defined in SECTION 2.3), other than shares owned or held
directly or indirectly by Parent or the Company and other than Dissenting Shares
(as defined in SECTION 3.2), will be converted into the right to receive the
consideration set forth herein; and
WHEREAS, pursuant to the Merger, all Company Options and
Company Warrants (each as defined in SECTION 1.1) outstanding at the Effective
Time will be canceled in exchange for the consideration set forth herein; and
WHEREAS, Parent, Merger Sub and the Company desire to make
certain representations, warranties, covenants and agreements in connection with
the transactions contemplated hereby and also prescribe various conditions to
the transactions contemplated hereby.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, promises and agreements hereinafter set forth, the mutual benefits to
be gained by the performance thereof, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged and
accepted, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"ABL Agreement" means that certain Share Purchase Agreement
dated as of September 8, 1998 between Clarissa Desjardins, Martin Leblanc, Lloyd
Segal and the other shareholders named therein, NEN Life Science Products, Inc.
and NEN Holding, Inc.
"Action" means any claim, action, suit or proceeding, arbitral
action, governmental inquiry, criminal prosecution or other investigation as to
which written notice has
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been provided to the applicable party, or which is known to the Company or such
other applicable party.
"Affiliate" means, when used with respect to a specified
Person, another Person that either directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Person specified.
"Business" means the business and operations of the Company
and the Company Subsidiaries, as conducted by the Company and the Company
Subsidiaries.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which banks are required or authorized by Law to be closed in the
State of New York.
"Cash" means cash and cash equivalents.
"Company Capital Stock" means the authorized capital stock of
the Company.
"Company Employee" means each employee of the Company or any
Company Subsidiary.
"Company Option Plan" means the 1997 Equity Incentive Plan of
the Company.
"Company Options" means all outstanding options to purchase or
otherwise acquire shares of Company Common Stock, whether vested or unvested,
granted pursuant to the Company Option Plan.
"Company Warrants" means warrants exercisable for shares of
Company Common Stock.
"Confidentiality Agreement" means the letter agreement between
Parent and the Company, dated as of March 13, 2000.
"Contract" means any contract, agreement, indenture, note,
bond, loan, instrument, lease, conditional sales contract, mortgage, license,
franchise agreement, binding commitment or other arrangement, whether written or
oral, under which any party thereto has any remaining rights or obligations.
"Debt" means any amount owed (including, without limitation,
unpaid interest thereon) in respect of (i) borrowed money, (ii) capitalized
lease obligations and (iii) the JB Note; provided, however, that notwithstanding
the foregoing, Debt shall not be deemed to include any intercompany
indebtedness, any accounts payable incurred in the ordinary course of business,
any undrawn letters of credit or any amount owed as a result of Parent's failure
to replace any letters of credit pursuant to SECTION 6.12(b).
"DGCL" means the General Corporation Law of the State of
Delaware.
"Domain Names" means all registered domain names of the
Company or any Company Subsidiary.
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"DuPont Agreement" means that certain Asset Purchase and Sale
Agreement among E.I. DuPont De Nemours and Company, NEN Life Science Products,
Inc. and NEN Holding, Inc., dated March 26, 1997 as amended and restated on June
30, 1997.
"Encumbrance" means any security interest, pledge, mortgage,
lien, charge, adverse claim of ownership or use, restriction on transfer (such
as a right of first refusal or other similar rights), defect of title, or other
encumbrance of any kind or character.
"Environmental Law" means any Law pertaining to land use, air,
soil, surface water, groundwater (including the protection, cleanup, removal,
remediation or damage thereof), public or employee health or safety or any other
environmental matter, including, without limitation, the following laws: (i)
Clean Air Act (42 U.S.C.ss.7401, et seq.); (ii) Clean Water Act (33
U.S.C.ss.1251, et seq.); (iii) Resource Conservation and Recovery Act (42
U.S.C.ss.6901, et seq.); (iv) Comprehensive Environmental Response Compensation
and Liability Act (42 U.S.C.ss.9601, et seq.); (v) Safe Drinking Water Act (42
U.S.C.ss.300f, et seq.); (vi) Toxic Substances Control Act (15 U.S.C.ss.2601, et
seq.); (vii) Rivers and Harbors Act (33 U.S.C. ss.401, et seq.); (viii)
Endangered Species Act (16 U.S.C.ss.1531, et seq.); and (ix) Occupational Safety
and Health Act (29 U.S.C.ss.651, et seq.); (ix) Atomic Energy Act of 1954 and
the Low-Level Radioactive Waste Policy Act (42 U.S.C.ss.ss.2014, 2021-2021d,
2022, 2111, 2113 and 2114); and (x) any other Law relating to Hazardous
Materials or Hazardous Materials Activities.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, any successor statute thereto, and the rules and regulations
promulgated thereunder.
"GAAP" means generally accepted accounting principles in the
United States.
"Governmental Authority" means any government, any
governmental, regulatory or administrative entity, department, commission,
board, agency or instrumentality, and any court, tribunal, or judicial body,
whether federal, state, county, local or foreign.
"Governmental Order" means any order, judgment, injunction,
decree, stipulation or determination issued, promulgated or entered by or with
any Governmental Authority of competent jurisdiction.
"Hazardous Material" means any material or substance that is
prohibited or regulated by any Environmental Law or that has been designated by
any Governmental Authority to be radioactive, toxic, hazardous or otherwise a
danger to health, reproduction or the environment, including asbestos,
petroleum, radon gas, and radioactive matter.
"Hazardous Materials Activity" means the handling,
transportation, transfer, recycling, storage, use, treatment, manufacture,
generation, investigation, removal, remediation, release, exposure of others to,
sale, or distribution of any Hazardous Material or any product containing a
Hazardous Material.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, any successor statute thereto, and the rules and
regulations promulgated thereunder.
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"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, any successor statute thereto, and the rules and regulations
promulgated thereunder.
"IRS" means the United States Internal Revenue Service, and
any successor agency thereto.
"JB Note" means that certain Non-Negotiable Promissory Note
dated February 29, 2000 in the principal amount of $3.5 million executed by the
Company in favor of Dr. Jesse Baumgold.
"Knowledge of the Company" or "known to the Company" and any
other phrases of similar import means, with respect to any matter in question
relating to the Company, if any of Russell Hays, George Uveges, Daniel Calvo or
Michael Johnson have actual knowledge of such matter after reasonable inquiry.
"Law" means any federal, state, county, local or foreign
statute, law, ordinance, regulation, rule, code, order or rule of common law.
"Liability" means any and all debts, liabilities and
obligations of any kind or nature, whether accrued or fixed, absolute or
contingent, or determined or determinable.
"Loss" means any Liability, loss, damage, claim, cost or
expense, including, without limitation, reasonable attorneys' fees and expenses,
and disbursement and settlement costs.
"Material Adverse Effect" means any change or effect that is
materially adverse to the operations, business, assets, liabilities, financial
condition or results of operations of the Company and the Company Subsidiaries,
taken as a whole, or which could reasonably be expected to materially impair the
ability of the Company to consummate the transactions contemplated by this
Agreement, except for any such changes or effects resulting from (i) the
announcement or performance of the transactions contemplated by this Agreement,
(ii) changes arising after the date of this Agreement in any Law, (iii) changes
arising after the date of this Agreement in the industries in which the Company
and the Company Subsidiaries operate and not specifically related to the
Company, the Company Subsidiaries or Parent, or (iv) changes arising after the
date of this Agreement in general economic conditions or the securities markets
generally.
"Parent Common Stock" means the Common Stock, par value $1.00
per share, of Parent.
"Parent Warrant" means a warrant to purchase Parent Common
Stock in the form attached hereto as EXHIBIT 1.1.
"Permit" means any license, permit, registration, certificate,
order, approval, franchise or similar right with any governmental authority
required by applicable Law for the operation of the Business.
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"Permitted Encumbrances" means (i) all statutory liens for
Taxes which are not yet due or the validity of which are being contested in good
faith by appropriate proceedings for which adequate reserves are being
maintained on the Current Balance Sheet in accordance with GAAP, (ii) all
cashiers', landlords', workmens', repairmens', warehousemens' and carriers'
liens and other similar liens imposed by law, incurred in the ordinary course of
business, (iii) Encumbrances in existence on the date hereof identified on title
policies or preliminary title reports or other documents or writings included in
the public records and (iv) all other liens and mortgages, covenants,
imperfections in title, charges, easements, restrictions and other Encumbrances
which do not materially detract from the value of, materially interfere with, or
otherwise affect the present use and enjoyment of the asset or property subject
thereto or affected thereby.
"Person" means any individual, general or limited partnership,
firm, corporation, limited liability company, association, trust, unincorporated
organization or other entity, as well as any syndicate or group that would be
deemed to be a person under SECTION 13(d)(3) of the Securities Exchange Act of
1934, as amended, any successor statutes thereto, and the rules and regulations
promulgated thereunder.
"Prior Agreements" means (i) the DuPont Agreement and any
related agreements, (ii) the ABL Agreement and related agreements and (iii) the
Receptor Agreement and related agreements.
"Proprietary Rights" means (i) United States and foreign
patents, patent applications, utility models, patent disclosures and
improvements thereto, (ii) United States and foreign trademarks, service marks,
trade dress, logos, trade names and corporate names, the goodwill associated
therewith, and the registrations and applications for registration thereof,
(iii) United States and foreign copyrights, and the registrations and
applications for registration thereof, and all moral and authors' rights
associated therewith, (iv) mask works and registrations and applications for
registration thereof and (v) trade secrets whether patentable or unpatentable
and whether or not reduced to practice, know-how and processes and techniques.
"Receptor Agreement" means the Stock Purchase Agreement dated
as of January 7, 2000 by and among NEN Life Science Products, Inc., Receptor
Biology Inc. and Dr. Jesse Baumgold.
"Securities Act" means the Securities Act of 1933, as amended,
any successor statute thereto, and the rules and regulations promulgated
thereunder.
"Senior Debt" means all indebtedness for borrowed money
outstanding under that certain $95,600,000 Credit Agreement dated as of June 30,
1997 among NEN Acquisition, Inc., the lenders party thereto and Credit Suisse
First Boston, as Administrative Agent; provided, however, Senior Debt shall not
be deemed to include any undrawn letters of credit.
"Subsidiary" means, any corporation or other organization,
whether incorporated or unincorporated, (i) of which such party or any other
Subsidiary of such party is a general partner (excluding partnerships, the
general partnership interests of which held by such party or any Subsidiary of
such party do not have a majority of the voting interests in such partnership)
or
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(ii) at least a majority of the securities or other interests of which having by
their terms ordinary voting power to elect a majority of the Board of Directors
or others performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such party or by
any one or more of its Subsidiaries, or by such party and one or more of its
Subsidiaries.
"Tax" means any income, gross receipts, sales, use,
employment, franchise, profits, property, capital stock, premium, minimum and
alternative minimum or other taxes, fees, stamp taxes and duties, assessments or
charges of any kind whatsoever (whether payable directly or by withholding),
together with any interest and any penalties, additions to tax or additional
amounts imposed by any taxing authority with respect thereto.
"Tax Return" means a report, return or other information
required to be supplied to a Governmental Authority with respect to any Tax.
SECTION 1.2 CERTAIN ADDITIONAL DEFINITIONS. As used in this Agreement, the
following terms shall have the respective meanings ascribed thereto in the
respective sections of this Agreement set forth opposite each such term below:
Term Section
---- -------
Aggregate Cash Merger Consideration 2.6(c)
Aggregate Option Purchase Price 2.7(b)(ii)
Aggregate Warrant Purchase Price 2.8(a)(ii)
Agreement Preamble
Audited Company Financial Statements 4.7
Balance Sheet Date 4.7
Certificate of Merger 2.3
Certificates 2.6(d)
Closing 2.2
Closing Date 2.2
Company Preamble
Company Benefit Plan(s) 4.17(a)
Company Bylaws 4.2
Company Certificate of Incorporation 4.2
Company Common Stock Recitals
Company Costs 10.1
Company Disclosure Schedule Article IV Preamble
Company Financial Statements 4.7
Company Indemnified Parties 6.7(a)
Company Subsidiary Shares 4.4(a)
Company Subsidiary(ies) 4.4(a)
CSFB 4.21
Current Balance Sheet 4.7
Dissenting Shares 3.2
Earn-Out Payment 8.2(g)(i)
Effective Time 2.3
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Term Section
---- -------
ERISA Affiliate 4.17(f)
Escrow Agent 2.9
Escrow Agreement 2.9
Escrow Fund 2.9
Exchange Fund 3.1(b)
Foreign Plans 4.17(i)
Fully Diluted Common Stock Number 2.6(c)
Genstar 4.21
Indemnification Representative 8.2(c)
Leased Real Property 4.14(a)
Listed Contract(s) 4.16(a)
Management Agreement 6.9
Merger Recitals
Merger Consideration 2.6(c)
Merger Consideration Spreadsheet 2.6(e)
Merger Sub Preamble
Option Purchase Price 2.7(b)
Optionholder 2.7(a)
Outstanding Common Stock Number 2.6(c)
Owned Real Property 4.14(a)
Parent Preamble
Parent Disclosure Schedule Article V Preamble
Parent Subsidiaries 5.5
Paying Agent 3.1(a)
Per Share Cash Merger Consideration 2.6(c)
Permitted Investments 3.1(b)
Shareholder(s) 2.6(c)
Stockholder Consents 6.5(d)
Surviving Corporation 2.1
Title IV Plan 4.17(h)
Total Cash Consideration 2.6(c)
Unaudited Company Financial Statements 4.7
Warrantholder 2.8(a)
ARTICLE II.
THE MERGER
SECTION 2.1 THE MERGER. Upon the terms and subject to the conditions
hereof, and in accordance with the DGCL, Merger Sub shall be merged with and
into the Company at the Effective Time (as hereinafter defined). Following the
Merger, the separate corporate existence of Merger Sub shall cease and the
Company shall continue as the surviving corporation (the "SURVIVING
CORPORATION") and shall succeed to and assume all the rights and obligations of
Merger Sub in accordance with the DGCL.
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SECTION 2.2 CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place at the offices of Latham & Watkins,
505 Montgomery Street, Suite 1900, San Francisco, CA 94111 commencing at 9:00
a.m. local time on July 14, 2000, or, if all of the conditions to the
obligations of the parties to consummate the transactions contemplated hereby
have not been satisfied or waived by such date, on such mutually agreeable later
date as soon as practicable (and in any event not later than three business
days) after the satisfaction or waiver of all conditions (excluding the delivery
of any documents to be delivered at the Closing by any of the parties) set forth
in ARTICLE VII hereof (the "CLOSING DATE").
SECTION 2.3 EFFECTIVE TIME. The Merger shall become effective when the
Certificate of Merger (the "CERTIFICATE OF MERGER"), executed in accordance with
the relevant provisions of the DGCL, is accepted for record by the Secretary of
State of the State of Delaware. When used in this Agreement, the term "EFFECTIVE
TIME" shall mean the later of the date and time at which the Certificate of
Merger is accepted for record or the date and time established by the
Certificate of Merger.
SECTION 2.4 EFFECTS OF THE MERGER. At and after the Effective Time, the
Merger shall have the effects set forth in Section 259 of the DGCL.
SECTION 2.5 CERTIFICATE OF INCORPORATION AND BYLAWS; DIRECTORS AND
OFFICERS.
(a) At the Effective Time and without any further action on the part
of the Company or Merger Sub, the Company Certificate of Incorporation shall be
amended to read in its entirety as the certificate of incorporation of Merger
Sub reads as in effect immediately prior to the Effective Time, until thereafter
changed or amended as provided therein or applicable law, provided that such
certificate of incorporation shall reflect as of the Effective Time "NEN Life
Sciences, Inc." as the name of the Surviving Corporation. The Bylaws of Merger
Sub, as in effect immediately prior to the Effective Time, shall be the Bylaws
of the Surviving Corporation until thereafter changed or amended as provided
therein or the Certificate of Incorporation and applicable law.
(b) The directors and officers of Merger Sub immediately prior to the
Effective Time shall be the directors and officers, respectively, of the
Surviving Corporation as of the Effective Time, until the earlier of their
resignation or removal or otherwise ceasing to be a director or officer or until
their respective successors are duly elected and qualified, as the case may be.
SECTION 2.6 CONVERSION OF SECURITIES. As of the Effective Time, by virtue
of the Merger and without any action on the part of the holder of any shares of
Company Common Stock or any shares of capital stock of Merger Sub:
(a) Each share of Company Common Stock that is held in the treasury of
the Company or by any wholly owned subsidiary of the Company and each share of
Company Common Stock owned by Parent, Merger Sub or any other wholly owned
subsidiary of Parent shall be cancelled and retired and no consideration shall
be delivered in exchange therefor.
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(b) Subject to SECTION 2.9, each share of Company Common Stock issued
and outstanding immediately prior to the Effective Time (other than shares of
Company Common Stock to be cancelled in accordance with SECTION 2.6(a) and other
than Dissenting Shares (as defined in SECTION 3.2)) shall be converted as of the
Effective Time into the right to receive:
(i) the Per Share Cash Merger Consideration (as defined below);
and
(ii) Parent Warrants to purchase that number of shares of Parent
Common Stock (rounded to the nearest whole number) equal to 300,000 multiplied
by the fraction obtained by dividing the Per Share Cash Merger Consideration by
the Total Cash Consideration; provided that shares of Company Common Stock held
by Shareholders who do not prior to the Effective Time deliver to Parent an
Investment Letter substantially in the form attached hereto as EXHIBIT 2.6 shall
be converted into the right to receive $15.00 in cash, without interest, in lieu
of each Parent Warrant that would have otherwise been issuable to such
Shareholder pursuant to this SECTION 2.6(b)(ii).
(c) The following terms shall have the following respective meanings:
(i) The "AGGREGATE CASH MERGER CONSIDERATION" means an amount
equal to the Per Share Cash Merger Consideration multiplied by the Outstanding
Common Stock Number.
(ii) The "FULLY DILUTED COMMON STOCK NUMBER" means the total
number of shares of Company Common Stock outstanding immediately prior to the
Effective Time, PLUS the total number of shares of Company Common Stock issuable
upon exercise of Company Options outstanding immediately prior to the Effective
Time PLUS the total number of shares of Company Common Stock issuable upon
exercise of Company Warrants outstanding immediately prior to the Effective
Time.
(iii) The "MERGER CONSIDERATION" means the Aggregate Cash Merger
Consideration together with the Parent Warrants issued pursuant to SECTION
2.6(b)(ii).
(iv) The "OUTSTANDING COMMON STOCK NUMBER" means the total number
of shares of Company Common Stock outstanding immediately prior to the Effective
Time.
(v) The "PER SHARE CASH MERGER CONSIDERATION" means an amount in
cash, without interest, equal to the quotient of (A) $400,000,000 less (x) all
Debt outstanding as of the Closing (including, without limitation, all Senior
Debt), plus (y) the aggregate exercise price of all outstanding Company Options
and Company Warrants plus (z) all Cash held by the Company as of the Closing
divided by (B) the Fully Diluted Common Stock Number.
(vi) "SHAREHOLDER" means each holder of a Certificate
representing shares of Company Common Stock.
(vii) "TOTAL CASH CONSIDERATION" means the aggregate of the
Merger Consideration, the Aggregate Option Purchase Price and the Aggregate
Warrant Purchase Price.
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(d) Upon consummation of the Merger, all shares of Company Common
Stock, when so converted, shall no longer be outstanding and shall automatically
be cancelled and retired, and each holder of a certificate or certificates (the
"CERTIFICATES") representing any such shares of Company Common Stock shall cease
to have any rights with respect thereto, except the right to receive the Merger
Consideration with respect to such shares of Company Common Stock.
(e) Two business days prior to Closing Date, the Company shall deliver
to Parent a spreadsheet in the form attached hereto as EXHIBIT 2.6(e) (the
"MERGER CONSIDERATION SPREADSHEET") which sets forth the amounts of cash and the
number of Parent Warrants that would be paid or issued to each Shareholder, each
Optionholder and each Warrantholder pursuant to this ARTICLE II, based on
assumptions set forth therein. At the Closing, the Company shall deliver to
Parent the Merger Consideration Spreadsheet setting forth the final calculation
of such amounts of cash and number of Parent Warrants.
(f) Each issued and outstanding share of the capital stock of Merger
Sub shall be converted into and become as of the Effective Time one fully paid
and nonassessable share of common stock, par value $.01 per share, of the
Surviving Corporation.
SECTION 2.7 CANCELLATION OF COMPANY OPTIONS
(a) Upon the terms and subject to the conditions set forth herein, the
Board of Directors of the Company shall adopt resolutions to the effect that,
and the Company will take such other action as shall be necessary such that,
each outstanding Company Option shall become exercisable in full immediately
prior to the Effective Time and, at the Effective Time, shall be cancelled,
retired and extinguished and upon the cancellation thereof, each holder of a
Company Option (each, an "OPTIONHOLDER") shall exchange any rights with respect
thereto, for the right to receive the Option Purchase Price (as hereinafter
defined) and the Parent Warrants payable and issuable with respect thereto
pursuant to SECTION 2.7(b).
(b) Subject to SECTION 2.9, as consideration in exchange for all
Company Options pursuant to SECTION 2.7(a), the Company shall, after the
Effective Time, upon surrender to the Company of the applicable Option Agreement
for cancellation (or if the Optionholder does not surrender such Option
Agreement, delivery by the Optionholder of such other documentation reasonably
acceptable to the Company and Parent evidencing the Optionholders' agreement to
cancel his or her Company Option in respect of the consideration to be paid
pursuant to this SECTION 2.7):
(i) pay each Optionholder an amount in cash equal to the product
obtained by multiplying (x) the aggregate number of shares of Company Common
Stock issuable upon the exercise in full of each Company Option held by such
Optionholder by (y) the difference of (A) the Per Share Cash Merger
Consideration less (B) the exercise price per share of each such Company Option;
and
(ii) issue each Optionholder Parent Warrants to purchase that
number of shares of Parent Common Stock (rounded to the nearest whole number)
equal to such Optionholder's pro rata share of 300,000 (based on the aggregate
amount of cash paid to all
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holders of Company Common Stock, Optionholders and Warrantholders pursuant to
this ARTICLE II); provided that each Optionholder who does not prior to
surrender of his or her Company Options for cancellation deliver to Parent an
Investment Letter substantially in the form attached hereto as EXHIBIT 2.6 shall
receive $15.00 in cash, without interest, in lieu of each Parent Warrant that
would have otherwise been issuable to such Optionholder pursuant to this SECTION
2.7(a)(ii).
The amount of cash payable in respect of each Company Option by the Company to
the Optionholder thereof pursuant to this SECTION 2.7(b)(i) shall be referred to
herein as the "OPTION PURCHASE PRICE." The aggregate amount of cash payable by
the Company to all of the Optionholders pursuant to this SECTION 2.7(b)(i) shall
be referred to as the "AGGREGATE OPTION PURCHASE PRICE."
(c) The Merger Consideration Spreadsheet shall set forth the name of
each Optionholder and set forth for each Optionholder the aggregate number of
shares of Company Common Stock issuable upon the exercise in full of his or her
Company Options and the aggregate exercise price of all such Company Options.
(d) Parent shall fund the Company, at the Effective Time, with the
Aggregate Option Purchase Price by wire transfer in immediately available funds.
(e) All affected parties shall consistently reflect the tax
consequences of the option exchange as having occurred during the Company's
short tax year which ends when the Company becomes a member of the Parent's
consolidated group.
SECTION 2.8 COMPANY WARRANTS.
(a) Parent shall, upon surrender for cancellation of the applicable
Company Warrant after the Effective Time:
(i) subject to SECTION 2.9, pay each holder of a Company Warrant
(each, a "WARRANTHOLDER"), an amount in cash equal to the product obtained by
multiplying (x) the aggregate number of shares of Company Common Stock issuable
upon the exercise in full of each Company Warrant held by such Warrantholder by
(y) the difference of (A) the Per Share Cash Merger Consideration less (B)
$0.01; and
(ii) issue each Warrantholder Parent Warrants to purchase that
number of shares of Parent Common Stock (rounded to the nearest whole number)
equal to such Warrantholder's pro rata share of 300,000 (based on the aggregate
amount of cash paid to all holders of Company Common Stock, Optionholders and
Warrantholders pursuant to this ARTICLE II); provided that Company Warrants held
by Warrantholders who prior to surrender of the applicable Company Warrant for
cancellation do not deliver to Parent an Investment Letter substantially in the
form attached hereto as EXHIBIT 2.6 shall be converted into the right to receive
$15.00 in cash, without interest, in lieu of each Parent Warrant that would have
otherwise been issuable to such Warrantholder pursuant to this SECTION
2.8(a)(ii).
The aggregate amount of cash payable by Parent to all of the Warrantholders
pursuant to this SECTION 2.8(a)(i) shall be referred to as the "AGGREGATE
WARRANT PURCHASE PRICE."
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(b) The Merger Consideration Spreadsheet shall set forth the name of
each Warrantholder and the percentage of the total number of Company Warrants
issuable to each Warrantholder pursuant to that certain Warrant Agreement dated
as of August 1998 among the Company and each of the signatories thereto and the
number of shares of Company Common Stock issuable upon the exercise in full of
such Company Warrants.
(c) Prior to Closing, the Company shall take such action as shall be
necessary so that payment of the Aggregate Warrant Purchase Price will
constitute the satisfaction in full of all obligations of the Company pursuant
to the Company Warrants.
SECTION 2.9 ESCROW. On the Closing Date, Parent shall deposit with a
commercial bank or trust company having net capital of not less than $100
million jointly selected by Parent and the Company to act as Escrow Agent
hereunder (the "ESCROW AGENT") an amount equal to $17,500,000 for the purpose of
securing the indemnification obligations set forth in ARTICLE VIII of this
Agreement. Such amount (the "ESCROW FUND") shall evidence a portion of the Total
Cash Consideration and shall be held by the Escrow Agent under an Escrow
Agreement in substantially the form attached hereto as EXHIBIT 2.9 to be entered
into among Parent, Genstar and the Escrow Agent (the "ESCROW AGREEMENT")
pursuant to the terms thereof. The Escrow Fund shall be held as a trust fund and
shall not be subject to any lien, attachment, trustee process or any other
judicial process of any creditor of any party, and shall be held and disbursed
solely for the purposes and in accordance with the terms of the Escrow
Agreement. The Merger Consideration Spreadsheet shall set forth for each
Shareholder, each Optionholder and each Warrantholder the amount of the Total
Cash Consideration otherwise payable to such person that will be held in the
Escrow Fund.
ARTICLE III.
EXCHANGE OF CERTIFICATES
SECTION 3.1 EXCHANGE OF CERTIFICATES; PAYING AGENT. Parent and the Company
shall authorize a commercial bank or trust company having net capital of not
less than $100 million (or one or more other persons or entities as shall be
reasonably acceptable to Parent and the Company) to act as paying agent
hereunder (the "PAYING AGENT") for the payment and issuance of the Merger
Consideration pursuant to SECTION 2.6(b) upon surrender of Certificates and the
payment of the consideration payable for Company Warrants pursuant to SECTION
2.8(a) upon surrender of the Company Warrants. All of the fees and expenses of
the Paying Agent shall be borne by Parent.
(b) PARENT TO PROVIDE FUNDS. Parent shall take all steps necessary to
deposit in trust with the Paying Agent prior to the Effective Time cash and
Parent Warrants in an amount necessary to pay for all shares of Company Common
Stock pursuant to SECTION 2.6(b) (less any amounts deposited in the Escrow Fund
pursuant to SECTION 2.9) and the amount of cash and Parent Warrants required to
pay for all of the Company Warrants pursuant to SECTION 2.8(a) (less any amounts
deposited in the Escrow Fund pursuant to SECTION 2.9). Such amount shall
hereinafter be referred to as the "EXCHANGE FUND."
The cash portion of the Exchange Fund shall be invested by the Paying
Agent as directed by Parent in direct obligations of the United States,
obligations for which the full faith
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and credit of the United States is pledged to provide for the payment of
principal and interest, commercial paper rated of the highest quality by Moody's
Investors Services, Inc. or Standard & Poor's Ratings Group or certificates of
deposit, bank repurchase agreements or bankers' acceptances of a commercial bank
having at least $100,000,000 in assets, in each case with maturities not
exceeding seven days (collectively "PERMITTED INVESTMENTS"), or in money market
funds which are invested in Permitted Investments, and any net earnings with
respect thereto shall be for the account of Parent. The Paying Agent shall,
pursuant to irrevocable instructions, make the payments referred to in SECTIONS
2.6(b) and 2.8(a) out of the Exchange Fund at the Effective Time or as promptly
as is practicable thereafter (assuming all documents reasonably required by the
Paying Agent shall have been received). The Exchange Fund shall not be used for
any other purpose except as otherwise agreed to by Parent and the Company.
Notwithstanding any provision hereof to the contrary, the Paying Agent shall,
pursuant to irrevocable instructions, make the cash payments referred to in
SECTIONS 2.6(b) and 2.8(a) by wire transfer in immediately available funds if so
requested by the holder of any Certificate or Warrantholder, as applicable.
If the amount of cash in the Exchange Fund is insufficient to pay all
of the amounts required to be paid pursuant to SECTIONS 2.6(b) and 2.8(a),
Parent from time to time after the Effective Time shall take all steps necessary
to enable and cause the Surviving Corporation to deposit in trust additional
cash with the Paying Agent sufficient to make all such payments.
(c) EXCHANGE PROCEDURES. The Company shall mail to each holder of
record of a Certificate, other than Certificates to be canceled or retired
pursuant to SECTION 2.6(a), (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon actual delivery of the Certificates to the Paying Agent
and shall be in a form and have such other provisions as Parent may reasonably
specify) and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Paying Agent or to such other agent or
agents as may be appointed by the Surviving Corporation, together with such
letter of transmittal, duly executed, and such other documents as may reasonably
be required by the Paying Agent, the holder of such Certificate shall be
entitled to receive in exchange therefor, the amount of cash into which the
shares of Company Common Stock theretofore represented by such Certificate shall
have been converted pursuant to SECTION 2.6(b), and the Certificates so
surrendered shall forthwith be cancelled. No interest will be paid or will
accrue on the cash payable upon the surrender of any Certificate. If payment is
to be made to a person or entity other than the person or entity in whose name
the Certificate so surrendered is registered, it shall be a condition of payment
that such Certificate shall be properly endorsed or otherwise in proper form for
transfer and that the person or entity requesting such payment shall pay any
transfer or other taxes required by reason of such Certificate or establish to
the satisfaction of the Surviving Corporation that such tax has been paid or is
not applicable. Until surrendered as contemplated by this SECTION 3.1(c), each
Certificate (other than Certificates representing Dissenting Shares and
Certificates representing any shares of Company Common Stock to be cancelled or
retired pursuant to SECTION 2.6(a)) shall be deemed at any time after the
Effective Time to represent only the right to receive upon such surrender the
amount of cash, without interest, into which the shares of Company Common Stock
theretofore represented by such Certificate shall have been converted pursuant
to SECTION 2.6(b). Notwithstanding the foregoing, none of the Paying Agent, the
Surviving Corporation or any party hereto shall be liable to a former
stockholder of the
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<PAGE> 19
Company for any cash or interest delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws. Any portion of the
Exchange Fund that remains unclaimed by the stockholders of the Company for
twelve months after the Effective Time shall be repaid to Parent (including,
without limitation, all interest and other income received by the Paying Agent
in respect of all such funds). Thereafter, persons or entities who prior to the
Merger held shares of Company Common Stock shall look only to the Surviving
Corporation or Parent (subject to the terms of this Agreement and abandoned
property, escheat and other similar laws) with respect to any Total Cash
Consideration that may be payable upon due surrender of the Certificates held by
them, without interest.
(d) LOST CERTIFICATES. If any Certificate or Company Warrant shall
have been lost, stolen or destroyed, upon (i) the making of an affidavit of that
fact by the person claiming such Certificate or Company Warrant to be lost,
stolen or destroyed and (ii) the execution and delivery to Parent of an
indemnity agreement in customary form and substance, the Paying Agent will issue
in exchange for such lost, stolen or destroyed Certificate or Company Warrant
the consideration deliverable in respect thereof pursuant to this Agreement.
SECTION 3.2 DISSENTING SHARES. Notwithstanding any provision of this
Agreement to the contrary, if required by the DGCL, but only to the extent
required thereby, shares of Company Common Stock which are issued and
outstanding immediately prior to the Effective Time and which are held by
holders of such shares of Company Common Stock who have properly exercised
appraisal rights with respect thereto in accordance with Delaware law (the
"DISSENTING SHARES") will not be exchangeable for the right to receive the
Merger Consideration, and holders of such shares of Company Common Stock will be
entitled to receive payment of the appraised value of such shares of Company
Common Stock in accordance with the provisions of Delaware law unless and until
such holders fail to perfect or effectively withdraw or lose their rights to
appraisal and payment under the DGCL. If, after the Effective Time, any such
holder fails to perfect or effectively withdraws or loses such right, such
shares of Company Common Stock will thereupon be treated as if they had been
converted into and to have become exchangeable for, at the Effective Time, the
right to receive the Merger Consideration, without any interest thereon. The
Company shall give Parent and Merger Sub (A) prompt notice of any written
demands for appraisal, withdrawals of demands for appraisal and any other
related instruments received by the Company and (B) the opportunity to direct
all negotiations and proceedings with respect to demands for appraisal. The
Company will not, except with the prior written consent of Parent, voluntarily
make any payment with respect to any demands for appraisal or settle or offer to
settle any such demand.
SECTION 3.3 NO FURTHER OWNERSHIP RIGHTS IN SHARES OF COMPANY COMMON STOCK;
CLOSING OF COMPANY TRANSFER BOOKS. At and after the Effective Time, each holder
of a Certificate shall cease to have any rights as a stockholder of the Company,
except for, in the case of a holder of a Certificate (other than shares to be
cancelled pursuant to SECTION 2.6(a) and other than Dissenting Shares), the
right to surrender his or her Certificate in exchange for payment of the Merger
Consideration or, in the case of a holder of Dissenting Shares, to perfect his
or her right to receive payment for his or her shares of Company Common Stock
pursuant to Delaware law and no transfer of shares of Company Common Stock shall
be made on the stock transfer books of the Surviving Corporation. At the
Effective Time, the stock transfer books of the Company shall be closed, and no
transfer of shares of Company Common Stock shall thereafter
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be made. If, after the Effective Time, Certificates are presented to the
Surviving Corporation, they shall be cancelled and exchanged as provided for
herein.
SECTION 3.4 WITHHOLDING RIGHTS. Each of the Surviving Corporation and
Parent shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of shares of Company Common
Stock, any Optionholder and any Warrantholder such amounts as it is required to
deduct and withhold with respect to the making of such payment under the
Internal Revenue Code and the rules and regulations promulgated thereunder, and
any provision of state, local or foreign tax law (including without limitation,
under Section 1445 of the Internal Revenue Code, if applicable). To the extent
that amounts are so withheld by the Surviving Corporation or Parent, as the case
may be, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the shares of Company Common
Stock, the Optionholder or the Warrantholder in respect of which such deduction
and withholding was made by the Surviving Corporation or Parent, as the case may
be.
SECTION 3.5 FURTHER ASSURANCES. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of the Company or Merger Sub, any
deeds, bills of sale, assignments or assurances and to take and do, in the name
and on behalf of the Company or Merger Sub, any other actions and things to
vest, perfect or confirm of record or otherwise in the Surviving Corporation any
and all right, title and interest in, to and under any of the rights, properties
or assets acquired or to be acquired by the Surviving Corporation as a result
of, or in connection with, the Merger.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject to the exceptions and qualifications set forth in the
disclosure schedule of even date herewith delivered by the Company to Parent on
or prior to the date hereof (the "COMPANY DISCLOSURE SCHEDULE") the Company
hereby represents and warrants to Parent and Merger Sub as follows. The Company
Disclosure Schedule shall be arranged in paragraphs corresponding to the
numbered and lettered paragraphs contained in this ARTICLE IV.
SECTION 4.1 AUTHORITY. The Company has all requisite corporate power and
authority to enter into this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by the Company, the performance by the Company of its
obligations hereunder, and the consummation by the Company of the transactions
contemplated hereby, have been duly authorized by the Board of Directors of the
Company, and no other corporate action on the part of the Company is necessary
to authorize the execution and delivery of this Agreement by the Company, the
performance by the Company of its obligations hereunder or the consummation by
the Company of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Company and, assuming due authorization,
execution and delivery by the other parties hereto, this Agreement constitutes a
legally valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by principles of public policy, and subject to (i) the effect of any
applicable Law of general application relating to bankruptcy, reorganization,
insolvency, moratorium or similar
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Laws affecting creditors' rights and relief of debtors generally, and (ii) the
effect of rules of law and general principles of equity, including, rules of law
and general principles of equity governing specific performance, injunctive
relief and other equitable remedies (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
SECTION 4.2 ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite corporate power and authority to own, operate or lease the
properties and assets now owned, operated or leased by it, and to carry on its
business in all material respects as currently conducted by the Company. The
Company is duly qualified to do business as a foreign corporation, and is in
good standing, under the Laws of each jurisdiction in which the character of its
properties owned, operated or leased, or the nature of its activities, makes
such qualification necessary, except in those jurisdictions where the failure to
be so qualified or in good standing, when taken together with all other failures
by the Company and any Company Subsidiaries to be so qualified or in good
standing, would not have a Material Adverse Effect. SECTION 4.2 of the Company
Disclosure Schedule sets forth a list of each jurisdiction where the Company is
qualified to do business as a foreign corporation. True and complete copies of
the Certificate of Incorporation (the "COMPANY CERTIFICATE OF INCORPORATION")
and Bylaws (the "COMPANY BYLAWS") of the Company, each as amended and in effect
as of the date of this Agreement, have been made available to Parent and its
agents and representatives.
SECTION 4.3 COMPANY CAPITAL STOCK.
(a) The Company Capital Stock consists of 40,000,000 shares of Company
Common Stock, of which 20,000,000 shares have been designated Class A Common
Stock, par value $0.01 per share, and 20,000,000 shares have been designated
Class B Common Stock, par value $0.01 per share. As of the date hereof,
16,066,111 shares of Class A Common Stock have been issued and are outstanding,
and no shares of Class B Common Stock have been issued and or are outstanding.
All such issued and outstanding shares of Company Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive or similar rights created by statute, the
Company Certificate of Incorporation, the Company Bylaws or any agreement to
which the Company is a party or by which it is bound, and have been issued in
compliance with applicable federal and state securities or "blue sky" Laws. The
Merger Consideration Spreadsheet sets forth, as of the date hereof, the name of
each holder of shares of Company Common Stock and the number and type of shares
of Company Common Stock held of record by each such stockholder. There are no
accrued or unpaid dividends with respect to any issued and outstanding shares of
Company Common Stock. Except as listed on the Merger Consideration Spreadsheet,
as of the date hereof there are no other issued or outstanding shares of Company
Capital Stock.
(b) There are no outstanding options, warrants, calls, rights of
conversion or other rights, agreements, arrangements or commitments of any kind
or character, whether written or oral, obligating the Company to issue, deliver
or sell, or cause to be issued, delivered or sold, any shares of Company Capital
Stock, other than (i) outstanding Company Options granted under the Company
Option Plan representing the right to purchase an aggregate of 2,344,947 shares
of Company Common Stock as listed on the Merger Consideration Spreadsheet
(provided, that the Company may issue options to purchase up to 200,000 shares
of Company Common
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Stock prior to Closing pursuant to SECTION 6.2(b)(vi)) and (ii) outstanding
Company Warrants as described on the Merger Consideration Spreadsheet. True and
correct copies of each of the Company Options and Company Warrants have been
made available to Parent and its agents and representatives. Each of the list of
Optionholders set forth on the Merger Consideration Spreadsheet and the list of
Warrantholders on the Merger Consideration Spreadsheet is true and correct as of
the date hereof.
(c) Except as set forth in SECTION 4.3(c) of the Company Disclosure
Schedule, there are (i) no rights, agreements, arrangements or commitments of
any kind or character, whether written or oral, obligating the Company to
repurchase, redeem or otherwise acquire any issued and outstanding shares of
Company Capital Stock or to register any shares of Company Common Stock pursuant
to the Securities Act, (ii) no outstanding or authorized stock appreciation,
phantom stock, profit participation, or other similar rights with respect to the
Company, and (iii) no voting trusts, stockholder agreements, proxies or other
agreements or understandings in effect to which the Company is a party, or by
which it is bound, or to the Knowledge of the Company, otherwise in existence or
effect, with respect to the governance of the Company or the voting or transfer
of any shares of Company Capital Stock.
SECTION 4.4 COMPANY SUBSIDIARIES.
(a) SECTION 4.4(a) of the Company Disclosure Schedule sets forth (i)
the legal name and jurisdiction of organization of each Subsidiary of the
Company (each, a "COMPANY SUBSIDIARY" and, collectively, the "COMPANY
SUBSIDIARIES"), (ii) the authorized capital stock of each Company Subsidiary,
(iii) the number and designation of all issued and outstanding shares of capital
stock of each Company Subsidiary (collectively, the "COMPANY SUBSIDIARY
SHARES"), and (iv) the current ownership of all outstanding Company Subsidiary
Shares by the Company. Other than the Company Subsidiaries set forth in SECTION
4.4(a) of the Company Disclosure Schedule, there are no other Persons in which
the Company or any Company Subsidiary owns, of record or beneficially, any
direct or indirect equity interest or any right (contingent or otherwise) to
acquire such an equity interest. SECTION 4.4(a) of the Company Disclosure
Schedule identifies any stock of a Company Subsidiary which is held in trust or
of record for the benefit of NEN Life Science Products, Inc. Except as set forth
in SECTION 4.4(a) of the Company Disclosure Schedule, neither the Company nor
any Company Subsidiary is a member of any partnership or limited liability
company, nor is the Company or any Company Subsidiary a participant in any joint
venture or similar arrangement constituting a legal entity.
(b) Except as set forth in SECTION 4.4(b) of the Company Disclosure
Schedule, each of the Company Subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of its respective
jurisdiction of organization, and has the requisite corporate power and
authority to own, operate or lease the respective properties and assets now
owned, operated or leased by it, and to carry on its respective business in all
material respects as currently conducted by each such Company Subsidiary. Each
of the Company Subsidiaries is duly qualified to do business as a foreign
corporation, and is in good standing, under the Laws of each jurisdiction in
which the character of its properties owned, operated or leased, or the nature
of its activities, makes such qualification necessary, except in those
jurisdictions where the failure to be so qualified or in good standing, when
taken together with all other failures by the Company and other Company
Subsidiaries to be so qualified or in good standing, would not have
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a Material Adverse Effect. True and complete copies of the charter documents of
each Company Subsidiary, each as amended and in effect as of the date of this
Agreement, have been made available to Parent and its agents and
representatives.
(c) All of the issued and outstanding Company Subsidiary Shares have
been duly authorized and validly issued, are fully paid and nonassessable and
were not issued in violation of any preemptive or similar rights created by
statute, the respective charter documents of the Company Subsidiary issuing such
Company Subsidiary Shares, or any agreement to which each such Company
Subsidiary is a party or by which it is bound, and have been issued in
compliance with applicable federal and state securities or "blue sky" Laws.
Except as set forth in SECTION 4.4(c) of the Company Disclosure Schedule, there
are no outstanding options, warrants, calls, rights of conversion or other
rights, agreements, arrangements or commitments of any kind or character,
whether written or oral, obligating any Company Subsidiary to issue, deliver or
sell, or cause to be issued, delivered or sold, any shares of capital stock of
any Company Subsidiary. Except as set forth in SECTION 4.4(c) of the Company
Disclosure Schedule, there are (i) no rights, agreements, arrangements or
commitments of any kind or character, whether written or oral, obligating the
Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any
issued and outstanding Company Subsidiary Shares, (ii) no outstanding or
authorized stock appreciation, phantom stock, profit participation, or other
similar rights with respect to any Company Subsidiary, and (iii) no voting
trusts, stockholder agreements, proxies or other agreements or understandings in
effect to which the Company or any Company Subsidiary is a party, or by which
any of them is bound, or, to the Knowledge of the Company, otherwise in
existence or effect, with respect to the governance of any Company Subsidiary or
the voting or transfer of any Company Subsidiary Shares.
SECTION 4.5 CONFLICTS. Assuming all consents, approvals, authorizations,
filings and notifications and other actions set forth in SECTION 4.6 have been
obtained or made, and except as set forth in SECTION 4.5 of the Company
Disclosure Schedule, the execution and delivery of this Agreement by the
Company, the performance by the Company of its obligations hereunder, and the
consummation by the Company of the transactions contemplated hereby, does not
and will not (i) conflict with or result in a violation or breach of or give
rise to a default under the Company Certificate of Incorporation or Company
Bylaws, or the organizational documents or bylaws of any Company Subsidiary,
(ii) conflict with or result in a violation of any Governmental Order or Law
applicable to the Company or any Company Subsidiary, or their respective assets
or properties, or (iii) result in a breach of, or constitute a default (or event
which with the giving of notice or lapse of time, or both, would become a
material default) under, or give rise to any rights of termination, amendment,
modification, acceleration or cancellation of or loss of any benefit under, or
result in the creation of any Encumbrance on any of the assets or properties of
the Company or any Company Subsidiary pursuant to, any Contract to which the
Company or any Company Subsidiary is a party, or by which any of the assets or
properties of the Company or any Company Subsidiary is bound or affected, or any
Permit of the Company or any Company Subsidiary except, in the case of clauses
(ii) and (iii) of this SECTION 4.5, as would not have a Material Adverse Effect.
SECTION 4.6 CONSENTS, APPROVALS, ETC. No consent, waiver, approval,
authorization, order or permit of, or declaration, filing or registration with,
or notification to, any Governmental Authority or third party is required to be
made or obtained by the Company or any
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Company Subsidiary in connection with the execution and delivery of this
Agreement by the Company, the performance by the Company of its obligations
hereunder, or the consummation by the Company of the transactions contemplated
hereby, except (i) as set forth in SECTION 4.6 of the Company Disclosure
Schedule, (ii) the filing of the Certificate of Merger pursuant to the DGCL,
(iii) applicable requirements, if any, under the DGCL, federal or state
securities or "blue sky" Laws and the HSR Act and (iv) where the failure to
obtain such consent, approval, authorization or action, or to make such filing
or notification would not, when taken together with all other such failures by
the Company and the Company Subsidiaries, have a Material Adverse Effect.
SECTION 4.7 FINANCIAL STATEMENTS. The Company has prepared, or caused to be
prepared, and provided to Parent and its agents and representatives the audited
consolidated financial statements of the Company (including the balance sheet
and the related statements of income and cash flows) as of and for each of the
twelve month periods ended December 31, 1999 and 1998, respectively, and the
period from July 1, 1997 through December 31, 1997 (the "AUDITED COMPANY
FINANCIAL STATEMENTS"), and unaudited condensed consolidated financial
statements of the Company (including the balance sheet and the related
statements of income and cash flows) as of and for the three month period ended
March 31, 2000 (the "UNAUDITED COMPANY FINANCIAL STATEMENTS" and, together with
the Audited Financial Statements, the "COMPANY FINANCIAL STATEMENTS"). The
Company Financial Statements have been prepared in accordance with GAAP applied
on a consistent basis throughout the periods indicated therein and with each
other (except that the Unaudited Company Financial Statements may not contain
all of the notes required by GAAP), and present fairly, in all material
respects, the consolidated financial position, results of operations and cash
flows of the Company and the Company Subsidiaries as of the respective dates and
during the respective periods indicated therein, subject in the case of the
Unaudited Company Financial Statements to normal recurring year-end adjustments,
which were not and are not expected to be material in amount. The balance sheet
of the Company as of March 31, 2000 shall be referred to herein as the "CURRENT
BALANCE SHEET" and the date thereof shall be referred to herein as the "BALANCE
SHEET DATE."
SECTION 4.8 UNDISCLOSED LIABILITIES. Neither the Company nor any Company
Subsidiary has any Liability, except as (i) reflected in, reserved against or
disclosed in the Company Financial Statements, (ii) disclosed in SECTION 4.8 of
the Company Disclosure Schedule, (iii) incurred in the ordinary course of
business consistent with past practice since the Balance Sheet Date or (iv)
individually or in the aggregate would not have a Material Adverse Effect.
SECTION 4.9 CERTAIN CHANGES OR EVENTS. Except as set forth in SECTION 4.9
of the Company Disclosure Schedule or as contemplated by this Agreement, since
the Balance Sheet Date the Company and the Company Subsidiaries have conducted
their businesses only in the ordinary course and in a manner consistent with
past practice and, since such date, there has not been, occurred or arisen:
(a) any material damage to, or destruction or loss of, any of the
material assets or properties of the Company or any Company Subsidiary;
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(b) any declaration, setting aside or payment of any dividend, or
other distribution or capital return in respect of any shares of Company or
Company's Subsidiaries Capital Stock, or any redemption, repurchase or other
acquisition by the Company or any Company Subsidiary of any shares of Company
Capital Stock;
(c) except for sales of inventory, licenses of Proprietary Rights and
abandonment of patents, in each case in the ordinary course of business, any
sale, assignment, transfer, lease, license or other disposition, or agreement to
sell, assign, transfer, lease, license or otherwise dispose of, any of the
assets or Proprietary Rights of the Company or any Company Subsidiary having a
value, in any individual case, in excess of $100,000;
(d) any acquisition (by merger, consolidation or other combination, or
acquisition of stock or assets or otherwise) by the Company or any Company
Subsidiary of any corporation, partnership or other business organization, or
any division thereof, for consideration, in any individual case, in excess of
$100,000;
(e) except for borrowings under existing agreements in the ordinary
course of business or inter-company indebtedness between the Company and any of
the Company Subsidiaries or between the Company Subsidiaries, (i) any incurrence
by the Company or any Company Subsidiary of any indebtedness for borrowed money,
(ii) any issuance by the Company or any Company Subsidiary of any debt
securities, or (iii) any assumption, granting, guarantee, endorsement or other
accommodation or arrangement making the Company or any Company Subsidiary
responsible for the indebtedness for borrowed money or debt securities of any
Person other than another Company Subsidiary, in the case of each of clauses
(i), (ii) and (iii) of this SECTION 4.9(e), having an aggregate value in excess
of $1,000,000 for all such occurrences;
(f) any material change in any method of accounting or accounting
practice used by the Company or any Company Subsidiary, other than such changes
as are required by GAAP;
(g) (i) any employment, deferred compensation, severance or similar
agreement or arrangement entered into or amended by the Company or any Company
Subsidiary, except any employment agreement (A) providing for compensation of
less than $75,000 per annum, (B) terminable upon not more than six months notice
without cost of more than $25,000 to the Company or any Company Subsidiary and
(C) entered into in the ordinary course of business, (ii) any increase in the
compensation payable, or to become payable, by the Company or any Company
Subsidiary to any Company Employees, or any directors or officers of the Company
or any Company Subsidiaries, (iii) any payment of or provision for any bonus,
stock option, stock purchase, profit sharing, deferred compensation, pension,
retirement or other similar payment or arrangement to any Company Employee, or
any director or officer of the Company or any Company Subsidiary, or (iv) any
increase in the coverage or benefits available under any severance pay,
termination pay, vacation pay, company awards, salary continuation or
disability, sick leave, deferred compensation, bonus or other incentive
compensation, insurance, pension or other employee benefit plan, payment or
arrangement made to, for or with such directors, officers, employees, agents or
representatives, other than, in the case of clauses (ii), (iii) and (iv) of this
SECTION 4.9(g), normal increases or payments in the ordinary course of business
consistent with past practice, and except, in the case of clause (iii) of this
SECTION 4.9(g),
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to the extent that the Company or any Company Subsidiary is contractually
obligated to do so or required to do so by applicable Law;
(h) any event or condition of any kind or character that has had or
would reasonably be expected in the future to have a Material Adverse Effect; or
(i) any agreement, other than this Agreement, to take any actions
specified in this SECTION 4.9.
SECTION 4.10 TAX MATTERS.
(a) Except as set forth in SECTION 4.10 of the Company Disclosure
Schedule, (i) the Company and each Company Subsidiary has prepared and timely
filed, will prepare and timely file, or has been or will be included in, all Tax
Returns required to be filed by or on behalf of the Company or any Company
Subsidiary with respect to material Taxes concerning or attributable to the
Company and any Company Subsidiary or their operations for any taxable period
ending on or before the Closing Date, taking into account any extension of time
to file that has been granted to, or obtained by or on behalf of, the Company or
any Company Subsidiary, (ii) all Taxes (whether or not shown to be payable on
such Tax Returns) have been paid or will be paid, (iii) the unpaid Taxes of the
Company and the Company Subsidiaries for tax periods through the date of the
Current Balance Sheet do not exceed the accruals and reserves for Taxes set
forth on the Current Balance Sheet (exclusive of any accruals for "deferred
taxes" or similar items that reflect timing differences between Tax and
financial accounting principles), (iv) any unpaid Taxes attributable to the
period commencing on the day following the date of the Current Balance Sheet and
continuing to the Closing Date were incurred in the ordinary course of the
Company's business consistent with past practices, and (v) no deficiency for any
amount of Taxes has been proposed, asserted or assessed by a taxing authority
against the Company or any Company Subsidiary, which deficiency remains unpaid,
except for such deficiencies which (a) are being contested in good faith and
which are adequately reserved for on the Current Balance Sheet, or (b) with
respect to which the failure to pay would not have a Material Adverse Effect.
The Company has provided to Parent correct and complete copies of all federal
income Tax Returns, examination reports and statements of deficiencies assessed
against or agreed to by any of the Company or any Company Subsidiary with
respect to any taxable period for which the statutory period for the assessment
of the Tax has not expired.
(b) Except as set forth in SECTION 4.10 of the Company Disclosure
Schedule, no waivers of statutes of limitations have been given with respect to
any Tax Returns and reports of the Company or any Company Subsidiary, which
waivers are currently in effect, and no request for any such waiver is currently
pending. No requests for ruling or determination letters or competent authority
relief with respect to the Company or any Company Subsidiary is currently
pending with any taxing authority with respect to any Taxes. As of the date
hereof, no audit or other examination of any Tax Return of the Company or any
Company Subsidiary is presently in progress, nor has the Company or any Company
Subsidiary been notified in writing of any request for such an audit or other
examination. Except as set forth in SECTION 4.10 of the Company Disclosure
Schedule, neither the Company nor any Company Subsidiary has been informed in
writing by any jurisdiction that the jurisdiction believes that the Company or
any Company Subsidiary was required to file any Tax Return that was not filed.
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(c) Neither the Company nor any Company Subsidiary is a "consenting
corporation" within the meaning of Section 341(f) of the Internal Revenue Code,
and none of the assets of the Company or the Company Subsidiaries are subject to
an election under Section 341(f) of the Internal Revenue Code.
(d) Neither the Company nor any Company Subsidiary has been a United
States real property holding corporation within the meaning of Section 897(c)(2)
of the Internal Revenue Code during the applicable period specified in Section
897(c)(l)(A)(ii) of the Internal Revenue Code.
(e) Except as disclosed in SECTION 4.10(e) of the Company Disclosure
Schedule, neither the Company nor any Company Subsidiary has made any payments,
is obligated to make any payments, or is a party to any agreement that could
obligate it to make any payments that will be an "excess parachute payment"
under Internal Revenue Code Section 280G.
(f) Neither the Company nor any Company Subsidiary has any material
liability for any Taxes of any person (other than the Company and the Company
Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar
provision of federal, state, local, or foreign law), or as a transferee or
successor, by contract, or otherwise.
(g) The Company has made all payments of estimated material Taxes
required to be made pursuant to Section 6655 of the Internal Revenue Code and
any comparable provision of state, county, local or foreign law.
SECTION 4.11 LITIGATION AND GOVERNMENTAL ORDERS. Except as set forth in
SECTION 4.11 of the Company Disclosure Schedule, as of the date hereof, (i)
there are no material Actions pending or, to the Knowledge of the Company,
threatened against the Company or any Company Subsidiary, any of the assets or
properties of the Company or any Company Subsidiary, or any of the directors and
officers of the Company or any Company Subsidiary in their capacity as directors
or officers of the Company or any Company Subsidiary and (ii) the Company, each
Company Subsidiary and their respective assets and properties, are not subject
to any material Governmental Order relating specifically to or otherwise
materially adversely affecting the Company, any Company Subsidiary or any of
their respective assets or properties.
SECTION 4.12 COMPLIANCE WITH LAWS. During the two years immediately
preceding the date hereof, the Company and each Company Subsidiary has conducted
its respective part of the Business in compliance with applicable Law, except
where the failure to so comply, when taken together with all other such failures
by the Company and the Company Subsidiaries to so comply, would not have a
Material Adverse Effect. Neither the Company nor any Company Subsidiary has
received any written notice from any Governmental Authority to the effect that
the Company or any Company Subsidiary is not in compliance with any applicable
Law, except where the failure to so comply, when taken together with all other
such failures by the Company and the Company Subsidiaries to so comply, would
not have a Material Adverse Effect.
SECTION 4.13 PERMITS. The Company and the Company Subsidiaries have all
material Permits. All of the material Permits held by or issued to the Company
and the Company
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Subsidiaries are in full force and effect, and the Company or the respective
Company Subsidiary that is a party thereto is in material compliance with each
such Permit held by or issued to it.
SECTION 4.14 ASSETS. Except as set forth in SECTION 4.14 of the Company
Disclosure Schedule, the Company and the Company Subsidiaries have legal and
valid title to, or in the case of leased assets and properties, valid and
subsisting leasehold interests in, all of the material tangible personal assets
and properties used or held for use by the Company or any Company Subsidiary in
connection with the conduct of the Business, free and clear of all Encumbrances
other than Permitted Encumbrances. The tangible assets of the Company and the
Company Subsidiaries are, in the aggregate, in good operating condition and
repair (subject to normal wear and tear) and are suitable for the purposes for
which they are presently used.
SECTION 4.15 INTELLECTUAL PROPERTY.
(a) SECTION 4.15(a) of the Company Disclosure Schedule contains a
true, correct and complete list of all material Proprietary Rights (other than
trade secrets) owned by the Company or any Company Subsidiary, including,
without limitation: (i) each patent and patent application (including, without
limitation, petty patents and utility models and applications therefor, as
applicable), and its number, issue date, title and priority information for each
country in which such patent has been issued, or the application number, date of
filing, title and priority information for each country in which a patent
application is pending, (ii) each registered trademark, tradename or service
mark, and the application serial number or registration number thereof, if
applicable, the class of goods or the description of the goods or services
covered thereby, the countries in which such tradename or trademark is
registered, and the expiration date for each country in which such trademark or
tradename has been registered, and (iii) each registered copyright, and the
number and date of registration thereof for each country in which a copyright
has been registered.
(b) Except as set forth in SECTION 4.15(b) of the Company Disclosure
Schedule, (i) the Company and the Company Subsidiaries own or have a valid right
to use the Proprietary Rights used by them in connection with the Business,
except for such failures by the Company and the Company Subsidiaries to so own
or have a valid right to use such material Proprietary Rights as would not, when
taken together with all other such failures by the Company and the Company
Subsidiaries, have a Material Adverse Effect, and (ii) such Proprietary Rights
will not cease to be valid rights of the Company and the Company Subsidiaries by
reason of the execution and delivery of this Agreement by the Company, the
performance by the Company of its obligations hereunder, or the consummation by
the Company of the transactions contemplated hereby, except as would not have a
Material Adverse Effect. The Company has taken commercially reasonable measures
to protect the proprietary nature of its Proprietary Rights.
(c) Except as set forth in SECTION 4.15(c) of the Company Disclosure
Schedule, neither the Company nor any Company Subsidiary has received any
written notice of (i) any alleged invalidity with respect to any of the
Proprietary Rights owned or used by the Company or any Company Subsidiary in
connection with the conduct of the Business, or (ii) any alleged infringement or
misappropriation of any Proprietary Rights of others due to any activity by the
Company or any Company Subsidiary. The use by each of the Company and each
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Company Subsidiary of the Proprietary Rights owned and used by the Company and
the Company Subsidiaries to manufacture, use and sell products and products
under development in connection with the Business do not infringe upon the valid
Proprietary Rights of any third party, except for such exceptions as would not
have a Material Adverse Effect. To the Knowledge of the Company, except as set
forth in SECTION 4.15(c) of the Company Disclosure Schedule no other Person is
infringing in any way upon any Proprietary Rights owned by the Company or a
Company Subsidiary, except for such exceptions as would not have a Material
Adverse Effect.
(d) Neither the Company nor any Company Subsidiary has received any
written notices challenging the Company's or any Company Subsidiary's rights to
use any of the Domain Names, seeking to terminate or suspend the Company's or
any Company Subsidiary's rights to use any of the Domain Names, or seeking to
initiate any dispute process against the Company or any Company Subsidiary with
respect to its use of any of the Domain Names.
SECTION 4.16 CERTAIN CONTRACTS.
(a) SECTION 4.16 of the Company Disclosure Schedule contains a true,
correct and complete list of all Contracts referred to in clauses (i) through
(xiii), inclusive, of this SECTION 4.16 to which the Company or any Company
Subsidiary is a party or by which any of them is bound (each, a "LISTED
CONTRACT" and, collectively, the "LISTED CONTRACTS"). True, correct and complete
copies of each Listed Contract has been made available to Parent and its agents
and representatives:
(i) notes, debentures, other evidences of indebtedness,
guarantees, loans, credit or financing agreements or instruments, or other
Contracts for money borrowed, including any agreements or commitments for future
loans, credit or financing, in each case in excess of $250,000, other than any
of the foregoing relating to any intercompany indebtedness;
(ii) employment agreements involving annual salary and guaranteed
bonus payments by the Company or any Company Subsidiary in excess of $100,000;
(iii) leases, rental or occupancy agreements, installment and
conditional sale agreements, and other Contracts affecting the ownership of,
leasing of, title to, use of, or any leasehold or other interest in, any real
property involving individual annual payments in excess of $250,000;
(iv) joint venture Contracts, partnership agreements, or limited
liability company agreements;
(v) Contracts requiring capital expenditures after the date
hereof in an amount in excess of $500,000 which are not terminable;
(vi) licensing agreements with respect to Proprietary Rights
which obligate the Company or any Company Subsidiary to make royalty payments,
license fee payments, or other similar payments in excess of $100,000 per annum
or otherwise material to the Business;
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(vii) agreements containing covenants limiting, in any material
respect, the freedom of the Company or any Company Subsidiary to compete with
any person in any line of business or in any area or territory;
(viii) any severance, "stay pay" or termination pay agreement
with any officer or other employee of the Company or any Company Subsidiary;
(ix) any agreement for the sale of assets or properties of the
Company or any Company Subsidiary in excess of $500,000, other than goods and
services in the ordinary course of business consistent with past practice;
(x) any agreement (or group of related agreements with the same
person or such person's Affiliates) for the lease of personal property from or
to third parties providing for annual lease payments in excess of $250,000;
(xi) any agreement pursuant to which the Company or any Company
Subsidiary has provided any letter of credit, letter of comfort or surety bond
to any third party;
(xii) any agreement which contains any material provisions
requiring the Company or any Company Subsidiary to indemnify any other party
thereto (excluding indemnities contained in agreements entered into the ordinary
course of business consistent with past practice); and
(xiii) any agreement not otherwise included in the Company
Disclosure Schedule that the Company would be required to include pursuant to
Item 601(b)(10) of Regulation S-K under the Securities Act as an exhibit to a
registration statement filed under the Securities Act.
(b) Except as set forth in SECTION 4.16 of the Company Disclosure
Schedule or as would not have a Material Adverse Effect, (i) each Listed
Contract is in full force and effect and represents a legally valid, binding and
enforceable obligation of the Company or the Company Subsidiary which is a party
thereto, and to the Knowledge of the Company, represents a legally valid,
binding and enforceable obligation of the other parties thereto, (ii) each of
the Company and the Company Subsidiaries has performed, in all respects, all
obligations required to be performed by it under each of the Listed Contracts to
which it is a party, (iii) neither the Company or any Company Subsidiary is in
breach or violation of, or default under, any of the Listed Contracts, nor has
the Company or any Company Subsidiary received any written notice that it has
breached, violated or defaulted under any of the Listed Contracts to which it is
a party, and (iv) to the Knowledge of the Company, there is no breach by any
other party or parties to any of the Listed Contracts.
SECTION 4.17 EMPLOYEE BENEFIT MATTERS.
(a) SECTION 4.17(a) of the Company Disclosure Schedule contains a
true, correct and complete list of each employee benefit plan (including,
without limitation, any "employee benefit plan" as defined in Section 3(3) of
ERISA) maintained or contributed to by the Company or any Company Subsidiary, or
under which current or former employees, directors or consultants of the Company
or any Company Subsidiary benefit (each, a "COMPANY
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BENEFIT PLAN" and, collectively, the "COMPANY BENEFIT PLANS"). The Company has
made available or will make available prior to Closing to Parent and its agents
and representatives copies of (i) each Company Benefit Plan, (ii) the most
recent annual report (Form 5500) filed with the IRS with respect to each such
Company Benefit Plan, (iii) each trust agreement relating to each such Company
Benefit Plan, (iv) the most recent summary plan description for each such
Company Benefit Plan for which a summary plan description is required, (v) the
most recent determination letter issued by the IRS with respect to any such
Company Benefit Plan qualified under Section 401(a) of the Internal Revenue
Code, (vi) the most recent actuarial report for each Company Benefit Plan
subject to Title IV of ERISA and each Company Benefit Plan which provides
post-retirement medical or life benefits and (vii) any Company Benefit Plan
which is subject to Title IV of ERISA given to participants as required by
Section 204(h) of ERISA, or filed with the Pension Benefit Guaranty Corporation
under ERISA Section 4041.
(b) Except as set forth in SECTION 4.17(b) of the Company Disclosure
Schedule, each Company Benefit Plan is in material compliance with the
applicable requirements of ERISA and the Internal Revenue Code and no event has
occurred and there exists no condition or set of circumstances in connection
with which the Company, any Company Subsidiary or any Company Benefit Plan could
be subject to any material liability under the terms of such Company Benefit
Plans, ERISA, the Internal Revenue Code, any other material applicable Law other
than in the ordinary course, or any contractual indemnification or contribution
obligation protecting any fiduciary, insurer or service provider with respect to
any Company Benefit Plan.
(c) SECTION 4.17(c) of the Company Disclosure Schedule contains a
true, correct and complete list of (i) each material severance agreement and
plan of the Company and each Company Subsidiary with or relating to their
respective employees and (ii) each material plan and agreement of the Company
and each Company Subsidiary with or relating to its respective employees which
provide for acceleration of benefits or payments upon a change in control. A
true, correct and complete copy of each of the agreements and plans set forth in
SECTION 4.17(c) of the Company Disclosure Schedule have been made available to
Parent and its agents and representatives.
(d) Each Company Benefit Plan that is intended to be qualified under
Section 401(a) of the Internal Revenue Code has received a determination letter
from the IRS that it is so qualified, and no fact or event has occurred since
the date of such determination letter that could materially adversely affect the
qualified status of any such Company Benefit Plan.
(e) Except as set forth in SECTION 4.17(e) of the Company Disclosure
Schedule, there are no legal proceedings or investigations by regulatory
agencies (except claims for benefits payable in the normal operation of the
Company Benefit Plans and proceedings with respect to qualified domestic
relations orders) pending or, to the Knowledge of the Company, threatened,
against or involving any Benefit Plan or asserting any rights or claims to
benefits under any Company Benefit Plan that could give rise to any material
liability to the Company or any Company Subsidiary.
(f) Neither the Company, any Company Subsidiary nor any entity which
is considered under common control with the Company under Section 4.14 of the
Internal Revenue
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Code or Section 4001 of ERISA ("ERISA Affiliate") has ever been obligated to
contribute to a multiemployer plan (as defined in Section 4001(a)(3) of ERISA).
(g) Except as set forth in SECTION 4.17(g) of the Company Disclosure
Schedule, no Company Benefit Plan provides, and neither the Company nor any
Company Subsidiary has any current or projected liability with respect to,
post-retirement health or life benefits (excluding continuation of health
coverage required to be continued under Section 4980B of the Code or other
applicable law and insurance conversion privileges under state law).
(h) No employee benefit plan maintained by the Company, any Company
Subsidiary or any ERISA Affiliate which is subject to Title IV of ERISA (a
"TITLE IV PLAN") has an "amount of unfunded benefit liabilities" (as defined in
Section 4001(a)(18) of ERISA) in excess of $25,000. Except as set forth in
SECTION 4.17(h) of the Company Disclosure Schedule, neither the Company, any
Company Subsidiary nor any ERISA Affiliate has any liability or projected
liability with respect to the termination of any Title IV Plan.
(i) Each compensation and benefit plan maintained or contributed to
for the benefit of employees of the Company, any Subsidiary or any ERISA
Affiliate outside of the United States (the "FOREIGN PLANS") is listed in
SECTION 4.17(a) of the Company Disclosure Schedule. With respect to each such
Foreign Plan, except as disclosed in SECTION 4.17(i) of the Company Disclosure
Schedule (i) each of the Foreign Plans is in material compliance with the
provisions of the material laws of each jurisdiction in which each such Foreign
Plan is maintained, to the extent those laws are applicable to the Foreign
Plans; (ii) all material contributions to the Foreign Plans which may have been
required to be made in accordance with the terms of any such Foreign Plan, and,
when applicable, the law of the jurisdiction in which such Foreign Plan is
maintained, have been timely made; (iii) all of the Foreign Plans have obtained
from the governmental body having jurisdiction with respect to such Foreign
Plans any required determinations, if any, that such Foreign Plans are in
compliance with the laws of the relevant jurisdiction if such determinations are
required in order to give effect to the Foreign Plan; (iv) to the Knowledge of
Company, there are no pending investigations by any governmental body involving
the Foreign Plans, and no pending claims (except for claims for benefits payable
in the normal operation of the Foreign Plans), suits or proceedings against any
Foreign Plan or asserting any rights or claims to benefits under any Foreign
Plan which could result in any material liability to the Company; and (v) the
consummation of the transactions contemplated by this Agreement will not by
itself create or otherwise result in any material liability to the Company with
respect to any Foreign Plan other than the triggering of payment of already
funded benefits to participants.
(j) Except as set forth in SECTION 4.17(j) to the Company Disclosure
Schedule, to the Knowledge of the Company, each Company Benefit Plan can be
amended and/or terminated at any time, without resulting in a Material Adverse
Effect on the Company.
SECTION 4.18 LABOR MATTERS.
(a) Neither the Company nor any Company Subsidiary is a party to or
otherwise bound by any labor agreement with respect to its employees with any
labor organization, group or association, nor have there been any material
attempts to organize the
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employees of the Company or any Company Subsidiary within the one (1) year
period prior to the date hereof. There is no labor strike, labor disturbance or
work stoppage pending against the Company or any Company Subsidiary.
(b) The Company and each Company Subsidiary have complied in all
material respects with all material laws, rules and regulations relating to the
hiring or employment of labor, including those related to wages, hours,
collective bargaining, occupational safety, discrimination, immigration, and the
payment of social security and other payroll-related taxes, and neither the
Company nor any Company subsidiary has received any written notice alleging that
it has failed to comply with any such laws, rules or regulations. Neither the
Company nor any Company Subsidiary has laid-off, terminated or initiated any
redundancy procedures with respect to foreign employees at any time within the
12 month period ending at the Effective Time, which could result in a material
liability to the Company or any Company Subsidiary.
SECTION 4.19 ENVIRONMENTAL MATTERS. Except as set forth in SECTION 4.19 of
the Company Disclosure Schedule, (i) no Hazardous Material is present at, on,
under or emanating from any of the real property currently owned or leased by
the Company or any Company Subsidiary in violation of any applicable
Environmental Law as a result of actions taken or omitted to be taken by the
Company, any Company Subsidiary or, to the Knowledge of the Company, any
third-party, (ii) neither the Company nor any of the Company Subsidiaries has
engaged in any Hazardous Materials Activity in violation of any applicable
Environmental Law, and (iii) no Action is pending or, to the Knowledge of the
Company, has been threatened against the Company or any Company Subsidiary
concerning any of the Hazardous Materials Activities of the Company and the
Company Subsidiaries, or Hazardous Materials Activity on any of the real
property currently or formerly owned or leased by the Company or any of the
Company Subsidiaries, or to which Hazardous Material generated by the Company or
any Company Subsidiary has been sent, except, in the case of each of clauses
(i), (ii) and (iii) of this SECTION 4.19, for such violations, activities and
actions as would not have a Material Adverse Effect.
SECTION 4.20 TRANSACTIONS WITH AFFILIATES. Except as set forth in SECTION
4.20 of the Company Disclosure Schedule, since January 1, 1999 there have been
no transactions, agreements or arrangements (other than employment arrangements
entered into in the ordinary course of business) between the Company and the
Company Subsidiaries, on the one hand, and any director or officer of the
Company or any of its Affiliates, on the other hand, with an aggregate value in
excess of $60,000 per transaction or per annum, as applicable, other than those
constituting an employee benefit plan or compensation arrangement.
SECTION 4.21 BROKERS. Except for Credit Suisse First Boston Corporation
("CSFB") and Genstar Capital LLC ("GENSTAR"), each of whom are entitled to
certain investment banking and advisory fees in connection with this Agreement
and the transactions contemplated hereby (which fees shall be paid in full by
Parent pursuant to SECTION 10.1 hereof), no broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon any arrangements
made by or on behalf of the Company. True, correct and complete copies of all
agreements between the Company and CSFB and between the Company and Genstar
pursuant to which either such firm
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would be entitled to any payment relating to the transactions contemplated
hereby have been made available to Parent and its agents and representatives.
SECTION 4.22 CUSTOMERS AND SUPPLIERS. No material customer of the Company
or any Company Subsidiary has indicated within the past year that it will stop,
or materially decrease the rate of, buying materials, products or services from
the Company or any Company Subsidiary. No material supplier of the Company or
any Company Subsidiary has indicated within the past year that it will stop, or
decrease the rate of, supplying materials, products or services to the Company
or any Company Subsidiary.
SECTION 4.23 OWNED REAL PROPERTY. SECTION 4.23 of the Company Disclosure
Schedule lists all real property that the Company or any Company Subsidiary owns
(the "OWNED REAL PROPERTY"). Except as set forth in SECTION 4.23 of the Company
Disclosure Schedule, with respect to each parcel of such real property:
(a) the identified owner has good and marketable title to such
property, free and clear of any material Encumbrance, other than Permitted
Encumbrances;
(b) there are no (i) pending or, to the Knowledge of the Company,
threatened condemnation proceedings relating to such property or (ii) pending
or, to the Knowledge of the Company, threatened litigation or administrative
actions relating to such property;
(c) there are no leases, subleases, licenses or agreements, written or
oral, granting to any party or parties the right of use or occupancy of any
portion of such property;
(d) to the Knowledge of the Company, the improvements constructed on
the property are, taken as a whole, sufficient to permit the Company and the
Company Subsidiaries, as applicable, to conduct their business as currently
being conducted; and
(e) there are no outstanding options or rights of first refusal to
purchase such property, or any portion thereof or interest therein.
SECTION 4.24 REAL PROPERTY LEASES. SECTION 4.24 of the Company Disclosure
Schedule lists all real property leased or subleased to the Company or any
Company Subsidiary and lists the third party lessor or lessee(s) thereof, the
date of the lease and all amendments thereof. The Company has made available to
Parent correct and complete copies of the leases and subleases listed in SECTION
4.24 of the Company Disclosure Schedule. With respect to each lease and sublease
listed in SECTION 4.24 of the Company Disclosure Schedule, neither the Company
nor any Company Subsidiary nor, to the Knowledge of the Company, any other party
to the lease or sublease is in material breach or default thereof, and no event
has occurred which, with notice or lapse of time, would constitute a material
breach or default or permit termination thereunder.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Subject to the exceptions and qualifications set forth in the disclosure
schedule of even date herewith collectively delivered by Parent and Merger Sub
to the Company on or prior to the
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date hereof (the "PARENT DISCLOSURE SCHEDULE"), Parent and Merger Sub hereby
jointly and severally represent and warrant to the Company as follows. The
Parent Disclosure Schedule shall be arranged in paragraphs corresponding to the
numbered and lettered paragraphs contained in this ARTICLE V.
SECTION 5.1 AUTHORITY. Each of Parent and Merger Sub has all requisite
corporate power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Parent and Merger Sub, the
performance by each of Parent and Merger Sub of its obligations hereunder, and
the consummation by each of Parent and Merger Sub of the transactions
contemplated hereby, have been duly authorized by the Board of Directors of each
of Parent and Merger Sub and no other corporate or other action on the part of
either Parent or Merger Sub is necessary to authorize the execution and delivery
of this Agreement by Parent and Merger Sub, the performance by each of Parent
and Merger Sub of its obligations hereunder or the consummation by each of
Parent and Merger Sub of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by each of Parent and Merger Sub and,
assuming due authorization, execution and delivery by the other parties hereto,
this Agreement constitutes a legally valid and binding obligation of each of
Parent and Merger Sub, enforceable against each of Parent and Merger Sub in
accordance with its terms, except as such enforceability may be limited by
principles of public policy, and subject to (i) the effect of any applicable Law
of general application relating to bankruptcy, reorganization, insolvency,
moratorium or similar Laws affecting creditors' rights and relief of debtors
generally, and (ii) the effect of rules of law and general principles of equity,
including, rules of law and general principles of equity governing specific
performance, injunctive relief and other equitable remedies (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION 5.2 ORGANIZATION. Each of Parent and Merger Sub is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, and has all requisite corporate or other
organizational power and authority to own, operate or lease the properties and
assets now owned, operated or leased by it, and to carry on its business in all
material respects as currently conducted. Parent is duly qualified to do
business as a foreign corporation, and is in good standing, under the Laws of
each jurisdiction in which the character of its properties owned, operated or
leased, or the nature of its activities, makes such qualification necessary,
except in those jurisdictions where the failure to be so qualified or in good
standing would not have a material adverse effect on the ability of Parent to
perform its obligations under this Agreement or consummate the transactions
contemplated hereby.
SECTION 5.3 CONFLICTS. Assuming all consents, approvals, authorizations,
filings and notifications and other actions set forth in SECTION 5.4 have been
obtained or made, and except as set forth in SECTION 5.3 of the Parent
Disclosure Schedule, the execution and delivery of this Agreement by each of
Parent and Merger Sub, the execution and delivery of the Parent Warrants by
Parent, the performance by each of Parent and Merger Sub of its obligations
hereunder, the performance by Parent of its obligations under the Parent
Warrants, and the consummation by each of Parent and Merger Sub of the
transactions contemplated hereby and the consummation by Parent of the
transactions contemplated by the Parent Warrants, does not and will not (i)
conflict with or result in a violation or breach of or give rise to a default
under the
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organizational documents of Parent or Merger Sub, (ii) conflict with or result
in a violation of any Governmental Order or Law applicable to Parent or Merger
Sub or the assets or properties of Parent or Merger Sub, or (iii) result in a
material breach of, or constitute a material default (or event which with the
giving of notice or lapse of time, or both, would become a material default)
under, or give rise to any rights of termination, amendment, modification,
acceleration or cancellation of or loss of any benefit under, or result in the
creation of any Encumbrance on any of the assets or properties of Parent or
Merger Sub pursuant to, any Contract to which Parent or Merger Sub is a party,
or by which any of the assets or properties of Parent or Merger Sub is bound or
affected, except, in the case of clauses (ii) and (iii) of this SECTION 5.3, as
would not have a material adverse effect on the ability of Parent or Merger Sub
to perform its obligations under this Agreement or consummate the transactions
contemplated hereby, or of Parent to perform its obligations under the Parent
Warrant and consummate the transactions contemplated thereby.
SECTION 5.4 CONSENTS, APPROVALS, ETC. No consent, waiver, approval,
authorization, order or permit of, or declaration, filing or registration with,
or notification to, any Governmental Authority or third party is required to be
made or obtained by Parent or Merger Sub in connection with the execution and
delivery of this Agreement by Parent and Merger Sub, the execution and delivery
of the Parent Warrants by Parent, the performance by each of Parent and Merger
Sub of its obligations hereunder, the performance by Parent of its obligations
under the Parent Warrants, and the consummation by each of Parent and Merger Sub
of the transactions contemplated hereby and by Parent of the transactions
contemplated by the Parent Warrants, except (i) as set forth in SECTION 5.4 of
the Parent Disclosure Schedule, (ii) the filing of the Certificate of Merger
pursuant to the DGCL, (iii) applicable requirements, if any, under applicable
federal or state securities or "blue sky" Laws and the HSR Act, and (iv) where
the failure to obtain such consent, approval, authorization or action, or to
make such filing or notification would not, when taken together with all other
such failure by Parent and Merger Sub, have a material adverse effect on the
ability of either Parent or Merger Sub to perform its obligations under this
Agreement or consummate the transactions contemplated hereby, or of Parent to
perform its obligations under the Parent Warrants and consummate the
transactions contemplated thereby.
SECTION 5.5 LITIGATION AND GOVERNMENTAL ORDERS. As of the date hereof, (i)
there are no material Actions pending against Parent, Merger Sub or any
Subsidiaries of Parent ("PARENT SUBSIDIARIES"), or any of the assets or
properties of Parent, Merger Sub or any Parent Subsidiaries, that, if decided
adversely to Parent, Merger Sub or such Subsidiary of Parent, would prevent
either Parent or Merger Sub from performing its obligations under this Agreement
or consummating the transactions contemplated hereby, or prevent Parent from
performing its obligations under the Parent Warrants or consummating the
transactions contemplated thereby, and (ii) Parent, Merger Sub and the Parent
Subsidiaries and their respective assets and properties are not subject to any
material Governmental Order that would prevent either Parent or Merger Sub from
performing its obligations under this Agreement or consummating the transactions
contemplated hereby, or of Parent to perform its obligations under the Parent
Warrants and consummate the transactions contemplated thereby.
SECTION 5.6 DUE DILIGENCE INVESTIGATION. Parent has had an opportunity to
discuss the business, management, operations and finances of the Company with
its officers, directors,
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employees, agents, representatives and affiliates, and has had an opportunity to
inspect the facilities of the Company. Parent has conducted its own independent
investigation of the Company and has been furnished by the Company, or its
agents or representatives, with all information, documents and other material
relating to the Company, and its business, management, operations and finances,
that Parent has requested. In making its decision to execute and deliver this
Agreement and the Parent Warrants and to consummate the transactions
contemplated hereby and thereby, Parent has relied solely upon the
representations and warranties of the Company set forth in ARTICLE IV and has
not relied upon any other information provided by, for, or on behalf of the
Company, or its agents or representatives, to Parent in connection with the
transactions contemplated hereby.
SECTION 5.7 BROKERS. Except for Thomas Weisel Partners (the fees and
expenses of which shall be paid in full by Parent), no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon any arrangements made by or on behalf of Parent, Merger Sub or any of
their Affiliates.
SECTION 5.8 NO PRIOR ACTIVITIES. Merger Sub has not incurred nor will it
incur any liabilities or obligations, except those incurred in connection with
its organization and with the negotiation of this Agreement and the performance
hereof, and the consummation of the transactions contemplated hereby, including
the Merger. Except as contemplated by this Agreement, Merger Sub had not engaged
in any business activities of any type or kind whatsoever, or entered into any
agreements or arrangements with any person or entity, or become subject to or
bound by any obligation or undertaking. As of the date hereof, all of the issued
and outstanding capital stock of Merger Sub is owned beneficially and of record
by Parent, free and clear of all Encumbrances (other than those created by this
Agreement and the transactions contemplated hereby).
SECTION 5.9 PARENT WARRANTS.
(a) Parent has all requisite corporate power and authority to enter
into the Parent Warrants, to perform its obligations thereunder and to issue
Parent Common Stock upon exercise thereof. The execution and delivery of the
Parent Warrants, the performance by Parent of its obligations thereunder and the
consummation by Parent of the transactions contemplated thereby have been duly
authorized by the Board of Directors of Parent and no other corporate or other
action on the part of Parent is necessary to authorize the execution and
delivery of the Parent Warrants, the performance by Parent its obligations
thereunder or the consummation by Parent of the transactions contemplated
thereby. Upon execution and delivery thereof, the Parent Warrants will
constitute a legally valid and binding obligation of Parent, enforceable against
Parent in accordance with its terms, except as such enforceability may be
limited by principles of public policy, and subject to (i) the effect of any
applicable Law of general application relating to bankruptcy, reorganization,
insolvency, moratorium or similar Laws affecting creditors' rights and relief of
debtors generally, and (ii) the effect of rules of law and general principles of
equity, including, rules of law and general principles of equity governing
specific performance, injunctive relief and other equitable remedies (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
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(b) The shares of Parent Common Stock issuable upon exercise of the
Parent Warrants have been duly authorized and reserved for issuance, and, upon
exercise of the Parent Warrants in accordance with the terms of the thereof,
will be validly issued, fully paid and non-assessable and free from all taxes
and liens, claims and Encumbrances, and will not be subject to any preemptive
rights or other similar rights of stockholders of Parent and will not impose
personal liability upon the holder thereof.
ARTICLE VI.
ADDITIONAL AGREEMENTS
SECTION 6.1 NO SOLICITATION. The Company hereby agrees that neither the
Company or the Company Subsidiaries, nor any of their respective officers,
directors, managers, employees, agents, representatives or Affiliates shall,
during the period commencing with the execution and delivery hereof and
terminating upon the earlier to occur of the Effective Time or the termination
of this Agreement pursuant to and in accordance with SECTION 9.1, directly or
indirectly solicit, initiate or continue any discussions or negotiations with,
or encourage or respond to any inquiries or proposals by, or participate in any
negotiations with, provide any information to, or otherwise cooperate in any way
or enter into any agreement with, any Person or group other than Parent and its
officers, directors, employees, agents and representatives, concerning any
proposed sale of the Company or any Company Subsidiary, all or a substantial
portion of their respective assets and properties, or the Business, any merger,
consolidation or combination, any sale of all or a majority of the outstanding
Company Capital Stock or outstanding capital stock of any Company Subsidiary,
any liquidation, dissolution or winding up of the Company, or any similar
transaction or series of transactions involving the Company or any of the
Company Subsidiaries. The Company will promptly notify Parent in the event that,
during the period commencing with the execution and delivery of this Agreement
by all of the parties hereto and terminating upon the earlier to occur of the
Closing and the termination of this Agreement pursuant to and in accordance with
SECTION 9.1, the Company shall receive any such inquiry or proposal or offer to
discuss or negotiate any such transaction.
SECTION 6.2 CONDUCT OF THE COMPANY PRIOR TO THE EFFECTIVE TIME.
(a) Unless Parent otherwise consents in writing which consent shall
not be unreasonably withheld or delayed and except as otherwise contemplated by
this Agreement or set forth in SECTION 6.2 of the Company Disclosure Schedule,
during the period commencing with the execution and delivery of this Agreement
by all of the parties hereto and terminating upon the earlier to occur of the
Effective Time and the termination of this Agreement pursuant to and in
accordance with SECTION 9.1, the Company shall, and shall cause each Company
Subsidiary to, (i) conduct the Business only in the usual, regular and ordinary
course, (ii) pay accounts payable and collect accounts receivable in the usual,
regular and ordinary course and consistent with past practice, (iii) use
commercially reasonable efforts consistent with past practices and policies to
keep available the services of the officers and key employees of the Company and
the Company Subsidiaries, and to preserve intact the current relationships of
the Company and the Company Subsidiaries with their respective customers,
suppliers, distributors, and other Persons with which the Company and the
Company Subsidiaries have significant business relationships as of the date
hereof, (iv) use commercially reasonable efforts consistent with past practices
and policies to maintain the assets and properties of the Company and the
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Company Subsidiaries in their current condition, normal wear and tear excepted,
and (v) maintain the books, accounts and records of the Company and the Company
Subsidiaries in the usual, regular and ordinary manner, on a basis consistent
with past practice. Beginning on the date which is thirty (30) days after the
date hereof, Parent shall not unreasonably withhold or delay giving any consent
requested of it under this SECTION 6.2(a) or SECTION 6.2(b).
(b) Except as expressly provided in this Agreement or SECTION 6.2 of
the Company Disclosure Schedule, during the period commencing with the execution
and delivery of this Agreement by all of the parties hereto and terminating upon
the earlier to occur of the Effective Time and the termination of this Agreement
pursuant to and in accordance with SECTION 9.1, the Company shall not, and shall
cause the Company Subsidiaries not to, do or cause to be done any of the
following without the prior written consent of Parent:
(i) create any Encumbrance on any assets or properties (whether
tangible or intangible) of the Company or any Company Subsidiary, other than (A)
Permitted Encumbrances, (B) Encumbrances that will be released at or prior to
the Closing, (C) Encumbrances on assets or properties having an aggregate value
not in excess of $250,000, and (D) Encumbrances relating to any acquisitions
permitted by SECTION 6.2(b)(iii);
(ii) except for sales of inventory, licenses of Proprietary
Rights and abandonment of patents, in each case in the ordinary course of
business, and consistent with past practice and except for transactions among
the Company and Company Subsidiaries, sell, assign, transfer, lease, license or
otherwise dispose of, or agree to sell, assign, transfer, lease, license or
otherwise dispose of, any of the material properties or assets of the Company or
any Company Subsidiary;
(iii) acquire (by merger, consolidation or combination, or
acquisition of stock or assets or otherwise) any corporation, partnership or
other business organization or division thereof, except for transactions with an
aggregate fair market value of less than $250,000;
(iv) (A) enter into or amend any employment, deferred
compensation, severance or similar agreement, except any employment agreement
(1) providing for compensation of less than $75,000 per annum, (2) terminable
upon not more than six months notice without cost of more than $25,000 to the
Company or any Company Subsidiary, and (3) entered into in the ordinary course
of business, (B) increase the compensation payable, or to become payable, by the
Company or any Company Subsidiary to any Company Employees, or any directors or
officers of the Company or any Company Subsidiaries, (C) pay or make provision
for the payment of any bonus, stock option, stock purchase, profit sharing,
deferred compensation, pension, retirement or other similar payment or
arrangement to any Company Employee, or any director or officer of the Company
or any Company Subsidiary, or (D) provide for, for the first time, or increase
the coverage or benefits available under any severance pay, termination pay,
vacation pay, company awards, salary continuation or disability, sick leave,
deferred compensation, bonus or other incentive compensation, insurance, pension
or other employee benefit plan, payment or arrangement made to, for or with
Company Employees or any director or officer of the Company or any Company
Subsidiary, other than, in the case of clauses (B), (C) and (D) of this SECTION
6.2(b)(iv), normal increases or payments in the ordinary course
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of business consistent with past practice, and except, in the case of clause (C)
of this SECTION 6.2(b)(iv), to the extent that the Company or any Company
Subsidiary is contractually obligated to do so or required to do so by
applicable Law;
(v) materially change any method of accounting or accounting
practice used by the Company or any Company Subsidiary, other than such changes
required by GAAP;
(vi) issue or sell any additional shares of the Company Capital
Stock, or any capital stock or other equity interests in any Company Subsidiary,
or securities convertible into or exchangeable for any such shares of capital
stock of, or equity interests in, the Company or any Company Subsidiary, or
issue or grant any options, warrants, calls, subscription rights or other rights
of any kind to acquire additional shares of such capital stock of, or other
equity interests in, the Company or any Company Subsidiary, except pursuant to
Company Options and Company Warrants outstanding on the date hereof and Company
Options to purchase up to an additional 200,000 shares of Company Common Stock
to be issued to directors, officers or employees of the Company or any Company
Subsidiary pursuant to the Company Option Plan, notice of which will be provided
to Parent not later than two business days prior to the Closing Date;
(vii) amend in any respect the Company Certificate of
Incorporation or Company Bylaws, or the organizational documents of any Company
Subsidiary;
(viii) take any action which would materially interfere with the
consummation of the transactions contemplated hereby or materially delay the
consummation of such transactions;
(ix) incur, guarantee or assume any indebtedness for borrowed
money, except for (A) borrowings under existing agreements in the ordinary
course of business and (B) borrowings under inter-company indebtedness between
the Company and any of the Company Subsidiaries or between the Company
Subsidiaries;
(x) declare, set aside or pay any dividend or make any other
distribution or other capital return in respect of any shares of Company Capital
Stock, or redeem, purchase or acquire any shares of Company Capital Stock
(except in connection with the repurchase of any Company Capital Stock in
accordance with the terms of any agreements entered into prior to the date
hereof with employees or consultants to the Company);
(xi) make any material Tax election;
(xii) make any loans, advances or capital contributions to, or
investments in, any other person other than advances to employees for business
expenses in the ordinary course of business and consistent with past practice;
(xiii) sell, assign, transfer, license or sublicense any Company
Proprietary Rights, other than in the ordinary course of business consistent
with past practice;
(xiv) enter into, amend, terminate, take or omit to take any
action that would constitute a material violation of or material default under,
or waive any material rights
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under, any contract or agreement listed or required to be listed in SECTION 4.16
of the Company Disclosure Schedule;
(xv) make or commit to make total capital expenditures in excess
of $250,000 individually or $1,000,000 in the aggregate;
(xvi) initiate, compromise or settle any material Action; or
(xvii) enter into any agreement to take, or cause to be taken,
any of the actions set forth in this SECTION 6.2(b).
SECTION 6.3 ACCESS TO INFORMATION. Subject to the terms of the
Confidentiality Agreement, during the period commencing upon the execution and
delivery of this Agreement by all of the parties hereto and terminating upon the
earlier to occur of the Effective Time and the termination of this Agreement
pursuant to and in accordance with SECTION 9.1, upon reasonable notice and
during normal business hours, the Company shall, and shall cause the officers,
employees, auditors and agents of the Company and each Company Subsidiary to,
(i) afford the officers, employees and authorized agents and representatives of
Parent reasonable access to the offices, properties, books and records and
personnel of the Company and the Company Subsidiaries, and (ii) furnish to the
officers, employees and authorized agents and representatives of Parent such
additional financial and operating data and other information regarding the
assets, properties, goodwill and business of the Company and the Company
Subsidiaries as Parent may from time to time reasonably request; provided,
however, that Parent shall not unreasonably interfere with any of the businesses
or operations of the Company or any Company Subsidiary.
SECTION 6.4 CONFIDENTIALITY. The terms of the Confidentiality Agreement are
hereby incorporated herein by reference and shall continue in full force and
effect until the Effective Time, such that the information obtained by any party
hereto, or its officers, employees, agents or representatives, during any
investigation conducted pursuant to SECTION 6.3, or in connection with the
negotiation and execution of this Agreement or the consummation of the
transactions contemplated hereby, or otherwise, shall be governed by the terms
of the Confidentiality Agreement. At the Effective Time, the Confidentiality
Agreement and the obligations of the parties thereto and under this SECTION 6.4
shall terminate and be of no further force or effect.
SECTION 6.5 EFFORTS; CONSENTS; REGULATORY AND OTHER AUTHORIZATIONS;
FINANCING.
(a) Each party hereto shall use its reasonable best efforts to (i)
take, or cause to be taken, all appropriate action, and do, or cause to be done,
all things necessary, proper or advisable under applicable Law or otherwise to
promptly consummate and make effective the transactions contemplated by this
Agreement, (ii) obtain all authorizations, consents, orders and approvals of,
and give all notices to and make all filings with, all Governmental Authorities
and other third parties that may be or become necessary for the performance of
its obligations under this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, those consents set forth in
the Company Disclosure Schedule or the Parent Disclosure Schedule, as
applicable, (iii) lift or rescind any injunction or restraining order or other
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order adversely affecting the ability of the parties hereto to consummate the
transactions contemplated hereby, and (iv) fulfill all conditions to the
obligations of such parties under this Agreement. Each party hereto shall
cooperate fully with the other parties hereto in promptly seeking to obtain all
such authorizations, consents, orders and approvals, giving such notices, and
making such filings. Notwithstanding the foregoing or anything to the contrary
set forth in this Agreement, in connection with obtaining such consents from
third parties, no party hereto shall be required to make payments, commence
litigation or agree to material modifications of the terms and conditions of any
agreements with third parties and no such modification shall be made to any
Contract of the Company or any Company Subsidiary without the consent of Parent,
which consent shall not be unreasonably withheld or delayed. None of the parties
hereto shall take any action that is reasonably likely to have the effect of
unreasonably delaying, impairing or impeding the receipt of any required
authorizations, consents, orders or approvals required to be obtained by such
party pursuant to this Agreement.
(b) In furtherance and not in limitation of the terms of SECTION
6.5(a), to the extent required by applicable Law, each of Parent and the Company
shall file, or cause to be filed, a Notification and Report Form pursuant to the
HSR Act with respect to the transactions contemplated hereby within five (5)
Business Days of the date hereof, shall supply promptly any additional
information and documentary material that may be requested by any Governmental
Authority (including the Antitrust Division of the United States Department of
Justice and the United States Federal Trade Commission) pursuant to the HSR Act,
and shall cooperate in connection with any filing under applicable antitrust
Laws and in connection with resolving any investigation or other inquiry
concerning the transactions contemplated by this Agreement commenced by any
Governmental Authority, including the United States Federal Trade Commission,
the Antitrust Division of the United States Department of Justice, or the office
of any state attorney general. Parent shall be entitled to direct any
proceedings or negotiations with any Governmental Authority relating to any of
the foregoing; provided that in connection with any such proceeding or
negotiation, Parent shall provide the Company with the reasonable opportunity to
participate in the planning of Parent's position relating thereto, keep the
Company informed of any material communications that Parent receives from or
gives to any Governmental Authority, consult with the Company in advance of any
meeting or conference with any Governmental Authority and give the Company a
right to review any written communications prior to giving them to any
Governmental Authority and participate in any meetings and conferences.
(c) In furtherance and not in limitation of the terms of SECTION
6.5(a), as promptly as practicable following the execution and delivery of this
Agreement by all of the parties hereto, Parent shall take, or cause to be taken,
all action necessary, proper or advisable to obtain all financing necessary to
make the payments required under ARTICLE II, to pay all fees and expenses to be
paid by Parent in connection with the transactions contemplated hereby, and to
satisfy any other payment obligations that Parent may incur in connection with,
and may be required in order to consummate, the transactions contemplated
hereby.
(d) Immediately following the execution of this Agreement, the Company
shall deliver to Parent an executed stockholder consent from (i) Genstar and
(ii) any affiliate of Genstar who holds Company Common Stock, which consent
shall indicate the approval of such stockholder of this Agreement and the
Merger, in a form reasonably satisfactory to Parent (the
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"STOCKHOLDER CONSENTS"), and a Voting Agreement substantially in the form
attached hereto as Exhibit 6.5(d) executed by Genstar.
SECTION 6.6 FURTHER ACTION.
(a) Subject to the terms and conditions herein provided, each of the
parties hereto shall use its reasonable best efforts to deliver, or cause to be
delivered, such further certificates, instruments and other documents, and to
take, or cause to be taken, such further actions, as may be necessary, proper or
advisable under applicable Law to consummate and make effective the transactions
contemplated by this Agreement.
(b) Parent shall at all times have authorized and reserved a
sufficient number of shares of Parent Common Stock to provide for the full
exercise of the Parent Warrants and the issuance of shares of Parent Common
Stock in connection therewith.
SECTION 6.7 INDEMNIFICATION; OFFICERS' AND DIRECTORS' INSURANCE.
(a) From and after the Effective Time, Parent shall, and shall cause
the Surviving Corporation to, (i) indemnify and hold harmless each present and
former director and officer of the Company and each present and former director
and officer of each Company Subsidiary (the "COMPANY INDEMNIFIED PARTIES"),
against any Losses incurred or suffered by any of the Company Indemnified
Parties in connection with any Liabilities or any claim, action, suit,
proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of or pertaining to matters existing or occurring at
or prior to the Effective Time, whether asserted or claimed prior to, at or
after the Effective Time, to the fullest extent that the Company or any Company
Subsidiary would have been permitted under applicable Law and under the Company
Certificate of Incorporation and Company Bylaws, or other organizational
documents of any Company Subsidiary, in each case as in effect on the date
hereof, to indemnify such Company Indemnified Parties, and (ii) advance expenses
as incurred by any Company Indemnified Party in connection with any matters for
which such Company Indemnified Party is entitled to indemnification from Parent
pursuant to this SECTION 6.7(a) to the fullest extent permitted under applicable
Law and under the Company Certificate of Incorporation and Company Bylaws, or
other organizational documents of any Company Subsidiary; provided, however, the
Company Indemnified Party to whom expenses are advanced provides an undertaking
to repay such advances if it is ultimately determined that such Company
Indemnified Party is not entitled to indemnification under applicable Law, the
Company Certificate of Incorporation and Company Bylaws, or other organizational
documents of any Company Subsidiary, or pursuant to this SECTION 6.7(a).
Notwithstanding anything to the contrary in this SECTION 6.7, neither Parent nor
the Surviving Corporation shall have any obligation to indemnify or advance
expenses on behalf of any Company Indemnified Party in connection with any
matter (y) the existence of which constitutes a breach of any provision of this
Agreement or any Exhibit to this Agreement or (z) arising from or out of a
breach of any provision of this Agreement or any Exhibit to this Agreement by
the Company, other than to indemnify or advance expenses with respect to a claim
that the Company Indemnified Party has successfully defended or to the extent
paid by the insurer.
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(b) Prior to the Closing, the Company shall obtain a prepaid policy or
policies (i.e., "tail coverage") which policy or policies provide directors and
officers liability insurance coverage for those persons at the Company or any
Company Subsidiary currently covered by any such policy or policies for an
aggregate period of not less than six (6) years with respect to claims arising
from facts or events that occurred on or before the Closing Date, including the
transactions contemplated by this Agreement. The Company shall inform and
consult with Parent of the terms of such policy or policies prior to the
purchase thereof.
(c) The terms and provisions of this SECTION 6.7 are intended to be in
addition to the rights otherwise available to the Company Indemnified Parties by
applicable Law, charter, bylaw or agreement, and shall operate for the benefit
of, and shall be enforceable by, the Company Indemnified Parties and their
respective heirs and representatives.
SECTION 6.8 EMPLOYEE BENEFIT MATTERS. For purposes of determining
eligibility to participate, vesting and entitlement to benefits where length of
service is relevant under any benefit plan or arrangement (other than a defined
benefit plan) of Parent, the Surviving Corporation or any of their respective
Subsidiaries, Company Employees as of the Effective Time shall receive service
credit for service with the Company and its Subsidiaries to the same extent such
service credit was granted under the Company Benefit Plans, subject to offsets
for previously accrued benefits and no duplication of benefits. Parent and the
Surviving Corporation shall (x) waive all limitations as to preexisting
conditions exclusions and waiting periods with respect to participation and
coverage requirements applicable to the Company Employees under any welfare
benefit plans that such employees may be eligible to participate in after the
Effective Time, other than limitations or waiting periods that are already in
effect with respect to such employees and that have not been satisfied as of the
Effective Time under any welfare benefit plan maintained for the Company
Employees immediately prior to the Effective Time, and (y) undertake
commercially reasonable efforts to provide each Company Employee with credit for
any co-payments and deductibles paid prior to the Effective Time in satisfying
any applicable deductible or out-of-pocket requirements under any welfare plans
that such employees are eligible to participate in after the Effective Time.
SECTION 6.9 ADVISORY AGREEMENTS. The Company shall take such action as
necessary such that (i) the Management Advisory and Consulting Agreement dated
as of July 2, 1997 between the Company and Genstar (the "MANAGEMENT AGREEMENT")
shall terminate at and as of the Effective Time without any liability to the
Company except as set forth herein and (ii) Genstar is paid at the Closing all
fees and expenses and other amounts under the Management Agreement, as described
on SCHEDULE 6.9 hereto, which are due as of the Effective Time.
SECTION 6.10 DUPONT AND ABL AGREEMENTS. From and after the Effective Time,
Parent shall cause the Surviving Corporation to assume and honor the obligations
set forth in the DuPont Agreement, including Section 5.04(f) thereof, and the
ABL Agreement, including Section 11 thereof.
SECTION 6.11 PARENT FINANCING.
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(a) Prior to the Closing, Parent shall use commercially reasonable
efforts to obtain financing to repay all outstanding Senior Debt. The repayment
of the Senior Debt shall occur concurrently with the Effective Time.
(b) Prior to the Closing, Parent shall use commercially reasonable
efforts to cause to be issued, at the Effective Time, an irrevocable standby
letter of credit for the benefit of each of (i) Dr. Baumgold with respect to the
JB Note and (ii) the Massachusetts Department of Public Health in an aggregate
amount of $5,600,000 that will replace the letters of credit issued under the
Company's credit agreement.
SECTION 6.12 NOTICE OF BREACHES.
(a) From the date hereof through the Closing, the Company shall
promptly deliver to Parent written notice of any event or development that would
(i) render any statement, representation or warranty of the Company in this
Agreement (including exceptions set forth in the Company Disclosure Schedule)
inaccurate or incomplete in any material respect (except as expressly
contemplated by this Agreement), or (ii) constitute or result in a material
breach by the Company of, or a failure by the Company to comply in all material
respects with, any agreement or covenant in this Agreement applicable to the
Company (except as expressly contemplated by this Agreement). No such disclosure
shall be deemed to avoid or cure any such misrepresentation or breach.
(b) From the date hereof through the Closing, Parent shall promptly
deliver to the Company written notice of any event or development that would (i)
render any statement, representation or warranty of Parent in this Agreement
inaccurate or incomplete in any material respect (except as expressly
contemplated by this Agreement), or (ii) constitute or result in a material
breach by Parent of, or a failure by Parent to comply in all material respects
with, any agreement or covenant in this Agreement applicable to Parent (except
as expressly contemplated by this Agreement). No such disclosure shall be deemed
to avoid or cure any such misrepresentation or breach.
(c) From the date hereof through the Closing, each party shall
promptly notify all other parties to this Agreement of any lawsuits, claims,
proceedings, investigations or inquiries against such party, any Subsidiary of
such party or any of its stockholders, directors or officers, between the date
of this Agreement and the Closing Date, which are commenced or, to the knowledge
of such party, threatened and may materially affect the transactions
contemplated by this Agreement.
(d) From the date hereof through the Closing Date, the Company shall
promptly notify Parent of any lawsuits, claims, proceedings, investigations or
inquiries against the Company, any Company Subsidiary or any of their respective
stockholders, directors or officers, between the date of this Agreement and the
Closing Date, which are commenced or, to the Knowledge of the Company,
threatened which would reasonably be expected to have a Material Adverse Effect.
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ARTICLE VII.
CONDITIONS TO CLOSING
SECTION 7.1 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligations of
the Company to consummate the Merger and the other transactions contemplated by
this Agreement shall be subject to the satisfaction, fulfillment or written
waiver by the Company, at or prior to the Closing, of each of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES; COVENANTS. (i) The representations
and warranties of Parent and Merger Sub set forth in ARTICLE V shall be true and
correct at and as of the Closing Date as if made as of the Closing Date, except
(A) for changes contemplated or permitted by this Agreement, (B) for those
representations and warranties that address matters only as of a particular date
(which shall be true and correct as of such date), and (C) where the failure of
the representations and warranties in the aggregate to be true and correct would
not reasonably be expected to have a material adverse effect on the ability of
either Parent or Merger Sub to perform its obligations under this Agreement or
consummate the transactions contemplated hereby (it being agreed that any
materiality qualifications (or variations thereof) in particular representations
and warranties shall be disregarded in determining whether any such inaccuracies
would have a material adverse effect on the ability of either Parent or Merger
Sub to perform its obligations under this Agreement or consummate the
transactions contemplated hereby for purposes of this SECTION 7.1(a)(i)(C) and
that any supplement to the Parent Disclosure Schedule pursuant to clause (iii)
of this SECTION 7.1(a) shall be disregarded in determining whether the condition
set forth in this SECTION 7.1(a)(i) has been satisfied); (ii) the covenants and
agreements set forth in this Agreement to be performed or complied with by
Parent and Merger Sub at or prior to the Closing shall have been performed or
complied with in all material respects; and (iii) the Company shall have
received a certificate of each of Parent and Merger Sub (which may include a
supplement to the Parent Disclosure Schedule, but which shall include only
matters that occurred after the date hereof) dated as of the Closing Date,
certifying as to the matters set forth in clauses (i) and (ii) of this SECTION
7.1(a).
(b) NO GOVERNMENTAL ORDER. No Governmental Authority shall have
enacted, issued, promulgated, enforced or entered any Governmental Order which
is in effect and has the effect of making the Merger or any other transactions
contemplated by this Agreement illegal or otherwise restraining or prohibiting
the consummation of the Merger or any other transactions contemplated hereby.
(c) HSR ACT. The waiting period under the HSR Act, if applicable,
shall have expired or been terminated.
(d) GOVERNMENTAL APPROVALS. All consents and approvals of Governmental
Authorities necessary for consummation of the Merger and the other transactions
contemplated by this Agreement shall have been obtained.
(e) STOCKHOLDER APPROVAL. The Merger shall have been approved by the
requisite vote of holders of Company Common Stock.
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(f) ESCROW AGREEMENT. Parent shall have executed and delivered to the
Company the Escrow Agreement.
(g) PARENT WARRANTS. Parent shall have delivered Parent Warrants in
accordance with the terms of this Agreement and Parent shall have applied for
the listing of the shares of Parent Common Stock issuable upon exercise thereof
upon each national securities exchange, or automated quotation system, if any,
upon which shares of Parent Common Stock are then listed or quoted.
SECTION 7.2 CONDITIONS TO OBLIGATIONS OF PARENT AND MERGER SUB. The
obligations of Parent and Merger Sub to consummate the Merger and the other
transactions contemplated by this Agreement shall be subject to the
satisfaction, fulfillment or written waiver by Parent or Merger Sub, at or prior
to the Closing, of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES; COVENANTS. (i) The representations
and warranties of the Company set forth in ARTICLE IV shall be true and correct
at and as of the Closing Date as if made as of the Closing Date, except (A) for
changes contemplated or permitted by this Agreement, (B) for those
representations and warranties that address matters only as of a particular date
(which shall be true and correct as of such date), and (C) where the failure of
the representations and warranties in the aggregate to be true and correct would
not reasonably be expected to have a Material Adverse Effect (it being agreed
that any materiality or Material Adverse Effect qualifications (or variations
thereof) in particular representations and warranties shall be disregarded in
determining whether any such inaccuracies would have a Material Adverse Effect
for purposes of this SECTION 7.2(a)(i)(C) and that any supplement to the Company
Disclosure Schedule pursuant to clause (iii) of this SECTION 7.2(a) shall be
disregarded in determining whether the condition set forth in this SECTION
7.2(a)(i) has been satisfied); (ii) the covenants and agreements set forth in
this Agreement to be performed or complied with by the Company at or prior to
the Closing shall have been performed or complied with in all material respects;
(iii) Parent shall have received a certificate of the Company (which certificate
may include a supplement to the Company Disclosure Schedule, but which shall
include only matters that occurred after the date hereof), dated as of the
Closing Date, certifying as to the matters set forth in clauses (i) and (ii) of
this SECTION 7.2(a).
(b) NO GOVERNMENTAL ORDER. No Governmental Authority shall have
enacted, issued, promulgated, enforced or entered any Governmental Order which
is in effect and has the effect of making the Merger or any other transactions
contemplated by this Agreement illegal or otherwise restraining or prohibiting
the consummation of the Merger or any other transactions contemplated hereby.
(c) HSR ACT. The waiting period under the HSR Act, if applicable,
shall have expired or been terminated.
(d) GOVERNMENTAL APPROVALS. All consents and approvals of Governmental
Authorities necessary for consummation of the transactions contemplated hereby
shall have been obtained.
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(e) STOCKHOLDER APPROVAL. The Merger shall have been approved by the
requisite vote of holders of Company Common Stock.
(f) RESIGNATIONS. Parent shall have received a letter of resignation
from each member of the Board of Directors of the Company, other than those
persons identified on a list to be delivered by Parent to the Company at least 5
business days prior to the Closing, which shall become effective as of the
Closing.
(g) ESCROW AGREEMENT. Genstar shall have executed and delivered to
Parent the Escrow Agreement.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1 SURVIVAL OF REPRESENTATIONS. The representations and warranties
of the parties contained herein shall survive the Closing Date for a period of
(and claims based upon or arising out of such representations and warranties may
be asserted at any time before the date which shall be) eighteen months after
the Closing Date; provided that the representations and warranties set forth in
SECTION 4.10 shall survive through the expiration of the applicable statute of
limitations. The termination of the representations and warranties provided
herein shall not affect the rights of a party in respect of any claim made by
such party in a writing delivered in accordance with SECTION 10.3 hereof by the
other party prior to the expiration of the applicable survival period provided
herein. Subject to SECTION 10.11, from and after the Closing, the remedies
contemplated by this ARTICLE VIII shall be the sole recourse of the parties
hereto and their respective Affiliates for all Losses, Liabilities, Actions,
damages or expenses related to or arising, directly or indirectly, out of this
Agreement, the transactions contemplated hereby or otherwise arising at Law or
in equity, and each party hereto hereby waives any and all rights, claims,
causes of action and other remedies such party or its Affiliates may have
against the other parties hereto relating to the subject matter of this
Agreement other than the remedies expressly provided in this ARTICLE VIII;
provided, however, that notwithstanding the foregoing, nothing contained in this
Agreement or otherwise shall in any way limit any claim, suit, cause or action
or remedy that may be available to Parent or the Shareholders, the
Optionholders, and the Warrantholders based on intentional misrepresentation or
any right to injunctive or other equitable relief.
SECTION 8.2 INDEMNIFICATION.
(a) SHAREHOLDERS, WARRANTHOLDERS AND OPTIONHOLDERS. Subject to the
provisions of this ARTICLE VIII, the Shareholders, the Optionholders and the
Warrantholders shall indemnify, save and hold harmless Parent and its Affiliates
and its and their respective representatives from and against any and all Losses
incurred or suffered by any of Parent, Surviving Corporation, their Affiliates
and/or their respective representatives in connection with, arising out of,
resulting from or incident to:
(i) any breach of any representation or warranty made by the
Company in this Agreement or the certificate of the Company delivered at Closing
pursuant to SECTION 7.2(a)(III) (including any supplement to the Disclosure
Schedule attached thereto);
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(ii) any breach of any covenant or agreement made by the Company
in this Agreement; and
(iii) any obligations of the Surviving Corporation or any of its
Affiliates to make payments to DuPont pursuant to Section 5.04(f) of the DuPont
Agreement.
(b) PARENT. Subject to the provisions of this ARTICLE VIII, Parent
shall indemnify, save and hold harmless the Shareholders, the Optionholders and
the Warrantholders and their Affiliates and their respective representatives
from and against any and all Losses incurred or suffered by any of the
Shareholders, the Optionholders and the Warrantholders, their Affiliates and/or
their respective representatives in connection with, arising out of, resulting
from or incident to:
(i) any breach of any representation or warranty made by Parent
or Merger Sub in this Agreement or the certificate of Parent or Merger Sub
delivered at Closing pursuant to SECTION 7.1(a)(iii) (including any supplement
to the Disclosure Schedule attached thereto); and
(ii) any breach of any covenant or agreement made by Parent or
Merger Sub in this Agreement.
(c) PROCEDURE FOR CLAIMS BETWEEN PARTIES.
(i) If a claim for Losses is to be made by a party entitled to
indemnification hereunder, the party claiming such indemnification shall give
written notice to the indemnifying party as soon as practicable after the
indemnified Person becomes aware of any fact, condition or event which may give
rise to Losses for which indemnification may be sought under this SECTION 8.2.
Any failure to submit any such notice of claim to the indemnifying Person(s)
shall not relieve such Person(s) of any liability hereunder, except to the
extent such Person(s) is actually prejudiced by such failure. The indemnifying
Person(s) shall be deemed to have accepted the notice of claim and to have
agreed to pay the Losses at issue if such Person(s) does not send a notice of
disagreement to the indemnified Person within 20 calendar days after receiving
the notice of claim. In the case of a disputed claim, the parties shall use
reasonable best efforts to resolve the matter internally on an expeditious basis
and in any event within 45 calendar days after the notice is received by the
indemnifying Person(s).
(ii) Genstar shall act as the representative of the Shareholders,
the Optionholders and the Warrantholders (the "INDEMNIFICATION REPRESENTATIVE")
to take any and all action on their behalf in respect of the indemnification
provisions contained in this Agreement and Parent is authorized to rely on any
such action as being the duly authorized action of the Shareholders, the
Optionholders and the Warrantholders. The Indemnification Representative shall
be indemnified and held harmless by the Shareholders, the Optionholders and the
Warrantholders from and against any Actions brought against the Indemnification
Representative in connection with the performance of its duties under this
Agreement.
(d) DEFENSE OF THIRD PARTY CLAIMS. If any lawsuit or enforcement
action is filed against any indemnified Person, written notice thereof shall be
given to the indemnifying Person(s) as promptly as practicable (and in any event
within 15 calendar days after the service
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of the citation or summons). The failure of any indemnified Person to give
timely notice hereunder shall not affect rights to indemnification hereunder,
except to the extent that the indemnifying Person(s) were actually prejudiced by
such failure. After such notice, provided that the indemnifying Person(s)
acknowledge in writing to the indemnified Person that the indemnifying Person(s)
shall be obligated under the terms of its indemnity hereunder in connection with
such lawsuit or action, then the indemnifying Person(s) shall be entitled, if
its so elects, by written notice to the indemnified Person(s) given within 15
calendar days after the date of the notice of the claim from the indemnified
Person pursuant to the first sentence of this paragraph (d), at its own cost,
risk and expense, (i) to take control of the defense and investigation of such
lawsuit or action (except with respect to any claims for equitable relief,
provided that the indemnified Person shall consult with the indemnifying Person
in connection with any such proceeding), (ii) to employ and engage attorneys of
their own choice to handle and defend the same, unless the indemnified Person
reasonably concludes that counsel for the indemnifying Person(s) has a conflict
of interest or the indemnified Person has been advised by counsel that there may
be one or more legal defenses available to such indemnified Person that are
different from or additional to those available to the indemnifying Person(s),
in which event the indemnified Person shall be entitled, at the indemnifying
Person(s)'s cost, risk and expense, to separate counsel of its own choosing, and
(iii) to compromise or settle such claim, which compromise or settlement shall
be made only with the written consent of the indemnified Person, such consent
not to be unreasonably withheld (it being agreed that it shall be reasonable to
withhold such consent if such compromise or settlement does not include a
complete release of the indemnified Person from all liability with respect
thereto, or imposes any liability on the indemnified Person). The indemnified
Person shall cooperate at the expense of the indemnifying Person in all
reasonable respects with the indemnifying Person(s) and its attorneys in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom; PROVIDED, HOWEVER, that the indemnified Person may, at its
own cost, participate in the investigation, trial and defense of such lawsuit or
action and any appeal arising therefrom. The parties shall cooperate with each
other in any notifications to insurers. If the indemnifying Person fails to
assume the defense of such claim within 15 calendar days after the notice of
claim, the indemnified Person against which such claim has been asserted will
(upon delivering notice to such effect to the indemnifying Person) have the
right to undertake, at the indemnifying Person's cost, risk and expense, the
defense, compromise or settlement of such claim on behalf of and for the account
and risk of the indemnifying Person. If the indemnified Person assumes the
defense of the claim, the indemnified Person will keep the indemnifying Person
reasonably informed of the progress of any such defense, compromise or
settlement. The indemnifying Person shall be liable for any settlement of any
action effected pursuant to and in accordance with this SECTION 8.2 and for any
final judgment (subject to any right of appeal), and the indemnifying Persons
agree to indemnify and hold harmless an indemnified Person from and against any
Losses by reason of such settlement or judgment.
(e) LIMITATIONS.
(i) Notwithstanding anything to the contrary set forth herein,
none of the Shareholders, the Optionholders or the Warrantholders, on the one
hand, nor Parent, on the other, shall be entitled to recover, and the other
party or parties, as the case may be, shall not be obligated to pay, any claim
for indemnification under Section 8.2(a)(i) or 8.2(b)(i), as applicable, unless
and until the aggregate dollar amount of all indemnification claims against such
party or
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parties hereunder exceeds $2,000,000, in which event the party or parties
entitled to such indemnification shall be entitled to recover only the amount of
their indemnification claims in excess of $1,000,000. Notwithstanding anything
herein to the contrary, no claim for indemnification under SECTION 8.2(a)(i) or
8.2(b)(i), as applicable, may be asserted by an indemnified party unless such
claim, together with all related claims, equals or exceeds $30,000.
Notwithstanding anything to the contrary set forth herein, the aggregate
indemnification obligation of the Shareholders, the Optionholders and the
Warrantholders hereunder for all Losses (other than pursuant to SECTION
8.2(a)(iii)) shall not exceed the Escrow Amount and the sole source of funds for
such indemnification (other than pursuant to SECTION 8.2(a)(iii)) shall be the
Escrow Fund. Notwithstanding anything to the contrary set forth herein, the
aggregate indemnification obligation of Parent hereunder for all Losses shall
not exceed $17,500,000.
(ii) For purposes of SECTION 8.2(a)(i) and SECTION 8.2(b)(i)),
"material" or "Material Adverse Effect" (as such terms is used in any
representation or warranty contained in ARTICLE IV or ARTICLE V) shall be deemed
to mean a Loss (with respect to any such representation or warranty) which
exceeds $250,000; provided that the foregoing shall not apply to the
representation contained in SECTION 4.8.
(f) ENFORCEMENT OF OTHER RIGHTS.
(i) In the event that the Company or any Company Subsidiary shall
have the right to seek indemnification under any of the Prior Agreements for
Losses that are otherwise subject to an indemnification claim under SECTION 8.2,
an indemnified party shall have the right to assert a claim for indemnification,
but not have a right to indemnification under this ARTICLE VIII for Losses
unless the Company or the appropriate Company Subsidiary first asserts and
prosecutes in a commercially reasonable manner, in a timely manner and
consistent with applicable agreements, a claim to recover any Losses from third
parties under the Prior Agreements (the "OTHER INDEMNIFYING PARTIES"). Provided
that the indemnified Person has used such commercially reasonable efforts, then
to the extent that the indemnified Person shall not have recovered from the
Other Indemnifying Parties within 12 months after a claim for indemnification is
made pursuant to this ARTICLE VIII (or, if longer, prior to the 18 month
anniversary of the Closing), then this SECTION 8.2(f) shall not limit the
indemnified Person's right to indemnification for Losses under this ARTICLE
VIII. Nothing in this SECTION 8.2(f) shall limit an indemnifying Person's rights
under SECTION 8.2(h). Any and all costs incurred by the indemnified Persons in
pursuing a claim against the Other Indemnifying Parties shall be Losses and be
subject to indemnification hereunder.
(ii) Parent will cause the Company and the Company Subsidiaries
(a) not to amend or modify in any material respect any contractual rights of
indemnification, reimbursement or contribution existing in favor of the Company
and the Company Subsidiaries as of the date hereof under the Prior Agreements,
without the prior written consent of the Indemnification Representative, which
shall not be unreasonably withheld or delayed, and (b) to comply in all material
respects with the Prior Agreements.
(g) EARN-OUT MATTERS.
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Notwithstanding anything to the contrary set forth herein, the
indemnification obligations under SECTION 8.2(a)(III) related to the earn-out
under the DuPont Agreement shall be subject to the following:
(i) From the Closing through 2001, the Company shall, for
purposes of the gross margin calculation under the DuPont Agreement, (A)
continue to use the accounting methods that the Company currently uses with
respect to the calculation and allocation of costs (including overhead); (B) in
the event that the Company eliminates any function, the cost of which has
historically been allocated for purposes of determining the gross margin, make
an appropriate allocation of cost to be included in the determining the gross
margin; and (C) follow the current practice in determining products that are
included and excluded in the gross margin calculation under the DuPont Agreement
consistent with the methods used in preparing the Margin Statements (as defined
in the DuPont Agreement) for the years 1997, 1998 and 1999. The Company and the
Company Subsidiaries shall (1) maintain the information necessary to perform the
calculation, and (2) give the Indemnification Representative and its
representatives reasonable access to the books and records of the Company and
any Company Subsidiary sufficient to enable the Indemnification Representative
to prepare the Margin Statement. Parent, the Company and the Company
Subsidiaries shall cause the Company's independent certified public accountants
to cooperate with the Indemnification Representative and to submit the Margin
Statement pursuant to the DuPont Agreement in accordance with the reasonable
instructions of the Indemnification Representative. The Indemnification
Representative shall have the sole right to submit the Margin Statement and
shall be entitled to direct any proceedings or negotiations with DuPont relating
to the earn-out. Parent shall notify the Indemnification Representative within
45 days prior to the time that the Company or any Company Subsidiary makes any
payment to DuPont that would give rise to such an indemnification claim under
SECTION 8.2(a)(iii).
(ii) Parent will cause the Company and the Company Subsidiaries
(a) not to amend or modify the DuPont Agreement with respect to the earn-out and
the gross margin calculation, without the prior written consent of the
Indemnification Representative, which shall not be unreasonably withheld or
delayed and (b) to comply in all material respects with any and all such
agreements, arrangements and understandings.
(h) SUBROGATION. Upon making any payment to an indemnified party for
any indemnification claim pursuant to this ARTICLE VIII, the indemnifying party
shall be subrogated, to the extent of such payment, to any rights that the
indemnified party may have against any other persons with respect to the subject
matter underlying such indemnification claim and the indemnified party shall
take such actions as the indemnifying party may reasonably require to perfect
such subrogation or to pursue such rights against such other persons as the
indemnified party may have; provided that no such right of subrogation shall
exist unless and until the indemnified party's Losses with respect to the
subject matter underlying such indemnified claim are paid in full if the amount
of the indemnification payment is not sufficient to pay such Losses in full.
(i) INSURANCE; REIMBURSEMENTS; TAXES. The amount of any Losses for
which indemnification is provided under this ARTICLE VIII shall be reduced by
(i) any related recoveries actually received by the indemnified party under
insurance policies or other related payments
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received from third parties, and (ii) any Tax benefits actually received by the
indemnified party or any of its Affiliates on account of the matter resulting in
such Losses or the payment of such Losses. In the event that the indemnified
party receives any such recoveries or Tax benefits on account of Losses that
have previously been paid by the indemnifying party to the indemnified party,
the indemnified party shall, after receipt thereof, promptly pay over to the
indemnifying party the full amount of such recoveries or Tax benefits received.
If an indemnified party receives payment from a third party in respect of Losses
for which an indemnifying party has provided indemnification, then the
indemnified party shall reimburse the indemnifying party to the extent of such
payment (up to the amount of the indemnification provided by the indemnifying
party).
(j) No Shareholder, Optionholder or Warrantholder shall have any right
to, or shall, seek contribution with respect to, or other reimbursement for,
his, her or its indemnification obligations set forth in this ARTICLE VIII from
the Surviving Corporation or the Company.
ARTICLE IX.
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1 TERMINATION. This Agreement may be terminated at any time prior
to the Effective Time:
(a) by the mutual written consent of Parent and the Company;
(b) by either the Company, on the one hand, or Parent, on the other
hand, by written notice to the other party if any Governmental Authority with
jurisdiction over such matters shall have issued a Governmental Order
permanently restraining, enjoining or otherwise prohibiting the Merger or any
other transactions contemplated hereby, and such Governmental Order shall have
become final and unappealable; provided, however, that the terms of this SECTION
9.1(b) shall not be available to any party unless such party shall have used its
reasonable best efforts to oppose any such Governmental Order or to have such
Governmental Order vacated or made inapplicable to the Merger or other
transaction contemplated by this Agreement to which such Governmental Order
relates;
(c) by either the Company, on the one hand, or Parent, on the other
hand, by written notice to the other party if the Merger shall not have been
consummated on or before the date which is four months following the execution
hereof, unless the failure to consummate the Merger on or prior to such date is
the result of a breach or default under this Agreement by the party seeking to
terminate the Agreement pursuant to the terms of this SECTION 9.1(c);
(d) by Parent upon written notice to the Company if the Company shall
have breached this Agreement in any material respect and such breach shall not
have been cured within twenty (20) calendar days of the delivery of such written
notice by Parent to the Company; and
(e) by the Company upon written notice to Parent if Parent shall have
breached this Agreement in any material respect and such breach shall not have
been cured
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within twenty (20) calendar days of the delivery of such written notice by the
Company to Parent.
SECTION 9.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement and abandonment of the Merger and the other transactions contemplated
hereby pursuant to and in accordance with SECTION 9.1, this Agreement shall
forthwith become void and of no further force or effect whatsoever and there
shall be no liability on the part of any party hereto; provided, however, that
notwithstanding the foregoing, nothing herein contained shall relieve any party
hereto from any liability resulting from or arising out of any breach of any
agreement or covenant hereunder; and provided further, however, that
notwithstanding the foregoing, the terms of SECTION 6.4, this SECTION 9.2 and
ARTICLE X shall survive any termination of this Agreement, whether in accordance
with SECTION 9.1 or otherwise.
ARTICLE X.
GENERAL PROVISIONS
SECTION 10.1 EXPENSES. Except as otherwise expressly provided herein, all
costs and expenses (including, without limitation, all fees and disbursements of
counsel, financial advisors and accountants) incurred in connection with the
negotiation and preparation of this Agreement, the performance of the terms
hereof and the consummation of the transactions contemplated hereby, shall be
paid by the respective party incurring such costs and expenses, whether or not
the Closing shall have occurred; provided, however, Parent shall pay at the
Closing, all costs and expenses (including, without limitation, all fees and
disbursements of counsel, financial advisors and accountants) incurred by the
Company in connection with the negotiation and preparation of this Agreement,
the performance of the terms hereof and the consummation of the transactions
contemplated hereby (the "COMPANY COSTS"). The Company Costs, which shall not
exceed $10 million, shall include, without limitation, the investment banking
and advisory fees of CSFB and Genstar and the legal fees of Latham & Watkins.
SECTION 10.2 COSTS AND ATTORNEYS' FEES. In the event that any action, suit
or other proceeding is instituted concerning or arising out of this Agreement,
the prevailing party shall recover all of such party's costs and reasonable
attorneys' fees incurred in connection with each and every such action, suit or
other proceeding, including any and all appeals and petitions therefrom.
SECTION 10.3 NOTICES. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given or made as follows: (i) if sent by registered or certified
mail in the United States return receipt requested, upon receipt; (ii) if sent
by nationally recognized overnight air courier (such as DHL or Federal Express),
two (2) business days after mailing; (iii) if sent by facsimile transmission,
with a copy mailed on the same day in the manner provided in clauses (i) or (ii)
of this SECTION 10.3, when transmitted and receipt is confirmed by telephone;
and (iv) if otherwise actually personally delivered, when delivered, provided
that such notices, requests, demands and other communications are delivered to
the address set forth below, or to such other address as any party shall provide
by like notice to the other parties hereto:
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(a) if to the Company, to:
NEN Life Sciences, Inc.
549 Albany Street
Boston, Massachusetts 02118
Telephone: (617) 482-9595
Facsimile: (617) 350-9454
Attention: Russell D. Hays
and
Genstar Capital LLC
555 California Street, Suite 4850
San Francisco, California 94104
Telephone: (415) 834-2350
Facsimile: (415) 834-2383
Attention: Jean-Pierre L. Conte
with a copy to:
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
Telephone: (415) 391-0600
Facsimile: (415) 395-8095
Attention: Scott R. Haber, Esq.
(b) if to Parent or Merger Sub or, if after the Closing, to the
Company, to:
PerkinElmer, Inc.
45 William Street
Wellesley, Massachusetts 02481
Telephone: (781) 237-5100
Facsimile: (781) 431-4185
Attention: General Counsel
with a copy to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Telephone: (617) 526-6000
Facsimile: (617) 526-5000
Attention: David E. Redlick, Esq.
SECTION 10.4 PUBLIC ANNOUNCEMENTS. Unless otherwise required by applicable
Law or stock exchange rules and regulations, no party to this Agreement shall
make any public
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announcements in respect of this Agreement or the transactions contemplated
hereby, or otherwise communicate with any news media regarding this Agreement or
the transactions contemplated hereby, without the prior written consent of the
other parties hereto. If a public statement is required to be made pursuant to
applicable Law or stock exchange rules and regulations, the parties shall
consult with each other, to the extent reasonably practicable, in advance as to
the contents and timing thereof.
SECTION 10.5 INTERPRETATION. The Article and Section headings in this
Agreement are for convenience of reference only and shall not be deemed to alter
or affect the meaning or interpretation of any provision hereof. References to
Articles or Sections in this Agreement, unless otherwise indicated, are
references to Articles or Sections of this Agreement. The parties to this
Agreement have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises with respect to any term or provision of this Agreement, this Agreement
shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party
hereto by virtue of the authorship of any of the terms or provisions hereof. Any
reference to any federal, state, county, local or foreign statute or Law shall
be deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise. For all purposes of and under this
Agreement, (i) the word "including" shall be deemed to be immediately followed
by the words "without limitation," (ii) words (including defined terms) in the
singular shall be deemed to include the plural and vice versa, (iii) words of
one gender shall be deemed to include the other gender as the context requires,
and (iv) the terms "hereof," "herein," "hereto," "herewith" and any other words
of similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole (including all of the Schedules and Exhibits hereto) and
not to any particular term or provision of this Agreement, unless otherwise
specified.
SECTION 10.6 SEVERABILITY. In the event that any one or more of the terms
or provisions contained in this Agreement or in any other certificate,
instrument or other document referred to herein, shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other term or provision of
this Agreement or any other such certificate, instrument or other document
referred to herein, and the parties hereto shall use their commercially
reasonable efforts to substitute one or more valid, legal and enforceable terms
or provisions into this Agreement which, insofar as practicable, implement the
purposes and intent hereof. Any term or provision of this Agreement held invalid
or unenforceable only in part, degree or within certain jurisdictions will
remain in full force and effect to the extent not held invalid or unenforceable
to the extent consistent with the intent of the parties as reflected by this
Agreement. To the extent permitted by applicable Law, each party waives any term
or provision of Law which renders any term or provision of this Agreement to be
invalid, illegal or unenforceable in any respect.
SECTION 10.7 ENTIRE AGREEMENT. This Agreement (including the Company
Disclosure Schedule, the Parent Disclosure Schedule and the Exhibits hereto) and
the Confidentiality Agreement constitute the entire agreement of the parties
hereto with respect to the subject matter hereof, and supersede all prior
agreements and undertakings, both written and oral, among the parties hereto
with respect to the subject matter hereof, except as otherwise expressly
provided herein.
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SECTION 10.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties hereto, and any purported assignment or other
transfer without such consent shall be void and unenforceable. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns.
SECTION 10.9 NO THIRD PARTY BENEFICIARIES. Except as specifically provided
in SECTION 6.7 (and solely with respect to parties indemnified thereunder), this
Agreement is for the sole benefit of the parties hereto and nothing herein,
express or implied, is intended to or shall confer upon any other Person any
legal or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 10.10 WAIVERS AND AMENDMENTS. This Agreement may be amended or
modified only by a written instrument executed by all of the parties hereto. Any
failure of the parties hereto to comply with any obligation, covenant, agreement
or condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver. No delay
on the part of any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party hereto of any right, power or privilege hereunder operate as a waiver
of any other right, power or privilege hereunder, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege hereunder. Unless otherwise provided, the rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies which
the parties hereto may otherwise have at law or in equity. Whenever this
Agreement requires or permits consent by or on behalf of a party, such consent
shall be given in writing in a manner consistent with the requirements for a
waiver of compliance as set forth in this SECTION 10.10.
SECTION 10.11 EQUITABLE REMEDIES. Each of the parties hereto acknowledges
and agrees that the other parties hereto would be irreparably damaged in the
event that any of the terms or provisions of this Agreement are not performed in
accordance with their specific terms or otherwise are breached. Therefore,
notwithstanding anything to the contrary set forth in this Agreement, each of
the parties hereto hereby agrees that the other parties hereto shall be entitled
to an injunction or injunctions to prevent breaches of any of the terms or
provisions of this Agreement, and to enforce specifically the performance by
such first party under this Agreement, and each party hereto hereby agrees to
waive the defense in any such suit that the other parties hereto have an
adequate remedy at law and to interpose no opposition, legal or otherwise, as to
the propriety of injunction or specific performance as a remedy, and hereby
agrees to waive any requirement to post any bond in connection with obtaining
such relief. The equitable remedies described in this SECTION 10.11 shall be in
addition to, and not in lieu of, any other remedies at law or in equity that the
parties hereto may elect to pursue. The parties hereto hereby agree that
irreparable damage would occur in the event any of the terms or provision of
this Agreement required to be performed prior to the Effective Time are not
performed in accordance with the terms hereof and that, prior to the Effective
Time, the parties hereto shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or in equity.
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SECTION 10.12 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall
be governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts executed in and to be performed entirely within
such State. Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its assets and properties, to the exclusive jurisdiction
of any Delaware State court, or Federal court of the United States of America,
sitting within the State of Delaware, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement, the
agreements delivered in connection herewith, or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any judgment relating
thereto, and each of the parties hereto hereby irrevocably and unconditionally
(i) agrees not to commence any such action or proceeding except in such courts,
(ii) agrees that any claim in respect of any such action or proceeding may be
heard and determined in such Delaware State court or, to the extent permitted by
law, in such Federal court, (iii) waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware State or
Federal court, and (iv) waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such Delaware State or Federal court. Each of the parties hereto hereby
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Each of the parties hereto hereby
irrevocably consents to service of process in the manner provided for notices in
SECTION 10.3. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by applicable Law.
SECTION 10.13 WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND
AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.13.
SECTION 10.14 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. It is the
explicit intent and understanding of each of the parties hereto that no party
hereto, nor any of their respective Affiliates, representatives or agents, is
making any representation or warranty whatsoever, oral or written, express or
implied, other than those set forth in this Agreement (as qualified by the
Company Disclosure Schedule and the Parent Disclosure Schedule, as the case may
be), and the documents entered into in connection with this Agreement and none
of the parties hereto is relying on any statement, representation or warranty,
oral or written, express or implied, made by
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another party hereto or such other party's Affiliates, representatives or
agents, except for the representations and warranties set forth herein.
SECTION 10.15 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original, but
all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have
caused this Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
PERKINELMER, INC.,
a Massachusetts corporation
/s/ Terrance L. Carlson
---------------------------------
Name: Terrance L. Carlson
Title: Senior Vice President
NANCY ACQUISITION CORPORATION,
a Delaware corporation
/s/ Terrance L. Carlson
---------------------------------
Name: Terrance L. Carlson
Title: President
NEN LIFE SCIENCES, INC.,
a Delaware corporation
/s/ Russell Hays
---------------------------------
Name: Russell Hays
Title: CEO
<PAGE> 61
EXHIBITS
Exhibit 1.1 Parent Warrant
Exhibit 2.6 Investment Letter
Exhibit 2.6(e) Merger Consideration Spreadsheet
Exhibit 2.9 Escrow Agreement
Exhibit 6.5(d) Voting Agreement
iv
