UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K -- CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 1, 1995
INTERNATIONAL RESEARCH AND DEVELOPMENT CORPORATION
(Exact Name of Registrant as Specified in Charter)
Delaware 0-7059 38-1688261
(State or other Commission File (I.R.S. Employer
jurisdiction of Number Identification No.)
incorporation or
organization)
500 North Main Street, Mattawan Michigan 49071
(Address of principal executive offices) (Zip Code)
(616) 668-3336
Registrant's telephone number, including area code
Not Applicable
(Former name, former address and former fiscal year,
if changed since last report.)
Items 2, 3 and 5. Other Events.
On November 5, 1995, the registrant issued a press release, a copy of which
is attached as Exhibit 99.1 to this Form 8-K and incorporated herein by
reference. The Press Release discusses the sale of certain assets by the
Company and its subsidiaries in accordance with the Bankruptcy Orders attached
to this Form 8-K.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit Number Description
99.1 Press release dated December 1, 1995 issued by the
Registrant
99.2 August 25, 1995 Bankruptcy Order Authorizing Sale of Assets
99.3 July 31, 1995 Asset Purchase Agreement between Carme
International, Inc. and Carme, Inc.
99.4 October 26, 1995 Bankruptcy Order Authorizing Sale of Assets
99.5 September 22, 1995 Asset Purchase Agreement between IRDC
Acquisition Corporation and International Research &
Development Corporation
99.6 November 9, 1995 Bankruptcy Order Authorizing Sale of
Fiberoptics Assets
99.7 October 5, 1995 Asset Purchase Agreement between DLLW
Investment Group and Medical Surgical Specialties, Inc.
99.8 November 20, 1995 Bankruptcy Order Authorizing Sale of Door-
Aid Assets
99.9 November 8, 1995 Asset Purchase Agreement between D-A
Corporation and Medical Surgical Specialties, Ltd.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INTERNATIONAL RESEARCH AND
DEVELOPMENT CORPORATION
(Registrant)
Date: December 1, 1995
/s/ Curt Dally
_____________________________
Curt Dally
Treasurer
Exhibit 99.1
PRESS RELEASE
For More Information Call:
Michael A. Feder For Release December 1, 1995
Acting President
INTERNATIONAL RESEARCH AND DEVELOPMENT CORPORATION
International Research and Development Corporation's subsidiary, Medical
Surgical Specialties, Ltd. ("MSS"), has closed the separate sales of its two
divisions thereby completing the divestiture of substantially all of MSS's
assets. The primary business of MSS was the reconditioning of fiberoptic and
surgical medical products (the "Fiberoptics Division") and the distribution of
specialty products to aid disabled individuals (the "Door-Aid Division).
The sales were consummated pursuant to previous orders of the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"). The
cash proceeds of the sales (approximately $625,000 in the aggregate) were used
to reduce outstanding indebtedness to Michigan National Bank which indebtedness
is secured by liens on the assets which were sold. After the application of
such payment, MSS and its parent, International Research and Development
Corporation, remain jointly indebted to Michigan National Bank in an amount not
less than $10 million.
International Research and Development Corporation no longer has an
interest in any operating business.
International Research and Development Corporation intends to file a
liquidating plan on behalf of itself and its subsidiaries with the United States
Bankruptcy Court for the District of Delaware which will dispose of all
remaining assets. International Research and Development Corporation does not
presently expect any distribution to be made to any unsecured creditor or equity
security holder.
Exhibit 99.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
IRAD CORPORATION and ) Case No. 95-918 (PJW)
CARME, INC., )
) Jointly Administered
Debtors. )
ORDER PURSUANT TO SECTION 363 OF THE
BANKRUPTCY CODE AUTHORIZING SALE OF ASSETS
Upon the motion of Carme, Inc., debtor and debtor in possession herein
("Debtor"), for an Order, inter alia, (a) authorizing the sale of substantially
all of the Debtor's assets free and clear of liens, claims and encumbrances, and
(b) authorizing the assumption and assignment of unexpired leases and executory
contracts (the "Motion"); and notice of the Motion, having been given to the
United States Trustee, the Debtor's twenty (20) largest unsecured creditors,
counsel for Michigan National Bank, all counterparties to Assigned Contracts and
all parties known to claim an interest in the Debtor's assets and objections, if
any, to the Motion and the sale itself having been withdrawn or overruled; and a
hearing having been held on August 25, 1995 on approval of the relief requested
by the Motion; and the Court having reviewed the Asset Purchase Agreement
between Carme International, Inc. (an affiliate of Senetek, PLC) as purchaser
(the "Buyer") and the Debtor, as seller, dated as of July 31, 1995 (the "Asset
Purchase Agreement"); and the Court having been fully advised in the premises;
and after due deliberation, and sufficient cause appearing therefor, it is
ORDERED, that the Debtor be, and hereby is, authorized to: (a) assume
the Asset Purchase Agreement; (b) make, execute and deliver any and all
documents; and (c) take all such actions as are necessary to consummate the
transactions contemplated thereby; and it is further
ORDERED, that, the Debtor be, and hereby is, authorized pursuant to
Sections 363(b) and (f) of the Bankruptcy Code and Bankruptcy Rules 6004 and
6006, to sell, transfer, grant, convey and assign, free and clear of all liens,
security interests and encumbrances, all of the Purchased Assets (as defined in
the Asset Purchase Agreement) to the Buyer for an aggregate cash purchase price
of $2,300,000 plus additional cash and the other consideration all as set forth
in the Asset Purchase Agreement (the "Sale Price"); and it is further
ORDERED, that the Debtor is authorized to assume the Assigned
Contracts (as defined in the Motion) and to assign such contracts to the Buyer
pursuant to Section 365(a) of the Bankruptcy Code; and it is further
ORDERED, that the findings of fact made by the Court and contained in
the recitals proceeding these ordered paragraphs be, and hereby are,
incorporated into this Order; and it is further
ORDERED, that the approval of the sale of assets is in the best
interests of the Debtor, its estate and the creditors and that there are good
business reasons for the Debtor to consummate the sale of the Assets to the
Buyer; and it is further
ORDERED, that the Buyer be, and hereby is, declared a good faith
purchaser within the meaning of Section 363(m) of the Bankruptcy Code, and any
reversal or modification on appeal of this Order shall not affect the validity
of the sale of assets authorized hereby unless consummation of the sale of
assets is stayed pending such appeal; and it is further
ORDERED, that the Sale Price hereby is recognized as the result of a
free and open sale process attended by qualifying bidders and that the Sale
Price was not controlled by an agreement among any potential buyers as
prohibited by Section 363(n) of the Bankruptcy Code; and it is further
ORDERED, that this is a final and appealable order and the Court
expressly directs entry of a judgment as set forth herein.
Dated: Wilmington, Delaware
August 25, 1995
/s/ Peter J. Walsh
United States Bankruptcy Judge
Exhibit 99.3
ASSET PURCHASE AGREEMENT
This Agreement is made and entered into as of this
31st day of July, 1995, by and between Carme International, Inc.,
a Delaware corporation ("BUYER") and Carme, Inc., a Nevada corporation
("SELLER").
RECITALS
WHEREAS, Seller is engaged in the business (the "BUSINESS") of
manufacturing and selling health and beauty aids including without limitation
those listed on Schedule A attached hereto (the "PRODUCTS") with its principal
place of business located at 84 Galli Drive, Novato, California 94949;
WHEREAS, Seller intends to file a petition under chapter 11, title 11
of the United States Code (the "BANKRUPTCY CODE") in order to reorganize its
financial structure; and
WHEREAS, Seller desires to sell to Buyer substantially all of Seller's
assets related to the Business and Buyer desires to purchase said assets, all on
the terms and subject to the conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Purchase and Sale of Assets
1.1. Purchased Assets. At Closing, Buyer shall purchase and Seller
shall sell, transfer, assign and deliver to Buyer for the consideration and upon
the terms and conditions hereinafter set forth, all assets of the Business, (the
"PURCHASED ASSETS") not otherwise expressly excluded pursuant to Section 1.2 of
this Agreement. The Purchased Assets shall include, but not be limited to, the
following:
(a) Those contracts and agreements with customers, suppliers and
lessors of the Business and other third parties listed on Schedule 1.1(a)
attached hereto (the "CONTRACTS"), and all of Seller's rights under the
Contracts;
(b) All products that are in all respects ready for distribution and
sale, with the exception of final packaging for shipment (the "Finished
Goods Inventories") of the Business that meet all of the following
criteria:
(i) have been produced in the eighteen months prior to the Closing
Date;
(ii) are packaged in the most current packaging for such product; and
(iii) are the current formulation for such product; plus
all raw materials, work-in-progress, samples, supplies and packaging
related to the product lines included in such Finished Goods Inventory (the
"Primary Inventory"); provided, however, that the Primary Inventory does
not include any Finished Goods Inventories that are in greater quantities
of each such Product than can reasonably be expected to be sold within the
six month period following the Closing Date based on the sales of such
product in the six month period immediately prior to the date of this
Agreement plus 10% of such six-month sales, including all raw materials,
work-in-progress, samples, supplies and packaging related to such Finished
Goods Inventories;
(c) All other inventories of the Business not included within the
definition set forth in Section 1.1(b) above (the "Secondary Inventory");
(d) All customer files and all records of the Business;
(e) All trademarks, trade names, trade styles and logos (and all
goodwill associated therewith), registered or unregistered, and all
applications and registrations therefor, including without limitation those
listed on Schedule 1(e) hereto and all claims or causes of action of Seller
against third parties relating to any of the foregoing;
(f) All outstanding and uncollected accounts and notes receivable
listed on Seller's Aged Receivables Report attached hereto as Schedule
1.1(f)(i) (the "ACCOUNTS RECEIVABLE"); but the Accounts Receivable do not
include those accounts described on Schedule 1.1(f) (ii) attached hereto
(the "Excluded Accounts Receivable");
(g) All fixed assets and leasehold improvements (the "FIXED ASSETS"),
including those listed on Schedule 1.1(g); and
(h) All of Seller's trade secrets, including but not limited to the
rights to the formulas to the Products.
EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLE III, SELLER IS SELLING THE
PURCHASED ASSETS TO BUYER IN AS IS, WHERE IS CONDITION. ALL WARRANTIES, EXPRESS
OR IMPLIED WITH RESPECT TO THE PURCHASED ASSETS AND THE BUSINESS, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
1.2. Excluded Assets. The Excluded Assets are as follows:
(a) all cash on hand and in banks, cash equivalents and investments;
(b) all avoidance actions, claims (and benefits arising therefrom)
and litigation against third parties to the extent such actions, claims and
litigation are not related directly to continuation of the Business;
including, without limitation, actions, claims and litigations against: (i)
Axel Kraft, its officers, shareholders, agents and representatives; and
(ii) Seller's current and former officers, directors, shareholders,
employees, agents and auditors;
(c) all tax refunds;
(d) Seller's rights under this Agreement;
(e) Seller's corporate charter, minute and stock record books, and
corporate seal;
(f) the Excluded Accounts Receivable;
(g) Seller's executory contracts, except the Contracts and those
other executory contracts assumed pursuant to Section 1.3 below; and
(h) Seller's rights under any insurance policies.
1.3. Assumed Obligations. At Closing, Seller shall assign, and Buyer
shall assume and agree to discharge in a timely fashion, all of Seller's
liabilities and obligations arising under the Contracts. Further, Buyer shall
agree to assume and discharge all obligations, whether arising by contract,
course of dealing or otherwise, to customers of the Business with respect to the
return of Products or credits for unsold merchandise. Buyer is expressly not
assuming any other obligations or liabilities, whether accrued, absolute,
contingent, matured, unmatured or other of Seller.
ARTICLE II
Consideration, Manner of Payment and Closing
2.1. Consideration. The purchase price consideration (the "PURCHASE
PRICE") for the Purchased Assets is as follows:
(a) $2,000,000 for the items listed in Sections 1.1(a), (d), (e) and
(h); plus
(b) $300,000 for Seller's Fixed Assets (as defined in Section 1.1(g);
plus
(c) 87.5 percent of the face value of all Accounts Receivable on the
Closing Date (the "RECEIVABLES VALUE"); plus
(d) An amount equal to the aggregate sum of the product of each of
the Agreed Values (as hereinafter defined) for the Primary Inventory
multiplied by the respective inventory count on the Closing Date (the
"PRIMARY INVENTORY VALUE"); plus
(e) An amount equal to 25% of the aggregate sum of the product of
each of the Agreed Values of the Secondary Inventory multiplied by the
respective inventory count on the Closing Date, provided that such purchase
price shall not exceed $50,000 (the "SECONDARY INVENTORY VALUE").
The Primary Inventory Value and Secondary Inventory Value are collectively
referred to as the "INVENTORY VALUES".
"Agreed Value" shall mean the final value assigned by the parties to each item
of Primary Inventory and Secondary Inventory as specified on Schedule 2.1, upon
completion of the procedures set forth in this paragraph:
(1) A preliminary version of Schedule 2.1 is attached to this
Agreement;
(2) Price Waterhouse LLP ("PW"), independent auditors, will determine
promptly the values of each item of Primary Inventory and Secondary
Inventory by: (i) the invoice price of each of the raw materials purchased
in their normal production quantities, (ii) the standard cost of each of
the finished goods and; (iii) the cost of each other inventory item;
(3) Seller shall be entitled to have representatives present while PW
is making its determination of such values and Seller shall assist PW in
the determination of the values of the Primary Inventory and the Secondary
Inventory;
(4) PW will provide its report to Buyer and Buyer will provide Seller
with a revised Schedule 2.1 based upon the report by PW (the "REVISED
SCHEDULE 2.1") within 10 business days of the execution of this Agreement;
(5) If Seller disputes any of the values on the Revised Schedule 2.1,
then Seller will have 10 business days from receipt of the Revised Schedule
2.1 to give written notice to Buyer, specifying those items on the Revised
Schedule 2.1 whose value Seller disputes; and
(6) Any non-disputed values on the Revised Schedule 2.1 shall become
final Agreed Values and any disputed values on which Seller and Buyer are
unable to agree shall be submitted to the Court for resolution.
Seller and Buyer agree that for purposes of Closing the: (i) the Receivables
Value shall be estimated at that aggregate amount set forth on Seller's Aged
Receivables Report attached hereto as Schedule 1.1(f)(i), less the Excluded
Accounts Receivable listed on Schedule 1.1(f)(ii), and shall be adjusted at
Closing as set forth in Section 2.3 below; (ii) the Inventory Values shall be
calculated from the final Agreed Values determined as set forth above and
adjusted at Closing as set forth in Section 2.3 below; and (iii) the Secondary
Inventory Value shall not exceed $200,000.
2.2. Payment of Consideration. At Closing, Buyer shall deliver to
Michigan National Bank, by wire transfer, (i) $4,370,000 for immediate credit
against Seller's account; plus (ii) $230,000 for deposit in escrow account with
Michigan National Bank and shall be subject to the adjustment provisions set
forth in Section 2.3 (the "ESCROW FUND").
2.3. Adjustment of Consideration.
(a) Within ten business days from the Closing Date, Seller shall
deliver to Buyer a report (the "PRELIMINARY REPORT") which shall list, as
of Closing, (i) the Accounts Receivable and the Receivables Value, and (ii)
the Inventory (based on a physical inventory thereof and prepared on an
item-by-item basis) and the Inventory Values (collectively, the
"PRELIMINARY VALUATION"). Buyer shall be entitled to be present during the
physical inventory. Seller shall also deliver to Buyer copies of any
supporting documentation used in the preparation of the Preliminary Report.
(b) Buyer shall have ten business days from the date of delivery of
the Preliminary Report (the "DISPUTE PERIOD") to determine whether Buyer
agrees with the Preliminary Valuation. In the event that Buyer does not
agree with the Preliminary Report, Buyer shall notify Seller within the
Dispute Period, specifying the basis for the disagreement (a "DISPUTE
NOTICE").
(i) If no Dispute Notice is given, Buyer shall be deemed to have
accepted the Preliminary Valuation.
(ii) If a Dispute Notice is given, the parties shall attempt to
resolve the matter. If they are unable to do so within five business
days after delivery of a Dispute Notice, the items in dispute shall be
promptly submitted to the Court, as defined below, for resolution.
(c) Upon final determination of the Receivables Value and the
Inventory Values (collectively, the "COMBINED VALUES"), Buyer shall pay to
Michigan National Bank, for immediate credit to Seller's account, the
amount by which the Combined Values exceeds the Estimated Value and the
Escrow Fund shall be credited to Seller's account, or the amount by which
the Estimated Value exceeds the Combined Values shall be refunded to Buyer
from the Escrow Fund. Any such payment shall be made within five days
after the Combined Values is determined either by the parties hereto or by
the Court. Such payment obligation shall bear interest at the rate of
eight percent (8%) per annum for the period from the Closing Date to the
date of such payment.
2.4. Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets in the manner required by Section 1060 of
the Internal Revenue Code of 1986, as amended, as shall be agreed prior to
Closing.
2.5. Closing. The transaction contemplated by this Agreement shall be
consummated (the "CLOSING") at 9:00 a.m., at 84 Galli Drive, Novato, California
94949 or such other place as Seller and Buyer mutually agree, on the date (the
CLOSING DATE") that is 10 days after approval of the United States Bankruptcy
Court for the District of Delaware, or such other court of competent
jurisdiction (the "COURT").
ARTICLE III
Representations and Warranties of Seller
Seller hereby represents and warrants to Buyer as of the date hereof
as follows:
3.1. Due Organization. Seller is a corporation validly existing and
in good standing under the laws of Nevada with full power and authority to carry
on the Business as it is now conducted.
3.2. Authority. Except for the consent of the Court, Seller has all
requisite power and authority, without the consent of any other person (except
those which have been obtained), to execute and deliver this Agreement and to
carry out the transactions contemplated hereby. All actions required to be
taken by Seller to permit the proper execution, delivery and performance of this
Agreement and all transactions contemplated hereby have been duly and properly
taken.
3.3. Valid and Binding Obligation.
(a) This Agreement has been duly executed and delivered and, subject
to the approval of the Court, constitutes the valid and legally binding
obligation of Seller, enforceable against Seller in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights generally and
by general equitable principles.
(b) The sale of the Purchased Assets:
(1) will not result in the creation of any lien or
encumbrance of any kind on the Purchased Assets; and
(2) is not prohibited by, does not violate or conflict with
any provision of, and does not constitute a default under or a breach
of:
(i) Seller's Articles of Incorporation or bylaws;
(ii) any contract, agreement or other instrument to which
Seller is a party or by which Seller or any of the Purchased Assets is
bound, except as to (A) Contracts for which a consent has been
obtained; and (B) those contracts, agreements or other instruments
whose conflicting provisions are not enforceable under Section 541(c)
of the Bankruptcy Code;
(iii) any order, writ, injunction, decree or judgment of a court
or governmental agency; or
(iv) any law, rule or regulation applicable to Seller.
Except as to Court approval, no approval, authorization, consent or other order
or action of or filing with any court, administrative agency or other
governmental authority is required for the execution and delivery by Seller of
this Agreement or the consummation by Seller of the transactions contemplated
hereby.
3.4. Purchased Assets. Seller is the sole legal and equitable owner
and has good and marketable title to all of the Purchased Assets, subject to a
lien in favor of Michigan National Bank. None of such Purchased Assets (other
than Inventory which may be subject to sales agreements with customers) are
subject to (i) any contract of lease, license or sale or restriction on use or
disposition (other than as provided by the Bankruptcy Code), or (ii) any
security interest, pledge, lien or encumbrance. Seller is not a party to any
agreement obligating it to pay royalties or
license fees to third parties other than sales commission arrangements.
3.5. Net Sales Information. The historical revenue data attached
hereto on Schedule 3.5 is true and accurate in all material respects.
3.6. Accounts Receivable. All accounts and notes receivable which
constitute Accounts Receivable represent actual claims for goods delivered in
the ordinary course of the Business of Seller and constitute valid and
enforceable claims. SELLER MAKES NO REPRESENTATION AS TO THE COLLECTABILITY OF
ANY ACCOUNT OR NOTE CONSTITUTING AN ACCOUNT RECEIVABLE AND DISCLAIMS ANY
LIABILITY WITH RESPECT TO THE COLLECTION OF THE ACCOUNTS RECEIVABLE.
3.7. Contracts. Seller has provided Buyer with copies of all
material Contracts, licenses and agreements to which Seller is a party.
3.8. Litigation. Schedule 3.8 lists all pending litigation to which
Seller is a party, all threatened litigation to which Seller may become a party
and written claims against Seller of which Seller is aware as of Closing.
3.9. Fixed Assets. Schedule 1.1(g) contains a complete listing of
those items constituting Fixed Assets which are individually valued in excess of
$1,000.
3.10. Environmental Matters. Except as set forth in Schedule 3.10,
the Seller hereby represents and warrants as of Closing that to the best of
Seller's knowledge: (i) the Seller has substantially complied with all
Environmental Laws with respect to Seller's operations and any transportation,
transfer, recycling, storage, use, treatment, manufacture of, or any other
activity involving Hazardous Materials or any product containing a Hazardous
Materials ("Hazardous Material Activities"); (ii) the Seller has not exposed any
person to a Hazardous Material in a manner which has caused an adverse health
effect to said person; (iii) no Hazardous Material is present in violation of
Environmental Laws at Seller's facilities, located at 84 and 60 Galli Drive,
Novato, California (the "Facilities"); (iv) Seller holds all approvals, permits,
licenses, clearances or consents required to be obtained from any private person
or any governmental authority with respect to Seller's Hazardous Material
Activities as currently conducted ("Environmental Permits") and all such
Environmental Permits are valid, in full force and effect, and will survive
Closing without modification provided that the permits are by law transferrable
and Buyer complies with all requirements for transferring environmental permits
in full force and effect; and (v) no circumstances exist which will cause the
Permits to be revoked or otherwise invalidated after the closing provided that
the Permits are by law transferrable and Buyer complies with all requirements
for transferring environmental permits in full force and effect; (vi) Seller has
delivered to Buyer or made available for inspections by Buyer all records
concerning the Hazardous Material Activities and all environmental audits and
environmental assessments of the Facilities conducted at Seller's request.
For purposes of this Agreement, "Hazardous Material" or "Hazardous
Materials" means any material or substance that is now or hereafter prohibited
or regulated by any environmental law or that is now or hereafter designated by
any governmental authority to be radioactive, toxic or hazardous or otherwise a
danger to the environment; including, without limitation, (i) oil and petroleum
products, (ii) explosives, (iii) radioactive substances and materials, (iv)
hazardous, ultra-hazardous or toxic substances or wastes, (v) asbestos, (vi)
urea formaldehyde, (vii) polychlorinated biphenyls and transformers or other
equipment which contain fluid containing polychlorinated biphenyls, (viii) radon
gas, and (ix) all chemicals, materials or substances now or hereafter defined or
included in the definition of "hazardous substance", "hazardous waste",
"hazardous material", "toxic substance", "pollutant", or words of similar
impact, under any Law as now or hereafter amended, including, but not limited
to, the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 as now or hereafter amended ("CERCLA"), the Hazardous Materials
Transportation Act, the Resource Conservation Recovery Act, the Federal Water
Pollution Control Act, the Clean Air Act, the Montreal Protocol, the Carpenter-
Presley-Tanner Hazardous Substance Account Act, the Porter-Cologne Water Quality
Control Act, and similar Laws, whether or not more strict in the application,
now or hereafter enacted. For purposes of this Agreement, "Environmental Laws"
means all laws, rules, regulations, guidelines, orders, treaties, statutes, and
codes promulgated by any governmental authority which prohibits, regulates or
controls any Hazardous Material or any Hazardous Material Activity.
ARTICLE IV
Representations and Warranties of Buyer
Buyer hereby represents and warrants to Seller as of the date hereof
as follows:
4.1. Due Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of Delaware, and has full
power and authority to carry on the business in which it is engaged.
4.2. Authority. Buyer has all requisite power and authority, without
the consent of any other person (except those which have been obtained), to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. All actions required to be taken by Buyer to permit the
proper execution, delivery and performance of this Agreement and all
transactions contemplated hereby have been duly and properly taken.
4.3. Valid and Binding Obligation.
(a) This Agreement has been duly executed and delivered and
constitutes the valid and legally binding obligations of Buyer, enforceable
against Buyer in accordance with its terms, except as enforcement may be limited
by applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors' rights generally and by general equitable principles.
(b) No approval, authorization, consent or other order or action of
or filing with any court, administrative agency or other governmental authority
is required for the execution and delivery by Buyer of this Agreement or the
consummation by Buyer of the transaction contemplated hereby.
ARTICLE V
Additional Covenants and Agreements
5.1. Access to Records. Buyer shall acquire the books and records
relating to the Business (other than permanent records required for tax and
accounting purposes); provided, however, that each party shall have reasonable
access to the books and records retained by the other party and its agents or
affiliates.
5.2. Access to Employees. Buyer shall authorize and direct its
employees to provide such reasonable assistance to Seller following Closing as
is necessary for Seller to consummate the transactions contemplated by this
Agreement, including, but not limited to, Seller's final accounting.
ARTICLE VI
Conduct Prior to Closing
6.1. Seller's Obligations. The following are Seller's obligations
pending Closing:
(a) Seller shall give to Buyer's officers, employees, attorneys,
consultants, accountants and lenders reasonable access during normal
business hours to all of the properties, books, contracts, documents,
records and personnel of Seller and shall furnish to Buyer such information
as Buyer may at any time and from time to time reasonably request; and
(b) Seller shall use all reasonable efforts to conduct the Business
on a going concern basis.
6.2. Buyer's Obligations. The following are Buyer's obligations
pending Closing:
(a) Buyer shall continue to be bound by its obligations pursuant
to that certain Confidentiality Agreement by and between the parties
hereto.
6.3. Joint Obligations. The following shall apply with equal force to
Seller and Buyer:
(a) Seller and Buyer shall use all reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable to consummate the transaction
contemplated hereby as soon as practicable, subject to Seller's
fiduciary duties, including duties as a debtor in possession.
(b) Each party shall promptly give the other party written
notice of the existence or occurrence of any condition which would
make any representation or warranty herein contained of either party
untrue or which might reasonably be expected to prevent the
consummation of the transaction contemplated hereby.
6.4. Bankruptcy Case. Promptly following the execution of the
Agreement, Seller shall file with the Court a voluntary petition under Chapter
11 of the Bankruptcy Code which shall commence a bankruptcy case (the
"BANKRUPTCY CASE"). Seller shall request the Court in the Bankruptcy Case to
approve Seller's assumption and performance of this Agreement.
ARTICLE VII
Conditions to Closing
7.1. Conditions to Seller's Obligations. The obligation of Seller to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Seller's option, be
terminated pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made by Buyer shall be
true and correct in all material respects as if originally made on and as of the
Closing Date;
(b) All obligations of Buyer to be performed hereunder through,
and including on, the Closing Date shall have been performed;
(c) Approval of this Agreement by the Court; and
(d) No suit, proceeding or investigation shall have been commenced by
any governmental authority or private person on any grounds to restrain,
enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby which is not disposed
of by the Order.
7.2. Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Buyer's option, be terminated
pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made
by Seller shall be true and correct in all material respects
as if originally made on and as of the Closing Date;
(b) All obligations of Seller to be performed hereunder through,
and including on, the Closing Date shall have been performed;
(c) The Court shall have entered an order (the "ORDER") in the
Bankruptcy Case authorizing the purchase and sale of the Purchased
Assets under this Agreement, upon the terms and conditions set forth
in this Agreement, and otherwise free and clear of: (i) all liens,
title claims, encumbrances and security interests; (ii) all contracts,
agreements and employment agreements, other than the Contracts; and
(iii) all obligations and liabilities. The Order shall contain a
finding of fact that Buyer is making its purchase in good faith within
the meaning of Section 363(m) of the Bankruptcy Code. No stay of the
Order shall have been issued by the Court or any other court. As of
the Closing Date, the Order shall not have been modified, amended,
dissolved, revoked or rescinded in any way materially adverse to the
Buyer; and
(d) No suit, proceeding or investigation shall have been commenced by
any governmental authority or private person on any grounds to restrain,
enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby which is not disposed
of by the Order.
ARTICLE VIII
Closing
8.1. Form of Documents. At Closing, the parties shall deliver the
documents, and shall perform the acts, which are set forth in this Article VIII.
8.2. Buyer's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.2 of this Agreement, Buyer shall execute
and/or deliver to Seller all of the following:
(a) the Purchase Price;
(b) a certified copy of Buyer's Certificate of Incorporation and
By-laws;
(c) a certificate of good standing of Buyer, issued not earlier than
ten days prior to the Closing Date by the Secretary of State of Delaware;
(d) an incumbency and specimen signature certificate with respect to
the officers of Buyer executing this Agreement and all agreements
contemplated hereby and on behalf of Buyer;
(e) an agreement of assumption of all liabilities and obligations to
be assumed by Buyer as provided herein, in a form reasonably acceptable to
all parties;
(f) a certified copy of resolutions of Buyer's board of
directors, authorizing the execution, delivery and performance of this
Agreement and all agreements contemplated hereby; and
(g) a closing certificate executed by Buyer, pursuant to which
Buyer represents and warrants to Seller that Buyer's representations
and warranties to Seller are true and correct in all material respects
as of the Closing Date as if then originally made, that all covenants
required by the terms hereof to be performed by Buyer on or before the
Closing Date, to the extent not waived by Seller in writing, have been
so performed, and that all documents to be executed and delivered by
Buyer at Closing have been executed by duly authorized officers of
Buyer.
8.3. Seller's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.1 hereof, Seller shall deliver to Buyer
physical possession of all tangible Purchased Assets, and shall execute and/or
deliver or cause to be executed and/or delivered to Buyer all of the following:
(a) certified copies of Seller's Articles of Incorporation and
Bylaws;
(b) certificates of good standing of Seller, issued not earlier
than ten days prior to the Closing Date by the Secretary of State of
Nevada;
(c) an incumbency and specimen signature certificate with respect to
the officers of Seller executing this Agreement and all documents
contemplated hereby;
(d) a certified copy of resolutions of Seller's board of directors
and stockholders, authorizing the execution, delivery and performance of
this Agreement and all documents contemplated hereby;
(e) a bill of sale, executed by Seller, conveying all of the
Purchased Assets to Buyer, in a form reasonably acceptable to all parties;
(f) a closing certificate duly executed by Seller, pursuant to which
Seller represents and warrants to Buyer that Seller's representations and
warranties to Buyer are true and correct in all material respects as of the
Closing Date as if then originally made, that all covenants required by the
terms hereof to be performed by Seller on or before the Closing Date, to
the extent not waived by Buyer in writing, have been so performed, and that
all documents to be executed and delivered by Seller at Closing have been
executed by duly authorized officers of Seller;
(g) a certified copy of the Order;
(h) an amendment to Seller's Articles of Incorporation whereby Seller
changes its name to a name that is not similar to "Carme, Inc.";
(i) trademark assignments for all trademarks constituting a part of
the Purchased Assets, in a form suitable for recording and reasonably
acceptable to all parties; and
(j) an index of all trade secrets and computer files containing
said trade secrets.
ARTICLE IX
Termination
9.1. Right to Terminate. This Agreement and the transaction contemplated
hereby may be terminated by either of the parties to this Agreement if the Court
shall not have issued the Order at or before August 31, 1995; provided, however,
that the right to terminate this Agreement under this Section 9.1 shall not be
available to any party whose failure to fulfill any material obligation under
this Agreement has been the cause of or resulted in the failure of Closing to
occur.
9.2. Certain Effects of Termination. In the event of the termination of
this Agreement by either Seller or Buyer as provided in Section 9.1, each party,
if so requested by the other party, will promptly return every document
furnished to it by the other party (or its subsidiary, division, associate or
affiliate) in connection with the transaction contemplated hereby, whether so
obtained before or after the execution of this Agreement, and any copies thereof
(except for copies of documents publicly available) which may have been made,
and will use reasonable efforts to cause its representatives and any
representatives of financial institutions and others to whom such documents were
furnished to promptly return such documents and any copies thereof.
This Section 9.2 shall survive any termination of this Agreement.
9.3. Reimbursement of Expenses. If this Agreement has not been terminated
pursuant to Section 9.1 or there is a failure of a material condition and the
Purchased Assets are sold to another buyer, Buyer shall be paid from the initial
proceeds of such sale an amount equal to the fees and expenses expended by Buyer
in connection with the negotiation and performance of this Agreement (including
without limitation, all accounting and legal fees), but such amount shall not
exceed $100,000. Buyer and Seller agree that this is reasonable, considering
all of the circumstances existing on the date of this Agreement.
ARTICLE X
Miscellaneous
10.1. Expenses; Taxes. Buyer and Seller shall each bear their own
respective expenses incurred in connection with this Agreement and in connection
with all obligations required to be performed by each of them under this
Agreement. Buyer shall pay all sales, use and transfer taxes with respect to
the transfer of the Purchased Assets.
10.2. Publicity. Neither Buyer nor Seller shall issue any press
release or public announcement of any kind concerning the transactions
contemplated by this Agreement without the prior written consent of the other
party, except with respect to disclosures which either party is advised by
counsel are appropriate under applicable laws, and as to which each party will
consult with the other.
10.3. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person or
sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy. A notice shall be deemed given: (a) when delivered
by personal delivery (as evidenced by the receipt); (b) five days after deposit
in the mail if sent by registered or certified mail; (c) one (1) day after
having been sent by commercial overnight courier as evidenced by the written
verification of receipt; or (d) on the date of confirmation if telecopied.
(a) If to Buyer:
Carme International, Inc.
23 Palace Street
London SW155HW
Attention: Paul A. Logan
Telecopy: 011-44-171-828-8081
With a copy to:
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Henry P. Massey, Jr., Esq.
Telecopy: (415) 493-6811
(b) If to Seller:
c/o International Research and
Development Corporation
500 North Main Street
Mattawan, Michigan 49071
Attention: President
Telecopy: (616) 668-4151
With a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attention: Lewis S. Rosenbloom, Esq.
Telecopy: (312) 984-3651
Either party may change its address for receiving notice by written notice given
to the other party.
10.4. Benefit and Assignment. All of the terms and provisions of
this Agreement shall bind and benefit, and be enforceable by, the successors and
assigns of the parties hereto.
10.5. Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof and
supersedes any previous written or oral agreements or understandings in
connection therewith.
10.6. Severability. If any term, provision, covenant or condition
of this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remainder of the provisions hereof shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
10.7. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
10.8. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.9. Governing Law. This Agreement is made pursuant to, and
shall be governed by, the internal substantive laws of the State of Delaware.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf all as of the date first written above.
CARME INTERNATIONAL, INC.
By: /s/ Gerlof Homan
Name: GERLOF HOMAN
Title: PRESIDENT & CEO
CARME, INC.
By: /s/ Michael A. Feder
Chairman of the Board
and
Chief Executive Officer
Exhibit 99.4
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
IRAD CORPORATION, CI ESTATE,INC. )
INTERNATIONAL RESEARCH AND ) Case No. 95-918 (PJW)
DEVELOPMENT CORPORATION, and )
MEDICAL SURGICAL SPECIALTIES, LTD.,)
)
Debtors. ) Jointly Administered
ORDER APPROVING ASSET PURCHASE AGREEMENT
AND AUTHORIZING SALE OF ASSETS
PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE
Upon the motion of International Research and Development Corporation
("IRDC"), debtor and debtor-in-possession herein (the "Debtor"), for an Order:
(a) authorizing the sale of substantially all of the Debtor's assets free and
clear of liens, claims and encumbrances, (b) authorizing the assumption and
assignment of unexpired leases and executory contracts, and (c) scheduling the
date, time and place for such sale, which motion was filed with this Court on
September 28, 1995 (Docket No. 45); and notice of the Motion, having been given
to the United States Trustee, the Debtor's twenty largest unsecured creditors,
counsel for Michigan National Bank, counterparties to Assigned Contracts (as
defined in the Motion); and objections to the Motion and the sale itself having
been withdrawn or overruled; and a hearing having been held on October 26, 1995
to consider the relief requested by the Motion; and the Court having reviewed
the Asset Purchase Agreement between IRDC Acquisition Corporation as purchaser
(the "Buyer") and the Debtor, as seller, dated as of September 26, 1995 (the
"Asset Purchase Agreement"); and the Court having been fully advised in the
premises; and after due deliberation, and sufficient cause appearing therefor,
it is
ORDERED, that the Debtor be, and hereby is, authorized to: (a) assume
the Asset Purchase Agreement; (b) make, execute and deliver any and all
documents as are necessary to consummate the transactions contemplated thereby;
and (c) take all such actions as are necessary to consummate the transactions
contemplated thereby; and it is further
ORDERED, that, the Debtor be, and hereby is, authorized pursuant to
Sections 363(b) and (f) of the Bankruptcy Code and Bankruptcy Rules 6004 and
6006, to sell, transfer, grant, convey and assign, free and clear of all liens,
security interests and encumbrances (except for the liens relating to unpaid
1994 and 1995 real and personal property taxes to be collected by Van Buren
County, Michigan, to the extent such tax liens are valid and enforceable under
applicable non-bankruptcy law), all of the Purchased Assets (as defined in the
Asset Purchase Agreement) to the Buyer for an aggregate case purchase price of
$6.1 million plus the other consideration set forth in the Asset Purchase
Agreement (the "Sale Price"); and it is further
ORDERED, that the Debtor be, and hereby is, authorized pursuant to
Sections 365 of the Bankruptcy Code and Bankruptcy Rule 6006 to assume and
assign the Assigned Contracts, as such term is defined in the Asset Purchase
Agreement, to Buyer as part of the Purchased Assets; and it is further
ORDERED, that Buyer assume and be solely responsible for the Assumed
Obligations under the Asset Purchase Agreement as such term is defined therein;
and it is further
ORDERED, that any licenses, permits and authorizations relevant to the
Debtor's ability to conduct its business shall be, and hereby are, transferred
to the Buyer to the fullest extent of applicable law; and it is further
ORDERED, that the findings of fact made by the Court and contained in
the recitals preceding these ordered paragraphs and stated by the Court on the
record at the hearing on the Motion be, and hereby are, incorporated into this
Order; and it is further
ORDERED, that the approval of the sale of assets is in the best
interests of the Debtor, its estate and the creditors and that there are good
business reasons for the Debtor to consummate the sale of the Purchased Assets
to the Buyer; and it is further
ORDERED that the buyer be, and hereby is, declared a good faith
purchaser within the meaning of Section 363(m) of the Bankruptcy Code, and any
reversal or modification on appeal of this Order shall not affect the validity
of the sale of assets authorized hereby unless consummation of the sale of
assets is stayed pending such appeal; and it is further
ORDERED, that the Sale Price hereby is recognized as the result of a
free and open sale process attended by qualifying bidders and that the buyers as
prohibited by Section 363(n) of the Bankruptcy Code; and it is further
ORDERED, that this is a final and appealable order and the Court
expressly directs entry of a judgment as set forth herein.
Dated: October 26, 1995 /s/ Peter J. Walsh
United States Bankruptcy Judge
Exhibit 99.5
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and entered into
as of this 22nd day of September, 1995, by and between IRDC Acquisition
Corporation, a Michigan corporation ("Buyer"), and International Research &
Development Corporation, a Delaware corporation ("Seller").
RECITALS
WHEREAS, Seller is primarily engaged in the business of conducting safety
evaluations of pharmaceutical and veterinary drugs, agricultural products and
chemicals (the "Primary Business"), which studies are performed on behalf of
various manufacturers of such products, both foreign and domestic, and on behalf
of governmental agencies;
WHEREAS, Seller also has investments in certain other businesses which are
conducted by either wholly-owned subsidiaries or affiliates of Seller (the
"Investments");
WHEREAS, Seller intends to file a petition under chapter 11, title 11 of
the United States Code (the "Bankruptcy Code"), in order to reorganize its
financial structure; and
WHEREAS, Seller desires to sell to Buyer substantially all of Seller's
assets, including without limitation substantially all of Seller's assets
related to the Primary Business, and Buyer desires to purchase such assets, all
on the terms and subject to the conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE I
Purchase and Sale of Assets
1.1 Purchased Assets. At Closing (as defined below), Buyer shall
purchase and Seller shall sell, transfer, assign and deliver to Buyer for the
consideration and upon the terms and conditions hereinafter set forth, all
properties and assets of Seller, real and personal, tangible and intangible, of
every kind and wherever situated, which (as of Closing) are owned or leased by
Seller or in which (as of Closing) Seller has any right, title or interest and
which (as of Closing) are or have in the past been used by or useful to Seller
in the conduct of its business (the "Purchased Assets"), not otherwise
expressly excluded pursuant to Schedule 1.2 of this Agreement. The Purchased
Assets shall include, but not be limited to, the following:
(a) The real property owned by Seller commonly known as 500 N. Main
Street, Mattawan, Michigan, and which is utilized in the Primary Business;
(b) All of Seller's contracts and agreements with customers,
suppliers and lessors relating to the Primary Business, including without
limitation those listed on Schedule 1.1(b) attached hereto (the "Contracts"),
and all of Seller's rights under the Contracts;
(c) All of Seller's customer files and records relating to the
Primary Business;
(d) All of Seller's trademarks, trade names, trade styles and logos
(and all goodwill associated therewith), registered or unregistered, and all
applications and registrations therefor used in or useful to the Primary
Business, including without limitation those listed on Schedule 1.1(d) attached
hereto, and all claims or causes of action of Seller against third parties
relating to any of the foregoing;
(e) All outstanding and uncollected accounts and notes receivable of
Seller, including without limitation those listed on Seller's Aged Receivables
Report attached hereto as Schedule 1.1(e)(i) (the "Accounts Receivable")(other
than the Accounts Receivable described on Schedule 1.1(e)(ii) attached hereto
(the "Excluded Accounts Receivable"));
(f) All of Seller's fixed assets, supplies, inventories and leasehold
improvements used in or useful to the Primary Business (the "Fixed Assets"),
including without limitation those listed on Schedule 1.1(f) attached hereto;
(g) All of Seller's trade secrets, inventions, formulae, processes,
know-how, methods and technical information relating to the Primary Business;
(h) All of Seller's licenses and permits relating to the Primary
Business (to the extent transferable), including without limitation those listed
on Schedule 1.1(h) attached hereto;
(i) All of Seller's books, records, reports, correspondence, notes,
contracts and other documents, whether in writing, on computer disk or magnetic
tape or otherwise recorded or reduced to tangible form, relating to the Primary
Business;
(j) All of Seller's going concern value and goodwill relating to the
Primary Business; and
(k) All of Seller's telephone, facsimile, telex and similar numbers
(and all rights thereto) relating to the Primary Business.
EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLE III, SELLER IS SELLING THE
PURCHASED ASSETS TO BUYER IN AS IS, WHERE IS CONDITION. ALL WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO THE PURCHASED ASSETS AND THE PRIMARY BUSINESS,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
1.2 Excluded Assets. The Excluded Assets are as follows:
(a) All assets of Seller identified on Schedule 1.2(a) attached
hereto;
(b) All stocks, partnership interests and other documents evidencing
any ownership interest of Seller in the Investments identified on Schedule
1.2(b) attached hereto;
(c) All stock of Seller, including treasury stock and authorized, but
unissued, stock;
(d) Any asset which is property of a subsidiary or affiliate of
Seller identified on Schedule 1.2(d) attached hereto;
(e) All rights of Seller under undrawn letters of credit, including
without limitation those issued by Michigan National Bank;
(f) All cash on hand and in banks, cash equivalents, investments,
utility deposits, advance payments and professional retainers belonging to, paid
by or on behalf of Seller;
(g) All avoidance actions, claims (and benefits arising therefrom)
and litigation of Seller against third parties (including Seller's subsidiaries
and affiliates) to the extent such actions, claims and litigation are not
related directly to continuation of the Primary Business or the Purchased
Assets, including without limitation actions, claims and litigation against: (i)
Axel Kraft, its officers, shareholders, agents and representatives; (ii)
Seller's current and former officers, directors, shareholders, employees, agents
and auditors; and (iii) parties relating to Seller's purchase of Carme, Inc.;
(h) All tax refunds of Seller;
(i) Seller's rights under this Agreement;
(j) Seller's corporate charter, minute and stock record books and
corporate seal;
(k) The Excluded Accounts Receivable;
(l) All executory contracts of Seller, except the Contracts and
those other executory contracts assumed pursuant to Section 1.3;
and
(m) All rights of Seller under any insurance policies, including
without limitation policies on the life of any individual,
property casualty and director and officer liability.
1.3 Assumed Obligations. At Closing, Seller shall assign, and Buyer
shall assume and agree to discharge (in accordance with the terms applicable
thereto), all of Seller's liabilities and obligations arising under the
Contracts listed in Schedule 1.1(b) hereto or which arise with respect to events
occurring on or after the Closing Date (as hereinafter defined) (other than any
such liability or obligation which becomes due or must be performed, whether by
acceleration or otherwise, and which arises by reason of consummation of the
transaction contemplated by this Agreement) and all unpaid real and personal
property taxes relating to the Purchased Assets. Buyer is expressly not
assuming any other obligations or liabilities, whether accrued, absolute,
contingent, matured, unmatured or otherwise, of Seller, including, but not
limited to, any obligations with respect to "continuation coverage" pursuant to
Section 498OB(f) of the Internal Revenue Code of 1986, as amended (the "IRC"),
or any obligations (and liabilities related thereto) arising out of any vacation
pay or other policies or any employment or other agreements or arrangements of
Seller providing for the payment of compensation to any employees.
ARTICLE II
Consideration, Manner of Payment and Closing
2.1 Consideration. The purchase price consideration (the "Purchase
Price") for the Purchased Assets is $6,100,000. The Purchase Price shall be
adjusted as set forth in Section 2.3.
2.2 Payment of Consideration. Upon execution of this Agreement,
Buyer shall deliver a deposit of $1,000,000 (the "Deposit") to Old Kent Bank to
be held in escrow and thereafter released and delivered to Seller and/or Buyer
pursuant to that certain Escrow Agreement attached hereto as Exhibit 2.2 (the
"Escrow Agreement"). At Closing, Buyer shall deliver to Michigan National Bank,
by wire transfer, a payment of $5,100,000 for immediate credit against Seller's
account
2.3 Adjustment of Consideration. The Purchase Price shall be subject
to adjustment as follows:
(a) Within 10 days of the Closing Date (as defined below), Seller
shall deliver to Buyer a report, together with supporting documentation used in
preparing the report (the "Operating Activities Report"), which shall set forth
in reasonable detail the cash provided by and used in the operating activities
associated with Seller's conduct of the Primary Business from and after
September 26, 1995, through and including the day immediately preceding the
Closing Date. The Operating Activities Report shall be prepared (at Seller's
expense) by BDO Seidman, LLP ("BDO'), in accordance with generally accepted
accounting principles consistently applied. In preparing the Operating
Activities Report, BDO shall exclude from its determination of the cash used in
the operating activities associated with Seller's conduct of the Primary
Business all utility deposits, advance payments and the like and all payments
(whether for retainers, fees, expenses or otherwise) relating to legal,
accounting, consulting, investment banking and similar services rendered to or
for the benefit of Seller or any other person, including without limitation any
such payments relating to services rendered by BDO, McDermott Will & Emery,
Stratford Partners or Mesirow Financial Corporation. Also, in preparing the
Operating Activities Report, BDO shall exclude therefrom any cash provided by or
used in the financing activities (e.g., borrowings from or payments to any bank
under a credit facility) or investing activities (e.g., sales and purchases of
fixed assets) associated with Seller's conduct of the Primary Business.
(b) Within 5 days of its receipt of the Operating Activities Report,
Buyer shall notify Seller in writing of any objections thereto (a "Dispute
Notice"). A Dispute Notice shall set forth in reasonable detail the nature of
such objections.
(c) If Buyer shall not deliver a Dispute Notice to Seller, Buyer
shall be deemed to have accepted the accuracy of the Operating Activities
Report. If the Operating Activities Report shall indicate that the cash used in
the operating activities associated with Seller's conduct of the Primary
Business shall have been in excess of the cash provided by the operating
activities associated with Seller's conduct of the Primary Business, Buyer shall
within 10 days of its receipt of the Operating Activities Report deliver to
Michigan National Bank, by wire transfer, the difference for immediate credit
against Seller's account an amount equal to: (i) 100 percent of the first
$250,000 of such difference; plus (ii) 80 percent of such difference in excess
of $250,000.
(d) If Buyer shall deliver a Dispute Notice to Seller, Buyer and
Seller shall attempt in good faith to negotiate a resolution of the objections
set forth therein. If Buyer and Seller shall not succeed in negotiating a
resolution of the objections set forth in a Dispute Notice within 5 days of
Seller's receipt thereof, the matter shall be submitted to the Court (as defined
below) for a final and binding resolution thereof. Upon a final resolution
(whether by negotiation or otherwise) of the objections set forth in a Dispute
Notice, Buyer shall promptly deliver to Seller the difference (as finally
determined) between the cash provided by and the cash used in the operating
activities associated with Seller's conduct of the Primary Business in the
manner contemplated by Section 2.3(c).
2.4 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets in the manner required by Section 1060 of
the IRC, as shall be agreed by Seller and Buyer prior to Closing.
2.5 Closing. The transaction contemplated by this Agreement shall be
consummated ("Closing") at 5:00 p.m. (Mattawan time) at the offices of Seller,
or such other place as Seller and Buyer mutually agree, on the date (the
"Closing Date") that is 2 business days after the date on which the United
States Bankruptcy Court for the District of Delaware or such other United States
Bankruptcy Court having jurisdiction of a bankruptcy case of Seller under
Chapter 11 of the Bankruptcy Code (be "Court") shall enter the Order (as defined
below).
ARTICLE III
Representations and Warranties of Seller
Seller hereby represents and warrants to Buyer as of the date hereof
as follows:
3.1 Due Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of Delaware with full power
and authority to carry on the Primary Business as it is now conducted.
3.2 Authority. Except for the consent of the Court, Seller has all
requisite power and authority, without the consent of any other person (except
those which have been obtained and disclosed in writing to Buyer), to execute
and deliver this Agreement and to consummate the transaction contemplated
hereby. All actions required to be taken by Seller to permit the proper
execution, delivery and performance of this Agreement and the transaction
contemplated hereby have been duly and properly taken.
3.3 Valid and Binding Obligation. This Agreement has been duly
executed and delivered and, subject to the approval of the Court, constitutes
the valid and legally binding obligation of Seller, enforceable against Seller
in accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
creditors' rights generally and by general equitable principles.
ARTICLE IV
Representations and Warranties of Buyer
Buyer hereby represents and warrants to Seller as of the date hereof
as follows:
4.1 Due Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of Michigan and has full power and
authority to carry on the business in which it is engaged.
4.2 Authority. Buyer has all requisite power and authority, without
the consent of any other person (except those which have been obtained), to
execute and deliver this Agreement and to consummate the transaction
contemplated hereby. All actions required to be taken by Buyer to permit the
proper execution, delivery and performance of this Agreement and the transaction
contemplated hereby have been duly and properly taken.
4.3 Valid and Binding Obligation. Agreement has been duly executed
and delivered and constitutes the valid and legally binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, except as enforcement
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally and by general equitable
principles.
ARTICLE V
Additional Covenants and Agreements
5.1 Access to Properties, Records, Etc, of Seller. From and after
the date hereof until Closing, Seller shall provide to Buyer and its
representatives full access during normal business hours to all of the
properties, books, contracts, documents and records of Seller (during which
Seller's representatives shall be entitled to be present) and the opportunity to
make reasonable investigations of Seller and any additional financial statements
of and all information with respect to the business and affairs of Seller that
Buyer may reasonably request (it being understood that, notwithstanding any such
access, investigation or additional information, Seller shall not be relieved of
any of its warranties, representations, covenants or agreements set forth in
this Agreement).
5.2 Oral Assurances of Continuity. From and after the date hereof
until Closing, Seller shall use all reasonable commercial efforts, if so
requested by Buyer, to cause oral assurances to be given to Buyer by the
customers, suppliers, lessors and employees of Seller that such persons will
continue to have business relations with Buyer following consummation of the
transaction contemplated by this Agreement.
5.3 Cooperation. From and after the date hereof until Closing,
Seller shall use reasonable commercial efforts and cooperate with Buyer to
secure all consents, approvals, authorizations, exemptions and waivers as shall
be required in order to enable Seller to consummate the transaction contemplated
by this Agreement.
5.4 Further Assurances. At any time and from time to time following
Closing, Seller shall (at the request of Buyer and at Buyer's expense) execute
and deliver any such further instruments or documents and take all such further
action as Buyer may reasonably request to evidence consummation of the
transaction contemplated by this Agreement.
5.5 Operation of Primary Business. From and after the date hereof
until Closing, and subject to commencement of the Bankruptcy Case (as defined
below), Seller shall conduct the Primary Business in its ordinary and usual
course consistent with past customs and practices (including as to quantity and
frequency) and shall not engage in any practice, take any action or enter into
any transaction outside of its ordinary and usual course without the prior
written consent of Buyer and the Court. In addition, from and after the date
hereof until Closing, and subject to commencement of the Bankruptcy Case, Seller
shall use all reasonable commercial efforts to preserve intact the Primary
Business, its organization and its relations with customers, suppliers, lessors
and other persons having business relations with Seller and shall keep Buyer
reasonably informed with respect to its conduct of the Primary Business.
5.6 Employee Benefit Matters. Subject to such prohibitions,
restrictions, limitations and the like, if any, as shall be imposed on Seller
and such privileges, exclusions, immunities and the like, if any, granted to
Seller by the Bankruptcy Code (or any other statute, rule or regulation), the
Court (or any other court or administrative agency) or otherwise:
(a) Seller shall cause to be discharged and satisfied in full at or
prior to Closing its payroll obligations from September 1, 1995, to the Closing
Date.
(b) Seller shall provide to Buyer an appropriately completed Form
MESC 1027, Business Transferor's Notice to Transferee of Unemployment Tax
Liability and Rate, in respect of Seller in accordance with Section 15(g) of the
Michigan Employment Security Act.
5.7 Post-Closing Assistance. From and after Closing, Buyer (without
expense to Seller) shall make its employees available to Seller in Mattawan,
Michigan, at such times and in such manner as Seller shall reasonably request
(and as shall not unreasonably interfere with the normal duties of Buyer's
employees or the conduct of its business) for consultation and assistance in
connection with Seller's consummation of the transaction contemplated hereby,
including without limitation consultation and assistance in connection with
preparation of Seller's final accounting.
5.8 Post-Closing Access to Records. From and after Closing, Buyer
shall upon reasonable notice from Seller make all books and records constituting
a part of the Purchased Assets available to Seller and its representatives for
inspection and, with the consent of Buyer (which consent shall not be
unreasonably withheld), Seller may (at Seller's expense) make copies thereof.
Buyer shall not make any disposition of such books and records prior to the
third anniversary of the Closing Date without first providing reasonable advance
notice to Seller of its intention to make a disposition of such books and
records and permitting Seller (at Seller's expense) to make copies thereof.
5.9 Baseline Determination. From and after the date hereof until
Closing, Buyer shall have access to the real property identified in Section
1.1(a) to conduct such assessments, including without limitation invasive
testing (if necessary), as shall be necessary to complete a baseline
environmental assessment reasonably acceptable to Buyer as provided by Section
20126 of the Michigan Natural Resources and Environmental Protection Act (the
"Baseline Environmental Assessment"). Promptly following completion of the
Baseline Environmental Assessment, Buyer shall file a petition for a
determination of exemption from liability for environmental contamination with
the Michigan Department of Natural Resources, as provided in Section 20129A of
the Michigan Natural Resources and Environmental Response Act, with respect to
the prior use of the real property identified in Section 1.1(a) (the "Baseline
Determination"). Buyer shall use its best efforts to obtain the Baseline
Environmental Assessment within thirty (30) days after the date hereof.
5.10 Employee Termination. Seller shall terminate the employment of
each of its employees (other than those identified to Seller by Buyer in writing
not less than 2 days prior to the Closing Date) at or prior to Closing (it being
understood that Buyer may, but shall not be obligated to, offer employment to
such employees).
5.11 Title Insurance Commitment. Seller (at Seller's expense) shall
not less than 10 days prior to the Closing Date deliver to Buyer a commitment
from a title company reasonably acceptable to Buyer to issue an owner's policy
of title insurance insuring marketable title in Buyer with respect to the real
property identified in Section 1.1(a), subject only to:
(a) Liens of real property taxes and assessments and of water and
sewer charges; and
(b) Such other exceptions as may be acceptable to Buyer.
5.12 Survey. Seller (at Seller's expense) shall deliver to Buyer a
boundary and improvements survey made by a registered land surveyor of the real
property identified in Section 1.1.(a) that shall be certified to Buyer within
10 days of the Closing Date.
5.13 Daily Cash Reports. Upon or prior to execution of this
Agreement, Seller shall have delivered to Buyer copies of Seller's daily reports
in Seller's current format (the "Daily Cash Reports") from and after September
1, 1995, through and including September 21, 1995. In addition, from and after
September 26, 1995, through and including the day immediately preceding the
Closing Date, Seller shall (not later than 10:00 a.m. (Mattawan time) of the
next succeeding business day) deliver to Buyer a copy of the Daily Cash Reports.
The cash provided in respect of any day shall mean all cash or its equivalent
(e.g., checks, drafts, wire transfers, etc.) received by or on behalf of Seller
and the cash used in respect of any day shall mean all cash or its equivalent
(e.g., checks, drafts, wire transfers, etc.) paid by or on behalf of Seller.
ARTICLE VI
Conduct Prior to Closing
6.1 Joint Obligations. The following shall apply with equal force to
Seller and Buyer:
(a) Seller and Buyer shall use all reasonable commercial efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable to consummate the transaction contemplated
hereby as soon as practicable, subject to Seller's fiduciary duties, including
duties as a debtor in possession.
(b) Each of Seller and Buyer shall promptly give the other written
notice of the existence or occurrence of any condition which would make any
representation or warranty herein contained of either untrue or which might
reasonably be expected to prevent consummation of the transaction contemplated
hereby.
6.2 Bankruptcy Case. Promptly following the execution of this
Agreement, but in any event not later than September 26, 1995, Seller shall file
with the Court a voluntary petition under Chapter 11 of the Bankruptcy Code
which shall commence a bankruptcy case (the "Bankruptcy Case") and shall file
therein an appropriate motion for authority to consummate the transaction
contemplated hereby under Section 363 of the Bankruptcy Code as soon as is
reasonably practicable (the "Motion").
ARTICLE VII
Conditions to Closing
7.1 Conditions to Seller's Obligations. The obligation of Seller to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Seller's option, be
terminated pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made by Buyer in
Article IV shall be true and correct in all material respects as if originally
made on and as of the Closing Date;
(b) All obligations of Buyer to be performed hereunder through, and
including on, the Closing Date shall have been performed;
(c) The Court shall have entered the Order and no stay of the Order
shall have been issued by the Court or any other court; and
(d) No statute, rule or regulation or order of any court or
administrative agency shall be in effect which prohibits or enjoins Seller from
consummating the transaction contemplated hereby.
7.2 Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Buyer's option, be terminated
pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made by Seller in
Article III shall be true and correct in all material respects as if originally
made on and as of the Closing Date;
(b) All obligations of Seller to be performed hereunder through, and
including on, the Closing Date shall have been performed;
(c) The Court shall have entered an order (the "Order") in the
Bankruptcy Case authorizing the purchase and sale of the Purchased Assets under
this Agreement, upon the terms and conditions set forth in this Agreement and
otherwise free and clear of: (i) all liens, title claims, encumbrances and
security interests; (ii) all contracts, agreements and employment agreements
(other than the Contracts); and (iii) all other obligations and liabilities
(other than those contemplated by Section 1.3); and the Order shall contain a
finding of fact that Buyer is making its purchase of the Purchase Assets in good
faith within the meaning of Section 363(m) of the Bankruptcy Code and no stay of
the Order shall have been issued by the Court or any other court; and, as of the
Closing Date, the Order shall not have been modified, amended, dissolved,
revoked or rescinded in any way materially adverse to Buyer;
(d) No suit, proceeding or investigation shall have been commenced by
any governmental authority or private person on any grounds to restrain, enjoin
or hinder, or to seek material damages on account of, the consummation of the
transaction contemplated hereby which is not disposed of by the Order;
(e) Buyer shall have received the Baseline Environmental Assessment;
(f) Buyer shall have obtained all material approvals, authorizations,
permits and licenses, governmental or otherwise, necessary and appropriate to
conduct the Primary Business after Closing.
ARTICLE VIII
Closing
8.1 Form of Documents. At Closing, Seller and Buyer shall deliver
the documents, and shall perform the acts, which are set forth in this Article
VIII.
8.2 Buyer's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.2, Buyer shall execute and/or deliver to
Seller all of the following:
(a) the Purchase Price;
(b) Certified copies of Buyer's Articles of Incorporation and Bylaws;
(c) A certificate of good standing of Buyer issued not earlier than
10 days prior to the Closing Date by the Michigan Department of
Commerce-Corporation & Securities Bureau;
(d) An incumbency and specimen signature certificate with respect to
the officer of Buyer executing this Agreement and all documents contemplated
hereby on behalf of Buyer;
(e) An agreement of assumption of all liabilities and obligations to
be assumed by Buyer as provided herein, in a form reasonably acceptable to
Seller and Buyer;
(f) A certified copy of resolutions of Buyer's board of directors,
authorizing the execution, delivery and performance of this Agreement and all
documents contemplated hereby; and
(g) A closing certificate executed by Buyer, pursuant to which Buyer
represents and warrants to Seller that Buyer's representations and warranties to
Seller are true and correct in all material respect as of the Closing Date as if
then originally made, that all covenants required by the terms hereof to be
performed by Buyer on or before the Closing Date, to the extent not waived by
Seller in writing, have been so performed and that all documents to be executed
and delivered by Buyer at Closing have been executed by duly authorized officers
of Buyer.
8.3 Seller's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.1, Seller shall deliver to Buyer physical
possession of all of the tangible Purchased Assets and shall execute and/or
deliver or cause to be executed and/or delivered to Buyer all of the following:
(a) Certified copies of Seller's Articles of Incorporation and
Bylaws;
(b) An incumbency and specimen signature certificate with respect to
the officer of Seller executing this Agreement and all documents contemplated
hereby on behalf of Seller;
(c) A certified copy of resolutions of Seller's board of directors,
authorizing the execution, delivery and performance of this Agreement and all
documents contemplated hereby;
(d) A bill of sale, executed by Seller, conveying good and valid
record and marketable title to all of the Purchased Assets (other than the real
property identified in Section 1.1(a) to Buyer, in a form reasonably acceptable
to Seller and Buyer;
(e) A closing certificate duly executed by Seller, pursuant to which
Seller represents and warrants to Buyer that Seller's representations and
warranties to Buyer are true and correct in all material respects as of the
Closing Date as if then originally made, that all covenants required by the
terms hereof to be performed by Seller on or before the Closing Date, to the
extent not waived by Buyer in writing, have been so performed and that all
documents to be executed and delivered by Seller at Closing have been executed
by duly authorized officers of Seller;
(f) A certified copy of the Order;
(g) An amendment to Seller's Certificate of Incorporation whereby
Seller changes its name to a name that is not similar to "International Research
& Development Corporation";
(h) Trademark assignments for all trademarks and trademark
applications constituting a part of the Purchased Assets, in forms suitable for
recording and reasonably acceptable to Seller and Buyer;
(i) An index of all trade secrets, formulae, techniques, processes,
know-how, methods and other technical information constituting a part of the
Purchased Assets;
(j) A warranty deed, executed by Seller, conveying good and valid
record and marketable title to the real property identified in Section 1.1.(a)
to Buyer, in a form suitable for recording and reasonably acceptable to Seller
and Buyer, and the related policy of title insurance contemplated by Section
5.11 (together with evidence that Seller has paid all premiums therefor); and
(k) Patent assignments for all patents and patent applications
constituting a part of the Purchased Assets, in forms suitable for recording and
reasonably acceptable to Seller and Buyer.
ARTICLE IX
Termination
9.1 Right to Terminate. This Agreement may be terminated as follows:
(a) By Buyer in a writing delivered to Seller if the Court shall not
have issued the Order on or before November 10, 1995, or if Closing shall not
have occurred on or before November 20, 1995;
(b) By Seller in a writing delivered to Buyer if Closing shall not
have occurred on or before December 31, 1995; and
(c) By Buyer or Seller in the event that an order is issued by the
Court as contemplated by Section 10.2 hereof which permits the Purchased Assets
to be sold to a person other than Buyer;
provided, however, that the right to terminate this Agreement under this Section
9.1 shall not be available to any of Seller or Buyer whose failure to fulfill
any material obligation under this Agreement has been the cause of or resulted
in the failure of Closing to occur.
9.2 Certain Effects of Termination. In the event of termination of
this Agreement by either Seller or Buyer as provided in Section 9.1, each of
Seller and Buyer, if so requested by the other, will promptly return every
document furnished to it by the other (or its subsidiary, division, associate or
affiliate) in connection with the transaction contemplated hereby, whether so
obtained before or after the execution of this Agreement, and any copies thereof
(except for copies of documents publicly available) which may have been made,
and will use reasonable commercial efforts to cause its representatives and any
representatives of financial institutions and others to whom such documents were
furnished to promptly return such documents and any copies thereof. This
Section 9.2 shall survive any termination of this Agreement.
9.3 Reimbursement of Expenses. If Seller shall terminate this
Agreement pursuant to Section 9.1, or if Closing shall not occur (other than by
reason of Buyer's termination of this Agreement pursuant to Section 9.1) and
Buyer is not in breach of any of its representations, warranties, covenants and
agreements contained herein, and Seller shall nevertheless thereafter sell or
otherwise transfer the Purchased Assets (or any substantial portion thereof) to
another person, Seller shall deliver to Buyer from the proceeds (first from cash
to the extent thereof and then from such other forms of consideration as shall
be reasonable in the circumstances) of any such sale or transfer an aggregate
amount equal to the reasonable fees and expenses expended by Buyer in connection
with the negotiation, preparation and execution of this Agreement and
performance of all obligations required to be performed by Buyer under this
Agreement (including without limitation all reasonable accounting and legal
fees), provided that such amount shall not exceed the lesser of $250,000 or the
amount by which such proceeds shall in the aggregate exceed the Purchase Price.
9.4 Liquidated Damages. Subject to Buyer's right to terminate this
Agreement pursuant to Section 9.1, if Buyer shall fail to consummate the
transaction contemplated hereby and Seller is not otherwise in breach of any of
its representations, warranties, covenants and agreements contained herein,
Escrow Agent (as defined in the Escrow Agreement) shall, on the terms and
subject to the conditions of the Escrow Agreement, thereupon deliver to Michigan
National Bank, by wire transfer, a payment of $250,000 for immediate credit
against Seller's account as liquidated damages to Seller for Buyer's failure to
consummate such transaction. Receipt of such liquidated damages as provided
herein shall be the sole and exclusive remedy available to Seller if Buyer shall
fail to consummate the transaction contemplated hereby.
ARTICLE X
Miscellaneous
10.1 Expenses; Taxes. Buyer and Seller shall each bear its own
expenses incurred in connection with the negotiation, preparation, execution and
closing of this Agreement, consummation of the transaction contemplated hereby
and performance of all obligations required to be performed by each of them
under this Agreement. Except to the extent the transfer of the Purchased Assets
shall be exempt therefrom under Section 1146(c) of the Bankruptcy Code, Buyer
shall pay all sales, use and transfer taxes and recording fees with respect to
the transfer of the Purchased Assets.
10.2 Bidding Procedures. In connection with Seller's filing of the
Motion with the Court in the Bankruptcy Case, Seller may be required to seek and
consider competing bids to acquire the Purchased Assets. In the event that
Seller is subject to any such requirement, Seller shall use all reasonable
efforts to obtain an order from the Court governing competitive bidding
procedures which contemplates that:
(a) Any competing bid shall provide for the payment of cash
consideration for the Purchased Assets in an amount equal to the Purchase Price
(as adjusted) plus $500,000;
(b) Any competing bid shall contemplate the execution of an agreement
to acquire the Purchased Assets on terms and subject to conditions no less
favorable to Seller than the terms and conditions of this Agreement (including
without limitation the terms and conditions relating to the payment and
adjustment of the Purchase Price, the Escrow Agreement, the amount of the
Deposit and Closing); and
(c) Any person making a competing bid shall be willing to execute an
agreement to acquire the Purchased Assets conforming to its bid.
10.3 Medical Surgical Specialties, Ltd. Tenancy. Buyer shall allow
Seller's wholly-owned subsidiary, Medical Surgical Specialties, Ltd., to
continue its use and occupancy of the real property identified in Section 1.1(a)
in the same manner, on the same terms and subject to the same conditions
existing as of September 26, 1995, and without rent, for a period of 90 days
after Closing.
10.4 Publicity. Neither Buyer nor Seller shall issue any press
release or public announcement of any kind concerning the transaction
contemplated by this Agreement without the prior written consent of the other,
except with respect to disclosures which either is advised by counsel are
appropriate under applicable laws or stock listing agreement, and as to which
each will consult with the other.
10.5 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person or
sent by registered or certified mail, postage prepaid, by commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy. A notice shall be deemed given: (a) when delivered
by personal delivery (as evidenced by the receipt); (b) five days after deposit
in the mail if sent by registered or certified mail; (c) one (1) day after
having been sent by commercial overnight courier as evidenced by the written
verification of receipt; or (d) on the date of confirmation if telecopied:
(a) If to Buyer:
IRDC Acquisition Corporation
c/o Howard & Howard Attorneys, P.C.
107 W. Michigan Avenue, Suite 400
Kalamazoo, Michigan 49007-3956
Attention: William U. Parfet
Telecopy: (616) 382-1568
With a copy to:
Howard & Howard Attorneys, P.C.
107 W. Michigan Avenue, Suite 400
Kalamazoo, Michigan 49007-3956
Attention: Joseph B. Hemker, Esq.
Telecopy: (616) 382-1568
(b) If to Seller:
International Research and Development
Corporation
500 North Main Street
Mattawan, Michigan 49071
Attention: President
Telecopy: (616) 668-4151
With a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606-5096
Attention: Lewis S. Rosenbloom, Esq.
Telecopy: (312) 984-3651
With a copy to:
Vamum, Riddering, Schmidt and Howlett, LLP
Bridgewater Place
Grand Rapids, Michigan 49502-0352
Attention: Timothy J. Curtin, Esq.
Telecopy: (616) 372-9639
Either Seller or Buyer may change its address for receiving notice by written
notice given to the other.
10.6 Benefit and Assignment. All of the terms and provisions of this
Agreement shall bind and benefit, and be enforceable by, the successors and
assigns of Seller and Buyer. Prior to Closing, Buyer may without the consent of
Seller assign all or any portion of its rights and obligations hereunder to any
affiliate of Buyer (it being understood that an affiliate of Buyer shall be any
person directly or indirectly, by contract or otherwise, controlling, controlled
by or under common control with Buyer, directly or indirectly owning or holding
10 percent or more of the voting or equity interests in Buyer or 10 percent or
more of whose voting or equity interests are owned directly or indirectly or
held by Buyer). If Buyer shall assign all or any portion of its rights and
obligations hereunder to an affiliate other than a corporation, such affiliate
shall deliver certificates, resolutions and the like comparable to and having
substantially the same purpose or effect as those contemplated by Section 8.2.
10.7 Entire Agreement. This Agreement, including all Schedules,
Exhibits and other documents attached hereto or incorporated by reference
herein, constitutes the entire agreement between Seller and Buyer relating to
the subject matter hereof and supersedes any previous written or oral agreements
or understandings in connection therewith.
10.8 Severability. If any term, provision, covenant or condition of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the provisions hereof shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
10.9 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.10 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
10.11 Amendments and Waivers. Except as otherwise provided herein,
any provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by each of Seller and Buyer.
Except as otherwise provided in this Agreement, any failure of either of Seller
or Buyer to comply with any obligation, covenant, agreement or condition herein
may be waived by whichever shall be entitled to the benefits thereof only by a
written instrument signed thereby, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement or condition shall
not operate a waiver of, or estoppel with respect to, any subsequent or other
failure.
10.12 Governing Law. This Agreement is made pursuant to, and shall
be governed by, the internal substantive laws of the State of Delaware.
IN WITNESS WHEREOF, each of Seller and Buyer has caused this Agreement
to be executed on its behalf as of the date first written above.
IRDC Acquisition Corporation
By: /s/ W. U. Parfet
Name: W. U. Parfet
Title: President
International Research & Development Corporation
By: /s/ Michael A. Feder
Name: Michael A. Feder
Title: Acting President
Exhibit 99.6
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
IRAD CORPORATION, CI ESTATE, )
INC., f/k/a/ CARME, INC. ) Case No. 95-918 (PJW)
INTERNATIONAL RESEARCH AND )
DEVELOPMENT CORPORATION, and )
MEDICAL SURGICAL SPECIALTIES, )
LTD. ) Jointly Administered
)
Debtors. )
ORDER PURSUANT TO SECTION 363 OF THE BANKRUPTCY
CODE AUTHORIZING SALE OF FIBEROPTICS ASSETS
THIS MATTER is before the Court on the Motion of Medical Surgical
Specialties, Ltd., debtor and debtor-in-possession (the "Debtor"), for an order,
inter alia, (a) authorizing the sale of substantially all of the Debtor's assets
related to its Fiberoptics Division and (b) authorizing the assumption and
assignment of certain unexpired leases and executory contracts (the "Motion").
Notice of the Motion has been given to the United States Trustee, the Debtor's
twenty unsecured creditors, counsel for Michigan National Bank, all
counterparties to contracts being assumed and assigned, all parties known to
claim interest in the Debtor's assets and all parties who, prior to the filing
of the Motion, had indicated an interest in acquiring the assets. A hearing on
the Motion was convened in this Court on November 9, 1995. Based on the Motion
and the record at the hearing, the Court hereby finds that the sale of the
Fiberoptics Division of DLLW Investment Group (the "Buyer") in accordance with
the terms of the Asset Purchase Agreement dated as of October 5, 1995 as
modified by the bidding results and attached to the Motion as Exhibit A (the
"Asset Purchase Agreement") represents the proper exercise of the Debtor's
business judgment and is appropriate in accordance with the standards applicable
thereto.
NOW, THEREFORE, based on the foregoing and for the reasons stated on
the record at the hearing, it is hereby ORDERED as follows:
1. The Debtor is authorized to make, execute and deliver any and all
documents and to take all such actions as are reasonably necessary to consummate
the transactions contemplated by the Asset Purchase Agreement.
2. The Debtor is authorized pursuant to sections 363(b) and (f) of
the Bankruptcy Code and Bankruptcy Rule 6004 and 6006, to sell, transfer, grant,
convey and assign, free and clear of all liens, security interests and
encumbrances, all of the Purchased Assets (as defined in the Asset Purchase
Agreement) to the Buyer for an aggregate cash purchase price of $375,000 subject
to adjustment in accordance with Section 2.1 of the Asset Purchase Agreement and
the assumption of liabilities as set forth in Section 1.3 of the Asset Purchase
Agreement (collectively, the "Sale Price").
3. The Debtor is authorized to assume the agreements identified on
Schedule 1.1(d) of the Asset Purchase Agreement and assign such contracts to the
Buyer pursuant to Section 365(a) of the Bankruptcy Code.
4. The approval of the sale of the Fiberoptics Assets is in the best
interests of the Debtor, its estate and creditors, there are good business
reasons for the Debtor to consummate the sale of the Purchased Assets to the
Buyer and the Buyer is hereby determined to be a good faith purchaser within the
meaning of Section 363(m) of the Bankruptcy Code. Any reversal or modification
on appeal of this Order shall not affect the validity of the sale of assets
authorized hereby unless consummation of the sale of assets is stayed pending
such appeal.
5. The Sale Price paid under the Asset Purchase Agreement is the
result of a free and open sale process attended by qualified bidders and the
Sale Price was not controlled by an agreement among any potential buyers as is
prohibited by Section 363(n) of the Bankruptcy Code.
6. This is a final and appealable order and the Court expressly
directs entry of judgment as set forth herein.
Dated: Wilmington, Delaware
November 9, 1995
/s/ Peter J. Walsh
United States Bankruptcy Judge
Exhibit 99.7
ASSET PURCHASE AGREEMENT
This Agreement is made and entered into as of this 5th day of October
1995, by and between DLLW Investment Group, a Michigan corporation ("BUYER") and
Medical Surgical Specialties Inc., a Delaware corporation ("SELLER").
RECITALS
WHEREAS, Seller is primarily engaged in two distinct businesses which
are (a) the reconditioning of fiberoptic and surgical medical products (the
"FIBEROPTICS DIVISION") and (b) the distribution of specialty products to aid
disabled individuals (the "DOOR-AID").
WHEREAS, on September 28, 1995, the Seller filed a voluntary petition
for relief under Chapter 11, Title 11, United States Code ("Bankruptcy Code")
with the United States Bankruptcy Court for the District of Delaware; and
WHEREAS, Seller desires to sell to Buyer substantially all of Seller's
assets related to the Fiberoptics Division and Buyer desires to purchase said
assets, all on the terms and subject to the conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Purchase and Sale of Assets
1.1. Purchased Assets. At Closing, Buyer shall purchase and Seller
shall sell, transfer, assign and deliver to Buyer for the consideration and upon
the terms and conditions hereinafter set forth, all assets of the Fiberoptics
Division (the "PURCHASED ASSETS") not otherwise expressly excluded pursuant to
Section 1.2 of this Agreement. The Purchased Assets shall include, but not be
limited to, the following:
(a) All outstanding and uncollected accounts and notes receivable
listed on Seller's Aged Receivables Report attached hereto as Schedule
1.1(a) (the "ACCOUNTS RECEIVABLE");
(b) All inventory listed on the Inventory Report attached hereto as
Schedule 1.1(b) (the "INVENTORY");
(c) All trademarks, trade names, trade styles and logos (and all
goodwill associated therewith), registered or unregistered, and all
applications and registrations therefor used in the Fiberoptics Division,
and all licenses and patents relating to intellectual property used in the
Fiberoptics Division and all telephone numbers used in the Fiberoptics
Division, the foregoing items including without limitation those listed on
Schedule 1(c) hereto;
(d) The contracts and leases identified on Schedule 1(d) hereto;
(e) All customer files and records relating to the Fiberoptics
Division; and
(f) All personal property such as furniture, equipment, tools,
machinery used in the Fiberoptics Division (the "PERSONAL PROPERTY"),
including those items listed on Schedule 1.1(e).
EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLE III, SELLER IS SELLING THE
PURCHASED ASSETS TO BUYER IN AS IS, WHERE IS CONDITION. ALL WARRANTIES, EXPRESS
OR IMPLIED WITH RESPECT TO THE PURCHASED ASSETS AND THE DIVISION, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
1.2. Excluded Assets. The Excluded Assets are as follows:
(a) all assets not related to the Fiberoptics Division;
(b) all stocks, partnership interests and other equity investments of
Seller;
(c) all stock of Seller, including treasury stock and authorized, but
unissued stock;
(d) any asset which is property of a subsidiary or affiliate or
parent of Seller;
(e) all cash on hand and in banks, cash equivalents, investments,
utility deposits, advance payments and professional retainers;
(f) all avoidance actions, claims (and benefits arising therefrom)
and litigation against third parties to the extent such actions, claims and
litigation are not related directly to continuation of the Fiberoptics
Division; including, without limitation, actions, claims and litigations
against Seller's current and former officers, directors, shareholders,
employees, agents and auditors;
(g) all tax refunds;
(h) Seller's rights under this Agreement;
(i) Seller's corporate charter, minute and stock record books, and
corporate seal; and
(j) all rights under any insurance policies, including policies on
the life of individuals, property casualty and director and officer
liability.
1.3. Assumed Obligations. At Closing, Seller shall assign, and Buyer
shall assume and agree to discharge in a timely fashion, all of Seller's
liabilities and obligations arising under the agreements purchased under
Sections 1.1(c) and 1.1(d) hereof and all unpaid personal property taxes
relating to the Purchased Assets. Further, Buyer shall agree to assume and
discharge all obligations, whether arising by contract, course of dealing or
otherwise, to customers of the Fiberoptics Division with respect to the return
of Products or credits for unsold merchandise. Buyer is expressly not assuming
any other obligations or liabilities, whether accrued, absolute, contingent,
matured, unmatured or other of Seller.
ARTICLE II
Consideration, Manner of Payment and Closing
2.1. Consideration. The purchase price consideration (the "PURCHASE
PRICE") for the Purchased Assets is approximately $375,000 consisting of (i) 90%
of the face value of those Accounts Receivable which at Closing are 89 days old
or less; (ii) 10% of the face value of those Accounts Receivable which at
Closing are 90 days old or older, however this category of accounts does not
include government accounts and accounts in collection (the "Excluded
Accounts"); and (iii) 50% of the Excluded Receivables as actually collected
during year immediately following the Closing.
2.2. Payment of Consideration. At execution of this Agreement, Buyer
shall deliver a deposit of $37,500 which shall be non-refundable in the event
Closing does not occur due to Buyer's breach of this Agreement. At Closing,
Buyer shall deliver the balance of the Purchase Price to Michigan National Bank
in immediately available funds for immediate credit against Seller's account.
At execution of this Agreement, Buyer shall also deliver to Michigan National
Bank a commitment letter for purchase financing from an institutional lender in
the amount of the balance of the Purchase Price. In respect of the Excluded
Receivables, Buyer shall pay amounts due thereon each month on or before the
30th day of the month with the final amount payable on the 30th day of the
thirteenth month after the Closing.
2.3. Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets in the manner required by Section 1060 of
the Internal Revenue Code of 1986, as amended, as shall be agreed prior to
Closing.
2.4. Closing. The transaction contemplated by this Agreement shall be
consummated (the "CLOSING") at 9:30 a.m., at Seller's corporate office in
Mattawan, Michigan on the date (the CLOSING DATE") that is 10 days after
approval of the United States Bankruptcy Court for the District of Delaware, or
such other court of competent jurisdiction (the "COURT").
ARTICLE III
Representations and Warranties of Seller
Seller hereby represents and warrants to Buyer as of the date hereof
as follows:
3.1. Due Organization. Seller is a corporation validly existing and
in good standing under the laws of Delaware with full power and authority to
carry on the Fiberoptics Division as it is now conducted.
3.2. Authority. Except for the consent of the Court, Seller has all
requisite power and authority, without the consent of any other person (except
those which have been obtained), to execute and deliver this Agreement and to
carry out the transactions contemplated hereby. All actions required to be
taken by Seller to permit the proper execution, delivery and performance of this
Agreement and all transactions contemplated hereby have been duly and properly
taken.
3.3. Valid and Binding Obligation. This Agreement has been duly
executed and delivered and, subject to the approval of the Court, constitutes
the valid and legally binding obligation of Seller, enforceable against Seller
in accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
creditors' rights generally and by general equitable principles.
ARTICLE IV
Representations and Warranties of Buyer
Buyer hereby represents and warrants to Seller as of the date hereof
as follows:
4.1. Due Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of Michigan, and has full
power and authority to carry on the business in which it is engaged.
4.2. Authority. Buyer has all requisite power and authority, without
the consent of any other person (except those which have been obtained), to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. All actions required to be taken by Buyer to permit the
proper execution, delivery and performance of this Agreement and all
transactions contemplated hereby have been duly and properly taken.
4.3. Valid and Binding Obligation. This Agreement has been duly
executed and delivered and constitutes the valid and legally binding obligations
of Buyer, enforceable against Buyer in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors' rights generally and by general
equitable principles.
ARTICLE V
Additional Covenants and Agreements
5.1. Access to Records. Buyer shall acquire the books and records
relating to the Fiberoptics Division (other than permanent records required for
tax and accounting purposes); provided, however, that each party shall have
reasonable access to the books and records retained by the other party and its
agents or affiliates.
5.2. Access to Employees. Buyer shall authorize and direct its
employees to provide such reasonable assistance to Seller following Closing as
is necessary for Seller to consummate the transactions contemplated by this
Agreement, including, but not limited to, Seller's final accounting.
ARTICLE VI
Conduct Prior to Closing
6.1. Joint Obligations. The following shall apply with equal force to
Seller and Buyer:
(a) Seller and Buyer shall use all reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable to consummate the transaction
contemplated hereby as soon as practicable, subject to Seller's
fiduciary duties.
(b) Each party shall promptly give the other party written
notice of the existence or occurrence of any condition which would
make any representation or warranty herein contained of either party
untrue or which might reasonably be expected to prevent the
consummation of the transaction contemplated hereby.
ARTICLE VII
Conditions to Closing
7.1. Conditions to Seller's Obligations. The obligation of Seller to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Seller's option, be
terminated pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made by Buyer shall be
true and correct in all material respects as if originally made on and as
of the Closing Date;
(b) All obligations of Buyer to be performed hereunder through the
Closing Date shall have been performed;
(c) Approval of this Agreement by the Court;
(d) Approval of this Agreement by Seller's Board of Directors;
(e) No suit, proceeding or investigation shall have been commenced by
any governmental authority or private person on any grounds to restrain,
enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby which is not disposed
of by the Order; and
(f) The receipt by Seller of an offer which is higher than the
Purchase Price or on better terms.
7.2. Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Buyer's option, be terminated
pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made by Seller shall
be true and correct in all material respects as if originally made on and
as of the Closing Date;
(b) All obligations of Seller to be performed hereunder through,
and including on, the Closing Date shall have been performed;
(c) Seller shall have filed pleadings no later than October 15, 1995
seeking the Court's approval of this Agreement;
(d) The Court shall have entered an order in substantially the
form attached hereto (the "ORDER") in the Bankruptcy Case authorizing
the purchase and sale of the Purchased Assets under this Agreement,
upon the terms and conditions set forth in this Agreement, and
otherwise free and clear of: (i) all liens, title claims, encumbrances
and security interests; (ii) all contracts, agreements and employment
agreements, other than those purchased under Section 1.1(c) hereof and
any real property taxes relating to the real property; and (iii) all
obligations and liabilities. The Order shall contain a finding of
fact that Buyer is making its purchase in good faith within the
meaning of Section 363(m) of the Bankruptcy Code. No stay of the
Order shall have been issued by the Court or any other court. As of
the Closing Date, the Order shall not have been modified, amended,
dissolved, revoked or rescinded in any way materially adverse to the
Buyer; and
(e) No suit, proceeding or investigation shall have been commenced by
any governmental authority or private person on any grounds to restrain,
enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby which is not disposed
of by the Order.
ARTICLE VIII
Closing
8.1. Form of Documents. At Closing, the parties shall deliver the
documents, and shall perform the acts, which are set forth in this Article VIII.
8.2. Buyer's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.2 of this Agreement, Buyer shall execute
and/or deliver to Seller all of the following:
(a) the Purchase Price;
(b) a certified copy of Buyer's Certificate of Incorporation and
By-laws;
(c) a certificate of good standing of Buyer, issued not earlier than
ten days prior to the Closing Date by the Secretary of State of Michigan;
(d) an incumbency and specimen signature certificate with respect to
the officers of Buyer executing this Agreement and all agreements
contemplated hereby and on behalf of Buyer;
(e) an agreement of assumption of all liabilities and obligations to
be assumed by Buyer as provided herein, in a form reasonably acceptable to
all parties;
(f) a certified copy of resolutions of Buyer's board of
directors, authorizing the execution, delivery and performance of this
Agreement and all agreements contemplated hereby; and
(g) a closing certificate executed by Buyer, pursuant to which
Buyer represents and warrants to Seller that Buyer's representations
and warranties to Seller are true and correct in all material respects
as of the Closing Date as if then originally made, that all covenants
required by the terms hereof to be performed by Buyer on or before the
Closing Date, to the extent not waived by Seller in writing, have been
so performed, and that all documents to be executed and delivered by
Buyer at Closing have been executed by duly authorized officers of
Buyer.
8.3. Seller's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.1 hereof, Seller shall deliver to Buyer
physical possession of all tangible Purchased Assets, and shall execute and/or
deliver or cause to be executed and/or delivered to Buyer all of the following:
(a) certified copies of Seller's Articles of Incorporation and
Bylaws;
(b) certificate of good standing of Seller, issued not earlier
than ten days prior to the Closing Date by the Secretary of State of
Delaware;
(c) an incumbency and specimen signature certificate with respect to
the officers of Seller executing this Agreement and all documents
contemplated hereby;
(d) a certified copy of resolutions of Seller's board of directors
and stockholders, authorizing the execution, delivery and performance of
this Agreement and all documents contemplated hereby;
(e) a bill of sale, executed by Seller, conveying all of the
Purchased Assets to Buyer;
(f) a closing certificate duly executed by Seller, pursuant to which
Seller represents and warrants to Buyer that Seller's representations and
warranties to Buyer are true and correct in all material respects as of the
Closing Date as if then originally made, that all covenants required by the
terms hereof to be performed by Seller on or before the Closing Date, to
the extent not waived by Buyer in writing, have been so performed, and that
all documents to be executed and delivered by Seller at Closing have been
executed by duly authorized officers of Seller; and
(g) a certified copy of the Order.
ARTICLE IX
Termination
9.1. Right to Terminate. This Agreement and the transaction contemplated
hereby may be terminated by either of the parties to this Agreement if the Court
shall not have issued the Order at or before November 14, 1995; provided,
however, that the right to terminate this Agreement under this Section 9.1 shall
not be available to any party whose failure to fulfill any material obligation
under this Agreement has been the cause of or resulted in the failure of Closing
to occur.
9.2. Certain Effects of Termination. In the event of the termination of
this Agreement by either Seller or Buyer as provided in Section 9.1, each party,
if so requested by the other party, will promptly return every document
furnished to it by the other party (or its subsidiary, division, associate or
affiliate) in connection with the transaction contemplated hereby, whether so
obtained before or after the execution of this Agreement, and any copies thereof
(except for copies of documents publicly available) which may have been made,
and will use reasonable efforts to cause its representatives and any
representatives of financial institutions and others to whom such documents were
furnished to promptly return such documents and any copies thereof.
This Section 9.2 shall survive any termination of this Agreement.
9.3. Other Offers / Bidding Procedures. Buyer understands and agrees that
Seller's obligations under this Agreement and Buyer's right to acquire the
Purchased Assets for the Purchase Price are expressly subject Seller's right to
seek higher and better offers. Seller shall seek an order from the Court
establishing procedures governing any subsequent offers by third parties for the
Purchased Assets. Seller shall request the Court order any such subsequent
offers exceed the Buyer's offer set forth in this Agreement by an amount not
less than $20,000.
ARTICLE X
Miscellaneous
10.1. Expenses; Taxes. Buyer and Seller shall each bear their own
respective expenses incurred in connection with this Agreement and in connection
with all obligations required to be performed by each of them under this
Agreement. Buyer shall pay all sales, use and transfer taxes with respect to
the transfer of the Purchased Assets.
10.2. Reimbursement of Expenses. If this Agreement has not been
terminated pursuant to Section 9.1 and the Purchased Assets are sold to another
buyer, Buyer shall be paid from the initial proceeds of such sale an amount
equal to the fees and expenses expended by Buyer in connection with the
negotiation and performance of this Agreement (including without limitation, all
accounting and legal fees), but such amount shall not exceed the lesser of
$5,000 or the amount by which the successful bid exceeds the consideration due
hereunder. Buyer and Seller agree that this is reasonable, considering all of
the circumstances existing on the date of this Agreement.
10.3. Publicity. Neither Buyer nor Seller shall issue any press
release or public announcement of any kind concerning the transactions
contemplated by this Agreement without the prior written consent of the other
party, except with respect to disclosures which either party is advised by
counsel are appropriate under applicable laws, and as to which each party will
consult with the other.
10.4. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person or
sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy. A notice shall be deemed given: (a) when delivered
by personal delivery (as evidenced by the receipt); (b) five days after
deposit in the mail if sent by registered or certified mail; (c) one (1) day
after having been sent by commercial overnight courier as evidenced by the
written verification of receipt; or (d) on the date of confirmation if
telecopied.
(a) If to Buyer:
DLLW Investment Group
7355 Hidden Cove
Kalamazoo, Michigan 49009
(b) If to Seller:
Medical Surgical Specialties, Inc.
c/o International Research and
Development Corporation
500 North Main Street
Mattawan, Michigan 49071
Attention: President
Telecopy: (616) 668-4151
With a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attention: Lewis S. Rosenbloom, Esq.
Telecopy: (312) 984-3651
Either party may change its address for receiving notice by written notice given
to the other party.
10.5. Benefit and Assignment. All of the terms and provisions of
this Agreement shall bind and benefit, and be enforceable by, the successors and
assigns of the parties hereto.
10.6. Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof and
supersedes any previous written or oral agreements or understandings in
connection therewith.
10.7. Severability. If any term, provision, covenant or condition
of this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remainder of the provisions hereof shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
10.8. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
10.9. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.10. Governing Law. This Agreement is made pursuant to, and
shall be governed by, the internal substantive laws of the State of Delaware.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf all as of the date first written above.
DLLW INVESTMENT GROUP
By: /s/ Gerald A. Welch
Name: Gerald A. Welch
Title: Mgng. Prt.
MEDICAL SURGICAL SPECIALTIES, LTD.
By: /s Michael A. Feder
Name: Michael A. Feder
Title: Acting President
Exhibit 99.8
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
IRAD CORPORATION, CI ESTATE, )
INC., f/k/a/ CARME, INC. ) Case No. 95-918 (PJW)
INTERNATIONAL RESEARCH AND )
DEVELOPMENT CORPORATION, and )
MEDICAL SURGICAL SPECIALTIES, )
LTD. ) Jointly Administered
)
Debtors. )
ORDER PURSUANT TO SECTION 363 OF THE BANKRUPTCY
CODE AUTHORIZING SALE OF DOOR-AID ASSETS
THIS MATTER is before the Court on the Motion (the "Motion") of
Medical Surgical Specialties, Ltd., debtor and debtor-in-possession (the
"Debtor"), for an order, inter alia, authorizing the sale of substantially all
of the Debtor's assets related to its Door-Aid Division (the "Purchased
Assets"). Notice of the Motion has been given to the United States Trustee, the
Debtor's twenty unsecured creditors, counsel for Michigan National Bank, all
parties known to claim an interest in the Debtor's assets and all parties who,
prior to the filing of the Motion, had indicated an interest in acquiring the
assets. A hearing on the Motion was convened in this Court on November 9, 1995.
Based on the Motion and the record at the hearing and based on the letter from
counsel to Willard H. Nyenbrink withdrawing his objection to the Motion, the
Court hereby finds that the sale of the Door-Aid Division to D-A Corporation
(the "Buyer") in accordance with the terms of its highest and final bid made at
the auction for the Purchased Assets conducted on November 8, 1995 represents
the proper exercise of the Debtor's business judgment and is appropriate in
accordance with the standards applicable thereto.
NOW, THEREFORE, based on the foregoing and for the reasons stated on
the record at the hearing, it is hereby ORDERED as follows:
1. The Debtor is authorized to make, execute and deliver any and all
documents and to take all such actions as are reasonably necessary to consummate
the sale of the Purchased Assets to the Buyer.
2. The Debtor is authorized pursuant to Sections 363(b) and (f) and
365(a) of the Bankruptcy Code and Bankruptcy Rule 6004 and 6006, to sell,
transfer, grant, convey and assign, free and clear of all liens, claims,
security interests and encumbrances, all of the Purchased Assets to the Buyer
for an aggregate cash purchase price of $180,000 subject to adjustment for
changes in accounts receivable and inventory from the amounts contained in
Motion (collectively, the "Sale Price").
3. The approval of the sale of the Purchased Assets is in the best
interests of the Debtor, its estate and creditors, there are good business
reasons for the Debtor to consummate the sale of the Purchased Assets to the
Buyer and the Buyer is hereby determined to be a good faith purchaser within the
meaning of Section 363(m) of the Bankruptcy Code. Any reversal or modification
on appeal of this Order shall not affect the validity of the sale of the
Purchased Assets authorized hereby unless consummation of such sale is stayed
pending such appeal.
4. The Sale Price paid under the Asset Purchase Agreement is the
result of a free and open sale process attended by qualified bidders and the
Sale Price was not controlled by an agreement among any potential buyers as is
prohibited by Section 363(n) of the Bankruptcy Code.
5. This is a final and appealable order and the Court expressly
directs entry of judgment as set forth herein.
Dated: Wilmington, Delaware
November 20, 1995
/s/ Peter J. Walsh
United States Bankruptcy Judge
Exhibit 99.9
ASSET PURCHASE AGREEMENT
This Agreement is made and entered into as of the 8th day of November
1995, by and between D-A Corporation, a Michigan corporation ("BUYER") and
Medical Surgical Specialties, Ltd., a Delaware corporation ("SELLER").
RECITALS
WHEREAS, Seller is primarily engaged in two distinct businesses which
are (a) the reconditioning of fiberoptic and surgical medical products (the
"FIBEROPTICS DIVISION") and (b) the distribution of specialty products to
aid disabled individuals (the"DOOR-AID DIVISION").
WHEREAS, on September 28, 1995, the Seller filed a voluntary petition
for relief under Chapter 11, Title 11, United States Code ("Bankruptcy Code")
with the United States Bankruptcy Court for the District of Delaware (the
"Court"); and
WHEREAS, Seller desires to sell to Buyer substantially all of Seller's
assets related to the Door-Aid Division and Buyer desires to purchase said
assets, all on the terms and subject to the conditions contained in this
Agreement.
WHEREAS, Seller and Kronauer Corporation are parties to an Asset
Purchase Agreement, dated as of November 3, 1995 (the "Prior Agreement") which
was approved by Order of the Court on November 20, 1995.
WHEREAS, Kronauer Corporation has assigned all of its rights under the
Prior Agreement to D-A Corporation.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Purchase and Sale of Assets
1.1. Purchased Assets. At Closing, Buyer shall purchase and Seller
shall sell, transfer, assign and deliver to Buyer for the consideration and upon
the terms and conditions hereinafter set forth, all assets of the Door-Aid
Division (the "PURCHASED ASSETS") not otherwise expressly excluded pursuant to
Section 1.2 of this Agreement. The Purchased Assets shall include, but not be
limited to, all of Debtor's interest in and to the following:
(a) All outstanding and uncollected accounts and notes receivable
listed on Seller's Aged Receivables Report
attached hereto as Schedule 1.1(a) (the "ACCOUNTS RECEIVABLE");
(b) All inventory listed on the Inventory Report attached hereto as
Schedule 1.1(b) (the "INVENTORY");
(c) All trademarks, trade names, trade styles and logos (and all
goodwill associated therewith), registered or unregistered, and all
applications, registrations and licenses therefor used in the Door-Aid
Division, and all patents and licenses therefor used in the Door-Aid
Division and all leases and licenses of other intellectual property used in
the Door-Aid Division and all telephone numbers used in the Door-Aid
Division, the foregoing items including without limitation those listed on
Schedule 1.1(c) hereto;
(d) All customer files and records relating to the Door-Aid Division;
(e) All personal property such as furniture, equipment, tools,
machinery used in the Door-Aid Division (the "PERSONAL PROPERTY"),
including those items listed on Schedule 1.1(e); and
(f) 1992 Ford Aerostar Van, VIN # 1FDA 15 UONZA 79477.
EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLE III, SELLER IS SELLING THE
PURCHASED ASSETS TO BUYER IN AS IS, WHERE IS CONDITION. ALL WARRANTIES, EXPRESS
OR IMPLIED WITH RESPECT TO THE PURCHASED ASSETS AND THE DOOR-AID DIVISION,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
1.2. Excluded Assets. The Excluded Assets are as follows:
(a) all assets not related to the Door-Aid Division;
(b) all stocks, partnership interests and other equity investments of
Seller;
(c) all stock of Seller, including treasury stock and authorized, but
unissued stock;
(d) any asset which is property of a subsidiary or affiliate or
parent of Seller;
(e) all cash on hand and in banks, cash equivalents, investments,
utility deposits, advance payments and professional retainers;
(f) all avoidance actions, claims (and benefits arising therefrom)
and litigation against third parties to the extent such actions, claims and
litigation are not related directly to continuation of the Door-Aid
Division; including, without limitation, actions, claims and litigations
against Seller's current and former officers, directors, shareholders,
employees, agents and auditors;
(g) all tax refunds;
(h) Seller's rights under this Agreement;
(i) Seller's corporate charter, minute and stock record books, and
corporate seal; and
(j) all rights under any insurance policies, including policies on
the life of individuals, property casualty and director and officer
liability.
1.3. Assumed Obligations. At Closing, Seller shall assign, and Buyer
shall assume and agree to discharge in a timely fashion, all of Seller's
liabilities and obligations arising under the agreements purchased under Section
1.1(c) hereof and all unpaid personal property taxes relating to the Purchased
Assets. Further, Buyer shall agree to assume and discharge all obligations,
whether arising by contract, course of dealing or otherwise, to customers of the
Door-Aid Division with respect to the return of Products or credits for unsold
merchandise. Buyer is expressly not assuming any other obligations or
liabilities, whether accrued, absolute, contingent, matured, unmatured or other
of Seller.
ARTICLE II
Consideration, Manner of Payment and Closing
2.1. Consideration. The purchase price consideration (the "PURCHASE
PRICE") for the Purchased Assets is $166,924.66.
2.2. Payment of Consideration. By the execution of this Agreement,
Buyer shall have delivered a deposit of $12,500 which shall be non-refundable in
the event Closing does not occur due to Buyer's breach of this Agreement. At
Closing, Buyer shall deliver the balance of the Purchase Price to Michigan
National Bank in immediately available funds for immediate credit against
Seller's account.
2.3. Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets in the manner required by Section 1060 of
the Internal Revenue Code of 1986, as amended, as shall be agreed prior to
December 20, 1995.
2.4. Closing. The transaction contemplated by this Agreement shall be
consummated (the "CLOSING") at 11:00 a.m. on November 22, 1995, or on such later
date as the parties mutually agree, at the offices of McDermott, Will & Emery,
227 West Monroe Street, Chicago, Illinois (the CLOSING DATE").
ARTICLE III
Representations and Warranties of Seller
Seller hereby represents and warrants to Buyer as of the date hereof
as follows:
3.1. Due Organization. Seller is a corporation validly existing and
in good standing under the laws of Delaware with full power and authority to
carry on the Door-Aid Division as it is now conducted.
3.2. Authority. Except for the consent of the Court, Seller has all
requisite power and authority, without the consent of any other person (except
those which have been obtained), to execute and deliver this Agreement and to
carry out the transactions contemplated hereby. All actions required to be
taken by Seller to permit the proper execution, delivery and performance of this
Agreement and all transactions contemplated hereby have been duly and properly
taken.
3.3. Valid and Binding Obligation. This Agreement has been duly
executed and delivered and, subject to the approval of the Court, constitutes
the valid and legally binding obligation of Seller, enforceable against Seller
in accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
creditors' rights generally and by general equitable principles.
3.4 Title. Upon entry of an appropriate order by the Bankruptcy
Court, all of the Purchased Assets, upon execution and Bill of Sale, will have
been acquired by Purchaser free and clear of all liens, claims and other
interests therein.
3.5 Administrative Expenses. Seller has paid all known post-petition
obligations; however, to the extent that any administrative claims by employees,
sales representatives, or vendors have not been paid, Seller will pay such
claims in an aggregate amount not to exceed $5,000.
ARTICLE IV
Representations and Warranties of Buyer
Buyer hereby represents and warrants to Seller as of November 20,
1995, as follows:
4.1. Due Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of
Michigan, and has full power and authority to carry on the business in which it
is engaged.
4.2. Authority. Buyer has all requisite power and authority, without
the consent of any other person (except those which have been obtained), to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. All actions required to be taken by Buyer to permit the
proper execution, delivery and performance of this Agreement and all
transactions contemplated hereby have been duly and properly taken.
4.3. Valid and Binding Obligation. This Agreement has been duly
executed and delivered and constitutes the valid and legally binding obligations
of Buyer, enforceable against Buyer in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors' rights generally and by general
equitable principles.
ARTICLE V
Additional Covenants and Agreements
5.1. Access to Records. Buyer shall acquire the books and records
relating to the Door-Aid Division (other than permanent records required for tax
and accounting purposes); provided, however, that each party shall have
reasonable access to the books and records retained by the other party and its
agents or affiliates.
5.2. Access to Employees. Buyer shall authorize and direct its
employees to provide such reasonable assistance to Seller following Closing as
is necessary for Seller to consummate the transactions contemplated by this
Agreement, including, but not limited to, Seller's final accounting.
ARTICLE VI
Conduct Prior to Closing
6.1. Joint Obligations. The following shall apply with equal force to
Seller and Buyer:
(a) Seller and Buyer shall use all reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable to consummate the transaction
contemplated hereby as soon as practicable, subject to Seller's
fiduciary duties, including duties as a debtor in possession.
(b) Each party shall promptly give the other party written
notice of the existence or occurrence of any condition which would
make any representation or warranty herein contained of either party
untrue or which might reasonably be expected to prevent the
consummation of the transaction contemplated hereby.
ARTICLE VII
Conditions to Closing
7.1. Conditions to Seller's Obligations. The obligation of Seller to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Seller's option, be
terminated pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made by Buyer shall be
true and correct in all material respects as if originally made on and as
of the Closing Date;
(b) All obligations of Buyer to be performed hereunder through the
Closing Date shall have been performed;
(c) Approval of this Agreement by the Court;
(d) Approval of this Agreement by the Board of Directors of
International Research and Development Corporation;
(e) Approval of this Agreement by Seller's Board of Directors; and
(f) No suit, proceeding or investigation shall have been commenced by
any governmental authority or private person on any grounds to restrain,
enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby which is not disposed
of by the Order.
7.2. Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Buyer's option, be terminated
pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made by Seller shall
be true and correct in all material respects as if originally made on and
as of the Closing Date;
(b) All obligations of Seller to be performed hereunder through,
and including on, the Closing Date shall have been performed;
(c) The Court shall have entered an order (the "ORDER") in the
Bankruptcy Case authorizing the purchase and sale of the Purchased
Assets under this Agreement, upon the terms and conditions set forth
in this Agreement, and otherwise free and clear of: (i) all liens,
title claims, encumbrances and security interests; (ii) all contracts,
agreements and employment agreements, other than those purchased under
Section 1.1(c) hereof and (iii) all obligations and liabilities. The
Order shall contain a finding of fact that Buyer is making its
purchase in good faith within the meaning of Section 363(m) of the
Bankruptcy Code. No stay of the Order shall have been issued by the
Court or any other court. As of the Closing Date, the Order shall not
have been modified, amended, dissolved, revoked or rescinded in any
way materially adverse to the Buyer; and
(d) No suit, proceeding or investigation shall have been commenced by
any governmental authority or private person on any grounds to restrain,
enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby which is not disposed
of by the Order.
ARTICLE VIII
Closing
8.1. Form of Documents. At Closing, the parties shall deliver the
documents, and shall perform the acts, which are set forth in this Article VIII.
8.2. Buyer's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.2 of this Agreement, Buyer shall execute
and/or deliver to Seller all of the following:
(a) the Purchase Price;
(b) a certified copy of Buyer's Certificate of Incorporation and
By-laws;
(c) a certificate of good standing of Buyer, issued not earlier than
ten days prior to the Closing Date by the Secretary of State of Michigan;
(d) an incumbency and specimen signature certificate with respect to
the officers of Buyer executing this Agreement and all agreements
contemplated hereby and on behalf of Buyer;
(e) a certified copy of resolutions of Buyer's board of
directors, authorizing the execution, delivery and performance of this
Agreement and all agreements contemplated hereby; and
(f) a closing certificate executed by Buyer, pursuant to which
Buyer represents and warrants to Seller that Buyer's representations
and warranties to Seller are true and correct in all material respects
as of the Closing Date as if then originally made, that all covenants
required by the terms hereof to be performed by Buyer on or before the
Closing Date, to the extent not waived by Seller in writing, have been
so performed, and that all documents to be executed and delivered by
Buyer at Closing have been executed by duly authorized officers of
Buyer.
8.3. Seller's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.1 hereof, Seller shall deliver to Buyer
physical possession of all tangible Purchased Assets, and shall execute and/or
deliver or cause to be executed and/or delivered to Buyer all of the following:
(a) certified copies of Seller's Articles of Incorporation and
Bylaws;
(b) certificates of good standing of Seller, issued not earlier
than ten days prior to the Closing Date by the Secretary of State of
Delaware;
(c) an incumbency and specimen signature certificate with respect to
the officers of Seller executing this Agreement and all documents
contemplated hereby;
(d) a certified copy of resolutions of Seller's board of directors
and stockholders, authorizing the execution, delivery and performance of
this Agreement and all documents contemplated hereby;
(e) a bill of sale, executed by Seller, conveying all of the
Purchased Assets to Buyer;
(f) assignments of patents, trademarks and licenses in a form
suitable for recording;
(g) a closing certificate duly executed by Seller, pursuant to which
Seller represents and warrants to Buyer that Seller's representations and
warranties to Buyer are true and correct in all material respects as of the
Closing Date as if then originally made, that all covenants required by the
terms hereof to be performed by Seller on or before the Closing Date, to
the extent not waived by Buyer in writing, have been so performed, and that
all documents to be executed and delivered by Seller at Closing have been
executed by duly authorized officers of Seller; and
(h) a certified copy of the Order.
ARTICLE IX
Termination
9.1. Right to Terminate. This Agreement and the transaction contemplated
hereby may be terminated by either of the parties to this Agreement if the Court
shall not have issued the Order at or before November 30, 1995; provided,
however, that the right to terminate this Agreement under this Section 9.1 shall
not be available to any party whose failure to fulfill any material obligation
under this Agreement has been the cause of or resulted in the failure of Closing
to occur.
9.2. Certain Effects of Termination. In the event of the termination of
this Agreement by either Seller or Buyer as provided in Section 9.1, each party,
if so requested by the other party, will promptly return every document
furnished to it by the other party (or its subsidiary, division, associate or
affiliate) in connection with the transaction contemplated hereby, whether so
obtained before or after the execution of this Agreement, and any copies thereof
(except for copies of documents publicly available) which may have been made,
and will use reasonable efforts to cause its representatives and any
representatives of financial institutions and others to whom such documents were
furnished to promptly return such documents and any copies thereof.
This Section 9.2 shall survive any termination of this Agreement.
ARTICLE X
Miscellaneous
10.1. Expenses; Taxes. Buyer and Seller shall each bear their own
respective expenses incurred in connection with this Agreement and in connection
with all obligations required to be performed by each of them under this
Agreement. Buyer shall pay all sales, use and transfer taxes with respect to
the transfer of the Purchased Assets.
10.2. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person or
sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy. A notice shall be deemed given: (a) when delivered
by personal delivery (as evidenced by the receipt); (b) five days after deposit
in the mail if sent by registered or certified mail; (c) one (1) day after
having been sent by commercial overnight courier as evidenced by the written
verification of receipt; or (d) on the date of confirmation if telecopied.
(a) If to Buyer:
D-A Corporation
c/o Kronauer Corporation
Three First National Plaza
Suite 640
Chicago, Illinois 60602-4210
Attention: Managing Director
Telecopy: (312)345-7309
(b) If to Seller:
Medical Surgical Specialties, Inc.
c/o International Research and
Development Corporation
500 North Main Street
Mattawan, Michigan 49071
Attention: President
Telecopy: (616) 668-4151
With a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attention: Lewis S. Rosenbloom, Esq.
Telecopy: (312) 984-3651
Either party may change its address for receiving notice by written notice given
to the other party.
10.3. Benefit and Assignment. All of the terms and provisions of
this Agreement shall bind and benefit, and be enforceable by, the successors and
assigns of the parties hereto.
10.4. Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof and
supersedes any previous written or oral agreements or understandings in
connection therewith, including the Prior Agreement.
10.5. Severability. If any term, provision, covenant or condition
of this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remainder of the provisions hereof shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
10.6. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
10.7. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.8. Governing Law. This Agreement is made pursuant to, and
shall be governed by, the internal substantive laws of the State of Delaware.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf all as of the date first written above.
D-A CORPORATION
By: /s/ Emmett R. Kronauer
Name: Emmett R. Kronauer
Title: Treasuer
MEDICAL SURGICAL SPECIALTIES, LTD.
By: /s/ Michael A. Feder
Name: Michael A. Feder
Title: President
