<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
MICROFLUIDICS INTERNATIONAL CORPORATION
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
595073 10 7
----------------------------------------
(CUSIP Number)
J.B. Jennings
c/o Microfluidics International Corporation
30 Ossipee Road
Newton, Massachusetts 02164
617-959-5452
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
August 14, 1998
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the
following box [ ].
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-7(b) for the other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 5 pages
<PAGE>
SCHEDULE 13D
- ----------------------- ---------------------
CUSIP NO. 595073 10 7 PAGE 2 OF 5 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
J.B. Jennings
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States of America
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 450,000
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
None
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 450,000
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
None
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
450,000
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
8.7%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
IN
- ------------------------------------------------------------------------------
Page 2 of 5 pages
<PAGE>
Item 1. Security and Issuer
-------------------
This statement on Schedule 13D relates to the common stock, $.01 par value per
share (the "Common Stock"), of Microfluidics International Corporation, a
Delaware corporation ("Microfluidics"), the principal executive offices of which
are located at 30 Ossipee Road, Newton, Massachusetts 02164.
Item 2. Identity and Background
-----------------------
J.B. Jennings' business address is c/o Microfluidics International
Corporation, 30 Ossipee Road, Newton, Massachusetts 02164. Mr. Jennings serves
as president of Microfluidics' Morehouse-COWLES Division and as a director of
Microfluidics. The Morehouse-COWLES Division of Microfluidics makes
crushing/grinding, mixing, dissolving and dispersion equipment and systems. Mr.
Jennings has not, during the last five years, been convicted in any criminal
proceeding (excluding traffic violations or similar misdemeanors) nor has he
been a party to any civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he was or is subject to any
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to federal or state securities laws or finding
any violation with respect to such laws. Mr. Jennings is a citizen of the
United States of America.
Item 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
On August 14, 1998, Microfluidics purchased (the "Acquisition") the assets of
both Epworth Manufacturing Company and Morehouse-COWLES, Inc. (the "Acquired
Companies"). Mr. Jennings owned 50% of the Acquired Companies. In connection
with the Acquisition and pursuant to the terms of an Asset Purchase Agreement,
dated as of June 19, 1998, between Microfluidics and the Acquired Companies (the
"Asset Purchase Agreement"), Microfluidics issued 450,000 shares of its Common
Stock to Mr. Jennings as partial consideration for the assets of the Acquired
Companies. On the day prior to the closing of the Acquisition, August 13, 1998,
the closing price of the Common Stock on NASDAQ was $1.75 per share.
Item 4. Purpose of Transaction
----------------------
The shares, the ownership of which is reported hereby, were acquired by Mr.
Jennings for investment purposes. Mr. Jennings reserves the right from time to
time to acquire additional shares, or to dispose of some or all of his shares.
In connection with the Acquisition, Mr. Jennings was appointed to the Board of
Directors of Microfluidics. It is currently anticipated that the Board of
Directors will nominate Mr. Jennings for election in connection with the next
election of Directors.
Except as set forth above, Mr. Jennings does not have any plan or proposal
which relates to, or would result in, any of the matters referred to in
paragraphs (a) through (j) of Item 4 of the General Instructions for Schedule
13D.
Page 3 of 5 pages
<PAGE>
Item 5. Interest in Securities of the Issuer
------------------------------------
(a) Based upon the outstanding number of shares set forth in
Microfluidics' Form 10-Q for the fiscal quarter ended June 30, 1998, Mr.
Jennings' beneficial ownership of 450,000 shares of Common Stock constitutes
beneficial ownership of 8.7% of the total number of shares of outstanding Common
Stock.
(b) Mr. Jennings has the sole power to vote or to direct the vote of,
and sole power to dispose or direct the disposition of, the 450,000 shares of
Common Stock acquired in connection with the Acquisition.
(c) During the past sixty days, Mr. Jennings has not effected any
transactions in shares of Common Stock except pursuant to the Asset Purchase
Agreement.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
-------------------------------------------------------------
Respect to Securities of the Issuer
-----------------------------------
Microfluidics and Mr. Jennings entered into an Asset Purchase Agreement,
dated as of June 19, 1998, pursuant to which Microfluidics purchased the assets
of the Acquired Companies from Mr. Jennings, in part, for 450,000 shares of
Common Stock. Mr. Jennings is the president of Microfluidics' Morehouse-COWLES
Division.
In addition, subject to the terms and conditions set forth therein,
Microfluidics agreed in the Asset Purchase Agreement to appoint Mr. Jennings to
its Board of Directors and to use reasonable efforts to cause the nomination of
Mr. Jennings as a director of Microfluidics at the 1999 annual meeting of its
shareholders. Thereafter, subject to the terms and conditions set forth in the
Asset Purchase Agreement, Microfluidics agreed to use its reasonable efforts to
continue to support the nomination of Mr. Jennings as a director of
Microfluidics at subsequent annual meetings of its shareholders.
In addition, Microfluidics entered into a Stockholders Agreement (the
"Stockholders Agreement") with Mr. Jennings and Bret A. Lewis, another
shareholder of the Acquired Companies, dated August 14, 1998. The Stockholders
Agreement provides for the terms and conditions governing the transfer of all
shares of Common Stock owned by Messrs. Jennings and Lewis, the management and
operation of Microfluidics, the relations among Messrs. Jennings and Lewis and
certain other matters.
Except as described in Items 3 and 4 above and in this Item 6, Mr. Jennings
does not have any contract, arrangement, understanding or relationship with any
person with respect to any security of Microfluidics.
Page 4 of 5 pages
<PAGE>
Item 7. Material to be Filed as Exhibits
--------------------------------
Exhibit No. Description
1.1 Asset Purchase Agreement, dated as of June 19, 1998, by
and between Microfluidics and the Acquired Companies.
1.2 Stockholders' Agreement, dated August 14, 1998 by and
among Microfluidics, Mr. Jennings and Bret A. Lewis.
Signature
---------
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: August 21, 1998 By: /s/ J.B. Jennings
----------------------------------------
J.B. Jennings
Page 5 of 5 pages
<PAGE>
EXHIBIT 1.1
______________________________________________________________________________
______________________________________________________________________________
ASSET PURCHASE AGREEMENT
between
EPWORTH MANUFACTURING COMPANY, INC.
and
MOREHOUSE - COWLES, INC.,
as Sellers
and
MICROFLUIDICS INTERNATIONAL
CORPORATION
as Buyer
_______________________________
June 19, 1998
______________________________________________________________________________
______________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I PURCHASE AND SALE OF ASSETS .................................. 1
SECTION 1.01 Sale of Transferred Assets ............................... 1
SECTION 1.02 Consideration for the Transferred Assets ................. 2
SECTION 1.03 Assumption of Liabilities ................................ 5
SECTION 1.04 Closing .................................................. 5
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE SELLER ................ 7
SECTION 2.01 Organization and Qualification ........................... 7
SECTION 2.02 Corporate Power and Authority ............................ 8
SECTION 2.03 Validity, Etc. ........................................... 8
SECTION 2.04 Financial Statements ..................................... 8
SECTION 2.05 Absence of Undisclosed Liabilities ....................... 9
SECTION 2.06 Absence of Adverse Change; Conduct of Business ........... 9
SECTION 2.07 Inventories .............................................. 11
SECTION 2.08 Receivables .............................................. 11
SECTION 2.09 Taxes .................................................... 11
SECTION 2.10 Litigation ............................................... 12
SECTION 2.11 Certain Practices ........................................ 13
SECTION 2.12 Compliance with Law ...................................... 13
SECTION 2.13 Licenses and Permits ..................................... 13
SECTION 2.14 Labor and Employee Relations ............................. 13
SECTION 2.15 Certain Employees ........................................ 14
SECTION 2.16 Employee Benefit Plans ................................... 14
SECTION 2.17 Tangible Properties ...................................... 16
SECTION 2.18 Owned Premises ........................................... 17
SECTION 2.19 Leased Premises .......................................... 17
SECTION 2.20 Environmental Matters .................................... 17
SECTION 2.21 Insurance ................................................ 20
SECTION 2.22 Outstanding Commitments .................................. 21
SECTION 2.23 Intellectual Property .................................... 21
SECTION 2.24 Proprietary Information of Third Parties ................. 23
SECTION 2.25 Significant Customers and Suppliers ...................... 23
SECTION 2.26 Governmental Approvals ................................... 24
SECTION 2.27 Transactions With Affiliates ............................. 24
SECTION 2.28 Sales Agents ............................................. 24
SECTION 2.29 Product Lists ............................................ 24
SECTION 2.30 Backlog and Quotations ................................... 24
SECTION 2.31 Warranty Claims and Significant Field Issues ............. 24
SECTION 2.32 Disclosure ............................................... 24
SECTION 2.33 Purchase For Investment; Residence ....................... 24
ARTICLE III REPRESENTATIONS AND WARRANTIES OF BUYER .................... 25
SECTION 3.01 Organization ............................................. 25
SECTION 3.02 Buyer Power and Authority ................................ 25
SECTION 3.03 Validity, Etc. ........................................... 26
SECTION 3.04 No Violation of Laws or Contracts ........................ 26
SECTION 3.05 Capitalization; Capital Stock ............................ 26
SECTION 3.06 Financial Information; SEC Reports ....................... 26
</TABLE>
i
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE IV COVENANTS OF SELLER ......................................... 27
SECTION 4.01 Best Efforts Cooperation ................................. 27
SECTION 4.02 Access ................................................... 27
SECTION 4.03 Properties, Business, Insurance .......................... 27
SECTION 4.04 Compliance with Laws ..................................... 28
SECTION 4.05 Keeping of Books and Records ............................. 28
SECTION 4.06 Actions Prior to Closing ................................. 28
SECTION 4.07 Litigation ............................................... 28
SECTION 4.08 Continued Effectiveness of Representations and Warranties. 28
SECTION 4.09 Obligations of Affiliates ................................ 28
SECTION 4.10 Tax Returns .............................................. 29
SECTION 4.11 Payment of Liabilities ................................... 29
SECTION 4.12 No Negotiations .......................................... 29
SECTION 4.13 Non-Competition .......................................... 29
SECTION 4.14 Use of Names ............................................. 29
SECTION 4.15 Collection of Accounts Receivable ........................ 30
SECTION 4.16 Compromise and Settlement of Certain Liabilities ......... 30
SECTION 4.17 Reasonable Efforts to Obtain Financing ................... 30
SECTION 4.18 Books and Records of Seller for 1998 Audited ............. 30
Balance Sheet ............................................ 31
ARTICLE V COVENANTS OF THE BUYER ....................................... 31
SECTION 5.01 Cooperation .............................................. 31
SECTION 5.02 Bulk Sales Laws .......................................... 31
SECTION 5.03 Reasonable Efforts to Obtain Financing ................... 31
SECTION 5.04 Reasonable Efforts to Provide for Payments under the
Subordinated Promissory Note ............................. 31
SECTION 5.05 Agreement to Cause Nomination ............................ 31
ARTICLE VI CONDITIONS TO THE BUYER'S OBLIGATIONS ....................... 32
SECTION 6.01 No Material Adverse Economic Event ....................... 32
SECTION 6.02 Consents ................................................. 32
SECTION 6.03 Representations and Warranties True ...................... 32
SECTION 6.04 Performance .............................................. 33
SECTION 6.05 No Adverse Change ........................................ 33
SECTION 6.06 Opinion of Counsel ....................................... 33
SECTION 6.07 No Actions, Suits or Proceedings ......................... 33
SECTION 6.08 Investigation Satisfactory ............................... 33
SECTION 6.09 Subordination Agreement .................................. 33
SECTION 6.10 Jennings and Lewis Agreements ............................ 33
SECTION 6.11 Disclosure and Other Agreements .......................... 34
SECTION 6.12 Financing ................................................ 34
SECTION 6.13 Assumption of Leases ..................................... 34
SECTION 6.14 Satisfaction With Intellectual Property .................. 34
SECTION 6.15 Satisfaction With Existing Employment Agreements ......... 34
SECTION 6.16 Fairness Opinion ......................................... 34
SECTION 6.17 Closing Documents ........................................ 35
SECTION 6.18 Approval of the Buyer and Its Counsel .................... 35
SECTION 6.19 Director and Officer Questionnaire ....................... 35
SECTION 6.20 Due Diligence Review ..................................... 35
SECTION 6.21 Product Liability Insurance .............................. 35
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VII CONDITIONS TO THE SELLER'S OBLIGATIONS ..................... 35
SECTION 7.01 Representations and Warranties to be True and Correct .... 35
SECTION 7.02 Performance .............................................. 36
SECTION 7.03 Opinion of the Buyer's Counsel ........................... 36
SECTION 7.04 No Actions, Suits or Proceedings ......................... 36
SECTION 7.05 Closing Documents ........................................ 36
SECTION 7.06 Employment of Jennings and Lewis ......................... 36
SECTION 7.07 Grant of Options ......................................... 36
SECTION 7.08 Appointment of Jennings and Lewis as Directors ........... 36
SECTION 7.09 Approval of the Seller and Its Counsel ................... 37
SECTION 7.10 Consent of Financing ..................................... 37
ARTICLE VIII INDEMNIFICATION ........................................... 37
SECTION 8.01 Survival ................................................. 37
SECTION 8.02 Indemnification by Seller ................................ 37
SECTION 8.03 Indemnification of Seller by Buyer ....................... 38
SECTION 8.04 Claims for Indemnification ............................... 38
SECTION 8.05 Buyer's Right of Set-Off ................................. 39
ARTICLE IX TERMINATION ................................................. 39
SECTION 9.01 Termination ............................................... 39
SECTION 9.02 Effect of Termination ..................................... 41
ARTICLE X MISCELLANEOUS ................................................ 41
SECTION 10.01 Notices ................................................. 41
SECTION 10.02 Entire Agreement ........................................ 42
SECTION 10.03 Modifications and Amendments ............................ 42
SECTION 10.04 Waivers and Consents .................................... 42
SECTION 10.05 Assignment .............................................. 43
SECTION 10.06 Parties in Interest ..................................... 43
SECTION 10.07 Governing Law ........................................... 43
SECTION 10.08 Jurisdiction and Service of Process ..................... 43
SECTION 10.09 Severability ............................................ 43
SECTION 10.10 Interpretation .......................................... 44
SECTION 10.11 Headings and Captions ................................... 44
SECTION 10.12 Enforcement ............................................. 44
SECTION 10.13 Reliance ................................................ 44
SECTION 10.14 Expenses ................................................ 44
SECTION 10.15 No Broker or Finder ..................................... 45
SECTION 10.16 Publicity ............................................... 45
SECTION 10.17 Confidentiality ......................................... 45
SECTION 10.18 Counterparts ............................................ 45
</TABLE>
iii
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<S> <C>
1.01 Bill of Sale
1.02(a) Buyer's Subordinated Promissory Note
4.13 Seller Non-Competition and Confidentiality Agreement
6.06 Opinion of Sellers' Counsel
6.10 Form of Stockholders Agreement
6.10A Form of Non-Disclosure/Non-Competition/Proprietary Rights Agreement
6.11A Form of Non-Disclosure Agreement
6.13A Fullerton, California Facilities Lease
6.13B Palos Verdes Lease
7.03 Opinion of Buyer's Counsel
7.06 Agreement Regarding At-Will Employment
</TABLE>
iv
<PAGE>
INDEX TO SCHEDULES
<TABLE>
<CAPTION>
<S> <C>
1.02(a) Sellers' Liabilities to be Paid with Cash Payoff Component
1.02(b) Sellers' Unaudited, Reviewed Balance Sheet as of December 31, 1997
1.02(e) Allocation of Consideration for Transferred Assets
2.01 Jurisdictions in which Sellers do Business
2.04 Sellers' Balance Sheet as of December 31, 1997 and Three Year's Financial Statements
2.06 Sellers' Exceptions to Adverse Change, Conduct of Business
2.10 Sellers' Litigation
2.13 Sellers' Licenses and Permits
2.15 Sellers' Employees, Consultants and Key Employees
2.16 Sellers' Employee Plans
2.17 Sellers' Tangible Properties
2.19 Sellers' Leased Properties
2.20 Sellers' Environmental Matters
2.21 Sellers' Insurance
2.22 Sellers' Outstanding Commitments
2.23 Sellers' Intellectual Property
2.25 Sellers' Ten Largest Customers and Suppliers
2.26 Governmental Approvals
2.27 Sellers' Transactions With Affiliates
2.28 Sales by Sales Agents
2.29 Product Lists
2.30 Sellers' Backlog and Outstanding Quotations
2.31 Warranty Claims and Significant Field Issues
3.05 List of Outstanding Option Programs, Etc.
6.02 Required Consents
6.11 Employees Required to Enter into Non-Competition Agreement
</TABLE>
v
<PAGE>
This Asset Purchase Agreement (this "Agreement") is entered into this 19th day
of June, 1998 by and among Microfluidics International Corporation, a Delaware
corporation (the "Buyer"), Epworth Manufacturing Company, Inc. ("Epworth"), a
Michigan corporation, Morehouse-COWLES, Inc., a California corporation
("Morehouse" and, collectively with Epworth, the "Sellers").
WHEREAS, J.B. Jennings ("Jennings") and Bret A. Lewis ("Lewis") are the sole
stockholders of Epworth and Morehouse;
WHEREAS, the Sellers conduct a business of manufacturing and distributing
machinery and equipment used for mixing, dispersion and/or particle size
reduction of solids used by chemical processing industries, foods,
pharmaceuticals, paints, inks or other coating applied to substrate and selling
grinding media used in such equipment;
WHEREAS, the Sellers desire to sell or otherwise transfer substantially all of
the assets of the business, and the business, conducted by them (the
"Business"); and
WHEREAS, the Buyer desires to acquire the Business;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties intending
to be legally bound agree as follows:
ARTICLE I
---------
PURCHASE AND SALE OF ASSETS
---------------------------
SECTION 1.01 Sale of Transferred Assets. Upon the terms and subject to the
--------------------------
conditions set forth in this Agreement, at the Closing (as defined below) the
Sellers shall transfer to the Buyer free and clear of all claims, charges,
liens, contracts, rights, options, security interests, mortgages, encumbrances
and restrictions whatsoever (collectively, "Claims") except for the Assumed
Liabilities (as defined below) all of the assets, properties and rights owned by
the Sellers or in which the Sellers have any right or interest of every type and
description, real, personal and mixed, tangible and intangible, including,
without limitation, software (including, without limitation, source codes,
object codes and documentation), licenses thereto, business agreements,
property, equipment, tooling, molds, fixtures, inventory, all cash on hand and
in banks (including all uncollected items) prepaid expenses and advance
payments, tax refunds and tax credits, notes and accounts receivable and all
other sums due the Sellers, good will, supplier and customer lists, patents,
trademarks, trade names, licenses and permits, pending applications for patents,
trademarks, trade names and licenses, processes, know-how, show-how, trade
secrets, computers and computer equipment, computer programs, all books of
account, files and other records, systems and processes, contracts, arrangements
and understandings, oral and written, formal and informal, for work to be
performed and/or services to be provided, interests in real estate, leasehold
and other improvements, machines, machinery, warehouse equipment,
1
<PAGE>
furniture, fixtures, vehicles, supplies, all rights and claims under insurance
policies and other contracts of whatever nature, all causes of action,
judgments, claims and demands of every nature and all other rights in funds of
whatever nature, and all other assets, properties and rights of every kind and
nature owned by the Sellers, whether or not specifically referred to in this
Agreement (collectively, the "Transferred Assets"), with the intention that the
Business shall be transferred to the Buyer as a going concern.
The Sellers shall transfer the Transferred Assets to the Buyer pursuant to a
Bill of Sale in substantially the form of Exhibit 1.01 and such other documents
------------
and instruments as the Buyer or its counsel may reasonably request.
SECTION 1.02 (a) Consideration for the Transferred Assets. In consideration
----------------------------------------
for the transfer of the Transferred Assets and assumption of the Assumed
Liabilities (defined below) upon the terms and subject to the conditions set
forth in this Agreement, on the Closing Date (as defined below), the Buyer shall
pay or deliver to the Sellers the following (collectively, the "Purchase
Price"): (i) Two Million Dollars ($2,000,000) in cash (the "Cash Component"),
(ii) Buyer's Subordinated Promissory Note in the principal amount of Eight
Hundred Thousand Dollars ($800,000) in the form attached as Exhibit 1.02(a);
---------------
(iii) 900,000 shares of Buyer's restricted common stock, $.01 par value per
share (the "Shares"), subject to the restrictions set forth in the Stockholders
Agreement described in Section 6.10; and (iv) Three Million Eight Hundred and
Seven Thousand Four Hundred and Seventy Dollars ($3,807,470) in cash (the "Cash
Payoff Component"), which shall be applied solely to the payment of the
liabilities set forth on Schedule 1.02(a); provided, however, that the Cash
----------------
Payoff Component shall be reduced if and to the extent that any compromise or
settlement of such liabilities is effected on or prior to the time of Closing;
and provided further that any compromise or settlement of such liabilities shall
be made in accordance with Section 4.16.
(b) Pre-Closing Adjustment of Purchase Price. The parties acknowledge and
----------------------------------------
agree that the Purchase Price has been established in part with reference to the
net book value of Sellers as of December 31, 1997, as reflected on the
unaudited, reviewed balance sheet of Sellers as of such date, a copy of which is
attached hereto as Schedule 1.02(b) (the "Unaudited 1997 Balance Sheet") and
----------------
which shows separately a calculation of the net book value of the Transferred
Assets less the Assumed Liabilities. The net book value of the Transferred
Assets less the Assumed Liabilities, as reflected on the Unaudited 1997 Balance
Sheet, is hereinafter referred to as the "Unaudited Base Net Value". Buyer and
Sellers acknowledge that upon execution of this Agreement, Deloitte & Touche LLP
("Buyer's Accountant") shall commence, at Buyer's expense, an audit of the two
years of annual financial statements of the Sellers ending December 31, 1997 and
a balance sheet of the Sellers as of June 30, 1998 (the "Audited 1998 Balance
Sheet"), which audit is expected to be completed within five weeks of such
commencement and will include a physical inventory that the Sellers will
undertake at each of their facilities under the supervision of Buyer's
Accountant.
The Audited 1998 Balance Sheet shall be conclusive and binding upon the
parties hereto, unless the Sellers object in writing to any item or items shown
on the Audited 1998 Balance Sheet within ten (10) business days after delivery
thereof to the Sellers (the "Objection Period"). During the Objection Period,
the Sellers shall have reasonable access during normal business hours to all
work papers of Buyer's Accountant which were used in the preparation of the
Audited 1998
2
<PAGE>
Balance Sheet. If Buyer and the Sellers shall be unable to resolve any dispute
with respect to the Audited 1998 Balance Sheet (the "1998 Balance Sheet
Dispute") within twenty (20) business days after delivery of the Seller's
written objections, the matter or manners in dispute shall be submitted to such
firm of independent certified public accountants as Buyer and the Sellers may
agree. If the net book value of the Transferred Assets less the Assumed
Liabilities as audited by such firm of independent certified public accountants,
as of June 30, 1998, is greater than one hundred two percent (102%) of the net
book value of the Transferred Assets less the Assumed Liabilities, as reflected
on the Audited 1998 Balance Sheet, the fees of such firm of independent
certified public accountants to resolve the 1998 Balance Sheet Dispute shall be
borne by the Buyer, otherwise such fees shall be borne by the Sellers. The
decision of such firm of independent certified public accountants shall be
conclusive and binding upon Buyer and Sellers. The "Audited Base Net Value"
shall hereinafter refer to the net book value of the Transferred Assets less the
Assumed Liabilities (i) as audited by such firm of independent certified public
accountants in the event of an 1998 Balance Sheet Dispute or (ii) otherwise
reflected on the Audited 1998 Balance Sheet.
If the Audited Base Net Value is less than the Unaudited Base Net Value by
more than $150,000, then, at Buyer's election, either (i) the Purchase Price
shall be adjusted in the amount by which the difference exceeds $150,000 by
reducing, in order of priority, the Cash Component, the Cash Payoff Component
(and the corresponding Assumed Liabilities), the principal amount of the
Subordinated Promissory Note and the Shares (valued for such purpose at the
average closing price for the five trading days preceding the signing of this
Agreement) or (ii) this Agreement shall be terminated.
(c) Post Closing Adjustment of Purchase Price. The parties acknowledge and
-----------------------------------------
agree that the Purchase Price to be paid at Closing will be based on the Audited
1998 Balance Sheet. As promptly as practicable after September 30, 1998, the
Buyer shall prepare and deliver to Sellers an unaudited balance sheet of Buyer,
which shall contain separate unaudited balance sheets from each of the Sellers,
on a stand alone or push down basis, as of September 30, 1998 (the "September
Statement"), which shall be prepared by or on behalf of Buyer in accordance with
generally accepted accounting principles ("GAAP") on a basis consistent with the
Audited 1998 Balance Sheet. The "September Base Net Value" shall hereinafter
refer to the net book value of the Transferred Assets less the Assumed
Liabilities reflected on the September Statement. It is the intention of the
parties that the September Statement shall be treated as the balance sheet of
the Sellers as of the Closing Date and the Purchase Price may be subject to an
adjustment as described below based thereon unless there is a September
Statement Dispute (as defined below).
If there is no September Statement Dispute and the September Base Net Value
is less than the Audited Base Net Value, (the "September Differential Amount"),
the amount by which the September Differential Amount exceeds $150,000 shall be
set off against the Subordinated Promissory Note in the manner set forth below.
The September Statement shall be conclusive and binding upon the parties
hereto, unless the Sellers object in writing to any item or items shown on the
September Statement within twenty (20) business days after delivery to the
Sellers of the September Statement (the "September Objection Period"). During
the September Objection Period, the Sellers shall have reasonable
3
<PAGE>
access during normal business hours to all work papers of the Buyer's which were
used in the preparation of the September Statement. If Buyer and the Sellers
shall be unable to resolve any dispute with respect to the balance sheet of
Sellers as of the Closing Date based on the September Statement (the "September
Statement Dispute") within twenty (20) business days after delivery of the
Sellers' written objections, Buyer's Accountant will perform agreed upon
procedures on the statement of the net book value of the Transferred Assets and
the Assumed Liabilities of the Sellers as of the Closing Date (the "Closing Date
Statement"). The costs of such procedures shall be borne equally between Buyer
and Sellers.
The Closing Date Statement, if any, shall be conclusive and binding upon
the parties hereto, unless the Sellers object in writing to any item or items
shown on the Closing Date Statement within twenty (20) business days after
delivery to the Sellers of the Closing Date Statement (the "Closing Date
Objection Period"). During the Closing Date Objection Period, the Sellers shall
have reasonable access during normal business hours to all work papers of
Buyer's Accountant which were used in the preparation of the Closing Date
Statement. If Buyer and the Sellers shall be unable to resolve any dispute with
respect to the Closing Date Statement (the "Closing Date Statement Dispute")
within twenty (20) business days after delivery of the Sellers' written
objections, the matter or matters in dispute shall be submitted to a firm of
independent certified public accountants, as selected and agreed upon by the
Buyer and Sellers. If the net book value of the Transferred Assets less the
Assumed Liabilities as audited by such firm of independent certified public
accountants, as of the Closing Date, is greater than one hundred two percent
(102%) of the net book value of the Transferred Assets less the Assumed
Liabilities as reflected on the Closing Date Statement, the fees of such firm of
independent certified public accountants to resolve the Closing Date Statement
Dispute shall be borne by the Buyer, otherwise the fees shall be borne by the
Sellers. The Closing Date Statement shall be conclusive and binding upon Buyer
and Sellers. The "Closing Date Base Net Value" shall hereinafter refer to the
net book value of the Transferred Assets less the Assumed Liabilities as (i) as
audited by such firm of independent certified public accountants in the event of
a Closing Date Statement Dispute or (ii) otherwise reflected on the Closing Date
Statement.
If the Closing Date Base Net Value is less than the Audited Base Net Value,
(the "Closing Date Differential Amount"), the amount by which the Closing Date
Differential Amount exceeds $150,000 shall be set off against the Subordinated
Promissory Note in the manner set forth below.
Any amount set off against the Subordinated Promissory Note under this Section
1.02(c) shall be applied, in order of priority, (i) first, as a set off against
the accrued and unpaid interest on the Subordinated Promissory Note, (ii)
second, applied as a credit to the next four scheduled payments of interest on
the Subordinated Promissory Note and (iii) third, set off against the principal
of the Subordinated Promissory Note.
(d) Further Assurances. At any time and from time to time after the Closing
------------------
Date, at the request of the Buyer and without further consideration, the Sellers
will execute and deliver such other instruments of sale, transfer, conveyance,
assignment and confirmation as may be reasonably requested in order to more
effectively transfer, convey and assign to the Buyer and to confirm the Buyer's
title to the Transferred Assets.
4
<PAGE>
(e) Tax Allocation. The consideration for the Transferred Assets will be
--------------
allocated consistent with the allocation set forth on Schedule 1.02(e) hereto
----------------
which has been determined by mutual agreement of Buyer and Sellers. It is agreed
that such an allocation is fair to both parties and that it will be used as the
basis for reporting this transaction for all Tax (as defined below) purposes
(subject to purchase price adjustments, if any). Each party hereto agrees to
prepare its federal and state income tax returns for all current and future tax
reporting periods and file Form 8594 (and corresponding state forms) with
respect to the transfer of the Transferred Assets to Buyer in a manner
consistent with such allocation.
SECTION 1.03 Assumption of Liabilities. The only obligations and liabilities
-------------------------
to be assumed by the Buyer in connection with its acquisition of the Transferred
Assets (the "Assumed Liabilities") are the accounts payable and accrued
liabilities in the amounts set forth on the Sellers Balance Sheet (as defined in
Section 2.04) and obligations under executory contracts listed thereon arising
as a result of the operation of the Business after the Closing Date (provided
such contracts are not in default and are assigned in writing by the Seller and
the other party thereto, if necessary, and are delivered on or prior to the
Closing Date). The Sellers shall duly provide, to the satisfaction of the
Buyer, for the payment of all other liabilities and obligations of Sellers prior
to the Closing. Except for the Assumed Liabilities in the amount and to the
extent provided in this Section, the Buyer shall not assume or be responsible
for any liabilities or obligations which relate in any manner to the operation
of the Business prior to the Closing, and the Seller shall indemnify, defend,
and hold the Buyer harmless from all of such obligations and liabilities.
In lieu of direct assumption of the liabilities under his residential lease on
the condominium in Palos Verdes, California, Jennings shall remain directly
liable on such lease but Buyer shall reimburse Jennings for (i) lease payments
on such lease in the amount of $1,575 per month and (ii) an amount not to exceed
$200 per month for utilities (e.g. water, sewer, gas, telephone and electricity)
and property taxes, assessments and other governmental charges, in each case
only for the remainder of the lease term, which shall not exceed twelve (12)
months from the date hereof.
Without limiting the generality of the foregoing, Buyer is not assuming any
liability, past, present or future, for any liabilities, acts or omissions of
Sellers with regard to any Sellers Employee Plans (as defined in Section
2.16(a)) except for such Employee Plans listed on Schedule 2.16(a) attached
----------------
hereto.
SECTION 1.04 Closing. Subject to the satisfaction or waiver of each of the
-------
conditions set forth in Articles VI and VII of this Agreement, the closing of
the transactions contemplated by this Agreement (the "Closing") shall take place
at the offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., One
Financial Center, Boston, Massachusetts at 10 o'clock a.m., on July 31, 1998, or
such other location, date and time as may be agreed upon by the parties (such
date and time being called the "Closing Date"). At the Closing:
5
<PAGE>
A. The Sellers shall deliver or cause to be delivered to the
Buyer the following:
(i) The Bill of Sale in form and substance satisfactory to the
Buyer transferring the Transferred Assets to the Buyer and
such other transfer documents, including motor vehicle
title(s), patent, trademark and copyright assignments as may
be required by Buyer and its Counsel;
(ii) The certificates required by Sections 6.03 and 6.04;
(iii) The opinion of counsel required by Section 6.06;
(iv) A copy of the resolutions of each of the board of directors
of each Seller certified by its Secretary, authorizing and
approving the execution, delivery and performance of this
Agreement and the transactions contemplated hereby and the
acts of the officers and employees of the Sellers in
carrying out the terms and provisions hereof;
(v) All of the books, data, documents, instruments and other
records relating to the Business including without
limitation the original licenses, patents, patent
applications, trademark registrations and permits identified
on Schedule 2.23 and all laboratory notebooks and other
-------------
notes and records relating to the Seller's intellectual
property.
B. The Buyer shall deliver or cause to be delivered to the Seller
the following:
(i) The Purchase Price;
(ii) The certificates required by Section 7.01 and 7.02;
(iii) The opinion of counsel required by Section 7.03;
(iv) A copy of the resolutions of the board of directors of the
Buyer certified by its Secretary, authorizing and approving
the execution, delivery and performance of this Agreement
and the transactions contemplated hereby and the acts of the
officers and employees of the Buyer in carrying out the
terms and provisions hereof.
6
<PAGE>
C. The parties shall deliver:
(i) The Subordination Agreement, Stockholders Agreements,
Invention/Trade Secret, Non-Disclosure Agreements, Non-
Competition Agreements, Assignments, Consents and Fairness
Opinion contemplated by Section 4.13 and Article VI hereof;
and
(ii) Such further documents, resolutions, certificates and
instruments as any party or its counsel reasonably requests
to facilitate the consummation of the transactions
contemplated hereby.
ARTICLE II
----------
REPRESENTATIONS AND WARRANTIES OF THE SELLER
--------------------------------------------
In this Agreement, any reference to any event, change, condition or effect
being "material" with respect to any entity or group or entities means any
material event, change, condition or effect related to the financial condition,
properties, assets (including intangible assets), liabilities, business,
operations or results of operations of such entity or group of entities. In
this Agreement, any reference to a "Material Adverse Effect" with respect to any
entity or group of entities means any event, change or effect that is materially
adverse to the financial condition, properties assets, liabilities, business,
operations or results of operations of such entity or group of entities and its
subsidiaries, taken as a whole.
In this Agreement, any reference to a party's "knowledge" means such party's
actual knowledge after due and diligent inquiry of officers, directors and other
employees of such party reasonably believed to have knowledge of such matters.
As an inducement to the Buyer to enter into this Agreement and to consummate
the transactions contemplated hereby, the Sellers each jointly and severally
hereby represent and warrant to the Buyer as follows:
SECTION 2.01 Organization and Qualification. The Seller is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly licensed or qualified to transact
business as a foreign corporation and is in good standing in each jurisdiction
listed on Schedule 2.01, such jurisdictions being the only jurisdictions in
-------------
which the nature of the Business or the character of the properties owned or
leased by the Seller requires such licensing or qualification.
SECTION 2.02 Corporate Power and Authority. The Seller has the corporate
-----------------------------
power and authority to own and hold its properties and to carry on its business
as now being conducted and as proposed to be conducted. The Seller has the
corporate power and authority to execute, deliver and perform this Agreement and
the other documents and instruments contemplated hereby. The execution,
delivery and performance of this Agreement and the documents contemplated hereby
and the consummation of the transactions contemplated hereby and thereby have
been duly authorized and approved by the Seller. This Agreement, and each of
the other agreements, documents and instruments to be executed and delivered by
the Seller have been
7
<PAGE>
duly executed and delivered by, and constitute the legal, valid and binding
obligation of, the Seller enforceable against the Seller in accordance with
their terms.
SECTION 2.03 Validity, Etc. Neither the execution and delivery of this
--------------
Agreement and the other documents and instruments contemplated hereby, the
consummation of the transactions contemplated hereby or thereby, nor the
performance of this Agreement and such other agreements in compliance with the
terms and conditions hereof and thereof will (i) violate, conflict with or
result in any breach of any trust agreement, certificate of incorporation,
bylaw, judgment, decree, order, statute or regulation applicable to the Seller,
(ii) require any consent, approval, authorization or permit of, or declaration,
filing with or notification to, any court, administrative agency, commission or
governmental or regulatory authority, except for the listing of issuance of
additional shares on the NASDAQ with respect to the Shares, (iii) violate,
conflict with or result in a breach, default or termination or give rise to any
right of termination, cancellation or acceleration of the maturity of any
payment date of any of the obligations of the Seller or increase or otherwise
affect the obligations of the Seller under any law, rule, regulation or any
judgment, decree, order, governmental permit, license or order or any of the
terms, conditions or provisions of any mortgage, indenture, note, license,
agreement or other instrument or obligation related to the Seller or to the
Seller's ability to consummate the transactions contemplated hereby or thereby,
except for such defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been obtained in
writing and provided to the Buyer, (iv) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the Seller or (v) result in
the creation of any Claim upon the Transferred Assets.
SECTION 2.04 Financial Statements. The Sellers have previously furnished to
--------------------
the Buyer, and attached hereto as Schedule 2.04 are, the balance sheets of the
-------------
Sellers as at December 31, 1997 (collectively, the "Balance Sheet") and the
related statements of income and cash flow and notes thereto for the three
fiscal years then ended. All such financial statements (collectively, the
"Financial Statements") have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods indicated and
each other (with the exception, as to the unaudited financial statements, of the
lack of notes thereto) and were prepared from the books and records of the
Sellers, which books and records are complete and correct in all material
respects and accurately reflect all transactions of the Business. The Financial
Statements fairly present the financial position of the Sellers as of the dates
thereof and the results of its operations and cash flows for the periods ended
on the dates thereof. The Financial Statements reflect reserves appropriate and
adequate for all known material liabilities and reasonably anticipated losses as
required by generally accepted accounting principles. Since the date of the
Balance Sheets, (a) there has been no change in the assets, liabilities or
financial condition of the assets of the Sellers from that reflected in the
Balance Sheet except for changes in the ordinary course of business consistent
with past practice and which have not had a Materially Adverse Effect and (b)
none of the business, prospects, financial condition, operations, property or
affairs of the Sellers have been the subject of any occurrence or development,
which individually or in the aggregate, whether or not insured against has
resulted in, or might reasonably be expected to result in, a Material Adverse
Effect. All properties used in the operations of the Sellers in relation to the
Business are reflected in the Balance Sheet to the extent generally accepted
accounting principles require the same to be reflected. Sellers have
8
<PAGE>
disclosed to the Buyer all material facts relating to the preparation of the
Financial Statements, including the basis of accounting for affiliated
transactions.
SECTION 2.05 Absence of Undisclosed Liabilities. (a) Except as and to the
----------------------------------
extent of the amounts specifically reflected or reserved against in the Balance
Sheet, the Seller does not have any liabilities or obligations of any nature
whatsoever, due or to become due, accrued, absolute, contingent or otherwise,
except for liabilities and obligations incurred in the ordinary course of
business, consistent with past practice and not required to be set forth in the
Balance Sheet. The Seller does not know of, and has no reason to know of, any
basis for the assertion against the Seller of any liability or obligation not
fully reflected or reserved against in the Balance Sheet or incurred in the
ordinary course of business and consistent with past practice since the date
thereof.
(b) The Seller is not bound by any agreement, or subject to any charter or
other corporate restriction or any legal requirement, which has, or in the
future can reasonably be expected to have, a Material Adverse Effect on the
Business.
SECTION 2.06 Absence of Adverse Change; Conduct of Business. Since December
----------------------------------------------
31, 1997, there has been no material adverse change in the Business and there is
no condition or development or contingency of any kind existing or in prospect
which, so far as reasonably can be foreseen by the Seller, may result in any
such material adverse change. Without limiting the foregoing, except as
disclosed on Schedule 2.06, since December 31, 1997 there has not been, occurred
-------------
or arisen:
(i) Any damage, destruction or loss to any Transferred Asset
(whether or not covered by insurance) that, individually or
in the aggregate, would have a Material Adverse Effect on
the business or prospects of the Business;
(ii) Any change in the business or operations of the Business or
in the manner of conducting the Business or sale or other
disposition of any right, title or interest in or to any
assets or properties used in the Business or any revenues
derived therefrom other than in the ordinary course of
business;
(iii) Any general increase in any compensation or benefits
payable to any class or group of employees of the Seller
other than normal merit increases or any increase in the
compensation payable or to become payable to any employees
whose total compensation after such increase would exceed
$50,000 per annum (collectively "Key Employees") or any
bonus, service, pension, award, percentage compensation or
other benefit paid, granted or accrued to or for the benefit
of any Key Employee;
9
<PAGE>
(iv) Any material adverse change in the working capital,
financial condition, assets, liabilities, business or
prospects of the Seller;
(v) Any loan, advance, agreement, arrangement or transaction
between the Seller and any employees of the Seller or any
business or entity in which the Seller, its affiliates, or
employee of either has any direct or indirect interest,
except for compensation at rates not exceeding the rates of
compensation in effect as of December 31, 1997 and advances
made to employees of the Business for ordinary and customary
business expenses in reasonable amounts in the ordinary
course of the Business consistent with past practice.
(vi) Any sale, assignment or transfer of any of the tangible
assets used by the Seller except in the ordinary course of
business consistent with past practice, or cancellation of
any debt or claim owing to or owed by the Seller in
connection with the Business;
(vii) Any sale, assignment, transfer or grant of any license
or sublicense with respect to any patent, trademark, trade
name, service mark, copyright, trade secret or other
intangible asset used or useful in the Business;
(viii) Any material change in the manner of business or
operations of the Business;
(ix) Any material transaction except in the ordinary course of
business;
(x) Any amendment or modification of any material contract,
agreement, franchise, permit, or license; or
(xi) any change in accounting methods or practices (including any
change in depreciation or amortization policies or rates) by
Seller with respect to the Transferred Assets or any
revaluation of the Transferred Assets;
(xii) any material contract entered into by Seller with
respect to the Transferred Assets, other than in the
ordinary course of business and as provided to Buyer, or any
material amendment or termination of or default under, any
material contract related to the Transferred Assets to which
any Seller is a party or by which it is bound;
(xiii) Any negotiation or commitment (contingent or otherwise)
to do any of the foregoing.
10
<PAGE>
SECTION 2.07 Inventories. All of the Seller's inventory reflected on the
-----------
Balance Sheet or thereafter acquired (and not subsequently sold in the ordinary
course of business) consist of items of a quality and quantity usable or
saleable in the ordinary course of the Seller's Business as first quality goods
at prices having a value equal to the amounts reflected on the Balance Sheet or,
with respect to after-acquired inventory, at least equal to the cost thereof
plus markups consistent with past practice. Each item of such inventory is
valued on the Balance Sheet at the lower of cost or market, by the first-in,
---------
first-out method, in accordance with generally accepted accounting principles.
- ---------
The inventories and supplies of the Business are at normal and adequate levels
for the continuation of such Business in the ordinary course.
SECTION 2.08 Receivables. All receivables (whether notes, accounts or
-----------
otherwise) of the Business (a) have arisen only from bona fide transactions in
the ordinary course of business, (b) represent valid obligations, (c) shall be
fully collected in the aggregate face amounts thereof as reflected in the
Balance Sheet, and (d) are owned by the Seller and will be transferred to Buyer
free of all Claims. No discount or allowance from any receivable has been made
or agreed to, and none represents billings prior to actual sale of goods or
provision of services.
SECTION 2.09 Taxes. All federal, state, local and foreign tax returns and
-----
tax reports required to be filed by the Seller or its affiliates on or before
the date hereof (including those of any consolidated, combined or unitary group
for tax purposes of which any of the foregoing is, or during the relevant period
has been, a member) have been timely filed with the appropriate governmental
agencies in all jurisdictions in which such returns and reports are required to
be filed and all amounts shown as owing thereon have been paid. All taxes
(including, without limitation, income, accumulated earnings, property, sales,
use, franchise, value added, fuel, employees' income withholding and social
security taxes) which have become due or payable or required to be collected by
the Seller or as otherwise attributable to any periods ending on or before the
date hereof and the Closing and all interest and penalties thereon, whether
disputed or not, have been paid or will be paid in full on or prior to the
Closing. All deposits required by law to be made by the Seller with respect to
employees' withholding taxes have been duly made, and as of the Closing Date all
such deposits will have been made. The Seller is not on the date hereof and
will not on the Closing Date be liable for the payment of any taxes, and Buyer
shall have no liability for any taxes related to the ownership or operation of
the Transferred Assets or the Business prior to the Closing Date. There is (i)
no material claim for Taxes that is a lien against the property of Seller other
than liens for Taxes not yet due and payable, (ii) Seller has received no
notification of any audit of any Tax Return of Sellers being conducted pending
or threatened by a Tax authority, and (iii) no extension or waiver of the
statute of limitations on the assessment of any Taxes granted by Sellers and
currently in effect. Seller is not a party to any tax sharing or tax allocation
agreement nor does Seller owe any amount under any such agreement. For purposes
of this Agreement, the following terms have the following meanings: "Tax" (and,
with correlative meaning, "Taxes" and "Taxable") means (i) any net income,
alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad
valorem, transfer, franchise, profits, license, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property,
environmental or windfall profit tax, custom, levy, duty or other tax,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest or any penalty, addition to tax or additional amount
imposed by any Governmental Entity (a "Tax
11
<PAGE>
Authority") responsible for the imposition of any such tax (domestic or
foreign), (ii) any liability for the payment of any amounts of the type
described in (i) as a result of being a member of an affiliated, consolidated,
combined or unitary group for any Taxable period and (iii) any liability for the
payment of any amounts of the type described in (i) or (ii) as a result of any
express or implied obligation to indemnify any other person. As used herein,
"Tax Return" shall mean any return, statement, report or form including, without
limitation, estimated Tax returns and reports, withholding Tax returns and
reports and information reports and returns required to be filed with respect to
Taxes. Seller is in full compliance with all terms and conditions of any Tax
exemptions or other Tax-sparing agreement or order of a foreign government
applicable to them and the consummation of the Agreement shall not have any
adverse effect on the continued validity and effectiveness of any such Tax
exemptions or other Tax-sparing agreement or order.
SECTION 2.10 Litigation. Except as set forth on Schedule 2.10, there is no
---------- -------------
(a) action, suit, claim, proceeding or investigation pending or, to the best of
the Seller's knowledge, threatened against or affecting the Seller (whether or
not the Seller is a party or prospective party thereto) or the Transferred
Assets, at law or in equity, or before or by any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (b) arbitration proceeding relating to the
Seller or the Transferred Assets or (c) governmental inquiry pending or
threatened against or involving the Seller or the Transferred Assets, and there
is no basis for any of the foregoing. The Seller has not received any opinion
or memorandum or legal advice from legal counsel to the effect that it is
exposed, from a legal standpoint, to any liability or disadvantage which may be
material to the business, prospects, financial condition, operations, property
or affairs of its Business. There are no outstanding orders, writs, judgments,
injunctions or decrees of any court, governmental agency or arbitration tribunal
against, involving or affecting the Seller or the Transferred Assets, and the
there are no facts or circumstances which may result in institution of any
action, suit, claim or legal, administrative or arbitration proceeding or
investigation against, involving or affecting the Seller or the transactions
contemplated hereby. The Seller is not in default with respect to any order,
writ, injunction or decree known to or served upon it from any court or of any
Federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign. There is no action or
suit by the Seller pending or threatened against others.
SECTION 2.11 Certain Practices. Neither the Seller nor any of their
-----------------
respective officers or employees has, directly or indirectly, given or agreed to
give any significant rebate, gift or similar benefit to any supplier, customer,
governmental employee or other person who was, is or may be in a position to
help or hinder the Seller (or assist in connection with any actual or proposed
transaction) which (i) could subject the Seller or the Buyer to any damage or
penalty in any civil, criminal or governmental litigation or proceeding, or (ii)
if not continued in the future, could have an adverse effect on the Business.
SECTION 2.12 Compliance with Law. The Seller is not subject to any judgment,
-------------------
order, writ, injunction, or decree that materially adversely affects,
individually or in the aggregate, the businesses, operations, properties, assets
or condition (financial or otherwise) of the Business. Seller has complied with
and is not in default under, all laws, ordinances, legal requirements,
12
<PAGE>
rules, regulations and orders applicable to it, its operations, properties,
assets, products and services. There is no existing law, rule, regulation or
order, and the Sellers are not aware of any proposed law, rule, regulation or
order, whether Federal or state, which would prohibit or materially restrict
Buyer from, or otherwise materially adversely affect the Buyer in, conducting
the Business in any jurisdiction in which such business is now conducted.
SECTION 2.13 Licenses and Permits. Schedule 2.13 lists all licenses,
-------------------- -------------
permits, pending applications, consents, approvals and authorizations of or from
any public or governmental agency, used in or otherwise necessary in the conduct
of the Business (collectively, the "Permits"), each of which will be duly and
validly transferred to Buyer as of the Closing. The Seller has complied with
all conditions and requirements imposed by the Permits and the Seller has not
received any notice of, and has no reason to believe, that any appropriate
authority intends to cancel or terminate any of the Permits or that valid
grounds for such cancellation or termination exist. Except as set forth on
Schedule 2.13, no other permits are necessary to operate the Business. The
- -------------
Seller owns or has the right to use the Permits in accordance with the terms
thereof without any conflict or alleged conflict or infringement with the rights
of others and subject to no Claim, and each Permit is valid and in full force
and effect, and will not be terminated or adversely affected by the transactions
contemplated hereby.
SECTION 2.14 Labor and Employee Relations. The Seller is not a party to or
----------------------------
bound by any collective bargaining agreement with any labor organization, group
or association covering any of its employees, and the Seller has no knowledge of
any attempt to organize any of its employees by any person, unit or group
seeking to act as their bargaining agent. There are no pending or threatened
charges (by employees, their representatives or governmental authorities) of
unfair labor practices or of employment discrimination or of any other wrongful
action with respect to any aspect of employment of any person employed or
formerly employed by the Seller. No union representation elections relating to
employees of the Seller have been scheduled by any governmental agency or
authority, no organizational effort is being made with respect to any of such
employees, and there is no investigation of the Seller's employment policies or
practices by any governmental agency or authority pending or threatened. The
Seller is not currently, and has not within the last three years been, involved
in labor negotiations with any unit or group seeking to become the bargaining
unit for any employees of the Seller's employees. The Seller has not
experienced any work stoppages during the last three years, and to the best of
the Seller's knowledge, no work stoppage is planned.
SECTION 2.15 Certain Employees. Set forth in Schedule 2.15 is a list of the
----------------- -------------
names of the Seller's employees and consultants, together with the title or job
classification of each such person and the base annual and the total
compensation paid to each such person by the Seller in fiscal year 1997 and
anticipated to be paid in fiscal year 1998, identifying those employees that
Seller deems key to the Business and for each such key employee setting forth
their terms of employment and compensation. None of such persons has an
employment agreement or understanding, whether oral or written, with the Seller
which is not terminable on notice by the Seller without cost or other liability
to the Seller. No person listed on Schedule 2.15 has indicated to Buyer or any
-------------
other person that he or she intends to terminate his or her employment with the
Seller or seek a material change in his or her duties or status.
13
<PAGE>
SECTION 2.16 Employee Benefit Plans.
----------------------
(a) Schedule 2.16 lists, with respect to Seller, any subsidiary of Seller and
-------------
any trade or business (whether or not incorporated) which is treated as a single
employer with Sellers (an "ERISA Affiliate") within the meaning of Section
414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder ("Code"), (i) all material employee benefit plans (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), (ii) each loan to a non-officer employee in excess of
$10,000, loans to officers and directors and any stock option, stock purchase,
phantom stock, stock appreciation right, supplemental retirement, severance,
sabbatical, medical, dental, vision care, disability, employee relocation,
cafeteria benefit (Code Section 125) or dependent care (Code Section 129), life
insurance or accident insurance plans, programs or arrangements, (iii) all
bonus, pension, profit sharing, savings, deferred compensation or incentive
plans, programs or arrangements, (iv) other fringe or employee benefit plans,
programs or arrangements that apply to senior management of Seller and that do
not generally apply to all employees, and (v) any current or former employment
or executive compensation or severance agreements, written or otherwise, as to
which unsatisfied obligations of Sellers of greater than $10,000 remain for the
benefit of, or relating to, any present or former employee, consultant or
director of Sellers (together, the "Seller Employee Plans").
(b) Sellers have furnished to Buyer a copy of each of the Seller Employee
Plans and related plan documents (including trust documents, insurance policies
or contracts, employee booklets, summary plan descriptions and other authorizing
documents, and, to the extent still in its possession, any material employee
communications relating thereto) and has, with respect to each Seller Employee
Plan which is subject to ERISA reporting requirements, provided copies of any
form 5500 reports required to be filed for the last three plan years (if the due
date for filing such Form 5500s, including any extensions, falls before the date
hereof and will provide such copies if the due date for filing, including any
extensions, falls before the Closing Date). Any Seller Employee Plan intended to
be qualified under Section 401(a) of the Code has either obtained from the
Internal Revenue Service a favorable determination letter as to its qualified
status under the Code, including all amendments to the Code effected by the Tax
Reform Act of 1986 and subsequent legislation, or has applied to the Internal
Revenue Service for such a determination letter prior to the expiration of the
requisite period under applicable Treasury Regulations or Internal Revenue
Service pronouncements in which to apply for such determination letter and to
make any amendments necessary to obtain a favorable determination, or has been
established under a standardized prototype plan for which an Internal Revenue
Service opinion letter has been obtained by the plan sponsor and is valid as to
the adopting employer. Seller has obtained the most recent Internal Revenue
Service determination or opinion letter issued with respect to each such Seller
Employee Plan, and nothing has occurred since the issuance of each such letter
which could reasonably be expected to cause the loss of the tax-qualified status
of any Seller Employee Plan subject to Code Section 401(a).
(c) (i) None of the Seller Employee Plans promises or provides retiree medical
or other retiree welfare benefits to any person; (ii) there has been no
"prohibited
14
<PAGE>
transaction," as such term is defined in Section 406 of ERISA and Section 4975
of the Code, with respect to any Seller Employee Plan, which could reasonably be
expected to have, in the aggregate, a Material Adverse Effect; (iii) each Seller
Employee Plan has been administered in accordance with its terms and in
compliance with the requirements prescribed by any and all statutes, rules and
regulations (including ERISA and the Code), except as would not have, in the
aggregate, a Material Adverse Effect, and Seller and each subsidiary or ERISA
Affiliate have performed all material obligations required to be performed by
them under, are not in any material respect in default under or violation of,
and have no knowledge of any material default or violation by any other party
to, any of the Seller Employee Plans; (iv) neither Seller nor any subsidiary or
ERISA Affiliate is subject to any liability or penalty under Sections 4976
through 4980 of the Code or Title I of ERISA with respect to any of the Seller
Employee Plans; (v) all material contributions required to be made by Seller or
any subsidiary or ERISA Affiliate to any Seller Employee Plan have been made on
or before their due dates and a reasonable amount has been accrued for
contributions to each Seller Employee Plan for the current plan years; (vi) with
respect to each Seller Employee Plan, no "reportable event" within the meaning
of Section 4043 of ERISA (excluding any such event for which the thirty (30) day
notice requirement has been waived under the regulations to Section 4043 of
ERISA) nor any event described in Section 4062, 4063 or 4041 or ERISA has
occurred; and (vii) no Seller Employee Plan is covered by, and neither Seller
nor any subsidiary or ERISA Affiliate has incurred or expects to incur any
liability under Title IV of ERISA or Section 412 of the Code. With respect to
each Seller Employee Plan subject to ERISA as either an employee pension plan
within the meaning of Section 3(2) of ERISA or an employee welfare benefit plan
within the meaning of Section 3(1) of ERISA, Seller has prepared in good faith
and timely filed all requisite governmental reports (which were true and correct
in all material respects as of the date filed) and has properly and timely filed
and distributed or posted all notices and reports to employees required to be
filed, distributed or posted with respect to each such Seller Employee Plan,
except for any failures to comply with applicable ERISA or other reporting
requirements which in the aggregate would not have a Material Adverse Effect. No
suit, administrative proceeding, action or other litigation has been brought, or
to the knowledge of Seller is threatened, against or with respect to any such
Seller Employee Plan, including any audit or inquiry by the IRS or United States
Department of Labor. Neither Seller nor any subsidiary of Seller or other ERISA
Affiliate is a party to, or has made any contribution to or otherwise incurred
any obligation under, any "multiemployer plan" as defined in Section 3(37) of
ERISA.
(d) With respect to each Seller Employee Plan, Seller and each of its United
States subsidiaries have complied with (i) the applicable health care
continuation and notice provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") and the proposed regulations thereunder and
(ii) the applicable requirements of the Family Leave Act of 1993 and the
regulations thereunder, except to the extent that such failure to comply would
not, in the aggregate, have a Material Adverse Effect.
(e) The consummation of the transactions contemplated by this Agreement will
not (i) entitle any current or former employee or other service provider of
Seller, any Seller subsidiary or any other ERISA Affiliate to severance benefits
or any other payment (including, without limitation, unemployment compensation,
golden parachute or bonus), except as
15
<PAGE>
expressly provided in this Agreement, or (ii) accelerate the time of payment or
vesting of any such benefits, or increase the amount of compensation due any
such employee or service provider.
(f) There has been no amendment to, written interpretation or announcement
(whether or not written) by Seller, any Seller subsidiary or other ERISA
Affiliate relating to, or change in participation or coverage under, any Seller
Employee Plan which would materially increase the expense of maintaining such
Plan above the level of expense incurred with respect to that Plan for the most
recent fiscal year included in Seller's financial statements.
SECTION 2.17 Tangible Properties. Schedule 2.17 contains a true and complete
------------------- -------------
list of all tangible personal property owned by or leased to the Seller (the
"Tangible Personal Property"). Except as shown on Schedule 2.17, the Seller has
-------------
good and marketable title free and clear of all Claims to the Tangible Personal
Property listed as owned by the Seller. With respect to Tangible Personal
Property leased by the Seller as lessee, all leases, conditional sale contracts,
franchises or licenses pursuant to which the Seller may hold or use (or permit
others to hold or use) such Tangible Personal Property are valid and in full
force and effect, and there is not under any of such instruments any existing
default or event of default or event which with notice or lapse of time or both
would constitute such a default. The Seller's possession and use of such
property has not been disturbed and no claim has been asserted against the
Seller adverse to its rights in such leasehold interests. All Tangible Personal
Property is adequate and usable for the purposes for which it is currently used
and has been properly maintained and repaired and each item of Tangible Personal
Property, whether owned or leased, is in good operating condition and repair and
has been properly maintained. During the past three (3) years, there has not
been any interruption of the operations of the Business due to the condition of
any of the Tangible Personal Property
SECTION 2.18 Owned Premises. Seller does not own any real property.
--------------
SECTION 2.19 Leased Premises. Schedule 2.19 sets forth a true and complete
--------------- -------------
list and description of each parcel of real property leased by the Seller or its
affiliates and used in the Business (the "Leased Parcels"). Each lease covering
a Leased Parcel is in full force and effect (there existing no default under any
such lease which, with the lapse of time or notice or otherwise, would entitle
the lessor to terminate the same), conveys the leased real estate purported to
be conveyed thereunder is enforceable by the Seller and will be enforceable by
the Buyer in accordance with its terms. The Seller has the right to use the
Leased Parcels in accordance with the terms of such leases free and clear of all
Claims or other interests or rights of third parties, except those which do not
or would not have a material adverse effect on the Leased Parcels as used in the
Business. Each structure located on each Leased Parcel is structurally sound,
adequately maintained and is in good condition and repair consistent with the
uses to which it is presently being put or intended to be put. All structures,
improvements and fixtures on the Leased Parcels and the current uses of the
Leased Parcels conform to any and all applicable federal, state and local laws,
building, health and safety and other ordinances, laws, rules and regulations.
There is no violation of any material covenant, restriction or other agreement
or understanding, oral or written, affecting or relating to title or use of any
Leased
16
<PAGE>
Parcel. There are no pending or threatened condemnation or similar proceedings
or assessments affecting any of the Leased Parcels, nor to the Seller's best
knowledge is any such condemnation or assessment contemplated by any
governmental authority.
SECTION 2.20 Environmental Matters.
---------------------
(a) Environmental Substance Liability. Except as disclosed in Schedule 2.20,
--------------------------------- -------------
no event has occurred or condition exists or operating practice is being
employed that could give rise to material liability on the part of the Seller,
either at the present time or in the future, for any losses, liabilities,
damages (whether consequential or otherwise), settlements, penalties, interest
and expenses (including any such liability on account of the right of any
governmental or private entity or person, and including closure expenses, costs
of assessment, containment, remediation or removal (other than transportation or
disposal of materials required to be transported or disposed of in the ordinary
course of business, remedial work, or monitoring) arising under any presently
enacted federal, state, or local statute, or any regulation that has been
promulgated pursuant thereto, or common law, as a result of or in connection
with, or alleged to be as a result of or in connection with, the following:
(i) the handling, storage, use, transportation or disposal of
any Substances (as hereinafter defined) in, on, under or
from Facilities relating to the Business, by the Seller or
its predecessors;
(ii) the handling, storage, use, transportation or disposal of
any Substances by the Seller or its predecessors which
Substances were a product, by-product or otherwise resulted
from the operations relating to the Business conducted by or
on behalf of the Seller or its predecessors;
(iii) any intentional or unintentional emission, discharge or
release of any Substances in or near or from facilities or
plants relating to the Business into or upon the air,
surface water, ground water or land or any disposal,
handling, manufacturing, processing, distribution, use,
treatment, or transport of such Substances in or near or
from facilities and plants relating to the Business by or on
behalf of the Sellers or its predecessors; or
(iv) the presence of any toxic or hazardous building materials
(including but not limited to asbestos or similar
substances) in any facilities or plants relating to the
Business, including but not limited to the inclusion of such
materials in the exterior and interior walls, floors,
ceilings, tile, insulation or any other portion of building
structures.
As used in this Section 2.20: (i) the term "Substances" shall mean any
pollutant, hazardous substance, hazardous material, hazardous waste or toxic
waste including, but not
17
<PAGE>
limited to oil and petroleum products, as defined in any Environmental and
Safety Laws; and (ii) "Environmental and Safety Laws" shall mean any federal,
state or local laws, ordinances, codes, regulations, rules, policies and orders
that are intended to assure the protection of human health, safety or the
environment, or that classify, regulate, call for the remediation of, require
reporting with respect to, or list or define air, water, groundwater, solid
waste, hazardous or toxic substances, materials, wastes, pollutants or
contaminants, or which are intended to assure the safety of employees, workers
or other persons, including the public; and (iii) "Premises" or "Facilities"
means any property owned, operated or leased by the Seller and used in
connection with the Business.
(b) Environmental Permits and Other Matters. The Seller has obtained and holds
---------------------------------------
all registrations, permits, licenses, and approvals issued by or on behalf of
any federal, state or local government body or agency ("Environmental Permits"),
that are required in connection with the discharge or emission of Substances (as
hereinabove defined) from the facilities or plants relating to the Business or
the generation, treatment, storage, use, transportation, or disposal of any such
Substances. Such Environmental Permits, which are described in Schedule 2.20,
-------------
are currently effective and sufficient for the ownership and operation of the
plants and facilities relating to the Business and the operation of the Seller
relating to the Business as currently conducted.
The Seller represents, covenants and warrants to and agrees with Buyer, as of
the date of this Agreement and as of the Time of Closing, as follows:
(i) The Seller and the Premises are, and at the Time of Closing
shall be, in compliance with all applicable laws, rules,
regulations, orders, ordinances, judgments and decrees of
all governmental authorities (federal, state, and local).
Except as set forth in Schedule 2.20, the Seller is not
-------------
aware of, nor has it received notice of, any past, present
or future events, conditions, circumstances, activities,
practices, incidents, actions or plans of the Seller or its
predecessors, either collectively, individually or
severally, which may interfere with or prevent continued
compliance, or which may give rise to any common law or
legal liability, or otherwise form the basis of any claim,
action, suit, proceeding, hearing, or investigation, based
on or related to the disposal, storage, handling,
manufacture, processing, distribution, use, treatment, or
transport, or the emission, discharge, release or threatened
release into the environment, of any Substances.
(ii) No part of the Premises has been listed or proposed for
listing on the National Priorities List established by the
United States Environmental Protection Agency or the
comparable lists maintained by state authorities in
California and Michigan, or any other such list.
18
<PAGE>
(iii) The Seller has obtained all material permits, licenses and
other authorizations which are required with respect to the
Premises under federal, state and local laws or otherwise
relating to pollution or protection of human health, safety
or the environment. Except as set forth in Schedule 2.20,
-------------
the Seller is in full compliance with all terms and
conditions of the required permits, licenses and
authorizations, and is also in full compliance with all
other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules, and
timetables contained in those laws or provisions or
contained in any regulation, code, plan, order, decree,
judgment, notice or demand letter issued, entered,
promulgated or approved thereunder and applicable to the
Seller.
(iv) Seller has received no notice of any noncompliance of the
Facilities or its past or present operations with
Environmental and Safety laws.
(v) No notices, administrative actions or suits are pending, or,
to Seller's knowledge, threatened relating to a violation of
any Environmental and Safety Laws.
(vi) To Seller's knowledge, the Seller is not a potentially
responsible party under the federal Comprehensive
Environmental Response, Compensation and Liability Act
(CERCLA), or state analog statute, arising out of events
occurring prior to the Closing Date.
(vii) There have not been in the past, and are not now, any
Hazardous Materials which have been stored other than in
small quantities in compliance with all environmental and
safety laws, or released or under, or migrating to or from
the Facilities or Property.
(viii) There have not been in the past, and are not now, any
underground tanks or underground improvements at, on or
under the Property including without limitation, treatment
or storage tanks, sumps, or water, gas or oil wells.
(ix) Seller has not deposited, stored, disposed of or located
polychlorinated biphenyls (PCB) on the Property or
Facilities or any equipment on the Property containing PCBs
at levels in excess of 50 parts per million.
(x) To Seller's knowledge, there is no formaldehyde on the
Property or in the Facilities, nor any insulating material
containing urea formaldehyde in the Facilities.
19
<PAGE>
(xi) The Facilities and Seller's and its subsidiaries uses and
activities therein have at all times complied with all
Environmental and Safety Laws.
(c) The representations and warranties made in this Section 2.20 (a) and (b),
unless otherwise specifically provided therein, shall be qualified as follows:
(i) with respect to all Facilities other than the Fullerton, California Facility
(the "Non-Fullerton Facilities") (A) as to the period during which Seller owned
the Non-Fullerton Facilities, all representations and warranties herein are made
without qualification, and (B) as to the period prior to the purchase of the
Non-Fullerton Facilities by the Seller, all representations and warranties here
in are to the best of the Seller's knowledge after reasonable due diligence
inquiry which, with respect to Hazardous Materials, is based upon the Phase I
and Phase II environmental studies performed by Seller on such Non-Fullerton
Facilities and (ii) with respect to the Fullerton, California Facility, (A) as
to the period during which the Seller leased such Facility, all representations
and warranties herein are made without qualification and (B) as to the period
prior to the lease of such Facility by the Seller, all representations and
warranties herein are to the best of Seller's knowledge after reasonable due
diligence inquiry, with the understanding that Seller has not performed a Phase
I or Phase II environmental study on such Facility.
SECTION 2.21 Insurance. The Seller is, and will be through the Closing,
---------
adequately insured with responsible insurers in respect of its properties,
assets and businesses against risks normally insured against by companies in
similar lines of business under similar circumstances. Schedule 2.21 correctly
-------------
describes (by type, carrier, policy number, limits, premium, and expiration
date) the insurance coverage carried by the Seller, which insurance will remain
in full force and effect with respect to all events occurring prior to the
Closing. To the extent that Buyer notifies Seller in writing that it intends to
continue existing insurance maintained by Seller with respect to the Business,
Seller represents and warrants that (A) it (i) has not failed to give any notice
or present any claim under any such policy or binder in due and timely fashion,
(ii) has not received notice of cancellation or non-renewal of any such policy
or binder, (iii) is not aware of any threatened or proposed cancellation or non-
renewal of any such policy or binder, (iv) has not received notice of any
insurance premiums which will be materially increased in the future, and (v) is
not aware of any insurance premiums which will be materially increased in the
future and (B) there are no outstanding claims under any such policy which have
gone unpaid for more than 45 days, or as to which the insurer has disclaimed
liability.
SECTION 2.22 Outstanding Commitments. Schedule 2.22 sets forth a description
----------------------- -------------
of all existing contracts, agreements, commitments, licenses and franchises
(collectively "Agreements"), whether written or oral, relating to the Seller.
The Seller has delivered or made available to the Buyer true, correct and
complete copies of all of the Agreements specified on Schedule 2.22 which are in
-------------
writing, and Schedule 2.22 contains an accurate and complete description of all
-------------
Agreements which are not in writing. The Seller has paid in full all amounts
due as of the date hereof under each Agreement identified in Schedule 2.22 and
-------------
as of the Closing Date will have satisfied in full all of its liabilities and
obligations thereunder due in the ordinary course of business prior to the
Closing. All of the Agreements described in Schedule 2.22 are in full force and
-------------
effect. The Seller and each other party thereto have performed all the
obligations
20
<PAGE>
required to be performed by them to date, have received no notice of default and
are not in default (with due notice or lapse of time or both) under any
Agreement. The Seller has no present expectation or intention of not fully
performing all its obligations under each Agreement, and the Seller has no
knowledge of any breach or anticipated breach by the other party to any contract
or commitment to which the Seller is a party. None of such Agreements has been
terminated, no notice has been given by any party thereto of any alleged default
by any party thereunder, and the Seller is not aware of any intention or right
of any party to default another party to any such Agreement. There exists no
actual or, to the knowledge of the Seller, threatened termination, cancellation
or limitation of the business relationship of the Seller with any party to any
such Agreement.
SECTION 2.23 Intellectual Property. (a) Except as set forth on Schedule
--------------------- --------
2.23, Seller owns, or is licensed or otherwise possess legally enforceable
- ----
rights to use all patents, trademarks, trade names, service marks, copyrights,
and any applications therefor, maskworks, net lists, schematics, technology,
know-how, trade secrets, inventory, ideas, algorithms, processes, computer
software programs or applications (in both source code and object code form),
and tangible or intangible proprietary information or material ("Intellectual
Property") that are used or currently proposed to be used in the Business as
currently conducted or as proposed to be conducted except to the extent that the
failure to have such rights has not had and would not reasonably be expected to
have a Material Adverse Effect on the Business.
(b) Schedule 2.23 lists (i) all patents and patent applications and all
-------------
registered and unregistered trademarks, trade names and service marks,
registered and unregistered copyrights, and maskworks, included in the
Intellectual Property, including the jurisdictions in which each such
Intellectual Property right has been issued or registered or in which any
application for such issuance and registration has been filed, (ii) all
licenses, sublicenses and other agreements as to which the Seller or its
Subsidiaries is a party and pursuant to which any person is authorized to use
any Intellectual Property, and (iii) all licenses, sublicenses and other
agreements as to which the Seller or its Subsidiaries is a party and pursuant to
which the Seller or its Subsidiaries is authorized to use any third party
patents, trademarks or copyrights, including software ("Third Party Intellectual
Property Rights") which are incorporated in, are, or form a part of any product
that is material to Business.
(c) There is no material unauthorized use, disclosure, infringement or
misappropriation of any Intellectual Property rights of Seller, any trade secret
material to Seller, or any Intellectual Property right of any third party to the
extent licensed by or through Seller, by any third party, including any employee
or former employee of Seller. The Seller has not entered into any agreement to
indemnify any other person against any charge of infringement of any
Intellectual Property, other than indemnification provisions contained in sales
invoices arising in the ordinary course of business.
(d) The Seller is not, nor will it be as a result of the execution and
delivery of this Agreement or the performance of its obligations under this
Agreement, in breach of any license, sublicense or other agreement relating to
the Intellectual Property or Third Party Intellectual Property Rights, the
breach of which would have a Material Adverse Effect on the Business. To
21
<PAGE>
the best knowledge of the Seller, no third party is in breach under any such
license, sublicense or other agreement relating to the Intellectual Property or
Third Party Intellectual Property Rights, the breach of which would have a
Material Adverse Effect on the Business. All of the rights of the Seller in such
licenses, sublicenses, and other agreements will be enforceable by Buyer
immediately after the Closing without the consent or agreement of any other
party.
(e) Except as set forth on Schedule 2.23, all patents, registered
-------------
trademarks, service marks and copyrights held by the Seller related to the
Business are valid and subsisting. The Seller (i) has not been sued or
threatened with any suit in any suit, action or proceeding which involves a
claim of infringement of any patents, trademarks, service marks, copyrights or
violation of any trade secret or other proprietary right of any third party; and
(ii) has not brought or threatened to bring any action, suit or proceeding for
infringement of Intellectual Property or breach of any license or agreement
involving Intellectual Property against any third party. The manufacturing,
marketing, licensing or sale of its product does not infringe any patent,
trademark, service mark, copyright, trade secret or other proprietary right of
any third party, where such infringement would have a Material Adverse Effect on
the Business.
(f) The Seller has used all reasonable efforts to protect its Intellectual
Property related to the Business against infringement by others and to preserve
its trade secrets and confidential or proprietary information.
(g) The Seller has secured valid written assignments from all consultants
and employees who contributed to the creation or development of Intellectual
Property of the rights to such contributions that the Seller does not already
own by operation of law, the absence of which would have a Material Adverse
Effect on the Business.
(h) All use, disclosure or appropriation of Intellectual Property not
otherwise protected by patents, patent applications or copyright ("Confidential
Information"), owned by the Seller related to the Business by or to a third
party has been pursuant to the terms of a written agreement between the Seller
and such third party. All use, disclosure or appropriation of Confidential
Information not owned by the Seller has been pursuant to the terms of a written
agreement between the Seller and the owner of such Confidential Information, or
is otherwise lawful.
(i) Except as described in Schedule 2.23, the Seller has not granted any
person or entity any right to use any of the Intellectual Property for any
purpose.
SECTION 2.24 Proprietary Information of Third Parties. No third party has
----------------------------------------
claimed or has reason to claim that any person employed by or affiliated with
the Seller has (a) violated or may be violating any of the terms or conditions
of such person's employment, non-competition or non-disclosure agreement with
such third party, (b) disclosed or may be disclosing or utilized or may be
utilizing any trade secret or proprietary information or documentation of such
third party, or (c) interfered or may be interfering in the employment
relationship between such third party and any of its present or former
employees. No third party has requested information from the Seller which
suggests that such a claim might be contemplated. No person employed by or
22
<PAGE>
affiliated with the Seller has employed or proposes to employ any trade secret
or any information or documentation proprietary to any former employer and, no
person employed by or affiliated with the Seller has violated any confidential
relationship which such person may have had with any third party, in connection
with the development, manufacture or sale of any product or proposed product or
the development or sale of any service or proposed service of the Business, and
the Seller has no reason to believe there will be any such employment or
violation. To the best of the Seller's knowledge, none of the execution or
delivery of this Agreement, or the carrying on of the Business as officers,
employees or agents by any officer, director, employee or consultant of the
Business, or the conduct or proposed conduct of the Business, will conflict with
or result in a breach of the terms, conditions or provisions of or constitute a
default under any contract, covenant or instrument under which any such person
is obligated.
SECTION 2.25 Significant Customers and Suppliers. Set forth on Schedule 2.25
----------------------------------- -------------
is a list of the Seller's ten largest customers and ten largest suppliers for
the most recent twelve-month period, together with the amount of sales or
purchases attributable to such customers or suppliers expressed in dollars and
as a percentage of total sales or purchases, as the case may be. Except as set
forth on Schedule 2.25, no customer or supplier which was significant to the
-------------
Seller during the past three years, has terminated, materially reduced or
threatened to terminate or materially reduce its purchases from or provision of
products or services to the Seller, as the case may be. Copies of the Seller's
standard forms of purchase or supply contracts and sales contracts are set forth
in Schedule 2.25. Except as set forth in Schedule 2.25, Seller has no sole
------------- -------------
source supplier or manufacturer for any of Seller's products or any material
component thereof.
SECTION 2.26 Governmental Approvals. Except as explicitly set forth in
----------------------
Schedule 2.26, no registration or filing with, or consent or approval of or
- -------------
other action by, any Federal, state or other governmental agency or
instrumentality is or will be necessary for the valid execution, delivery and
performance by the Seller of this Agreement.
SECTION 2.27 Transactions With Affiliates. Except as set forth on Schedule
---------------------------- --------
2.27, no director, officer or employee of the Seller, or member of the family of
- ----
any such person, or any corporation, partnership, trust or other entity in which
any such person, or any member of the family of any such person, has a
substantial interest or is an officer, director, trustee, partner or holder of
any equity interest, is a party to any transaction with the Seller, including
any contract, agreement or other arrangement providing for the employment of,
furnishing of services by, rental of real or personal property from or otherwise
requiring payments or involving other obligations to any such person or firm.
All transactions listed on Schedule 2.27 shall be terminated on or prior to
-------------
Closing.
SECTION 2.28 Sales Agents. Set forth on Schedule 2.28 is a list for fiscal
------------ -------------
year 1996 and fiscal year 1997 of all of Seller's sales agents together with
their gross sales of Seller's products by product for each such fiscal year.
SECTION 2.29 Product Lists. Set forth on Schedule 2.29 is a complete listing
------------- -------------
as of the date hereof of Seller's products including the cost and list price
thereof.
23
<PAGE>
SECTION 2.30 Backlog and Quotations. Set forth on Schedule 2.30 is a
---------------------- -------------
complete listing as of June 15, 1998 of Seller's order backlog and outstanding
quotations.
SECTION 2.31 Warranty Claims and Significant Field Issues. Set forth on
--------------------------------------------
Schedule 2.31 is a list of all warranty claims which have been asserted or have
- -------------
been pending against Seller, and all significant customer complaints or repairs
pending or performed on equipment sold by or on behalf of Seller, within the
last two years, which involve the expenditure of more than $5,000 individually
or in the aggregate.
SECTION 2.32 Disclosure. All documents and schedules delivered or to be
----------
delivered by or on behalf of the Seller in connection with this Agreement and
the transactions contemplated hereby are true, complete and correct. Neither
this Agreement, nor any Schedule or Exhibit to this Agreement contains any
untrue statement of a material fact or omits a material fact necessary to make
the statements contained herein or therein, in light of the circumstances in
which made, not misleading.
SECTION 2.33 Purchase For Investment; Residence. The Seller is acquiring the
----------------------------------
Shares for investment for its own account and not with a view to the
distribution or public offering thereof within the meaning of the Securities Act
of 1933, as amended (the "Securities Act"). The Seller understands that the
Shares have not been registered under the Securities Act and may not be sold or
transferred without such registration or an exemption therefrom. The Seller is
sufficiently experienced in financial and business matters to be capable of
evaluating the risk of investment in the Shares and to make an informed decision
relating thereto. The Seller has the financial capability for making the
investment, can afford a complete loss of the investment, and the investment is
a suitable one for the Seller. The Seller is an Accredited Investor as defined
in Regulation D under the Securities Act. Prior to the execution and delivery
of this Agreement, the Seller has had the opportunity to ask questions of and
receive answers from representatives of the Buyer. Without limiting the
generality of the foregoing, the Seller acknowledges having received and
reviewed a copy of the Buyer's Annual Report on Form 10-K for the period ended
December 31, 1997, and quarterly report on form 10-Q for the period ended March
31, 1998. Jennings is a resident of Michigan and Lewis is a resident of
Michigan.
ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
The Buyer represents and warrants to the Seller as follows:
SECTION 3.01 Organization. Buyer is duly incorporated, validly existing and
------------
in good standing under the laws of the State of Delaware and is duly qualified
to transact business as a foreign corporation in each jurisdiction in which the
failure to so qualify would have a material adverse impact on the Buyer's
ability to purchase the Transferred Assets.
SECTION 3.02 Buyer's Power and Authority. Buyer has the corporate power and
---------------------------
authority to execute, deliver and perform this Agreement and the other documents
and
24
<PAGE>
instruments contemplated hereby. The execution, delivery and performance of
this Agreement and the documents contemplated hereby and the consummation of the
transactions contemplated hereby and thereby have been duly authorized and
approved by Buyer. This Agreement, and each of the other agreements, documents
and instruments to be executed and delivered by Buyer have been duly executed
and delivered by, and constitute the valid and binding obligation of Buyer
enforceable against Buyer in accordance with their terms.
SECTION 3.03 Validity, Etc. Neither the execution and delivery of this
--------------
Agreement and the other documents and instruments contemplated hereby, the
consummation of the transactions contemplated hereby or thereby, nor the
performance of this Agreement and such other agreements in compliance with the
terms and conditions hereof and thereof will (i) conflict with or result in any
breach of any trust agreement, certificate of incorporation, bylaw, judgment,
decree, order, statute or regulation applicable to Buyer (ii) require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority (except the listing of issuance of
additional shares on the NASDAQ with respect to the Shares), (iii) result in a
breach of or default (or give rise to any right of termination, cancellation or
acceleration) under any law, rule or regulation or any judgment, decree, order,
governmental permit, license or order or any of the terms, conditions or
provisions of any mortgage, indenture, note, license, agreement or other
instrument to which Buyer is a party or (v) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Buyer.
SECTION 3.04 No Violation of Laws or Contracts. Neither the execution and
----------------------------------
performance of this Agreement or the other agreements executed by the Buyer in
accordance with the terms hereof, nor the consummation of the transactions
contemplated hereby and thereby, will violate any provisions of law, any order
of any court or other agency or government, or any ordinance, indenture or
agreement to which the Buyer is a party which would materially impair the
Buyer's ability to consummate the transactions contemplated hereby.
SECTION 3.05 Capitalization; Capital Stock. The authorized capital stock
-----------------------------
of Buyer consists of 20,000,000 shares of Common Stock, par value $.01 per share
of which 5,153,054 shares are issued and outstanding as of June 1, 1998. All of
such shares are duly authorized, validly issued, fully paid and non-assessable.
Except as set forth on Schedule 3.05, as of the date hereof there are no
-------------
outstanding subscriptions, warrants, rights, calls or convertible securities,
stock appreciation rights (phantom or otherwise), joint venture, partnership or
other commitments of any nature relating to shares of the capital stock of Buyer
and there are no persons who individually hold options to purchase in the
aggregate more than 50,000 shares of the capital stock of the Buyer. The Shares
to be issued to Sellers at the Closing will be duly authorized, validly issued,
fully paid and non-assessable. Except as set forth in the Stockholders
Agreement, there are no restrictions on the transfer of the Shares other than
those imposed by relevant state, federal securities laws, rules, orders and
regulations.
SECTION 3.06. Financial Information; SEC Reports. Copies of all reports,
----------------------------------
if any, filed by Buyer with the United States Securities and Exchange Commission
(the "Commission") pursuant to the Exchange Act during the period from December
31, 1997 to the date of this Agreement (the "SEC Reports") have been furnished
to Sellers. The audited financial statements
25
<PAGE>
of the Buyer contained in the Buyer's Annual Report on Form 10-K for the year
ended December 31, 1997, including the notes relating thereto, disclose all
material liabilities of the Company as of the date thereof. Such financial
statements, including the notes relating thereto, have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved. Said financial statements and related notes
fairly present the financial position and the results of operations and cash
flow of Company as of the respective dates thereof and for the periods
indicated. The SEC Reports as of their date, do not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE IV
----------
COVENANTS OF SELLER
-------------------
Each Seller jointly and severally covenants and agrees with the Buyer as
follows:
SECTION 4.01 Best Efforts Cooperation. The Seller shall use its reasonable
------------------------
best efforts in good faith to perform and fulfill all conditions and obligations
to be fulfilled or performed by it hereunder, to the end that the transactions
contemplated hereby will be fully and timely consummated.
SECTION 4.02 Access. Until the Closing, the Buyer, its attorneys,
------
accountants and other authorized representatives shall have, with the permission
of Seller (which permission shall not be unreasonably withheld) complete access,
upon reasonable notice and at reasonable times, to the Seller's offices,
properties, customers, suppliers, employees, products, technology, business and
financial records, contracts, business plans, budgets and projections,
agreements and commitments and other documents and information concerning the
Seller and the Business and persons employed by or doing business with the
Seller (collectively "Seller's Information and Facilities") provided however,
that, notwithstanding the requirement of Seller's permission, it is the intent
of the parties that in order for it to perform its due diligence investigation
and in connection with the consummation of the transaction, the Buyer will
require and be granted complete access to the Seller's Information and
Facilities. In order that the Buyer may have full opportunity to make such
examination and investigation as it may desire of the business and affairs of
the Seller, the Seller will furnish the Buyer and its representatives during
such period with all such information as such representatives may reasonably
request and cause the respective officers, employees, consultants, agents,
accountants and attorneys of the Seller to cooperate fully with the
representatives of the Buyer in connection with such review and examination and
to make full disclosure to the Buyer of all material facts affecting the
Seller's financial condition, business operations, properties and prospects of
the Business. Following the Closing, the Seller shall provide the Buyer with
access to any and all records relating to the Business which remain in the
possession of accountants, attorneys and other parties.
26
<PAGE>
SECTION 4.03 Properties, Business, Insurance. The Seller shall maintain with
-------------------------------
financially sound and reputable insurers, insurance against such casualties and
contingencies and of such types and in such amounts as is customary for
companies similarly situated.
SECTION 4.04 Compliance with Laws. The Seller shall conduct the Business in
--------------------
compliance with all applicable laws, rules, regulations and orders.
SECTION 4.05 Keeping of Books and Records. The Seller shall to keep adequate
----------------------------
records and books of account, in which complete entries will be made in
accordance with generally accepted accounting principles consistently applied,
reflecting all financial transactions and in which all proper reserves for
depreciation, depletion, obsolescence, amortization, taxes, bad debts and other
purposes in connection with its business shall be made.
SECTION 4.06 Actions Prior to Closing. The Seller shall conduct the Business
------------------------
pending the Closing only in the ordinary and usual course of the Business
consistent with past practice. Without limiting the generality of the
foregoing, the Seller will not, except in the ordinary and usual course of the
business, without the prior written consent of the Buyer, (i) make any
acquisition or disposition of assets, (ii) enter into any contract or release or
relinquish any contract or other right, (iii) enter into or renew any employment
agreement with any employees or consultants or grant any increases in the
compensation or benefits to, or agree to pay any bonus, severance or termination
payment or other special compensation to any employees or consultants or (iv)
pay any dividend or otherwise make any distribution to any of its Shareholders
or repurchase any of its outstanding Capital Stock.
SECTION 4.07 Litigation. The Seller will promptly notify the Buyer of any
----------
lawsuits, claims, proceedings or investigations which are threatened or
commenced against or by the Seller or its affiliates, or against any employee,
consultant or director of the Seller.
SECTION 4.08 Continued Effectiveness of Representations and Warranties. From
---------------------------------------------------------
the date hereof up to and including the Closing Date, (i) the Seller will
conduct the Business in a manner such that the representations and warranties
contained herein shall continue to be true and correct on and as of the Closing
Date as if made on and as of the Closing Date, except for changes and the
consequences of events arising in the ordinary and usual course of business
after the date hereof and none of which would have an adverse effect on the
properties, assets, operations or condition (financial or otherwise) or
prospects of the Business; and (ii) the Seller will advise the Buyer promptly in
writing of any condition or circumstance occurring from the date hereof up to
and including the Closing Date which could cause any representations or warranty
of the Seller to become untrue in any material respect.
SECTION 4.09 Obligations of Affiliates. Except as specifically set forth in
-------------------------
this Agreement, on or before the Closing Date the Seller will, and the Seller
will cause its affiliates to, (i) cause all debts, claims and other obligations
owed or required to be performed by the Seller to any of its affiliates, to be
paid or discharged in full and (ii) terminate any ongoing agreements between it
on the one hand and its affiliates on the other, all without any expense to the
Seller (or any reduction in the gross assets reflected on the Balance Sheet or
acquired since
27
<PAGE>
the date thereof) and so that following the Closing Date Buyer shall have no
obligations of any kind or nature to the Seller or its affiliates except for
those specified in this Agreement.
SECTION 4.10 Tax Returns. The Seller shall cause to be prepared and timely
-----------
filed, at its sole expense, all of its required tax returns for all periods up
to and including the Closing Date. The Seller shall be responsible for the
payment of, and will indemnify, defend and hold the Buyer harmless against all
taxes due or assessed which relate to the operations of the Business for all
periods up to and including the Closing Date.
SECTION 4.11 Payment of Liabilities. On or before the Closing Date, the
----------------------
Seller shall pay and satisfy in full all of its obligations and liabilities, of
any nature whatsoever, which accrued prior to the Closing Date whether or not
such obligations are due and payable as of or before the Closing Date, except
for accrued taxes and except for those accounts payable and other accrued
liabilities which are Assumed Liabilities.
SECTION 4.12 No Negotiations. Until September 30, 1998, or the earlier
---------------
termination of this Agreement in accordance with its terms, neither the Seller
nor any of its affiliates, advisors, agents or investment bankers shall,
directly or indirectly, initiate discussions with, engage in negotiations with,
or provide any information or access to the Transferred Assets or the Business
to any corporation, partnership, person or other entity or group involving the
possible sale, directly or indirectly, transfer or joint venture of any part of
the Transferred Assets, the Business, or the stock of the Seller to any person
or entity other than the Buyer.
Until September 30, 1998, or the earlier termination of this Agreement in
accordance with its terms, neither the Buyer nor any of its affiliates,
advisors, agents or investment bankers shall, directly or indirectly, enter into
any written agreement to acquire assets or stock of any corporation,
partnership, person or other entity or group involving a competing or similar
business to that of the Sellers.
SECTION 4.13 Non-Competition. At the Closing the Sellers will to enter into
---------------
a Noncompetition and Confidentiality Agreement in substantially the form of
Exhibit 4.13 pursuant to which the Seller and its affiliates will agree (i) to
- ------------
maintain all information regarding the Business in confidence and (ii) not to
engage, directly or indirectly, in any business competitive with the Business,
for a period of five years following the Closing Date.
SECTION 4.14 Use of Names. After the Closing, neither the Seller nor any
------------
affiliate of the Seller shall use the names "Epworth Manufacturing Company,
Inc.", "Morehouse-COWLES, Inc.", COWLES" or "EMCO U.S.A." (and all variations of
those names), or any other trade name, trademark, logo or service mark included
in the Transferred Assets. On and after the Closing Date, the Seller shall not
otherwise, through the Seller's actions or conduct, represent or imply to any
person that the Seller is affiliated with the Buyer. On the Closing Date, the
Seller shall change its corporate name to a name that is reasonably satisfactory
to Buyer and does not use the terms "Epworth Manufacturing Company, Inc.,
Morehouse-COWLES, Inc." or "EMCO U.S.A." (and all variations of those names),
and shall deliver evidence of the change to the Buyer. The Sellers shall
execute and deliver to Buyer any documentation or certificates
28
<PAGE>
reasonably requested by Buyer in order to enforce, execute or memoralize
Sellers' consent to Buyer's use of the corporate names "Epworth Manufacturing
Company, Inc.", Morehouse-COWLES, Inc." or "EMCO U.S.A.".
SECTION 4.15 Collection of Accounts Receivable. The Seller's accounts
---------------------------------
receivable as of the Closing Date to be acquired by the Buyer pursuant to this
Agreement will be collectible and paid in full within one hundred twenty (120)
days following the Closing Date (the "Collection Period"), without the necessity
of resorting to legal action. If any of the purchase accounts receivable (the
"Uncollected Accounts Receivable") are not collected within the Collection
Period, the Buyer shall be entitled to sell to the Seller, and the Seller shall
be obligated to repurchase from the Buyer, at the Buyer's option, any or all of
the Uncollected Accounts Receivable at the book value as of the Closing Date.
The Seller shall repurchase the designated Uncollected Accounts Receivable from
the Buyer within ten (10) days after demand by the Buyer. The repurchase of
such Uncollected Accounts Receivable shall be by set off against first, all
accrued and unpaid interest on, and then, principal of the Subordinated
Promissory Note. Buyer shall reasonably assist Seller in Seller's efforts to
collect those repurchased Uncollected Accounts Receivable. If collected by
Buyer, Buyer will remit to Seller collections of the repurchased Uncollected
Accounts Receivable within seven (7) days of receipt by Buyer. With the prior
written consent of Buyer, Seller may seek collection, in a manner which has been
approved by Buyer prior to such collection, of the repurchased Uncollected
Accounts Receivable in the name of Buyer provided that the Seller will
effectuate such collection in accordance with customary procedures employed by
Buyer with respect to its customers and in a manner which would not reflect
unfavorably upon the Buyer. Each Seller hereby agrees to indemnify, severally
and jointly, Buyer against any and all Claims resulting from unfair or
oppressive credit collection practices by the Seller.
SECTION 4.16 Compromise and Settlement of Certain Liabilities. Seller will
------------------------------------------------
not compromise, settle or make any payments with respect to the liabilities
listed on Schedule 1.02(a) without the Buyer's prior written consent and Seller
----------------
shall effect any compromise or settlement of such liabilities as Buyer shall
direct (so long as such compromise or settlement shall completely discharge the
liability of Seller, Jennings and Lewis thereunder).
SECTION 4.17 Reasonable Efforts to Obtain Financing. Seller will use its
--------------------------------------
commercially reasonable efforts to assist Buyer in obtaining bank approval for
the financing referenced in Section 6.12 herein.
SECTION 4.18 Books and Records of Seller for 1998 Audited Balance Sheet .
-----------------------------------------------------------
The Sellers will furnish Buyer or Buyer's Accountant with its books and records
for Buyer's preparation of the Audited 1998 Balance Sheet. Such records and
books of the Sellers, when furnished, will be complete and correct in all
material respects and accurately reflect all transactions of the Business.
29
<PAGE>
ARTICLE V
---------
COVENANTS OF THE BUYER
----------------------
SECTION 5.01 Cooperation. The Buyer shall use its reasonable best efforts in
-----------
good faith to perform and fulfill all conditions and obligations to be fulfilled
or performed by it hereunder to the end that the transactions contemplated
hereby will be fully and timely consummated.
SECTION 5.02 Bulk Sales Laws. The Seller has requested that the Buyer waive
---------------
compliance with the bulk sales laws of the States of California and Michigan and
the Commonwealth of Massachusetts, and the Buyer has agreed to waive the same.
In consideration of such waiver, the Seller shall indemnify and hold the Buyer
harmless against and in respect of any claim affecting the Transferred Assets
made by a creditor of the Seller and which is based upon noncompliance with such
bulk sales law in connection with the transactions contemplated by this
Agreement and which arose out of any transaction or event occurring on or before
the Closing Date.
SECTION 5.03 Reasonable Efforts to Obtain Financing. Buyer will use its
--------------------------------------
commercially reasonable efforts to obtain the financing referenced in Section
6.12 herein as soon as practicable. For purposes of this Agreement, soliciting
at least four financial institutions for such financing shall be deemed to be an
adequate number of solicitees to establish commercially reasonable efforts by
Buyer.
SECTION 5.04 Reasonable Efforts to Provide for Payments under the
----------------------------------------------------
Subordinated Promissory Note. The Buyer will use commercially reasonable
- ----------------------------
efforts to provide in the Subordination Agreement referenced in Section 6.09 for
payments when due under the Subordinated Promissory Note subject to the
conditions as provided by the lending party in such Subordination Agreement.
Notwithstanding the foregoing, the Buyer shall not be limited in any manner from
selecting a loan commitment and entering into a Subordination Agreement pursuant
thereto which, in its good faith judgment, is in the best interest of the Buyer.
SECTION 5.05 Agreement to Cause Nomination. The Buyer will use its
-----------------------------
reasonable efforts to cause the nomination of Jennings and Lewis as directors of
the Buyer at the 1999 annual meeting of Buyer's shareholders. Thereafter, so
long as there remains any unpaid interest on or outstanding principal of the
Subordinated Promissory Note, either the Sellers, Lewis or Jennings or the
holders of the Subordinated Promissory Note and such nominee remains an employee
of Buyer and is in compliance with the terms and conditions of this Agreement,
the Stockholders Agreement, the Non-Competition and Confidentiality Agreement to
which such nominee is a party and the Employment Agreement, if any, to which
such nominee is a party, the Buyer will use its reasonable efforts to support
the nomination of such nominee as a director of the Buyer, provided that nothing
contained in this Section 5.05 shall require the Buyer to violate any laws,
statutes, regulations or judicial or administrative decisions.
30
<PAGE>
ARTICLE VI
----------
CONDITIONS TO THE BUYER'S OBLIGATIONS'
-------------------------------------
The obligation of the Buyer to pay the Purchase Price on the Closing Date and
to consummate the other transactions contemplated hereby is subject to the
satisfaction, on or before the Closing Date, of the following conditions each of
which may be waived by the Buyer in its sole discretion:
SECTION 6.01 No Material Adverse Economic Event. There shall not have
----------------------------------
occurred (i) any general suspension of trading in, or limitation on prices for,
or other extraordinary event affecting securities on the New York Stock
Exchange, (ii) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or (iii) any material
limitation (whether or not mandatory) by any governmental authority on, or any
other event which might affect the extension of credit by, lending institutions,
or (iv) in the case of any of the foregoing existing on the Closing Date a
material acceleration or worsening thereof.
SECTION 6.02 Consents. All requisite governmental approvals and consents of
--------
third parties identified on Schedule 6.02 or otherwise identified by the Seller
-------------
or Buyer as required to be received to prevent any material license, permit or
agreement relating to the Business from terminating prior to its scheduled
termination, as a result of the consummation of the transactions contemplated
hereby, shall have been obtained.
SECTION 6.03 Representations and Warranties True. All of the representations
-----------------------------------
and warranties of the Seller contained in this Agreement or in any Schedules or
other documents attached hereto or referred to herein or delivered pursuant
hereto or in connection with the transactions contemplated hereby shall be true,
correct and complete in all material respects on and as of the date hereof and
on and as of the Closing Date, as if made on and as of the Closing Date. On the
Closing Date, the Seller shall have executed and delivered to the Buyer a
certificate, in form and substance satisfactory to the Buyer and its counsel, to
such effect.
SECTION 6.04 Performance. The Seller shall have performed and complied with
-----------
all covenants and agreements contained herein required to be performed or
complied with by it prior to or at the Closing Date. The Seller shall have
executed and delivered to the Buyer a certificate, in form and substance
satisfactory to the Buyer and its counsel, in writing to such effect and to the
further effect that all of the conditions set forth in this Article VI have been
satisfied.
SECTION 6.05 No Adverse Change. No change shall have occurred or be
-----------------
threatened in the condition (financial or other) of the Seller the results of
its operations, properties, assets, liabilities or businesses which has been or
is or is reasonably likely to be adverse to its operations, properties,
prospects, assets or condition (financial or other).
SECTION 6.06 Opinion of Counsel. The Buyer shall have received the opinion
------------------
of counsel to the Sellers, in substantially the form attached hereto as Exhibit
-------
6.06.
- ----
31
<PAGE>
SECTION 6.07 No Actions, Suits or Proceedings. As of the Closing Date, no
--------------------------------
action, suit, investigation or proceeding brought by any person, corporation,
governmental agency or other entity shall be pending or, to the knowledge of the
parties to this Agreement, threatened, before any court or governmental body (i)
to restrain, prohibit, restrict or delay, or to obtain damages or a discovery
order in respect of this Agreement or the consummation of the transactions
contemplated hereby, or (ii) which has had or may have a materially adverse
effect on the condition, financial or otherwise, or prospects of the Sellers.
No order, decree or judgment of any court or governmental body shall have been
issued restraining, prohibiting, restricting or delaying, the consummation of
the transactions contemplated by this Agreement. No insolvency proceeding of
any character including without limitation, bankruptcy, receivership,
reorganization, dissolution or arrangement with creditors, voluntary or
involuntary, affecting the Sellers shall be pending, and the Sellers shall not
have taken any action in contemplation of, or which would constitute the basis
for, the institution of any such proceedings.
SECTION 6.08 Investigation Satisfactory. The Buyer shall be satisfied in all
--------------------------
respects in its sole and absolute judgment with the results of its investigation
of the properties, prospects and affairs of the Sellers, including without
limitation the matters set forth in the Exhibits, Schedules, information and
other documents and with the results of its examination of the Business and
condition (financial or otherwise) of the Seller.
SECTION 6.09 Subordination Agreement. The Seller shall have entered into a
-----------------------
Subordination Agreement with respect to the Subordinated Promissory Note on
terms and conditions satisfactory to Buyer.
SECTION 6.10 Jennings and Lewis Agreements. Jennings and Lewis shall have
-----------------------------
entered into (i) a Stockholders Agreement with respect to the Shares in the form
attached as Exhibit 6.10 and (ii) a Non-Disclosure/Non-Competition/Proprietary
------------
Rights Agreement in the form attached as Exhibit 6.10A.
-------------
SECTION 6.11 Disclosure and Other Agreements. The employees listed on
-------------------------------
Schedule 6.11, and such other employees of Sellers as Buyer shall designate in
- -------------
its reasonable discretion shall have entered into a Non-Disclosure Agreement in
the form attached as Exhibit 6.11A with the Buyer in form and substance
-------------
satisfactory to the Buyer. Such employees of Seller as Buyer shall designate in
its reasonable discretion not later than fourteen (14) days prior to Closing
shall have entered into a Non-Competition Agreement in form prepared by Buyer.
SECTION 6.12 Financing. Buyer shall have obtained a loan in connection with
---------
the consummation by it of the transactions contemplated hereunder on terms and
conditions satisfactory to it in its sole and absolute discretion from an
institutional lender of at least $4,500,000 (the "Financing").
SECTION 6.13 Assumption of Leases. Buyer shall be entitled, without any
--------------------
acceleration, modification or termination thereof, (i) to assume Seller's rights
under the Fullerton, California facility lease attached hereto as Exhibit 6.13A,
-------------
(ii) to use the Palos Verdes, California
32
<PAGE>
condominium in accordance with the terms and conditions of its lease attached
hereto as Exhibit 6.13B and (iii) to enter into Leases with respect to the South
-------------
Haven, Michigan facility satisfactory to Buyer in form and substance. Buyer, in
its sole discretion, shall have the right to request any instruments modifying
such leases and confirming the validity of such assignment and the consent of
the Lessor thereto in the form of an assumption agreement as reasonably
requested by Buyer.
SECTION 6.14 Satisfaction With Intellectual Property. Buyer shall be
---------------------------------------
satisfied with the intellectual property of Seller, including without limitation
the status of patents and trademark registration and the competitive and
performance advantages of Epworth's "Zinger(R)" media mill.
SECTION 6.15 Satisfaction With Existing Employment Agreements. Buyer shall
------------------------------------------------
be reasonably satisfied with the existing employment agreements and
compensation, incentive, expense or other extraordinary arrangements (including
but not limited to perquisites) with Sellers' personnel.
SECTION 6.16 Fairness Opinion. The Buyer shall have received a favorable
----------------
fairness opinion as to the Purchase Price from O'Conor, Wright Wyman, Inc. or
such other firm acceptable to the Buyer, in form and substance satisfactory to
the Buyer, which Fairness Opinion is expected to be received within three weeks
of the date of this Agreement.
SECTION 6.17 Closing Documents. The Seller shall have delivered all of the
-----------------
resolutions, certificates, documents and instruments required by this Agreement.
SECTION 6.18 Approval of the Buyer and Its Counsel. All actions,
-------------------------------------
proceedings, consents, instruments and documents required to be delivered by, or
at the behest or direction of, the Seller hereunder or incident to its
performance hereunder, and all other related matters, shall be reasonably
satisfactory as to form and substance to the Buyer and its counsel.
SECTION 6.19 Director and Officer Questionnaire. In anticipation of the
----------------------------------
appointment of Jennings and Lewis as directors upon the Closing as contemplated
in Section 7.08, Jennings and Lewis each shall have completed and returned to
the Buyer the form of Director and Officer Questionnaire provided by the Buyer.
The information provided by each of Jennings and Lewis in such Director and
Officer Questionnaire shall be accurate, complete and reasonably satisfactory to
the Buyer.
SECTION 6.20 Due Diligence Review. Buyer shall have completed and been
--------------------
satisfied in good faith in its sole discretion with the results of a due
diligence review of the Sellers and their respective businesses, operations,
properties, assets, liabilities, condition (financial and otherwise) and
prospects and with its due diligence investigation of the tax returns previously
provided to Buyer. The Sellers acknowledge that as of the date of this
Agreement, the Buyer has not reviewed any due diligence material.
33
<PAGE>
SECTION 6.21 Product Liability Insurance. The Seller is, and will be at the
---------------------------
Closing, adequately insured with responsible insurers against all product
liability claims in respect of all its goods manufactured or shipped prior to
the Closing, as reasonably satisfactory to Buyer.
ARTICLE VII
-----------
CONDITIONS TO THE SELLER'S OBLIGATIONS'
--------------------------------------
The obligation of the Seller to transfer the Transferred Assets to Buyer and
to consummate the other transactions contemplated hereby is subject to the
satisfaction, on or before the Closing Date, of the following conditions, each
of which may be waived by the Seller in its sole discretion:
SECTION 7.01 Representations and Warranties to be True and Correct. The
--------------------------------------------- -------
representations and warranties contained in Article III shall be true, complete
and correct in all material respects, on and as of the Closing Date, as if made
on and as of such date, and the Buyer shall have delivered to the Seller a
certificate, in form and substance satisfactory to the Seller and its counsel,
to such effect.
SECTION 7.02 Performance. The Buyer shall have performed and complied with
-----------
all agreements contained herein required to be performed or complied with by it
prior to or at the Closing Date, and the Buyer shall have delivered a
certificate to the Seller, in form and substance satisfactory to the Seller and
its counsel to such effect.
SECTION 7.03 Opinion of the Buyer's Counsel'. The Seller shall have received
------------------------------
from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., an opinion dated the
Closing Date, in substantially the form attached hereto as Exhibit 7.03.
------------
SECTION 7.04 No Actions, Suits or Proceedings. As of the Closing Date, no
--------------------------------
action, suit, investigation or proceeding brought by any person, corporation,
governmental agency or other entity shall be pending or, to the knowledge of the
parties to this Agreement, threatened, before any court or governmental body to
restrain, prohibit, restrict or delay, or to obtain damages or a discovery order
in respect of this Agreement or the consummation of the transactions
contemplated hereby. No order, decree or judgment of any court or governmental
body shall have been issued restraining, prohibiting, restricting or delaying,
the consummation of the transactions contemplated by this Agreement. No
insolvency proceeding of any character including without limitation, bankruptcy,
receivership, reorganization, dissolution or arrangement with creditors,
voluntary or involuntary, affecting the Buyer shall be pending, and the Buyer
shall not have taken any action in contemplation of, or which would constitute
the basis for, the institution of any such proceedings.
SECTION 7.05 Closing Documents. The Buyer shall have delivered the Purchase
-----------------
Price and all of the resolutions, certificates, documents and instruments
required by this Agreement.
SECTION 7.06 Employment of Jennings and Lewis. Upon the Closing, Jennings
--------------------------------
and Lewis shall be employed by Buyer on an at-will basis, each at a salary of
$106,000 per annum, and there shall be in effect with each of them an agreement
substantially in the form of Exhibit 7.06 hereto.
------------
34
<PAGE>
SECTION 7.07 Grant of Options. Jennings and Lewis shall each have been
----------------
granted "qualified" stock options to purchase 30,000 shares of Buyer's Common
Stock pursuant to Buyer's 1988 Stock Option Plan at the then prevailing market
price for the shares and vesting as provided for under such plan.
SECTION 7.08 Appointment of Jennings and Lewis as Directors. Jennings and
----------------------------------------------
Lewis shall have been appointed to serve as directors of Buyer effective as of
the Closing, in accordance with Buyer's By Laws.
SECTION 7.09 Approval of the Seller and Its Counsel. All actions,
--------------------------------------
proceedings, consents, instruments and documents required to be delivered by, or
at the behest or direction of, the Buyer hereunder or incident to its
performance hereunder, and all other related matters, shall be reasonably
satisfactory as to form and substance to the Seller and its counsel.
SECTION 7.10 Consent of Financing. If any written financing commitment
--------------------
received in response to the financing applications submitted to BankBoston,
Comerica, Harris Bank and NBD Bank in connection with the Financing permits the
payment of the principal and interest of the Subordinated Promissory Note on or
before the stated maturity thereof so long as no default or event of default
exists under the terms of the Financing, Seller shall have consented to the
terms and conditions of the Subordination Agreement, which consent shall not be
unreasonably withheld.
ARTICLE VIII
------------
INDEMNIFICATION
---------------
SECTION 8.01 Survival. All representations and warranties in this Agreement,
--------
or in any instrument or document furnished in connection with this Agreement or
the transactions contemplated hereby, shall survive the Closing and any
investigation at any time made by or on behalf of any party for a period of two
(2) years. All such representations and warranties shall expire on the second
anniversary of the Closing Date, except that (a) claims, if any, asserted in
writing prior to such third anniversary identified as a claim for
indemnification pursuant to this Article VIII shall survive until finally
resolved and satisfied in full, and (b) claims, if any, which are environmental
in nature, which are based upon fraud by the Seller, relate to title of the
Transferred Assets or which assert tax liability shall survive for the full
period of the applicable statute of limitations, and until finally resolved and
satisfied in full if asserted on or prior to such date.
SECTION 8.02 Indemnification by Seller. The Sellers shall jointly and
-------------------------
severally indemnify, defend, and hold the Buyer and its respective Affiliates
(as such term is defined under Rule 405 of the Rules and Regulations of the
Securities Act of 1933, as amended) and the respective officers, directors,
employees and shareholders (other than the Seller and its affiliates)
35
<PAGE>
of the foregoing, and their successors and assigns (the "Indemnities") from,
against and with respect to any claim, liability, obligation, loss, damage,
assessment, judgment, cost and expense (including, without limitation,
reasonable attorneys' and accountants' fees and costs and expenses reasonably
incurred in investigating, preparing, defending against or prosecuting any
litigation or claim, action, suit, proceeding or demand) of any kind or
character (the "Damages"), arising out of or in any manner incident, relating or
attributable to:
(a) Any inaccuracy in any representation or breach of warranty of the Seller
contained in this Agreement or in any certificate, instrument of transfer or
other document or agreement executed by the Seller in connection with this
Agreement or otherwise made or given in connection with this Agreement;
(b) Any failure by the Seller or its affiliates to perform or observe, or to
have performed or observed, in full, any covenant, agreement or condition to be
performed or observed by them under this Agreement or under any certificates or
other documents or agreements executed by the Seller or its affiliates in
connection with this Agreement;
(c) Reliance by the Buyer on any books or records of the Seller or reliance by
the Buyer on any information furnished to the Buyer pursuant to this Agreement
by or on behalf of the Seller; or
(d) Liabilities or obligations of, or claims against, the Buyer (whether
absolute, accrued, contingent or otherwise) relating to, or arising out of, the
operation of the Business prior to the Closing Date or facts and circumstances
existing at or prior to the Closing Date, whether or not such liabilities or
obligations were known on such date, and any other liabilities and obligations
of the Seller or relating to the Business not expressly assumed by Buyer.
provided, however, that (i) any claim for indemnification under Sections 8.02(a)
- -------- -------
and 8.02(c) shall be asserted prior to the expiration of the survival period set
forth in Section 8.01, (ii) the Sellers shall have no liability hereunder unless
individual claims for Damages exceed $20,000 (without regard to any materiality
qualifiers in any provision) or aggregate claims for Damages exceed $50,000 and
(iii) the maximum amount to be recovered by an Indemnity under the
indemnification set forth in this Section 8.01 shall be the aggregate net loss
of such event after taking into account insurance recoveries and the present
value of tax benefits.
SECTION 8.03 Indemnification of Seller by Buyer. Buyer hereby agrees to
----------------------------------
indemnify and hold harmless Seller against any and all Damages arising directly
out of (a) any breach of any representation, warranty, covenant, or agreement of
Buyer contained in this Agreement and (b) the Assumed Liabilities, provided,
---------
however, that (i) any claim for indemnification hereunder shall be asserted
- -------
prior to the expiration of the survival period set forth in Section 8.01, (ii)
Buyer shall not have any liability hereunder unless, until and to the extent
that the aggregate of such Damages exceeds $50,000, (iii) in no event shall
Buyer be liable for consequential damages asserted by Seller, and (iv) after the
Closing, the rights of Sellers under this Section 8.03 shall be the sole remedy
of Sellers for any breach of this Agreement.
36
<PAGE>
SECTION 8.04 Claims for Indemnification. In the event of the occurrence of
--------------------------
any event which any party asserts is an indemnifiable event pursuant to this
Article VIII, the party claiming indemnification (the "Indemnified Party") shall
provide prompt notice to the party required to provide indemnification (the
"Indemnifying Party"), specifying in detail the facts and circumstances with
respect to such claim and the basis for which indemnification is available
hereunder. If such event involves the claim of any third party the Indemnifying
Party shall have the right to control the defense or settlement of such claim;
provided, however, that (a) the Indemnified Party shall be entitled to
participate in the defense of such claim at its own expense, (b) the
Indemnifying Party shall obtain the prior written approval of the Indemnified
Party (which approval shall not be unreasonably withheld or delayed) before
entering into any settlement of such claim if, pursuant to or as a result of
such settlement, injunctive or other non-monetary relief would be imposed
against the Indemnified Party, (c) the Indemnifying Party shall not be entitled
to control (but shall be entitled to participate at its own expense in the
defense of), and the Indemnified Party shall be entitled to have sole control
over, and shall assume all expense with respect to the defense or settlement of
any claim to the extent such claim seeks an order, injunction or other equitable
relief against the Indemnified Party which, if successful, could materially
interfere with the business, operations, assets, condition (financial or
otherwise) or prospects of the Indemnified Party, provided that the Indemnified
Party shall provide written notice to the Indemnifying Party of its election to
assume control over the defense of such claim pursuant to this Section 8.04(c),
and (d) if the Indemnifying Party is entitled but fails to assume control over
the defense of a claim as provided in this Section 8.04, provided that the
Damages associated with such claim are covered by the indemnity provisions of
this Article VIII, the Indemnified Party shall have the right to defend such
claim, provided further that the Indemnified Party shall obtain the prior
written approval of the Indemnifying Party (which approval shall not be
unreasonably withheld or delayed) before entering into any settlement of such
claim if, pursuant to or as a result of such settlement, injunctive or other
non-monetary relief would be imposed against the Indemnifying Party.
In the event that the Indemnifying Party shall be obligated to indemnify the
Indemnified Party pursuant to this Article VIII, the Indemnifying Party shall,
upon payment of such indemnity in full, be subrogated to all rights of the
Indemnified Party with respect to the claim to which such indemnification
relates.
SECTION 8.05. Buyer's Right of Set-Off'. Sellers' indemnification
------------------------
obligations arising hereunder from time to time may be satisfied, at Buyer's
election, pro tanto, by a set off of principal of or accrued and unpaid interest
--- -----
on the Subordinated Promissory Note.
ARTICLE IX
----------
TERMINATION
-----------
SECTION 9.01 Termination. This Agreement may be terminated and the
-----------
transactions contemplated hereby may be abandoned at any time prior to the
Closing:
37
<PAGE>
(a) By mutual written consent duly authorized by the Boards of Directors of
the Buyer and the Seller;
(b) By the Buyer or the Seller if
(i) any court of competent jurisdiction or other governmental
body shall have issued an order, decree or ruling, or taken
any other action restraining, enjoining or otherwise
prohibiting the transactions contemplated hereby, provided
that this Agreement shall not be terminated pursuant to this
paragraph unless the party terminating this Agreement has
utilized its reasonable best efforts to oppose the issuance
of such order, decree or ruling or the taking of such
action;
(ii) the Closing has not occurred on or prior to September 30,
1998 for any reason other than the breach of any provision
of this Agreement by the party terminating this Agreement;
or
(iii) the other party breaches any of its representations,
warranties or covenants attached hereto.
(c) By the Buyer if:
(i) Any of the conditions set forth in Article VI hereof has not
been satisfied on or before September 30, 1998 or shall have
become incapable of fulfillment and shall not have been
waived by the Buyer for any reason other than a breach by
the Buyer hereunder; or
(ii) If in the Buyer's sole and absolute good faith judgment
there is any material inaccuracy in any representations or
breach of any warranty contained therein, or any failure by
the Seller to perform any commitment, covenant or condition
contained in this Agreement, or there exists any error,
misstatement or omission with regard to any of the Exhibits,
Schedules or other documents referred to herein, or the
Buyer in its sole and absolute good faith judgment is not
satisfied with the results of its investigation or the
contents of any of the Exhibits, Schedules, information or
other documents, or with the results of its examination of
the Business and condition (financial or otherwise) of the
Seller.
(d) By the Seller if any of the conditions set forth in Article VII hereof has
not been satisfied on or before September 30, 1998 or shall have become
incapable of fulfillment and shall not have been waived by the Seller for any
reason other than a breach by the Seller hereunder;
38
<PAGE>
Upon the occurrence of any of the events specified in this Section 9.01 (other
than paragraph (a) hereof), written notice of such event shall forthwith be
given to the other parties to this Agreement, whereupon this Agreement shall
terminate.
SECTION 9.02 Effect of Termination. In the event of the termination and
---------------------
abandonment of this Agreement pursuant to Section 9.01, this Agreement, except
for the provisions of Articles VIII, IX and X, shall forthwith become void and
be of no effect, without any liability on the part of any party or its
directors, officers or shareholders. Nothing in this Section 9.02 shall relieve
any party to this Agreement of liability for breach of this Agreement.
ARTICLE X
---------
MISCELLANEOUS
-------------
SECTION 10.01 Notices. All notices, requests, consents and other
-------
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telex, telecopy or facsimile transmission, (iii) sent by recognized
overnight courier, or (iv) sent by registered or certified mail, return receipt
requested, postage prepaid.
If to the Buyer:
Microfluidics International Corporation
30 Ossipee Road
Newton, MA 02164-9101
Attn: Mr. Michael A. Lento
With a copy to:
Richard H. Moche, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
If to the Seller:
EMCO U.S.A.
1400 Kalamazoo Street
South Haven, MI 49090-1946
Attn: Bret A. Lewis
Attn: J. Bruce Jennings
39
<PAGE>
With a copy to:
Russell Kreis, Esquire
Kreis, Enderle, Collander & Hudgins, P.C.
1 Morrsbridge
P.O. Box 4010
Kalamazoo, MI 49002-4010
Tel. 616-324-3000
Fax 616-324-3010
All notices, requests, consents and other communications hereunder shall be
deemed to have been (i) if by hand, at the time of the delivery thereof to the
receiving party at the address of such party set forth above, (ii) if made by
telex, telecopy or facsimile transmission, at the time that receipt thereof has
been acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next business day following the day such notice is
delivered to the courier service, or (iv) if sent by registered or certified
mail, on the fifth business day following the day such mailing is made.
SECTION 10.02 Entire Agreement. This Agreement together with the Exhibits
----------------
and Schedules hereto and the other documents executed in connection herewith
(together, the "Documents") embodies the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all prior oral or written agreements and understandings relating to
the subject matter hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in the Documents shall affect, or
be used to interpret, change or restrict, the express terms and provisions of
this Agreement.
SECTION 10.03 Modifications and Amendments. The terms and provisions of this
----------------------------
Agreement may be modified or amended only by written agreement executed by all
parties hereto.
SECTION 10.04 Waivers and Consents. No failure or delay by a party hereto in
--------------------
exercising any right, power or remedy under this Agreement, and no course of
dealing between the parties hereto, shall operate as a waiver of any such right,
power or remedy of the party. No single or partial exercise of any right, power
or remedy under this Agreement by a party hereto, nor any abandonment or
discontinuance of steps to enforce any such right, power or remedy, shall
preclude such party from any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. The election of any remedy by a
party hereto shall not constitute a waiver of the right of such party to pursue
other available remedies. No notice to or demand on a party not expressly
required under this Agreement shall entitle the party receiving such notice or
demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand. The terms and provisions of this Agreement may be
waived, or consent for the departure therefrom granted, only by written
40
<PAGE>
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
SECTION 10.05 Assignment. Neither this Agreement, nor any right hereunder,
----------
may be assigned by any of the parties hereto without the prior written consent
of the other parties, except that the Buyer may assign all or part of its rights
and obligations under this Agreement to one or more direct or indirect
subsidiaries or affiliates (in which event, representations and warranties
relating to the Buyer and the opinion of counsel to be delivered by the Buyer
shall be appropriately modified).
SECTION 10.06 Parties in Interest. This Agreement shall be binding upon and
-------------------
inure solely to the benefit of each party hereto and their permitted assigns,
and nothing in this Agreement, express or implied, is intended to confer upon
any other person any rights or remedies of any nature whatsoever under or by
reason of this Agreement. Nothing in this Agreement shall be construed to
create any rights or obligations except among the parties hereto, and no person
or entity shall be regarded as a third-party beneficiary of this Agreement.
SECTION 10.07 Governing Law. This Agreement and the rights and obligations
-------------
of the parties hereunder shall be construed in accordance with and governed by
the internal laws of the Commonwealth of Massachusetts, without giving effect to
the conflict of law principles thereof.
SECTION 10.08 Jurisdiction and Service of Process. Any legal action or
-----------------------------------
proceeding with respect to this Agreement may be brought in the courts of the
Commonwealth of Massachusetts or of the United States of America for the
District of Massachusetts. By execution and delivery of this Agreement, each of
the parties hereto accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. The parties
hereby irrevocably waive any objection or defense that they may now or hereafter
have to the assertion of personal jurisdiction by any such court in any such
action or to the laying of the venue of any such action in any such court, and
hereby waive, to the extent not prohibited by law, and agree not to assert, by
way of motion, as a defense, or otherwise, in any such proceeding, any claim
that it is not subject to the jurisdiction of the above-named courts for such
proceedings. Each of the parties hereto irrevocably consents to the service of
process of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered mail, postage prepaid, to the party
at its address set forth in Section 10.01 hereof and irrevocably waive any
objection or defense that it may now or hereafter have to the sufficiency of any
such service of process in any such action. Nothing in this Section 10.08 shall
affect the rights of the parties to commence any such action in any other forum
or to serve process in any such action in any other manner permitted by law.
SECTION 10.09 Severability. In the event that any court of competent
------------
jurisdiction shall finally determine that any provision, or any portion thereof,
contained in this Agreement shall be void or unenforceable in any respect, then
such provision shall be deemed limited to the extent
41
<PAGE>
that such court determines it enforceable, and as so limited shall remain in
full force and effect. In the event that such court shall determine any such
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall nevertheless remain in full force and effect.
SECTION 10.10 Interpretation. The parties hereto acknowledge and agree that:
--------------
(i) each party and its counsel reviewed and negotiated the terms and provisions
of this Agreement (except with respect to the disclosure schedules regarding the
Business which are the sole responsibility of the Seller) and have contributed
to its revision; (ii) the rule of construction to the effect that any
ambiguities are resolved against the drafting party shall not be employed in the
interpretation of this Agreement; and (iii) the terms and provisions of this
Agreement shall be construed fairly as to all parties hereto and not in favor of
or against any party, regardless of which party was generally responsible for
the preparation of this Agreement.
SECTION 10.11 Headings and Captions. The headings and captions of the
---------------------
various subdivisions of this Agreement are for convenience of reference only and
shall in no way modify, or affect, or be considered in construing or
interpreting the meaning or construction of any of the terms or provisions
hereof.
SECTION 10.12 Enforcement. Each of the parties hereto acknowledges and
-----------
agrees that the rights acquired by each party hereunder are unique and that
irreparable damage would occur in the event that any of the provisions of this
Agreement to be performed by the other party were not performed in accordance
with their specific terms or were otherwise breached. Accordingly, in addition
to any other remedy to which the parties hereto are entitled at law or in
equity, each party hereto shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement by the other party and to enforce
specifically the terms and provisions hereof in any federal or state court to
which the parties have agreed hereunder to submit to jurisdiction.
SECTION 10.13 Reliance. The parties hereto agree that, notwithstanding any
--------
right of any party to this Agreement to investigate the affairs of any other
party to this Agreement, the party having such right to investigate shall have
the right to rely fully upon the representations and warranties of the other
party expressly contained in this Agreement and on the accuracy of any schedule
or other document attached hereto or referred to herein or delivered by such
other party or pursuant to this Agreement.
SECTION 10.14 Expenses. Each of the parties hereto shall pay its own fees
--------
and expenses (including the fees of any attorneys, accountants, appraisers or
others engaged by such party) in connection with this Agreement and the
transactions contemplated hereby whether or not the transactions contemplated
hereby are consummated.
SECTION 10.15 No Broker or Finder. Each of the parties hereto represents and
-------------------
warrants to the other that no broker, finder or other financial consultant has
acted on its behalf in connection with this Agreement or the transactions
contemplated hereby in such a way as to create any liability on the other, other
than O'Conor, Wright Wyman, Inc. which has acted on behalf of the Buyer and the
payment of whose fees is solely the responsibility of the Buyer.
42
<PAGE>
Each of the parties hereto agrees to indemnify and save the other harmless from
any claim or demand for commission or other compensation by any broker, finder,
financial consultant or similar agent claiming to have been employed by or on
behalf of such party and to bear the cost of legal expenses incurred in
defending against any such claim.
SECTION 10.16 Publicity. No party shall issue any press release or otherwise
---------
make any public statement with respect to the execution of, or the transactions
contemplated by, this Agreement without the prior written consent of the other
party, except as may be required by law.
SECTION 10.17 Confidentiality. Each party agrees not to divulge, communicate
---------------
or disclose, except as may be required by law or for the performance of this
Agreement (including obtaining financing and conducting due diligence) any
information regarding this Agreement. Each party acknowledges and agrees that
any information or data it has acquired from the other party, not otherwise
properly in the public domain, was received in confidence. Each party hereto
agrees not to divulge, communicate or disclose, except as may be required by law
or for the performance of this Agreement (including obtaining financing and
conducting due diligence), or use to the detriment of the disclosing party or
for the benefit of any other person or persons, or misuse in any way, any
confidential information of the disclosing party concerning the subject matter
hereof, including any trade or business secrets of the disclosing party and any
technical or business materials that are treated by the disclosing party as
confidential or proprietary, including without limitation information (whether
in written, oral or machine-readable form) concerning: general business
operations; methods of doing business, servicing clients, client relations, and
of pricing and making charge for services and products; financial information,
including costs, profits and sales; marketing strategies; business forms
developed by or for the disclosing party; names of suppliers, personnel,
customers, clients and potential clients; negotiations or other business
contacts with suppliers, personnel, customers, clients and potential clients;
form and content of bids, proposals and contracts; the disclosing party's
internal reporting methods; technical and business data, documentation and
drawings; software programs, however embodied; manufacturing processes;
inventions; diagnostic techniques; and information obtained by or given to the
disclosing party about or belonging to third parties.
SECTION 10.18 Counterparts. This Agreement may be executed in one or more
------------
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
43
<PAGE>
IN WITNESS WHEREOF, the Buyer and the Seller have executed this Agreement as
of the day and year first above written.
MICROFLUIDICS INTERNATIONAL CORPORATION
By: /s/ Michael A. Lento
---------------------------------
Name: Michael A. Lento
Title: President
EPWORTH MANUFACTURING COMPANY, INC.
By: /s/ Bret A. Lewis
---------------------------------
Name: Bret A. Lewis
Title: President
MOREHOUSE-COWLES, INC.
By: /s/ Bret A. Lewis
---------------------------------
Name: Bret A. Lewis
Title: President
44
<PAGE>
EXHIBIT 1.2
____________________________________________________________________________
____________________________________________________________________________
STOCKHOLDERS AGREEMENT
by and among
MICROFLUIDICS INTERNATIONAL CORPORATION
and
J.B. JENNINGS,
and
BRET A. LEWIS
______________________________
Dated as of August 14, 1998
____________________________________________________________________________
____________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. GENERAL PROVISIONS ................................................. 1
1.1 Shares Subject to this Agreement .............................. 1
1.2 No Partnership or Joint Venture Relationship .................. 1
2. RESTRICTIONS ON TRANSFER ........................................... 2
2.1 Non-complying Transfers Prohibited ............................ 2
2.2 Rights of First Refusal on Voluntary Transfers ................ 2
2.2.1 Right of First Refusal of the Company .................. 2
2.2.2 [Reserved] ............................................. 2
2.2.3 Closing ................................................ 3
2.2.4 Transfers to Third Parties ............................. 3
2.2.5 Transfers to Permitted Transferees ..................... 3
2.3 Transfers by Operation of Law ................................. 3
2.4 Prohibition on Certain Transfers .............................. 4
2.6 [Intentionally Left Blank.] ................................... 4
2.6 Prohibition on Encumbrances ................................... 4
2.7 Purchase Price ................................................ 4
2.7.1 Appraisal .............................................. 4
2.8 Lockout ....................................................... 5
2.9 Tenders of Shares under Sections 2.3, 2.4 and 2.5 ............. 5
3. CERTAIN STOCKHOLDER MATTERS ........................................ 6
3.1 "Drag-Along" Obligation ....................................... 6
3.2 "Lock-Up" Agreements with Underwriters ........................ 6
3.3 Legend on Stock Certificates .................................. 6
3.4 Voting for Directors .......................................... 6
4. REPRESENTATIONS AND WARRANTIES ..................................... 7
4.1 Representations and Warranties of Corporate Stockholders ...... 7
4.2 Representations and Warranties of Individual Stockholders ..... 7
5. MISCELLANEOUS ...................................................... 7
5.1 Notices ....................................................... 8
5.2 Entire Agreement .............................................. 9
5.3 Modifications and Amendments .................................. 9
5.4 Waivers and Consents .......................................... 9
5.5 Assignment .................................................... 9
5.6 Benefit ....................................................... 9
5.7 Governing Law ................................................. 9
5.8 Jurisdiction and Service of Process ........................... 9
5.9 Severability .................................................. 10
5.10 Interpretation ............................................... 10
5.11 Headings and Captions ........................................ 10
</TABLE>
i
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
5.12 Enforcement .................................................. 10
5.13 No Waiver of Rights, Powers and Remedies ..................... 10
5.14 Survival of Representations and Warranties ................... 11
5.15 Expenses ..................................................... 11
5.16 No Broker or Finder .......................................... 11
5.17 Publicity .................................................... 11
5.18 Counterparts ................................................. 11
</TABLE>
ii
<PAGE>
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT made as of August 14, 1998 by and among J.B. Jennings
and Bret A. Lewis (each individually, a "Stockholder" and collectively, the
"Stockholders") and Microfluidics International Corporation, a Delaware
corporation (the "Company"). Jennings and Lewis are referred to herein as the
"Individual Stockholders". Capitalized terms used and not defined herein shall
have the meanings given such terms in the Asset Purchase Agreement (as
hereinafter defined).
WHEREAS, the Stockholders are the holders in the aggregate of 900,000 shares
(the "Shares") of common stock, par value $.01 per share (the "Common Stock"),
of the Company received as partial consideration for the sale of certain assets
pursuant to an Asset Purchase Agreement dated as of June 19, 1998 by and among
the Company, Epworth Manufacturing Company, Inc. and Morehouse-COWLES, Inc. (the
"Asset Purchase Agreement");
WHEREAS, the Stockholders desire to promote their mutual interests and the
interests of the Company by providing in this Agreement for the terms and
conditions governing the transfer of the Shares, the management and operation of
the Company, the relations among the Stockholders and certain other matters; and
WHEREAS, the Board of Directors of the Company has determined that it is in
the best interests of the Company that the Company enter into this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto
covenant and agree as follows:
1. GENERAL PROVISIONS
1.1 SHARES SUBJECT TO THIS AGREEMENT. Each of the Stockholders expressly
agrees that the terms and restrictions of this Agreement shall apply to all
Shares which any of them now owns or hereafter acquires by any means, including
without limitation by purchase, assignment or operation of law, or as a result
of any stock dividend, stock split, reorganization, reclassification, whether
voluntary or involuntary, or other similar transaction, and to any shares of
capital stock of any successor-in-interest of the Company related to the Shares,
whether by sale, merger, consolidation or other similar transaction, or by
purchase, assignment or operation of law.
1.2 NO PARTNERSHIP OR JOINT VENTURE RELATIONSHIP. Notwithstanding, but not in
limitation of, any other provision of this Agreement, the parties understand and
agree that the creation, management and operation of the Company shall not
create or imply a general partnership or joint venture between or among the
Stockholders and shall not make any Stockholder the agent or partner of any
other Stockholder for any purpose.
<PAGE>
2. RESTRICTIONS ON TRANSFER
2.1 NON-COMPLYING TRANSFERS PROHIBITED. No Stockholder may sell, assign,
transfer, exchange, gift, devise, pledge, hypothecate, encumber or otherwise
alienate or dispose of any Shares now owned by such Stockholder or owned by him
during the term of this Agreement, or any right or interest therein, whether
voluntarily or involuntarily, by operation of law or otherwise, except in
accordance with this Agreement. Any such purported transfer in violation of any
provision of this Agreement and all actions by the purported transferor and
transferee in connection therewith shall be of no force or effect and the
Company shall not be required to recognize such purported transfer for any
purpose, including without limitation for purposes of dividend and voting
rights.
2.2 RIGHTS OF FIRST REFUSAL ON VOLUNTARY TRANSFERS.
2.2.1 RIGHT OF FIRST REFUSAL OF THE COMPANY. Any Stockholder who intends to
sell, assign, transfer or otherwise voluntarily alienate or dispose of any
Shares (the "Selling Stockholder") in excess of the amount that may be sold
by an affiliate under Rule 144(e)(1) promulgated under the Securities Act
of 1933, as amended (substituting the words "lesser of" in place of the
words "greater of" in such provision) shall, prior to any such transfer,
give written notice (the "Selling Stockholder's Notice") of such intention
to the Company. The Selling Stockholder's Notice shall include the name of
the proposed transferee (or the broker or market maker, if applicable), the
proposed purchase price per Share (including the cash value of any non-cash
consideration), the terms of payment of such purchase price and all other
matters relating to such sale and shall be accompanied by a copy of a
binding written agreement of the proposed transferee (or the broker or
market maker if applicable) to purchase such Shares from the Selling
Stockholder. The Selling Stockholder's Notice shall constitute a binding
offer by the Selling Stockholder to sell to the Company such number of
Shares (the "Offered Shares") then owned by the Selling Stockholder as are
proposed to be sold in the Selling Stockholder's Notice at the monetary
price per Share designated in the Selling Stockholder's Notice, payable as
provided in Section 2.2.4 hereof. Not later than fifteen (15) days after
receipt of the Selling Stockholder's Notice, the Company shall deliver
written notice (the "Company's Notice") to the Selling Stockholder stating
whether the Company has accepted the offer stated in the Selling
Stockholder's Notice. The Company may only accept the offer of the Selling
Stockholder in whole and may not accept such offer in part. If the Company
accepts the offer of the Selling Stockholder, the Company's Notice shall
fix a time, location and date for the closing of such purchase, which date
shall be not less than ten (10) nor more than thirty (30) days after
delivery of the Company's Notice.
2.2.2 [RESERVED].
2.2.3 CLOSING. The place for the closing of any purchase and sale described
in Section 2.2.1 shall be the principal office of the Company or at such
other place as the parties shall agree. At the closing, the Selling
Stockholder shall accept payment on the terms offered by the proposed
transferee named in the Selling Stockholder's Notice, including the payment
in cash of the cash value of any non-cash consideration proposed to be paid
2
<PAGE>
by the proposed transferee; provided, however, that the Company shall not be
required to meet any non-monetary terms of the proposed transfer, including,
without limitation, delivery of other securities in exchange for the Shares
proposed to be sold. At the closing, the Selling Stockholder shall deliver
to the Company in exchange for Shares purchased and sold at the closing,
certificates for the number of Shares stated in the Selling Stockholder's
Notice, accompanied by duly executed instruments of transfer.
2.2.4 TRANSFERS TO THIRD PARTIES. If the Company fails to accept the offer
stated in the Selling Stockholder's Notice, then the Selling Stockholder
shall be free to sell all, but not without the Company's consent less than
all, of the Offered Shares to the designated transferee at a price and on
terms no less favorable to the Selling Stockholder than described in the
Selling Stockholder's Notice; provided, however, that such sale is
consummated within ninety (90) days after the giving of the Selling
Stockholder's Notice to the Company. As a condition precedent to the
effectiveness of a transfer pursuant to this Section 2.2.4, the proposed
transferee(s) shall agree in writing prior to such transfer to become a
party to this Agreement and shall thereafter be permitted to transfer Shares
only in accordance with this Agreement.
2.2.5 TRANSFERS TO PERMITTED TRANSFEREES. The restrictions on transfer
contained in this Section 2.2 shall not apply to (a) transfers by a
Stockholder to the trustee or trustees of a trust revocable solely by him,
(b) transfers by a Stockholder to his guardian or conservator, (c) subject
to the provisions of Section 2.3, transfers by a Stockholder, in the event
of his death, to his executor(s) or administrator(s) or to trustee(s) under
his will[, (d) transfers by a Stockholder which is a corporation to the
stockholders or affiliates of such Stockholder or (e) transfers by a
Stockholder which is a corporation to the purchaser of all or substantially
all of the assets of such Stockholder or to the surviving company in
connection with the reorganization of such Stockholder or the merger or
consolidation of such Stockholder with and into such surviving company]
[(c) and (d) to be deleted if Shares are to be held by Jennings and Lewis]
(collectively, "Permitted Transferees"); provided, however, that in any
such event the Shares so transferred in the hands of each such Permitted
Transferee shall remain subject to this Agreement, and each such Permitted
Transferee shall so acknowledge in writing as a condition precedent to the
effectiveness of such transfer.
2.3 TRANSFERS BY OPERATION OF LAW. In the event that a Stockholder (i) files a
voluntary petition under any bankruptcy or insolvency law or a petition for the
appointment of a receiver or makes an assignment for the benefit of creditors,
or (ii) is subjected involuntarily to such a petition or assignment or to an
attachment or other legal or equitable interest with respect to his Shares and
such involuntary petition or assignment or attachment is not discharged within
thirty (30) days after its date, or (iii) is subject to a transfer of his Shares
by operation of law, the Company or its assignee shall have the right to elect
to purchase all of the Shares which are then owned by the Stockholder at a
purchase price per Share determined in accordance with Section 2.7 hereof.
Failure of the Company to elect to purchase the Shares under this Section 2.3
shall not affect the right of any of them to purchase the same Shares under
Section 2.2 in the event of a
3
<PAGE>
proposed sale, assignment, transfer or other disposition by or to any receiver,
petitioner, assignee, transferee or other person obtaining an interest in the
Shares.
2.4. PROHIBITION ON CERTAIN TRANSFERS. Each Stockholder agrees that it will
not knowingly sell, assign, transfer, exchange, gift, devise, pledge,
hypothecate, encumber or otherwise alienate or dispose of any Shares now owned
by such Stockholder or owned by him during the term of this Agreement, or any
right or interest therein, where the ultimate transferee either (i) engages in
or has a financial interest in, any business which is competitive with the
business of the Company or any of its affiliates, including but not limited to
the Business or (ii) is in the process of making or contemplating making an
offer to purchase the outstanding Common Stock of the Company or all or
substantially all of the assets of the Company.
2.5. [INTENTIONALLY LEFT BLANK.]
2.6 PROHIBITION ON ENCUMBRANCES. No Stockholder may pledge, hypothecate or
otherwise encumber his Shares in any way.
2.7 PURCHASE PRICE.
2.7.1 APPRAISAL. The purchase price of Shares hereunder shall be the fair
market value per Share determined by appraisal as follows. Within thirty
(30) days after the election to purchase pursuant to Section 2.3, the
Company shall appoint an appraiser, the Stockholder whose Shares are being
purchased (or his legally appointed representative(s)) shall appoint a
second appraiser, and the two appraisers so appointed shall appoint a third
appraiser, or failing action within such period by any party or the
appraisers, any unappointed appraiser or appraisers shall be appointed by
the American Arbitration Association, Boston, Massachusetts, upon
application of any party or appraiser. Each appraiser shall be a member or
an associate of an independent investment banking firm, a public accounting
firm, an appraisal firm, or another person experienced in valuing the
securities of entities in businesses similar to the Company's. The Company
shall promptly furnish to the three appraisers such information concerning
its financial condition, earnings, capitalization, business prospects and
sales of its capital stock as they may reasonably request. Each appraiser
shall independently determine the value of the Shares of the Stockholder
whose Shares are being purchased as of a convenient date selected by the
three appraisers taking into account any legal or market restrictions
affecting the liquidity of the Shares and any discount for minority blocks
of Shares. The determination of the fair market value of the Shares shall
be by taking the average of the two closest appraised values, and such
determination shall be final and binding upon all interested persons. The
appraisers shall promptly notify in writing the Company, the Stockholder
whose Shares are being purchased (or his legally appointed
representative(s)), the other Stockholders, and any other interested person
known to the appraisers, of the appraisers' final determination of value.
The parties shall each bear the fees and expenses of the appraiser
appointed by or for each of them, and the fees and expenses of the third
appraiser shall be borne one-half by the Stockholder whose Shares
4
<PAGE>
are being purchased (or his legally appointed representative(s)) and one-
half by the purchaser of the Shares.
2.8 LOCKOUT. Subject to the terms and conditions of this Agreement, the
Stockholders agree that they will not sell any of their Shares unless and until
(i) after the first anniversary of the date of the Asset Purchase Agreement and
(ii) after the Market Price (as defined below) of the Company's Common Stock at
any time after such date shall be at least one hundred fifty percent (150%) (the
date of such occurrence shall be referred to as the "Eligibility Date") of the
Market Price of the Company's Common Stock on the date of the Asset Purchase
Agreement, in which event each Stockholder may sell (a) up to twenty-five
percent (25%) of the Shares owned by him may be sold commencing on the
Eligibility Date, (b) up to fifty percent (50%) of the Shares owned by him may
be sold commencing on the second anniversary of the date of the Asset Purchase
Agreement. Subject to the terms and conditions of this Agreement and
notwithstanding anything in this Section 2.8 to the contrary, all of the Shares
owned by the Sellers may be sold commencing on the third anniversary of the date
of the Asset Purchase Agreement without regard to the Market Price of the
Company's Common Stock.
Market Price as used in this Section 2.8 shall mean (a) if the Company's
Common Stock are listed on a national securities exchange, the average of the
last reported sales price per share of the Company's Common Stock for the five
(5) consecutive business days immediately preceding the date on which any such
determination is to be made, (b) if the Company's Common Stock are traded on the
NASDAQ Stock Market, the average of the last reported bid price of a share of
the Company's Common Stock for the five (5) consecutive business days
immediately preceding the date on which such determination is to be made, as
reported by the NASDAQ Stock Market or (c) if the Company's Common Stock are not
listed on a national securities exchange or traded on the NASDAQ Stock Market,
as determined in good faith by the Company's Board of Directors or Board of
Managers, as the case may be.
2.9 TENDERS OF SHARES UNDER SECTION 2.3. The Stockholder whose Shares are
being purchased by the Company or its assignee pursuant to Section 2.3 (or his
legally appointed representative(s)) shall tender all Shares being purchased
thereunder to the purchaser thereof, at the principal office of the Company (or
such other place as the parties may agree) at a reasonable date and time
specified by the purchaser (in any event within sixty (60) days of the
purchaser's election), by delivery of certificates representing such Shares
endorsed in blank and in proper form for transfer against payment of the
purchase price in cash or by certified or bank check, or upon such terms as are
applicable under Section 2.2.3.
3. CERTAIN STOCKHOLDER MATTERS
3.1 "DRAG-ALONG" OBLIGATION. In the event that any person or group (as such
term is defined in Section 13(d) of the Securities Exchange Act of 1934, as
amended) desires to acquire all or substantially all of the capital stock of the
Company, whether directly or indirectly, and the Board of Directors of the
Company approves such transaction and recommends it to the
5
<PAGE>
Stockholders, each Stockholder agrees to sell to such third party on the terms
offered by such third party, a portion of the Shares owned by such Stockholder
equal to the percentage of all the Shares offered to be acquired by such third
party, and to execute all documents reasonably necessary to effectuate such
sale.
3.2 "LOCK-UP" AGREEMENTS WITH UNDERWRITERS. If on any occasion of
registration, in which the Company proposes to file a registration statement
under the Securities Act with respect to the proposed sale of Common Stock, the
managing underwriter shall request an agreement by the Stockholders not to sell
any of the Shares so held by each Stockholder for a period of 180 days after the
effectiveness of any such registration statement in order to effect an orderly
public distribution thereof, then the Stockholders shall agree to enter into and
execute such an agreement with such managing underwriter and the Company
pertaining to a restriction on the transfer of any shares of capital stock of
the Company then held by the Stockholder during such 180-day period.
3.3 LEGEND ON STOCK CERTIFICATES. The Company will cause all certificates or
other instruments representing shares of the Company's capital stock now issued
and outstanding or hereafter issued and to which the provisions of this
Agreement apply to be endorsed conspicuously on the face thereof with the
following legend (in addition to the legend thereon resulting from Rule 144
restrictions):
"The shares represented by this certificate are subject to a certain
Stockholders' Agreement dated as of August 14, 1998 by and among the
Company and certain Stockholders of the Company, a copy of which
Stockholders' Agreement is available for inspection at the offices of the
Company or may be available upon request."
3.4 VOTING FOR DIRECTORS. Pursuant to Section 5.05 of the Asset Purchase
Agreement, the Company has agreed to use its reasonable efforts to cause the
nomination of the Individual Stockholders as directors of the Company at the
1999 annual meeting of the Company's shareholders and under certain
circumstances, thereafter. In consideration of such agreement, the Individual
Stockholders agree that, so long as they are holders of Shares or directors of
the Company they will support the directors recommended by the board of
directors of the Company, or, if applicable, the nominating committee of the
board of directors.
4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF CORPORATE STOCKHOLDERS. Each Stockholder
that is a corporation hereby represents and warrants to the Company and to each
other Stockholder as follows:
(a) Organization and Authority. Such Stockholder is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated. Such Stockholder has the
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby.
6
<PAGE>
(b) Corporate Action. Such Stockholder has taken all corporate action
necessary for it to enter into this Agreement and to consummate the
transactions contemplated hereby.
(c) Absence of Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
constitute a violation of, or default under, or conflict with, or require
any consent under any term or provision of the certificate of incorporation
or by-laws of such Stockholder or any contract, commitment, indenture, lease
or other agreement to which such Stockholder is a party or by which such
Stockholder or any of its assets is bound.
(d) Binding Obligation. This Agreement constitutes a valid and binding
obligation of such Stockholder, enforceable in accordance with its terms,
except to the extent that such enforceability may be limited by bankruptcy,
insolvency and similar laws affecting the rights and remedies of creditors
generally, and by general principles of equity and public policy.
4.2 REPRESENTATIONS AND WARRANTIES OF INDIVIDUAL STOCKHOLDERS. Each
Stockholder who is an individual hereby represents and warrants to the Company
and to each other Stockholder as follows:
(a) Absence of Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
constitute a violation of, or default under, or conflict with, or require
any consent under any term or provision of any contract, commitment,
indenture, lease or other agreement to which such Stockholder is a party or
by which such Stockholder or any of his assets is bound.
(b) Binding Obligation. This Agreement constitutes a valid and binding
obligation of such Stockholder, enforceable in accordance with its terms,
except to the extent that such enforceability may be limited by bankruptcy,
insolvency and similar laws affecting the rights and remedies of creditors
generally, and by general principals of equity and public policy.
5. MISCELLANEOUS
5.1 Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by telex,
telecopy or facsimile transmission, (iii) sent by recognized overnight courier,
or (iv) sent by registered or certified mail, return receipt requested, postage
prepaid.
If to the Company:
Microfluidics International Corporation
30 Ossipee Road
Newton, MA 02464-9101
Attn: Mr. Michael A. Lento
7
<PAGE>
With a copy to:
Richard H. Moche, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
If to the Stockholders:
EMCO U.S.A.
1400 Kalamazoo Street
South Haven, MI 49090-1946
Attn: Bret A. Lewis
Attn: J. B. Jennings
With a copy to:
Russell Kreis, Esquire
Kreis, Enderle, Collander & Hudgins, P.C.
One Moorsbridge
P.O. Box 4010
Kalamazoo, MI 49002-4010
Tel. 616-324-3000
Fax 616-324-3010
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
mail, on the fifth business day following the day such mailing is made.
5.2 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
5.3 MODIFICATIONS AND AMENDMENTS. The terms and provisions of this Agreement
may be modified or amended only by written agreement executed by all parties
hereto.
8
<PAGE>
5.4 WAIVERS AND CONSENTS. The terms and provisions of this Agreement may be
waived, or consent for the departure therefrom granted, only by written document
executed by the party entitled to the benefits of such terms or provisions. No
such waiver or consent shall be deemed to be or shall constitute a waiver or
consent with respect to any other terms or provisions of this Agreement, whether
or not similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
5.5 ASSIGNMENT. Neither this Agreement, nor any right hereunder, may be
assigned by any of the parties hereto without the prior written consent of the
other parties, except that the Company may assign all or part of its rights and
obligations under this Agreement to one or more direct or indirect subsidiaries
or affiliates (in which event, representations and warranties relating to the
Company shall be appropriately modified).
5.6 BENEFIT. All statements, representations, warranties, covenants and
agreements in this Agreement shall be binding on the parties hereto and shall
inure to the benefit of the respective successors and permitted assigns of each
party hereto. Nothing in this Agreement shall be construed to create any rights
or obligations except among the parties hereto, and no person or entity shall be
regarded as a third-party beneficiary of this Agreement.
5.7 GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of the Commonwealth of Massachusetts, without giving effect to the conflict of
law principles thereof.
5.8 JURISDICTION AND SERVICE OF PROCESS. Any legal action or proceeding with
respect to this Agreement may be brought in the courts of the Commonwealth of
Massachusetts or of the United States of America for the District of
Massachusetts. By execution and delivery of this Agreement, each of the parties
hereto accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereby
irrevocably waive any objection or defense that they may now or hereafter have
to the assertion of personal jurisdiction by any such court in any such action
or to the laying of the venue of any such action in any such court, and hereby
waive, to the extent not prohibited by law, and agree not to assert, by way of
motion, as a defense, or otherwise, in any such proceeding, any claim that it is
not subject to the jurisdiction of the above-named courts for such proceedings.
Each of the parties hereto irrevocably consents to the service of process of any
of the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered mail, postage prepaid, to the party at its address
set forth in Section 5.1 hereof and irrevocably waive any objection or defense
that it may now or hereafter have to the sufficiency of any such service of
process in any such action. Nothing in this Section 5.8 shall affect the rights
of the parties to commence any such action in any other forum or to serve
process in any such action in any other manner permitted by law.
5.9 SEVERABILITY. In the event that any court of competent jurisdiction shall
finally determine that any provision, or any portion thereof, contained in this
Agreement shall be void or unenforceable in any respect, then such provision
shall be deemed limited to the extent that such
9
<PAGE>
court determines it enforceable, and as so limited shall remain in full force
and effect. In the event that such court shall determine any such provision, or
portion thereof, wholly unenforceable, the remaining provisions of this
Agreement shall nevertheless remain in full force and effect.
5.10 INTERPRETATION. The parties hereto acknowledge and agree that: (i) each
party and its counsel reviewed and negotiated the terms and provisions of this
Agreement and have contributed to its revision; (ii) the rule of construction to
the effect that any ambiguities are resolved against the drafting party shall
not be employed in the interpretation of this Agreement; and (iii) the terms and
provisions of this Agreement shall be construed fairly as to all parties hereto
and not in favor of or against any party, regardless of which party was
generally responsible for the preparation of this Agreement.
5.11 HEADINGS AND CAPTIONS. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify or affect the meaning or construction of any of the terms or
provisions hereof.
5.12 ENFORCEMENT. Each of the parties hereto acknowledges and agrees that the
rights acquired by each party hereunder are unique and that irreparable damage
would occur in the event that any of the provisions of this Agreement to be
performed by the other party were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, in addition to any
other remedy to which the parties hereto are entitled at law or in equity, each
party hereto shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement by the other party and to enforce specifically the
terms and provisions hereof in any federal or state court to which the parties
have agreed hereunder to submit to jurisdiction.
5.13 NO WAIVER OF RIGHTS, POWERS AND REMEDIES. No failure or delay by a party
hereto in exercising any right, power or remedy under this Agreement, and no
course of dealing among the parties hereto, shall operate as a waiver of any
such right, power or remedy of the party. No single or partial exercise of any
right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
5.14 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by the parties hereto in this Agreement or in any other
agreement, certificate or instrument provided for or contemplated hereby, shall
survive (i) the execution and delivery hereof, and (ii) any investigations made
by or on behalf of the parties, and shall remain in full force and effect for a
period of two years following the date hereof. No claim shall be made by a
party for any alleged misrepresentation or breach of warranty by the other party
unless notice for such claim
10
<PAGE>
shall have been given to the other party in accordance with the notice provision
hereof prior to the expiration of the survival period specified above with
respect to such representation or warranty.
5.15 EXPENSES. Each of the parties hereto shall pay its own fees and expenses
(including the fees of any attorneys, accountants, appraisers or others engaged
by such party) in connection with this Agreement and the transactions
contemplated hereby whether or not the transactions contemplated hereby are
consummated.
5.16 NO BROKER OR FINDER. Each of the parties hereto represents and warrants
to the other that no broker, finder or other financial consultant has acted on
its behalf in connection with this Agreement or the transactions contemplated
hereby in such a way as to create any liability on the other, other than
O'Conor, Wright Wyman, Inc. which has acted on behalf of the Company in
connection with the purchase of the Transferred Assets under the Asset Purchase
Agreement and the payment of whose fees is solely the responsibility of the
Company. Each of the parties hereto agrees to indemnify and save the other
harmless from any claim or demand for commission or other compensation by any
broker, finder, financial consultant or similar agent claiming to have been
employed by or on behalf of such party and to bear the cost of legal expenses
incurred in defending against any such claim.
5.17 PUBLICITY. No party shall issue any press releases or otherwise make any
public statement with respect to the transactions contemplated by this Agreement
without the prior written consent of the other parties, except as may be
required by law.
5.18 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and by different parties hereto on separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused
this Agreement to be executed by their duly authorized representatives, as of
the date first written above.
MICROFLUIDICS INTERNATIONAL
CORPORATION
By: /s/ Michael A. Lento
-----------------------------------
Name: Michael A. Lento
Title: President
/s/ J.B. Jennings
-----------------------------------
J. B. Jennings
/s/ Bret A. Lewis
-----------------------------------
Bret A. Lewis
12
