Exhibit A
to Ophidian Pharmaceuticals, Inc. Proxy Statement
EXECUTION COPY
ASSET PURCHASE AGREEMENT
dated as of September 1, 2000,
by and between
OPHIDIAN PHARMACEUTICALS, INC.,
as the Seller,
and
PROMEGA CORPORATION,
as the Buyer
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I PURCHASE AND SALE OF ASSETS 1
1.1 Defined Terms 1
1.2 Purchased Assets 1
1.3 Excluded Assets 2
1.4 Closing 3
1.5 Assets Not Assignable 3
ARTICLE II PURCHASE PRICE 4
2.1 Payment of the Purchase Price 4
2.2 Purchase Price Allocation 4
2.3 Sales and Transfer Taxes 4
2.4 Prorations 4
2.5 Terms of the Note 5
ARTICLE III LIABILITIES 5
3.1 Assumption of Liabilities 5
3.2 Non-Assumption of Liabilities 5
3.3 Forbearance of Seller's Obligations Under Lease 5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLER 6
4.1 Ownership, Organization and Qualification 6
4.2 Authorization 6
4.3 Enforceability 6
4.4 Conflicting Obligations 6
4.5 Subsidiaries 7
4.6 Title to Assets 7
4.7 Third Party Consents 7
4.8 Financial Statements 7
4.9 Real Property; Leases 7
4.10 Personal Property 8
4.11 Intellectual Property 8
4.12 Insurance 10
4.13 Permits 10
4.14 Material Contracts 10
4.15 Litigation 11
4.16 Compliance With Law 11
4.17 Environmental Matters 11
4.18 Events Subsequent to Latest Balance Shee Date 13
4.19 Brokerage 13
4.20 Bankruptcy 13
4.21 No Bulk Sales Laws 13
4.22 Commission Filings 13
<PAGE>
4.23 Representations and Warranties True and Correct 13
ARTICLE V REPRESENTATIONS OF THE BUYER 14
5.1 Ownership, Organization and Qualification 14
5.2 Authorization 14
5.3 Enforceability 14
5.4 Conflicting Obligations 14
5.5 Litigation 14
5.6 Brokerage 14
ARTICLE VI COVENANTS OF THE SELLER 15
6.1 Access 15
6.2 Operation of Business 15
6.3 Insurance and Maintenance of Property 15
6.4 Compliance with Laws 15
6.5 Supplemental Disclosure 15
6.6 Fulfill Conditions 15
6.7 Release of Liens 15
6.8 Documents of Transfer 15
6.9 Other Deliveries 16
6.10 Exclusive Dealing 16
6.11 Further Assurances 17
6.12 Brokerage 17
6.13 Intellectual Property Assignments 17
6.14 Transfer of Sponsorship of IND 18
ARTICLE VII COVENANTS OF THE BUYER 18
7.1 Certified Resolutions 18
7.2 Assignment, Bill of Sale and Assumption Agreement 18
ARTICLE VIII CONDITIONS OF THE BUYER'S OBLIGATION TO CLOSE 18
8.1 Representation and Warranties 18
8.2 Performance of Covenants and Obligations 18
8.3 Proceedings and Instruments Satisfactory 18
8.4 Adverse Change 18
8.5 No Litigation 19
8.6 Consents, Approvals, Certifications, Licenses
and Permits 19
8.7 Good Standing Certificates 19
8.8 Opinion of Counsel 19
8.9 Financing 19
8.10 Due Diligence 19
ARTICLE IX CONDITIONS TO THE SELLER'S OBLIGATION TO CLOSE 20
9.1 Representations and Warranties 20
9.2 Performance of Covenants and Obligations 20
9.3 Proceedings and Instruments Satisfactory 20
<PAGE>
9.4 No Litigation 20
ARTICLE X INDEMNIFICATION BY SELLER 20
10.1 Indemnification 20
10.2 Procedures for Making Claims 21
10.3 Participation in Defense of Third Party Claims 21
10.4 Survival of Representations and Indemnification 21
10.5 Offset 21
10.6 Limitation on Indemnification 22
10.7 Other Indemnification Provisions 22
ARTICLE XI TERMINATION 22
11.1 Rights to Terminate 22
11.2 Effects of Termination 23
ARTICLE XII DEFINITIONS 23
12.1 Certain Defined Terms 23
12.2 Interpretation 28
12.3 Other Terms 28
ARTICLE XIII MISCELLANEOUS 28
13.1 Survival of Representations and Warranties 28
13.2 Benefit and Assignment 28
13.3 Governing Law 28
13.4 Expenses 29
13.5 Submission to Jurisdiction 29
13.6 Notices 29
13.7 Counterparts 30
13.8 Headings 30
13.9 Amendment, Modification and Waiver 30
13.10 Mutual Release of Certain Liabilities of Each Party
to the Other Upon Closing 30
13.11 Entire Agreement 30
13.12 Third-Party Beneficiaries 31
13.13 Publicity 31
13.14 Specific Performance 31
<PAGE>
SCHEDULES:
Schedule 1.2(c) - Real Estate
Schedule 1.2(d) - Equipment
Schedule 1.2(e) - Contracts
Schedule 2.2 - Purchase Price Allocation
Schedule 4.1 - Organization and Qualification
Schedule 4.6 - Title to Assets
Schedule 4.7 - Third Party Consents
Schedule 4.8 - Financial Statements
Schedule 4.9(a) - Real Estate
Schedule 4.9(c) - Capital Expenditures
Schedule 4.10 - Personal Property
Schedule 4.11(a) - Patents
Schedule 4.11(c) - Patent Exceptions
Schedule 4.11(d) - Patent Infringements
Schedule 4.11(e) - Patent Challenges
Schedule 4.12(a) - Insurance Policies
Schedule 4.13 - Permits
Schedule 4.14 - Material Contracts
Schedule 4.16 - Compliance With Law
Schedule 4.17(a) - Environmental Compliance
Schedule 4.17(d) - Disposal Practices
Schedule 4.17(e) - Environmental Condition
Schedule 4.18 - Subsequent Events
Schedule 4.19 - Brokerage
Schedule 4.22 - Commission Filings
Schedule 6.3 - Ophidian Patent/Patent Application
Due Dates Between 8/21/00 and 1/1/01
Schedule 8.8 - Forms of Opinion of Counsel
<PAGE>
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement")
is entered into as of the 1st day of September, 2000,
by and between PROMEGA CORPORATION, a Wisconsin
corporation (the "Buyer"), and OPHIDIAN
PHARMACEUTICALS, INC., a Delaware corporation (the
"Seller").
RECITALS
WHEREAS, the Seller is engaged in the development
and manufacture of pharmaceutical products (the
"Business");
WHEREAS, the Seller leases certain real property
and owns and uses certain tangible and intangible
assets used in the Business, including certain
intellectual property, leasehold improvements,
laboratory equipment and supplies, machinery and
equipment, and contract rights;
WHEREAS, the Buyer desires to purchase certain
assets used in the Business and to assume only certain
specific liabilities associated with the Business, and
the Seller desires to sell and transfer to the Buyer
certain of the assets used in the Business, while
retaining environmental and other liabilities, all as
more fully set forth below.
NOW, THEREFORE, in consideration of the foregoing
recitals and the mutual agreements and covenants
contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the Buyer and the Seller hereby
agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Defined Terms. Capitalized terms used herein
have the meanings set forth in Section 12.1.
1.2 Purchased Assets. Subject to the terms and
conditions of this Agreement, and in reliance upon the
representations, warranties, covenants and agreements
made in this Agreement by the Seller and the Buyer, the
Buyer shall purchase, accept and acquire from the
Seller, and the Seller shall sell, transfer, convey,
assign and deliver to the Buyer, all of the assets and
properties of the Seller (but excluding the Excluded
Assets) set forth below including the schedules
attached hereto (the "Purchased Assets"), including the
following:
(a) All Intellectual Property (except the
Ophidian corporate name and the goodwill
associated with the Ophidian corporate name),
including without limitation the Intellectual
Property set forth in Schedule 4.11(a), all
goodwill associated with respect to the
Intellectual Property, licenses and
sublicenses granted and obtained with respect
thereto and rights thereunder, remedies
against infringements thereof and rights to
protection of interests therein under the
laws of all jurisdictions;
<PAGE>
(b) All deposits under the Leases;
(c) All leaseholds and subleaseholds,
improvements, construction in progress,
fixtures and appurtenances thereto, including
the parcels of land the legal description of
which is described on Schedule 1.2(c)
attached hereto (the "Real Estate");
(d) All equipment (laboratory, farm or building),
machinery, reactors, chemical manufacturing
equipment, prototypes, parts, components,
projects in process, furniture (except free-
standing office filing cabinets), appliances,
artwork, laboratory computers and computer
terminals and printers (except office
computer equipment), laboratory supplies,
office supplies and office equipment set
forth on Schedule 1.2(d) attached hereto (the
"Equipment");
(e) All leases, subleases, arrangements, and
other agreements of the Seller pertaining to
Intellectual Property, Equipment and Real
Estate, including, without limitation,
installation and maintenance agreements,
hardware lease or rental agreements, and
those items which are listed on Schedule
1.2(e) (the "Contracts");
(f) All qualifications, registrations, filings,
privileges, franchises, immunities, licenses,
permits, authorizations and approvals of
Governmental Authorities which pertain to the
Purchased Assets and which are currently held
by the Seller (the "Permits");
(g) All Records pertaining to the Intellectual
Property, the Real Estate, the Equipment, the
Contracts and the Permits and the master file
for Seller's IND (excluding all other Records
of Seller, including but not limited to,
business plans, corporate financial records,
corporate employment records, correspondence
not pertaining to the Intellectual Property,
the Real Estate, the Equipment, the
Contracts, and the Permits, shareholder
records and communications, corporate minute
book, and batch records and amendments
pertaining to Seller's IND) (the "Records");
(h) All of the Seller's rights and remedies,
under warranty or otherwise, against a
manufacturer, vendor or other Person for any
defects in any Purchased Asset; and
(i) All causes of action, choses in action and
rights of recovery with respect to any of the
foregoing to the extent applicable to the
Purchased Assets.
1.3 Excluded Assets. The Purchased Assets shall
not include, and the Seller shall retain, the following
assets (the "Excluded Assets"):
(a) The Seller's rights under this Agreement;
(b) All of Seller's records not pertaining to the
Intellectual Property, the Real Estate, the
Equipment, the Contracts or the Permits,
including business plans, business textbooks,
business software, corporate financial
records, corporate employment
<PAGE>
records, correspondence not pertaining to the
Intellectual Property, the Real Estate, the
Equipment, the Contracts or the Permits,
shareholder records and communications,
corporate minute book, and batch records and
FDA amendments pertaining to the application
for an IND;
(c) All of Seller's prepaid insurance premiums
on all of its policies, including without
limitation its directors and officers
insurance;
(d) The Seller's environmental policies and
procedures;
(e) All of Sellers trademarks and associated good
will;
(f) The Seller's office computer equipment and
free-standing filing cabinets (and their
contents not otherwise included among the
Purchased Assets as described herein) located
in the administrative areas;
(g) Any and all assets of Seller not specifically
set forth as Purchased Assets herein,
including but not limited to its cash and
cash equivalents; and
(h) The Seller's sponsorship of the IND, and the
batch records and FDA amendments relating to
its application for an IND.
1.4 Closing. The closing (the "Closing") of the
purchase and sale of the Purchased Assets shall take
place at 10:00 a.m., local time, on the Closing Date,
at the offices of Michael Best & Friedrich LLP, One
South Pinckney Street, Suite 700, Madison, Wisconsin
53703, or at such other time and place as may be
mutually agreed to by the Buyer and the Seller. The
"Closing Date" means the second business day following
the satisfaction or waiver of all conditions to the
obligations of the Seller to consummate the
transactions contemplated hereby (other than conditions
with respect to action the respective parties will take
at the Closing), or such other date as may be mutually
agreed to by the Buyer and the Seller. The Closing
shall be effective as of 12:01 a.m. on the Closing
Date; provided, however, that the Buyer shall have no
further obligation under this Agreement if the
conditions set forth in Article VIII have not been
satisfied by the Seller or expressly waived by the
Buyer on or before November 30, 2000.
1.5 Assets Not Assignable.
(a) To the extent that any interest in any of the
Purchased Assets is not capable of being assigned,
transferred or conveyed without the consent, waiver or
authorization of a third person (including a
governmental, regulatory or administrative authority),
or if such assignment, transfer or conveyance or
attempted assignment, transfer or conveyance would
constitute a breach of the terms of the agreement
governing any Purchased Asset, or a violation of any
law, statute, decree, rule, regulation or other
governmental edict or is not immediately practicable,
this Agreement shall not constitute an assignment,
transfer or conveyance of such interest, or an
attempted assignment, transfer or conveyance of such
interest (such interests being hereinafter collectively
referred to as "Restricted Interests"). The entire
beneficial interest in any Purchased Assets subject to
a restriction as described above, and any other
interest in such Purchased Assets
<PAGE>
which are transferable notwithstanding such restriction,
shall be transferred from the Seller to the Buyer as
provided in this Section 1.5.
(b) Anything in this Agreement to the contrary
notwithstanding, the Seller shall not be obligated to
transfer to the Buyer any Restricted Interests without
the Buyer or the Seller first having obtained all
consents, waivers and authorizations necessary for such
transfers. In consultation with the Buyer as to the
practicalities of proposed actions, the Seller shall
use its reasonable best efforts to assist the Buyer in
obtaining such consents, waivers and authorizations and
to resolve any impracticalities of assignment referred
to in Section 1.5(a) hereof.
ARTICLE II
PURCHASE PRICE
2.1 Payment of the Purchase Price.
(a) The payment by the Buyer to the Seller for
the Purchased Assets on the Closing Date (the "Purchase
Price") shall be Three Million Five Hundred Thousand
Dollars ($3,500,000) payable on the Closing Date in the
following manner:
(i) The assumption of two Senior Secured
Notes of the Seller by the Buyer in
the original principal amount of Two
Million Dollars ($2,000,000);
(ii) A promissory note (the "Note") from
the Buyer to the Seller in the amount
of Two Hundred Fifty Thousand Dollars
($250,000); and
(iii) The balance of the Purchase Price
shall be paid in cash to the Seller.
(b) The amounts paid in cash pursuant to
Section 2.1(a) shall be by wire transfer of same-day
funds to an account designated in writing to the Buyer
by the Seller prior to the Closing.
2.2 Purchase Price Allocation. The parties
acknowledge and agree that the Purchase Price was
negotiated and concluded on the basis of the component
prices set forth on Schedule 2.2 in accordance with the
respective fair market values of the Purchased Assets.
The parties agree to report and allocate, for all
federal, state and local income tax purposes (including
IRS Form 8594), the Purchase Price as so allocated and
will not take any inconsistent or contrary position
therewith for any other purpose.
2.3 Sales and Transfer Taxes. The Seller shall
pay any and all transfer, sales, purchase, use, value
added, excise or similar tax imposed under the laws of
the United States, or any state or political
subdivision thereof, which arises out of the transfer
by the Seller to the Buyer of any of the Purchased
Assets.
<PAGE>
2.4 Prorations.
(a) Personal property taxes for the Purchased
Assets for 2000 shall be prorated on the Closing Date
based upon the taxes assessed for 2000; but if the
taxes assessed for 2000 are not known on the Closing
Date, such taxes shall be prorated based upon the taxes
assessed for 1999.
(b) The Seller shall order final readings for
utility services, such as gas, electricity, water and
sewer as of the Seller's close of business on the date
before the Closing Date, and prorated charges for such
utility services shall be reflected on the Closing
Balance Sheet.
2.5 Terms of the Note. The Note shall be payable
in a single installment of principal due ninety days
from the Closing Date. Interest on the Note shall
accrue at the lowest rate necessary to avoid the
imputation of interest under the Code.
ARTICLE III
LIABILITIES
3.1 Assumption of Liabilities. As additional
consideration for the Purchased Assets, the Buyer
shall, on the Closing Date, by its execution and
delivery of the Assignment, Bill of Sale and Assumption
Agreement, assume and agree to pay and perform only
(the "Assumed Liabilities"):
(a) subject to the Buyer's due diligence rights
contained herein, all written obligations of
the Seller under the Leases listed on
Schedule 1.2(e);
(b) subject to the agreement of the holders of
the Senior Secured Notes to renegotiate the
terms of the Senior Secured Notes and to
subordinate the notes to the Buyer's
existing lenders, all on terms approved by
the Buyer in its sole discretion, the
Seller's obligations under the Senior
Secured Notes; provided, however, that the
Buyer shall not assume any obligation to
the extent the existence thereof violates or
is in breach of any of the representations,
warranties and covenants of the Seller in
this Agreement.
3.2 Non-Assumption of Liabilities. Except for
the Assumed Liabilities, the Buyer shall not be
responsible for, assume, pay, perform, discharge, or
accept any liabilities, debts or obligations of the
Seller of any kind whatsoever, whether actual,
contingent, accrued, known or unknown, including,
without limitation, any relating to accounts payable,
interest-bearing debt, notes to Affiliates or other
related Persons, interest and termination penalties on
indebtedness, taxes, employee compensation, severance,
pension, profit-sharing, vacation, health insurance,
disability insurance or other employee benefit plans
and programs, worker's compensation, breach or
negligent performance of any contract, or breach of
warranty relating thereto, liabilities resulting from
breach of contract, torts (including, without
limitation, product liability claims), illegal
activity, unlawful employment or business practice,
infringement of intellectual property rights, claim for
environmental liability or remediation or any other
liability or obligation
<PAGE>
whatsoever. All such non-assumed liabilities, debts and
obligations shall remain the responsibility of the
Seller which shall pay and discharge the same when
and as due.
3.3 Forbearance of Seller's Obligations Under
Lease. Buyer, as landlord under Seller's Lease of
office and laboratory space at 5445 East Cheryl
Parkway, Madison, Wisconsin, agrees to forebear all
obligations of Seller arising under and pursuant to
such lease from and after the date that Buyer takes
full possession of the space subject to said lease, and
to forgive such obligations upon Closing. In the event
this Agreement is terminated, such obligations through
the date of termination shall become due and payable,
and if paid within 5 days thereafter, and the Lease
shall continue in full force and effect without
default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE SELLER
In order to induce the Buyer to enter into this
Agreement, the Seller makes the following
representations and warranties to the Buyer, each of
which shall be deemed to be independently material and
relied upon by the Buyer, regardless of any
investigation made by, or information known to, the
Buyer. Any matter described on the disclosure
schedules attached hereto and incorporated herein shall
be set forth with reference to each separate Section of
this Agreement to which the matter relates.
4.1 Ownership, Organization and Qualification.
The Seller is a corporation duly incorporated and
validly existing under the laws of the State of
Delaware, has filed with the appropriate state agency
the most recent annual report required to be filed by
it, has not filed articles of dissolution and has a
perpetual period of existence. The Seller is qualified
to transact business as foreign corporation in the
jurisdictions set forth on the Schedule 4.1, and the
Seller is not otherwise required to be so qualified in
any other jurisdiction.
4.2 Authorization. The Seller has all necessary
power and authority to enter into and perform the
transactions contemplated hereby in accordance with the
terms and conditions hereof. The execution and
delivery of this Agreement, and the performance by the
Seller of each of its obligations contained herein,
have been duly approved by the Board of Directors of
the Seller. Except only the vote of the shareholders
of Seller, no other corporate authorization from the
Seller is required for the execution and delivery of
this Agreement or the performance of its obligations
hereunder.
4.3 Enforceability. This Agreement and all other
agreements of the Seller contemplated hereby are or,
upon the execution and delivery thereof will be, the
valid and binding obligations of the Seller,
enforceable against it in accordance with their terms.
4.4 Conflicting Obligations. The execution and
delivery of this Agreement does not, and the
consummation of the sale and purchase of the Purchased
Assets contemplated hereby will not: (a) conflict with
or violate any provisions of the articles or
certificate of incorporation or bylaws of the Seller,
as amended and in effect on and as of the date hereof
and on and as of the Closing Date; (b) conflict with or
violate any provisions of, or result
in the maturation or
<PAGE>
acceleration of, any obligations under any contract,
agreement, instrument, document, lease, license,
permit, indenture, or obligation, or any law, statute,
ordinance, rule, regulation, code, guideline, order,
arbitration award, judgment or decree, to which the
Seller is subject or to which the Seller is a party; or
(c) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement,
contract, lease, license, instrument or other
arrangement to which the Seller is a party or by which
it is bound or to which any of its assets are subject
(or result in the imposition of any Lien upon any of
the Purchased Assets).
4.5 Subsidiaries.The Seller has no Subsidiaries.
4.6 Title to Assets. Except as set forth on
Schedule 4.6, the Seller has good and marketable fee
simple title to all of the Purchased Assets, free and
clear of any Lien (other than Permitted Liens) or
restriction on transfer.
4.7 Third Party Consents. Except as set forth on
Schedule 4.7, no third party consents, approvals or
authorizations are necessary for the execution and
consummation of the transactions contemplated hereby,
nor are any such consents, approvals or authorizations
required in order for any of the Purchased Assets,
including without limitation, the Leases and the
Permits, to be assigned to the Buyer.
4.8 Financial Statements. Attached as Schedule
4.8 are complete copies of the unaudited balance sheet
for June 30, 2000 (the "Latest Balance Sheet Date").
4.9 Real Property; Leases.
(a) Good Title; Condition. The Seller does not
own any real property. Schedule 4.9(a) sets forth a
true and correct summary description of all Real Estate
leased or rented by the Seller. The description of
each parcel of Real Estate describes such parcel fully
and adequately. All buildings, structures and other
improvements on the Real Estate are in good condition
and repair (normal wear and tear excepted). The use
and operation of the Real Estate as currently conducted
conform to all applicable building, zoning, safety, and
other laws, statutes, ordinances, rules, regulations,
codes, licenses, permits, and all other restrictions
and conditions. The Seller has not received any
written or oral notice of, and the Seller does not know
of any assessments for public improvements against the
Real Estate or any written or oral notice or order by
any governmental, regulatory or administrative
authority, any insurance company which has issued a
policy with respect to any of such properties or any
board of fire underwriters or other body exercising
similar functions that: (i) relates to violations of
building, safety or fire ordinances or regulations;
(ii) claims any defect or deficiency with respect to
any of such properties; or (iii) requests the
performance of any repairs, alterations or other work
to or in any of such properties or in the streets
bounding the same. There are no arrangements for the
deferral of taxes or assessments for any of the Real
Estate. There is no condemnation, expropriation,
eminent domain or similar proceeding affecting all or
any portion of the Real Estate pending or, to the
Knowledge of the Seller, threatened. Those public
utilities (including water, gas, electric, storm and
sanitary sewage, and telephone utilities) required to
operate the facilities of the Seller are available to
such facilities, and such utilities enter the
boundaries of
<PAGE>
such facilities through adjoining public
streets or easement rights-of-way. Such public
utilities are all connected pursuant to valid licenses
or permits, are all in good working order and are
adequate to service the operations of such facilities
as currently conducted and permit full compliance with
all requirements of law. Except where the Seller is
lessee, there are no leases, subleases, licenses,
concessions or other agreements (written or oral)
granting to any party or parties the right to use or
occupancy of any portion of each parcel of Real Estate.
(b) Real Estate. On the Closing Date, for each
parcel of the Real Estate that is the subject of a
written lease agreement, such written agreements shall
be in full force and effect, and there shall be no oral
terms or other agreements in effect.
(c) Capital Expenditures and Repairs. Except as
set forth on Schedule 4.9(c), no capital expenditures
relating to the Real Estate (excluding only normal
maintenance and repair made consistently with past
practice and which are required to be expended for
federal income tax purposes) or remediations suggested
or required by any applicable governmental,
administrative or regulatory authority or insurer, in
the next twelve (12) months in an amount exceeding
$10,000, are necessary to conduct business at the Real
Estate as it is presently conducted, nor are any such
expenditures planned.
4.10 Personal Property. Schedule 4.10 sets forth
all personal property of the Seller which constitute
Purchased Assets. The Seller owns all property
reflected on Schedule 4.10. All tangible personal
property of the Seller is located upon the Seller's
premises, except as otherwise set forth on Schedule
4.10. All of such tangible personal property is
actually on hand. All such tangible personal property
is in good condition and repair (normal wear and tear
excepted). Except as set forth on Schedule 4.10, no
capital expenditures relating to personal property
(excluding only normal maintenance repairs made
consistently with past practice and which are required
to be expended for federal income tax purposes) or
remediations suggested or required by any applicable
governmental, administrative or regulatory authority or
insurer, in the next twelve (12) months in an amount
exceeding $10,000 in the aggregate, are necessary to
conduct business using the personal property as it is
presently conducted, nor are any such expenditures
planned.
4.11 Intellectual Property.
(a) Schedule 4.11(a) identifies each patent or
registration which has been issued to the Seller with
respect to any of its Intellectual Property, identifies
each pending patent application or application for
registration which the Seller has made with respect to
any of its Intellectual Property, and identifies each
license, agreement, or other permission that is
currently in effect and which has been granted to any
third party with respect to any of its Intellectual
Property (together with any exceptions). The Seller
has made available to the Buyer correct and complete
copies of all such patents and registrations, and those
applications, licenses, agreements, and permissions
currently in effect (as amended to date) and has made
available to the Buyer correct and complete copies of
all other written documentation evidencing ownership
and prosecution (if applicable) of each such item.
<PAGE>
(b) The Seller owns or has the right to use
pursuant to license, sublicense, agreement, or
permission all Intellectual Property. Each item of
Intellectual Property owned or used by the Seller
immediately prior to the Closing hereunder will be
owned or available for use by the Buyer immediately
subsequent to the Closing hereunder. The Seller has
taken all actions that the Seller deemed commercially
reasonable to maintain and to protect each item of
Intellectual Property that it owns or uses, including,
but not limited to, payment of any and all maintenance
fees and annuities.
(c) Except as disclosed in Schedule 4.11(c), with
respect to each item of Intellectual Property required
to be identified in Section 4.11(a):
(i) the Seller possesses all right, title
and interest in and to the item, free
and clear of any Lien, license, or other
restriction;
(ii) the item is not subject to any
outstanding injunction, judgment, order,
decree, ruling, or charge;
(iii) no action, suit, opposition or
reexamination proceeding, hearing,
investigation, charge, complaint, claim,
or demand is pending or is threatened
which challenges the legality, validity,
enforceability, use, or ownership of the
item; and
(iv) the Seller is not now subject to any
indemnity obligation to any Person for
or against any interference,
infringement, misappropriation,
reexamination, opposition or other
conflict with respect to the item.
(d) Except as disclosed in Schedule 4.11(d), the
Seller has no Knowledge of any products, inventions or
procedures of competitors which infringe or
misappropriate any Intellectual Property of the Seller.
Except as disclosed in Schedule 4.11(d), the Seller has
not given formal or informal notice of infringement or
sent a demand to "cease and desist" to any third party.
(e) Schedule 4.11(e) identifies each and every
item of Intellectual Property that any third party owns
or licenses and that the Seller has pursuant to
license, sublicense, agreement, or permission. The
Seller has delivered to the Buyer correct and complete
copies of all such licenses, sublicenses, agreements,
and permissions (as amended to date). With respect to
each item of Intellectual Property required to be
identified in Section 4.11(e):
(i) the license, sublicense, agreement, or
permission covering the item is legal,
valid, binding, enforceable, and in full
force and effect;
(ii) the license, sublicense, agreement, or
permission will continue to be legal,
valid, binding, enforceable, and in full
force and effect on identical terms
following the consummation of the
transactions contemplated hereby
(including the assignments and
assumptions referred to in Section 1.2
above), subject to the rights of third
parties listed in Schedule 4.7;
<PAGE>
(iii) no party to the license,
sublicense, agreement, or permission is
in breach or default, and no event has
occurred which with notice or lapse of
time would constitute a breach or
default or permit termination,
modification, or acceleration
thereunder;
(iv) no party to the license, sublicense,
agreement, or permission has repudiated
any provision thereof;
(v) with respect to each sublicense, the
representations and warranties set forth
in subsections (i) through (iv) above
are true and correct with respect to the
underlying license;
(vi) to the Seller's Knowledge, the
underlying item of Intellectual Property
is not subject to any outstanding
injunction, judgment, order, decree,
ruling or charge;
(vii) except as set forth in Schedule
4.11(e), no action, suit, proceeding,
hearing, investigation, charge,
complaint, claim, or demand is pending
or is threatened which challenges the
legality, validity, or enforceability of
the underlying item of Intellectual
Property; and
(viii) the Seller has not granted any
sublicense or similar right with respect
to the license, sublicense, agreement,
or permission that is now in effect.
4.12 Insurance. Schedule 4.12(a) lists and
contains a description of each policy of insurance
owned or held by the Seller currently in effect
relating to the Purchased Assets or the Real Estate
(including without limitation, policies for fire and
casualty, liability, umbrella coverage, and other forms
of insurance) specifying the insurer, amount of
coverage, type of insurance, policy number, deductible
limits and any pending claim in excess of $5,000,
whether or not covered by insurance (the "Insurance").
The Insurance is in full force and effect, all premiums
with respect thereto covering all periods up to and
including the date hereof have been paid, and no notice
of cancellation or termination has been received by the
Seller with respect to any such policy. The Insurance
is sufficient for compliance with all requirements of
law. The policies evidencing the Insurance are valid,
outstanding and enforceable policies subject to the
terms and conditions contained therein, and there has
not occurred any act or omission of the Seller which
could result in cancellation of any such policy prior
to its scheduled expiration date.
4.13 Permits. Schedule 4.13 sets forth a list of
all of the Permits and true and complete copies of each
written document evidencing or affecting any of the
Permits will be delivered to the Buyer during due
diligence prior to Closing. The Seller is in
compliance with the terms and conditions of all of the
Permits. Except as set forth in Schedule 4.13, neither
the execution of this Agreement nor the consummation of
the transactions contemplated hereby will result in the
revocation, or an adverse change in the terms or
conditions, of any of the Permits, and all Permits
shall continue in full force and effect in accordance
with their present terms unaffected by the consummation
of the transactions contemplated hereby.
<PAGE>
4.14 Material Contracts. Schedule 4.14 identifies
the following contracts and other agreements to which
the Seller is a party:
(a) Leases. All leases of real or personal
property, including the leases described in Section 4.9
hereof;
(b) Purchase Orders. A list of written or oral
agreements relating to the purchase of products,
services or supplies by the Seller and pertaining to
the Purchased Assets;
(c) Loans and Borrowing Agreements. A list of
each written or oral (i) loan, credit or borrowing
arrangement or agreement or (ii) agreement by which the
Seller has guaranteed or otherwise became liable or
contingently liable for the debt of another; and
(d) Capital Expenditures. A list of all
outstanding written or oral commitments by the Seller
to make a capital expenditure, capital addition or
capital improvement, in each case with respect to the
Purchased Assets.
The Seller will deliver to the Buyer a correct and
complete copy of each written agreement listed on
Schedule 4.14 (as amended to date) and a written
summary setting forth the terms and conditions of each
oral agreement referred to in Schedule 4.14 during due
diligence prior to Closing. With respect to each such
agreement: (i) the agreement is legal, valid, binding,
enforceable and in full force and effect; (ii) subject
to Section 1.5, the agreement will continue to be
legal, valid, binding, enforceable and in full force
and effect on identical terms following the
consummation of the transactions contemplated hereby
(including the assignment and assumptions referred to
in Articles I and III); (iii) no party is in breach or
default, and no event has occurred which with notice or
lapse of time would constitute a breach or default, or
permit termination, modification or acceleration under
the agreement; and (iv) no party has repudiated any
provision of the agreement.
4.15 Litigation. There is not now any litigation,
claim, proceeding or investigation pending, or, to the
Seller's Knowledge, threatened against or relating to
the ability of the Seller to perform its obligations
under this Agreement.
4.16 Compliance With Law. The conduct of business
at the Real Estate as currently conducted by Seller
does not violate, nor is the Seller in default under,
any law, statute, ordinance, rule, regulation, code,
license, permit, guideline, order, arbitration award,
judgment or decree, and Buyer will not after the
Closing incur any Liability or obligation as a result
of any such violation or default existing at the
Closing or arising or accruing thereafter but based
upon conditions existing at the Closing. Except as set
forth on Schedule 4.16, no expenditures are anticipated
which are necessary or appropriate for the continuation
of the business at the Real Estate in compliance with
any such law, statute, rule, regulation, code, license,
permit, guidelines, order, arbitration award, judgment
or decree.
4.17 Environmental Matters.
(a) Environmental Compliance. Except as set
forth in Schedule 4.17(a), (i) the Seller and the
Leased Property have been and are in compliance with
all applicable Environmental
<PAGE>
Laws; (ii) neither the
Seller nor, to the Knowledge of Seller, any other
Person has received any communication (either written
or oral) from a Governmental Authority or other Person
which alleges that the Seller or the Leased Property is
not in compliance with any applicable Environmental
Law; (iii) neither the Seller nor, to the Knowledge of
Seller, any other person has received any notice of,
nor does the Seller have Knowledge of, any past,
present or future event, condition, circumstance,
activity, practice, incident, action or plan which may
interfere with or prevent continued compliance with all
applicable Environmental Laws; (iv) neither the Seller
nor, to the Knowledge of Seller, any other person is
under investigation by any Governmental Authority for
the failure to comply with any Environmental Law; (v)
neither the Seller nor, to the Knowledge of Seller, any
other person is required to take any Remedial Action by
any Governmental Authority or Environmental Law; and
(vi) neither the Seller nor, to the Knowledge of
Seller, any other person has made any statements,
warranties, or representations in any documents
submitted to any Governmental Authority or submittal
created pursuant to an obligation imposed by
Environmental Law containing any untrue statement of
material fact or omitting any statement of material
fact which render the statements made misleading in
connection with any Environmental Law.
(b) Environmental Permits. The Seller has
obtained all Environmental Permits necessary for its
operations on the Leased Property as currently
conducted, and all such Environmental Permits are in
good standing, current, transferable, and the Seller
are in compliance with all terms and conditions of such
Environmental Permits.
(c) Pending Litigation. There is no
Environmental Claim pending or, to the Knowledge of the
Seller, threatened against the Seller in connection
with the Leased Property, operations or actions of the
Seller or against any Person whose liability for any
Environmental Claim the Seller has or may have retained
or assumed either contractually or by operation of law.
The Seller has not received any notice of any past,
present or future event, condition, circumstance,
activity, practice, incident, action or plan which may
give rise to any Environmental Claim based on or
related to the Leased Property.
(d) Disposal Practices. Except as set forth in
Schedule 4.17(d), neither the Seller nor any other
Person has arranged for the disposal, treatment or
recycling of, or transported for disposal, treatment or
recycling, any Hazardous Waste, PCB-containing
Material, petroleum substance (including crude oil or
any fraction thereof), or petroleum product from the
Leased Property to any other location. Except to the
extent described in Schedule 4.17(d), neither the
Seller nor any other Person or entity has arranged for
the disposal, treatment or recycling of, or transported
for disposal, treatment or recycling, any other
Environmental Material from the Leased Property to any
other location. With respect to any Environmental
Materials identified in Schedule 4.17(d), the Seller
has no notice or Knowledge that such Environmental
Materials were not properly transported or disposed of
at a facility authorized to receive such Environmental
Materials pursuant to all Environmental Laws.
(e) Environmental Condition of Property. To the
Knowledge of Seller, except as described in Schedule
4.17(e), the Leased Property, including any
improvements thereon, and any soil or groundwater under
such properties, (i) does not contain any Environmental
Material; (ii) specifically does not contain PCB-
containing Material, petroleum substances, petroleum
<PAGE>
products, asbestos (or substances containing asbestos),
lead or urea formaldehyde foam; (iii) does not contain
any storage tanks, vessels or other facilities at,
under or on the Leased Property which contain or
previously contained Environmental Material; (iv) has
never been used for the storage, treatment, disposal,
deposit, recycling, landfilling, or dumping of any
Environmental Material; (v) has never been affected by
an Environmental Release of any Environmental Material;
(vi) does not contain a condition that is or may be a
threat to the health, safety or welfare of the public
or environment; (vii) does not face any risk of
contamination by any Environmental Material from any
nearby property; (viii) has never been the subject of
an environmental investigation, audit or assessment by
a Governmental Authority; and (ix) and has never been
the subject of a Remedial Action, or action to remove
any Environmental Material, or an action to abate,
restore, repair or remedy any condition affecting the
environment.
4.18 Events Subsequent to Latest Balance Sheet
Date. Except as set forth on Schedule 4.18, since the
Latest Balance Sheet Date:
(a) The Seller has not sold, leased, transferred,
or assigned any of its assets, tangible or intangible;
(b) No party (including the Seller) has
accelerated, terminated, modified, or cancelled any of
the Leases;
(c) The Seller has not imposed any Lien upon any
of its assets, tangible or intangible;
(d) The Seller has not granted any license or
sublicense of any rights under or with respect to any
Intellectual Property;
(e) The Seller has not experienced any damage,
destruction, or loss (whether or not covered by
insurance) to its property;
(f) The Seller has not entered into any contract
for the sale of the Purchased Assets or any part
thereof, whether by merger, consolidation, exchange of
capital stock or otherwise (other than with respect to
this Agreement); and
(g) The Seller has not committed to any of the
foregoing.
4.19 Brokerage. Except as described on Schedule
4.19, the Seller has not incurred, or made commitments
for, any brokerage, finders' or similar fee in
connection with the transaction contemplated by this
Agreement.
4.20 Bankruptcy. The Seller has not filed a
petition for relief under the United States Bankruptcy
Code or under any state insolvency statute.
4.21 No Bulk Sales Laws. Neither the provisions
of Chapter 406 of the Wisconsin Statutes nor other
similar "bulk sales" laws are applicable to the
acquisition of the Purchased Assets or the other
transactions contemplated by this Agreement.
<PAGE>
4.22 Commission Filings. The Seller has filed
with the Commission certain reports, registration
statements, proxy statements and other filings
(including all notes, exhibits and schedules thereto
and documents incorporated by reference therein) with
the Commission since December 31, 1999 (such reports,
registration, statements and other filings, together
with any amendments thereto, are sometimes collectively
referred to as the "Commission Filings"). Attached on
Schedule 4.22 is a true and complete list of all
Commission filings since December 31, 1999.
4.23 Representations and Warranties True and
Correct. The representations and warranties contained
herein, and all other documents, certifications,
materials and statements or information given to the
Buyer by or on behalf of the Seller or disclosed in
this Agreement, do not include any untrue statement of
a material fact or omit to state a material fact
required to be stated herein or therein in order to
make the statements herein or therein, in light of the
circumstances under which they are made, not
misleading.
ARTICLE V
REPRESENTATIONS OF THE BUYER
In order to induce the Seller to enter into this
Agreement, the Buyer makes the following
representations and warranties to the Seller, each of
which shall be deemed to be independently material and
relied upon by the Seller, regardless of any
investigation made by, or information known to, the
Seller.
5.1 Ownership, Organization and Qualification.
The Buyer is a corporation duly incorporated and
validly existing under the laws of the State of
Wisconsin, has filed with the appropriate state agency
the most recent annual report required to be filed by
it, has not filed articles of dissolution and has a
perpetual period of existence.
5.2 Authorization. The Buyer has all necessary
power and authority to enter into and perform the
transactions contemplated hereby in accordance with the
terms and conditions hereof. The execution and
delivery of this Agreement, and the performance by the
Buyer of each of its obligations contained herein, have
been duly approved by the Buyer's Board of Directors.
No other corporate authorization from the Buyer is
required for the execution and delivery of this
Agreement or the performance of its obligations
hereunder.
5.3 Enforceability. This Agreement and all other
agreements of the Buyer contemplated hereby are or,
upon the execution thereof, will be the valid and
binding obligations of the Buyer enforceable against it
in accordance with their terms.
5.4 Conflicting Obligations. The execution and
delivery of this Agreement do not, and the consummation
of the sale and purchase of the Purchased Assets
contemplated hereby will not: (a) conflict with or
violate any provisions of the certificate of
incorporation of the Buyer; (b) conflict with or
violate any provisions of, or result in the maturation
or acceleration of, any obligations under any contract,
agreement, instrument, document, lease, license,
permit, indenture, or obligation, or any law, statute,
ordinance, rule, regulation, code, guideline, order,
arbitration award, judgment or decree, to which the
Buyer is subject to or which the Buyer is a party;
<PAGE>
or (c) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement,
contract, lease, license, instrument or other
arrangement to which the Buyer is a party or by which
it is bound or to which any of its assets is subject.
5.5 Litigation. There is no litigation, claim,
proceeding or investigation pending, or to the Buyer's
Knowledge, threatened, against the Buyer relating to
its ability to perform its obligations under this
Agreement.
5.6 Brokerage. The Buyer has not incurred, nor
made commitment for, any brokerage, finders or similar
fee in connection with the transactions contemplated by
this Agreement.
ARTICLE VI
COVENANTS OF THE SELLER
The Seller covenants and agrees with the Buyer as
follows:
6.1 Access. From the date hereof and until the
Closing Date, the Buyer and its authorized officers,
agents and representatives shall have full access (upon
reasonable prior notice) to the Real Estate and the
Purchased Assets. The Seller shall cooperate with the
Buyer by responding to and causing the Seller's outside
auditors promptly to respond to all questions posed by
the Buyer concerning the Purchased Assets.
6.2 Operation of Business. From the date hereof
and until the Closing Date, without the express prior
written consent of the Buyer, the Seller shall not
engage in any practice, take any action or enter into
any transaction involving the Purchased Assets or the
Leases. Without limiting the generality of the
foregoing, the Seller shall not otherwise engage in any
practice, take any action or enter into any transaction
of the sort described in Section 4.18.
6.3 Insurance and Maintenance of Property. From
the date hereof and until the Closing Date, the Seller
shall cause all property owned or leased by it to be
insured against all ordinary insurable risks and shall
maintain in effect all the Insurance, and shall
maintain and repair all of its property in a manner
consistent with past practice; provided, that the
Seller, with prior consultation with Buyer, shall take
those actions it deems commercially reasonable to
maintain and prosecute its patents, patent
applications, and other Intellectual Property and the
Buyer shall pay all costs related to the same. The
actions required to maintain the Intellectual Property
from the date of this Agreement to the end of 2000 are
shown on Schedule 6.3 to this Agreement. In addition,
Seller may dispose of the Equipment currently located
on the Farm Facility in the manner Seller deems
reasonable, with the prior written consent of the
Buyer, provided the proceeds of any such disposition,
reduced by the reasonable costs incurred by Seller, be
applied as a credit to Buyer at Closing.
6.4 Compliance with Laws. From the date hereof
and until the Closing Date, the Seller shall comply
with all applicable laws, statutes, ordinances, rules,
regulations, guidelines,
<PAGE>
orders, arbitration awards, judgments and decrees
applicable to, or binding upon, the Seller or its
business or properties.
6.5 Supplemental Disclosure. On the Closing
Date, the Seller shall inform the Buyer in writing of
all information, events or actions which, if this
Agreement were signed on the Closing Date, would be
required to be disclosed on the Schedules in order to
make the Seller's representations and warranties
contained herein true and not misleading. The delivery
thereof by the Seller shall not absolve the Seller from
liability for breach of any representation or warranty
which was untrue when made.
6.6 Fulfill Conditions. The Seller shall use its
best efforts to cause to be fulfilled on or prior to
the Closing each of the conditions set forth in
Article VIII hereof.
6.7 Release of Liens. The Seller shall on or
prior to the Closing Date deliver to the Buyer such
documents as are necessary to terminate and release all
Liens on the Purchased Assets except for Permitted
Liens, which documents shall be in form and substance
acceptable to the Buyer and shall include without
limitation, all documents necessary to terminate of
record any such Liens.
6.8 Documents of Transfer. On the Closing Date,
the Seller shall duly execute and deliver to the Buyer
the Assignment, Bill of Sale and Assumption Agreement.
Any applicable sales tax, use tax or transfer fees
shall be paid by the Seller at the Closing. In
addition, the Seller shall execute and deliver to the
Buyer at the Closing, in form and substance reasonably
satisfactory to counsel for the Buyer, assignments
assigning to the Buyer the following:
(a) All Intellectual Property, provided that any
form required by the patent office of any
jurisdiction to transfer the ownership of the
Intellectual Property shall be prepared at
Buyer's expense;
(b) All Contracts;
(c) All assignable Permits; and
(d) Such other Purchased Assets as the Buyer may
reasonably request.
6.9 Other Deliveries. On the Closing Date, the
Seller shall deliver to the Buyer the following:
(a) The resolutions of the Board of Directors of
the Seller authorizing and approving the
execution, delivery and performance of this
Agreement and the transactions contemplated
hereby, certified by the secretary or the
president of the Seller and evidence,
satisfactory in form and substance to the
Seller of the approval of the transactions
contemplated by this Agreement by the
Seller's shareholders;
(b) Current Uniform Commercial Code and state,
local and federal tax, sales and unemployment
compensation tax, judgment, bankruptcy and
similar lien searches showing no Liens
against the Purchased Assets other than
Permitted Liens;
<PAGE>
(c) All consents for the assignment of all
Permits, which are necessary in order for
said Permits to be assigned to the Buyer upon
their present terms and the Seller shall pay
all fees, charges and other costs that are
required or imposed in connection with
obtaining any such consent;
(d) All consents for the assignment of all
Leases, which are necessary in order for said
Leases to be assigned to the Buyer upon their
present terms and the Seller shall pay all
fees, charges and other costs that are
required or imposed in connection with
obtaining any such consent;
(e) An affidavit that the Seller is not a
"foreign person" within the meaning of
Section 1445 of the Code, and stating the
Seller's federal taxpayer identification
number, in form and substance acceptable to
counsel for the Buyer; and
(f) All other documents reasonably requested by
counsel for the Buyer to consummate the
transactions herein contemplated.
6.10 Exclusive Dealing. Neither the Seller, nor
any of its agents or representatives will take,
directly or indirectly, any action to initiate,
continue, assist, solicit, receive, negotiate,
encourage or accept any offer or inquiry from any
Person (a) to engage in any Business Combination, (b)
to reach any agreement or understanding (whether or not
such agreement or understanding is absolute, revocable,
contingent or conditional) for, or otherwise attempt to
consummate, any Business Combination or (c) to furnish
or cause to be furnished any information with respect
to the Seller or its assets to any Person (other than
as contemplated in this Agreement) who the Seller knows
or has reason to believe is in the process of
considering any Business Combination; provided that
prior to the Closing Date, if the Board of Directors of
the Seller reasonably determines the Business
Combination constitutes a Superior Proposal (as defined
below), then, to the extent required by the fiduciary
obligations of the Board of Directors of the Seller, as
determined in good faith by a majority thereof after
consultation with independent counsel (who may be the
Seller's regularly engaged independent counsel), the
Seller may, in response to an unsolicited request,
furnish non-public information, and afford access to
the properties, books, records, officers, employees and
representatives of the Seller, participate in
discussions or negotiations regarding the Superior
Proposal and, provided that the Seller has complied
with the provisos to its rights to terminate this
Agreement pursuant to Section 11.1(c) hereof, enter
into an agreement with respect to or approve or
recommend to its shareholders a Superior Proposal.
Without limiting the foregoing, it is understood that
any violation of the restrictions set forth in the
preceding sentence by any officer or director of the
Seller or any financial advisor, attorney or other
advisor or representative of the Seller, whether or not
such person is purporting to act on behalf of the
Seller or otherwise, shall be deemed to be a breach of
this Section 6.10 by the Seller. For purposes of this
Agreement, "Business Combination" means any merger,
consolidation or combination to which the Seller is a
party which would adversely affect the Seller's ability
to transfer the Purchased Assets to the Buyer, any
sale, dividend, split or other disposition of capital
stock or other equity interest of the Seller which
would adversely affect the Seller's ability to transfer
the Purchased Assets to the Buyer or any sale, dividend
or other disposition of the Purchased Assets, and
"Superior Proposal" means a bona fide proposal made by
a third party to acquire the Seller pursuant to a
tender or exchange offer, a merger, a
<PAGE>
sale of all or
substantially all its assets or otherwise on terms
which a majority of the members of the Board of
Directors of the Seller determines, at a duly
constituted meeting of the Board of Directors or by
unanimous written consent, in its reasonable good faith
judgment (after consultation with its financial
advisor) to be more favorable to the Seller's
shareholders than the transactions contemplated hereby
and for which financing, to the extent required, is
then committed or which, in the reasonable good faith
judgment of a majority of such disinterested members of
the Board of Directors of the Seller, as expressed in a
resolution adopted at a duly constituted meeting of
such directors, is reasonably capable of being obtained
by such third party.
6.11 Further Assurances. The Seller, upon request
of the Buyer, shall execute, acknowledge and deliver
such other instruments as reasonably may be requested
to more effectively transfer and vest in the Buyer, the
Purchased Assets or to otherwise carry out the terms
and conditions of this Agreement.
6.12 Brokerage. Any brokerage, finders' or
similar fee incurred in connection with the
transactions contemplated by this Agreement shall be
promptly paid by the Seller.
6.13 Intellectual Property Assignments. On the
Closing Date, the Seller shall execute and deliver to
the Buyer an Intellectual Property Assignment.
6.14 Transfer of Sponsorship of IND. The Seller,
upon request of the Buyer, shall execute and deliver
such instruments and take other actions necessary to
transfer sponsorship of its IND to Buyer or a third
party identified by Buyer.
ARTICLE VII
COVENANTS OF THE BUYER
The Buyer covenants and agrees with the Seller as
follows:
7.1 Certified Resolutions. On the Closing Date,
the Buyer shall deliver to the Seller a copy of the
resolutions of the Buyer's Board of Directors,
authorizing and approving the execution of this
Agreement and the performance by the Buyer of the
transactions contemplated hereby, certified by an
officer of the Buyer.
7.2 Assignment, Bill of Sale and Assumption
Agreement. On the Closing Date, the Buyer shall
execute and deliver to the Seller the Assignment, Bill
of Sale and Assumption Agreement.
ARTICLE VIII
CONDITIONS OF THE BUYER'S OBLIGATION TO CLOSE
The obligation of the Buyer to consummate the
transactions contemplated by this Agreement shall be
subject to the satisfaction and fulfillment, prior to
and on the Closing Date, of the following express
conditions precedent:
<PAGE>
8.1 Representation and Warranties. The
representations and warranties in this Agreement made
by the Seller shall be true and correct in all material
respects as of and at the Closing Date with the same
force and effect as though said representations and
warranties had been again made on the Closing Date, and
the Buyer shall have been furnished a certificate
signed by the president of the Seller to that effect.
8.2 Performance of Covenants and Obligations.
The Seller shall have performed and complied with all
of its covenants and obligations under this Agreement
which are to be performed or complied with by it prior
to or on the Closing Date, and the Buyer shall have
been furnished a certificate signed by the president of
the Seller to that effect.
8.3 Proceedings and Instruments Satisfactory.
All proceedings, corporate or otherwise, to be taken in
connection with the transactions contemplated by this
Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to the
Buyer. The Seller shall have made available to the
Buyer, either directly or through its patent counsel,
for examination the originals or true and correct
copies of all documents which the Buyer reasonably may
request in connection with the transactions
contemplated by this Agreement.
8.4 Adverse Change. From and after the date of
this Agreement and until the Closing Date, the Buyer
(in its sole and absolute discretion) shall have
determined that there has been no material adverse
change in the Purchased Assets, or the Real Estate,
from that disclosed to the Buyer in this Agreement, nor
shall there have been any casualty to the Purchased
Assets, in an amount exceeding $10,000, as a result of
any loss, taking, destruction or physical damage,
whether or not covered by insurance, occasioned by
fire, flood, explosion, earthquake, act of God or the
public enemy, or otherwise. The Buyer shall have been
furnished with a certificate signed by the president of
the Seller to that effect.
8.5 No Litigation. No investigation, suit,
action or other proceeding shall be threatened or
pending before any court or governmental agency in
which it is sought to restrain, prohibit or obtain
damages or other relief in connection with this
Agreement or the consummation of the transactions
contemplated hereby.
8.6 Consents, Approvals, Certifications, Licenses
and Permits. All necessary consents, approvals,
certifications, licenses and permits with respect to
the transaction contemplated hereby, including, without
limitation, the transfer of the Purchased Assets to the
Buyer, the absence of which would have a material
adverse effect on the Buyer's rights under this
Agreement, or which would constitute a breach pursuant
to the provision of, or which would result in the
termination or loss of any right under, any material
Contract, Permit, or other obligation, or without which
the Buyer would be precluded or materially impeded from
obtaining the benefit of the Purchased Assets, shall
have been received by the Buyer on or before the
Closing Date.
8.7 Good Standing Certificates. The Seller shall
have delivered to the Buyer a current certificate of
good standing relative to the Seller recently certified
by the Secretary of State or
<PAGE>
other appropriate
governmental authority of each state or jurisdiction in
which the Seller is organized or qualified to transact
business.
8.8 Opinion of Counsel. On the Closing Date, the
Seller shall have delivered to the Buyer the legal
opinion of LaFollette Godfrey & Kahn, the Seller's
corporate counsel in the form set forth on Schedule
8.8.
8.9 Financing. The Buyer shall have renegotiated
the terms of the Senior Secured Notes, in each case on
such terms and subject to such conditions as are
satisfactory to the Buyer in its sole discretion.
8.10 Due Diligence. The Buyer shall have
conducted a due diligence investigation and review of
the Purchased Assets, the Assumed Liabilities, the
Business and all matters pertaining thereto that the
Buyer deems relevant and the results of such
investigation and review shall be satisfactory to the
Buyer in its sole and absolute discretion, including,
without limitation, any due diligence investigation
relating to the Seller's Intellectual Property (which
shall be limited to the ownership and assignability
thereof) and existing Environmental Claims; provided
however, that the condition to closing set forth in
this Section 8.10 shall be deemed waived by the Buyer
unless the Buyer notifies the Seller in writing within
forty-five (45) days following the date of this
Agreement of its intent to terminate this Agreement.
ARTICLE IX
CONDITIONS TO THE SELLER'S OBLIGATION TO CLOSE
The obligation of the Seller to consummate the
transactions contemplated by this Agreement shall be
subject to the satisfaction and fulfillment, prior to
and on the Closing Date, of the following express
conditions precedent:
9.1 Representations and Warranties. The
representations and warranties in this Agreement made
by the Buyer shall be true and correct in all material
respects as of and at the Closing Date with the same
force and effect as though said representations and
warranties had been again made on the Closing Date, and
the Seller shall have been furnished a certificate
signed by the president of the Buyer to that effect.
9.2 Performance of Covenants and Obligations.
The Buyer shall have performed and complied with all of
its covenants and obligations under this Agreement
which are to be performed or complied with by it prior
to or on the Closing Date, and the Seller shall have
been furnished a certificate signed by the president of
the Buyer to that effect.
9.3 Proceedings and Instruments Satisfactory.
The shareholders of the Seller shall have approved the
transactions contemplated by this Agreement. All
proceedings, corporate or otherwise, to be taken in
connection with the transactions contemplated by this
Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to the
Seller; and, the Buyer shall have made available to the
Seller for examination the originals or true and
correct copies of all documents which the Buyer
reasonably may request in connection with the
transactions contemplated by this Agreement.
<PAGE>
9.4 No Litigation. No investigation, suit,
action or other proceeding shall be threatened or
pending before any court or governmental agency in
which it is sought to restrain, prohibit or obtain
damages or other relief in connection with this
Agreement or the consummation of the transactions
contemplated hereby.
ARTICLE X
INDEMNIFICATION BY SELLER
10.1 Indemnification. Notwithstanding the
Closing, and regardless of any investigation made by,
or on behalf of, the Buyer, or any information known to
the Buyer, the Seller, subject to the terms and
conditions of this Article X, indemnifies and saves the
Buyer, its shareholders, officers, directors or
employees (collectively, the "Buyer" as used in this
Article X) harmless from and against any and all
losses, claims, damages, liabilities, costs, expenses
or deficiencies including, but not limited to,
reasonable attorneys' fees and other costs and expenses
reasonably incident to proceedings or investigations or
the defense or settlement of any claim or claims,
incurred by or asserted against the Buyer or the
Purchased Assets due to or resulting from any of the
following: (a) the inaccuracy or breach of any
representation or warranty of the Seller given in or
pursuant to this Agreement; (b) any breach or default
in the performance by the Seller of any of its
covenants, obligations or agreements in or pursuant to
this Agreement; (c) any liability or obligation of the
Seller not expressly assumed by the Buyer pursuant to
this Agreement; and (d) the ownership or use of the
Seller's assets at any time prior to the Closing, or
any incident, occurrence, condition or claim existing,
arising or accruing prior to the Closing and relating
to the operation or conduct of the Business or the
ownership or use of the Seller's assets other than any
liability or obligation of the Seller expressly assumed
by the Buyer pursuant to this Agreement. The foregoing
are collectively referred to as "Indemnifiable
Damages." The term "Indemnifiable Damages" shall also
include an amount of interest on the amount of such
Indemnifiable Damages (computed before the application
of this sentence), which interest shall be computed at
the Applicable Rate in simple interest per annum from
the Closing Date and until paid by the Seller.
10.2 Procedures for Making Claims. If and when
the Buyer desires to assert a claim for Indemnifiable
Damages against the Seller pursuant to the provisions
of this Article X, the Buyer shall deliver to the
Seller, reasonably promptly after the Buyer's receipt
of a claim or specific and affirmative awareness of a
potential claim, a certificate signed by an officer
(the "Notice of Claim"): (a) stating that the Buyer
has paid or accrued (or intends to pay or accrue)
Indemnifiable Damages to which it is entitled to
indemnification pursuant to this Article X and the
amount thereof (to the extent then known); and
(b) specifying to the extent possible (i) the
individual items of loss, damage, liability, cost,
expense or deficiency included in the amount so stated,
(ii) the date each such item was or will be paid or
accrued and (iii) the basis upon which Indemnifiable
Damages are claimed. If the Seller shall object to
such Notice of Claim, the Seller shall simultaneously
deliver written notice of objection (the "Notice of
Objection") to the Buyer within thirty (30) days after
the Buyer's delivery of the Notice of Claim. The
Notice of Objection shall set forth the grounds upon
which the objection is based and state whether the
Seller object to all or only a portion of the matter
described in the Notice of Claim. If the Notice of
Objection shall not have been so delivered within such
fifteen (15) day period, all Seller shall
<PAGE>
be conclusively deemed to have acknowledged the
correctness of the claim or claims specified in the
Notice of Claim for the full amount thereof, and the
Indemnifiable Damages set forth in the Notice of Claim
shall be paid to the Buyer, on demand, in cash.
10.3 Participation in Defense of Third Party
Claims. If any third party shall assert any claim
against the Buyer which, if successful, might result in
an obligation of the Seller to pay Indemnifiable
Damages and which can be remedied to the sole
satisfaction of the Buyer by the payment of money
damages without further adverse consequence to the
Buyer, the Seller, at the sole expense of the Seller,
may assume the primary defense thereof with counsel
reasonably acceptable to the Buyer, but only if and so
long as: (i) the Seller diligently pursue the defense
of such claim; and (ii) the Seller acknowledges to the
Buyer in writing that the claim, if resolved or settled
adversely to the Buyer, is one for which the Seller is
obligated to indemnify the Buyer hereunder. If the
Seller fails or is unable to so elect to assume the
primary defense of any such claim, the Buyer may (but
need not) do so, in which event the Buyer may defend,
settle or compromise the claim, at the expense and cost
of the Seller, in any such manner as the Buyer
reasonably deems appropriate.
10.4 Survival of Representations and
Indemnification. The Seller's obligation to pay
Indemnifiable Damages shall survive the Closing of this
transaction for ninety (90) days.
10.5 Offset. The Buyer shall be entitled to
offset against the Note or any obligations owed by the
Buyer to the Seller the sum of all Indemnifiable
Damages that the Buyer is entitled to pursuant to
Article X and all other obligations owed by the Buyer
to the Seller under any other agreement, contract or
other arrangement. No offset made by the Buyer
pursuant to this Section shall constitute a default
under the Note or, even if it is subsequently
determined that no Indemnifiable Damages were due the
Buyer, give rise to any right of acceleration under the
Note or on the part of the Seller by reason of such
offset.
10.6 Limitation on Indemnification. The maximum
amount of Indemnifiable Damages which may be recovered
by Buyer is $250,000.
10.7 Other Indemnification Provisions. The
foregoing indemnification provisions are in addition
to, and not in derogation of, any statutory, equitable,
or common law remedy (including without limitation any
such remedy arising under Environmental Law) the Buyer
may have with respect to the Seller, or the
transactions contemplated by this Agreement.
ARTICLE XI
TERMINATION
11.1 Rights to Terminate. This Agreement may be
terminated at any time prior to the Closing only as
follows:
(a) by mutual written consent of the Seller and
the Buyer;
<PAGE>
(b) by the Seller by giving written notice to the
Buyer if the Buyer is in breach of any
representation, warranty or covenant under
this Agreement (and the Seller is not then in
breach of any representation, warranty or
covenant);
(c) by the Seller if the Seller enters into a
merger, acquisition or other agreement
(including an agreement in principle) to
effect a Superior Proposal or the Board of
Directors of the Seller resolves to do so;
provided, however, that the Seller may not
terminate this Agreement pursuant to this
Section 11.1(c) unless (i) the Seller has
delivered to Buyer a written notice of the
Seller's intent to enter into such an
agreement to effect the Superior Proposal,
(ii) ten business days have elapsed following
delivery to Buyer of such written notice by
the Seller and (iii) during such ten-business-
day period the Seller has fully cooperated
with Buyer, including informing Buyer of the
terms and conditions of the Business
Combination and the identity of the person
making the proposal for the Business
Combination, with the intent of enabling
Buyer to agree to a modification of the terms
and conditions of this Agreement so that the
transactions contemplated hereby may be
effected; provided, further, that the Company
may not terminate this Agreement pursuant to
this Section 11.1(c) unless at the end of
such ten-business-day period the Board of
Directors of the Seller continues reasonably
to believe that the Business Combination
constitutes a Superior Proposal when compared
to the transactions contemplated hereby
(taking into account any such modification as
may be proposed by Buyer) and concurrently
with such termination the Seller pays to
Buyer the Termination Fee;
(d) by the Buyer by giving written notice to the
Seller if the Seller is in breach of any
representation, warranty or covenant under
this Agreement (and the Buyer is not then in
breach of any representation, warranty or
covenant); or
(e) by the Buyer by giving written notice to the
Seller if the Closing shall not have occurred
on or before November 30, 2000.
Each party's right to termination hereunder is in
addition to any of the rights it may have hereunder or
otherwise.
11.2 Effects of Termination. Notwithstanding any
other provision of this Agreement, no termination of
this Agreement shall release (i) the Seller from its
obligation under Section 6.10 or Section 13.4 or
(ii) any party of any Liabilities arising hereunder for
any pre-termination breaches hereof or intentional
misrepresentations made herein.
ARTICLE XII
DEFINITIONS
12.1 Certain Defined Terms. As used in this
Agreement, the following terms shall have the meanings
specified in this Section 12.1 unless the context
otherwise requires. "Affiliate" has the meaning set
forth in Rule 12b-2 of the regulations promulgated
under the Securities Exchange Act.
<PAGE>
"Agreement" means this Asset Purchase Agreement,
together with all Exhibits and Schedules hereto, as
amended, restated, supplemented or otherwise modified
from time to time in accordance with the terms hereof.
"Assignment, Bill of Sale and Assumption
Agreement" means that Assignment, Bill of Sale and
Assumption Agreement, dated as of the Closing Date,
between the Seller and the Buyer.
"Assumed Liabilities" has the meaning set forth in
Section 3.1.
"Business" has the meaning set forth in the
recitals to this Agreement.
"Business Combination" has the meaning set forth
in Section 6.10.
"Buyer" has the meaning set forth in the first
paragraph to this Agreement.
"Closing" has the meaning set forth in Section
1.4.
"Closing Date" has the meaning set forth in
Section 1.4.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the United States Securities
and Exchange Commission.
"Commission Filings" has the meaning set forth in
Section 4.22.
"Contracts" has the meaning set forth in Section
1.2(e).
"Environmental Claim" means any and all claims,
demands, suits, actions, orders, directives, notices of
noncompliance or violation, liens, investigations or
administrative, regulatory or judicial proceedings by
any person alleging potential liability or
responsibility for enforcement, penalties, fines,
forfeitures, damages, losses, costs, costs for Remedial
Action, governmental response costs, natural resource
damages, property damages, personal injury or bodily
injury arising out of, based on or resulting from:
(A) the presence, use, manufacture, processing,
distribution, production, generation, handling,
transport, storage,
<PAGE>
disposal, labeling, discharge,
release, threatened release, treatment, control or
cleanup of any Environmental Material at any location;
or (B) circumstances forming the basis of any
violation, or alleged violation, of any Environmental
Law; or (C) any and all claims by any person or
Governmental Authority seeking damages, contribution,
indemnification, costs, compensation or injunctive
relief resulting from the presence or Environmental
Release of any Environmental Material.
"Environmental Law" means any Legal Requirement
which relates to or otherwise imposes liability,
obligations, responsibility, or standards with respect
to zoning, land use, pollution, or the restoration,
repair, remediation or protection of natural resources,
human health or the environment (including ambient air,
surface water, groundwater, land surface, subsurface
soil strata), including without limitation, any Legal
Requirement relating to the presence, use, manufacture,
processing, distribution, production, generation,
handling, transport, storage, disposal, labeling,
discharge, release, threatened release, treatment,
control or cleanup of any Environmental Material.
"Environmental Material" means: (A) any petroleum
substance, petroleum product, underground storage tank,
underground cistern, radioactive material, asbestos in
any form that is or could become friable, urea
formaldehyde foam insulation, PCB-containing Material;
(B) any Hazardous Substance, Hazardous Material,
Hazardous Waste or any other material, substance,
chemical, waste, contaminant or pollutant which is now
or hereafter defined as or determined to be hazardous,
extremely hazardous, toxic, dangerous, restricted, or a
nuisance, or words of similar import, under any
Environmental Law; (C) any other material, substance,
chemical, waste, contaminant, pollutant or exposure to
which is now prohibited, limited or regulated by any
Governmental Authority.
"Environmental Permits" means all permits,
licenses, authorizations, certifications, notices,
approvals or authorizations under any Environmental
Law.
"Environmental Release" shall mean any release,
spill, emission, leaking, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the
atmosphere, soil, surface water, groundwater or soil.
"Equipment" has the meaning set forth in Section
1.2(d).
"Excluded Assets" has the meaning set forth in
Section 1.3.
"GAAP" means United States generally accepted
accounting principles as in effect from time to time.
"Governmental Authority" means the government of
the United States of America and any other country, and
any state, province, municipality or other governmental
unit, or any agency, board, bureau, instrumentality,
department or commission (including any court or other
tribunal) of any of the foregoing.
"Hazardous Material" means hazardous materials as
defined under the regulations adopted pursuant to the
Hazardous Materials Transportation Act. Such
regulations appear at 49 C.F.R. Part 171, et seq.
"Hazardous Substance" means hazardous substances
as defined under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C.
9601, et seq. and under comparable state laws.
"Hazardous Waste" means hazardous waste as defined
under the Resource Conservation and Recovery Act, 42
U.S.C. 6901, et seq. 144.60, et seq. and other
comparable state laws.
"IND" means U.S. Food and Drug Administration
("FDA") Investigational New Drug application of Seller
identified by the FDA as BB-IND 7423, together with all
amendments thereto, whether active or inactive.
<PAGE>
"Indemnifiable Damages" has the meaning set forth
in Section 10.1.
"Insurance" has the meaning set forth in Section
4.12(a).
"Intellectual Property" means all United States
and foreign patents and patent applications (including
international applications) that have been filed by
Seller set forth in Schedule 4.11(a), including those
abandoned by Seller after filing, together with all
reissuances, continuations, continuations-in-part,
revisions, extensions, and reexaminations thereof, (ii)
supporting documentation for the patents and patent
applications identified in the preceding subsection
(i), including laboratory notebooks, drug master
documents, and similar documents, as are reasonably
available to Seller, (iii) all trade secrets and know-
how set forth or described in the supporting
documentation identified in the preceding subsection
(ii); (iv) all computer software owned or licensed by
the Seller and that is either necessary to the
operation of the Equipment or which was developed by or
for the Seller for use with the intellectual property
described in the foregoing subsections of this
paragraph, (v) all copies and tangible embodiments
thereof (in whatever form or medium) located at
Seller's office or the office of Seller's patent
counsel. Intellectual Property to be assigned
includes, without limitation, the Intellectual Property
set forth in the Intellectual Property Assignment.
"Intellectual Property Assignment" means that
certain Intellectual Property Assignment dated as of
the Closing Date, between the Buyer and the Seller, in
the form approved by the Buyer, as the same may be
amended, restated, supplemented or otherwise modified
from time to time.
"IRS" means the Internal Revenue Service.
"Knowledge" means, with respect to any party, the
knowledge of such party after due inquiry and, if such
party fails to make such inquiry, shall include the
constructive knowledge of such facts as would have been
learned had such due inquiry been made.
"Latest Balance Sheet" means the balance sheet for
the Seller dated as of the Latest Balance Sheet Date
and attached in Schedule 4.8.
"Latest Balance Sheet Date" has the meaning set
forth in Section 4.8.
"Leases" means that certain Lease Agreement dated
May 26, 1999, between the Seller and Ben Scharpf, the
Lease for the farm property located in Jefferson
County, Wisconsin and the Lease between Buyer and
Seller.
"Leased Property" shall mean the Real Estate, as
well as any other real estate heretofore owned or used
by Seller in the conduct of the Business.
"Legal Requirement" means any and all statutes,
laws, codes, ordinances, regulations, rules,
directives, policy, orders, judgments, writs,
injunctions, rulings, decrees, bylaws or common law
(whether presently in effect or hereinafter enacted,
adopted, promulgated or issued) of any Governmental
Authority.
<PAGE>
"Liability" means any liability or obligation
(whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due),
including, without limitation, any liability for Taxes.
"Lien" means any mortgage, pledge, lien,
encumbrance, charge or other security interest of any
kind.
"Note" shall mean Buyer's non-negotiable
promissory note payable to the Seller.
"Notice of Claim" has the meaning set forth in
Section 10.2.
"Notice of Objection" has the meaning set forth in
Section 10.2.
"Owner" has the meaning set forth in the
definition of "Subsidiary" set forth in Section 12.1.
"PCB-containing Material" means polychlorinated
biphenyls, including PCB-laden lubricating or hydraulic
oils or transformers or other equipment which contain
dielectric fluid containing polychlorinated biphenyls.
"Permits" has the meaning set forth in Section
1.2(f).
"Permitted Liens" means municipal and zoning
ordinances, recorded easements, covenants and
restrictions provided the same do not prohibit or
materially interfere with the present use, or
materially affect the present value, of the Real Estate
and general taxes levied on or after January 1, 2000
and not yet due or payable.
"Person" means an individual, partnership,
corporation, limited liability company, firm,
enterprise, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Purchase Price" has the meaning set forth in
Section 2.1(a).
"Purchased Assets" has the meaning set forth in
Section 1.2.
"Real Estate" has the meaning set forth in Section
1.2(c).
"Records" means books of account, ledgers, forms,
records, documents, files, invoices, lab notebooks,
archived batch records, chemical waste disposal
records, vendor or supplier lists, plans and other data
which are necessary to or desirable for the ownership,
use, maintenance or operation of the Purchased Assets
and which are owned or used by the Seller, including,
without limitation, all blueprints and specifications,
all environmental control records, environmental impact
reports, statements, studies and related documents,
handbooks, technical manuals and data, engineering
specifications and work papers, all cost information,
asset history records and files, all maintenance and
repair records, all correspondence, notices, citations
and all other documents received from, sent to or in
the Seller's possession related to the Purchased Assets
in
<PAGE>
connection with any Governmental Authority
(including, without limitation, federal, state, county
or regional environmental protection, air or water
quality control, occupational health and safety, land
use, planning or zoning and any alcohol, beverage or
fire prevention authorities), all plans, maps and
surveys of the Real Estate, and all plans and designs
of buildings, structures, fixtures and equipment.
"Remedial Action" means any action taken or
required to be taken as a result of Environmental Law
or by demand of Governmental Authority in response to a
known or suspected condition in the environment
(including ambient air, surface water, groundwater,
land surface or subsurface soil strata), including,
without limitation, sampling, investigation,
monitoring, remedial action, remediation, removal,
response, restoration, repair, replacement, treatment,
clean-up and corrective action.
"Restricted Interests" has the meaning set forth
in Section 1.5(a).
"Securities Act" means the Securities Act of 1993,
as amended, including any rules and regulations
promulgated thereunder.
"Securities Exchange Act" means the Securities
Exchange Act of 1934, as amended, including any rules
and regulations promulgated thereunder.
"Seller" has the meaning set forth in the first
paragraph to this Agreement.
"Senior Secured Notes" has the meaning set forth
in Section 2.1(a).
"Subsidiary" means, with respect to any Person
(the "Owner") any corporation or other Person of which
securities or other interests having the power to elect
a majority of that Person's board of directors of
similar governing body, or otherwise having the power
to direct the business and policies of that Person are
held by the Owner or one or more of its Subsidiaries.
When used without reference to a particular Person,
Subsidiary" means a Subsidiary of the Seller.
"Superior Proposal" has the meaning set forth in
Section 6.10.
"Tax" means any federal, state, local or foreign
income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall
profits, environmental, customs duties, capital stock,
franchise, profits, withholding, social security,
unemployment, disability, real property, personal
property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated or
other tax of any kind whatsoever, including any
interest, penalty or addition thereto, whether disputed
or not.
"Termination Fee" has the meaning set forth in
Section 13.4.
12.2 Interpretation. Unless otherwise expressly
provided or unless the context requires otherwise,
(a) all references in this Agreement to Articles,
Sections, Schedules and Exhibits shall mean and refer
to Articles, Sections, Schedules and Exhibits of this
Agreement; (b) all references to statutes and related
regulations shall include all amendments of the same
and any successor or
<PAGE>
replacement statutes and
regulations; (c) words using the singular or plural
number also shall include the plural and singular
number, respectively; (d) references to "hereof,"
"herein," "hereby" and similar terms shall refer to
this entire Agreement (including the Schedules and
Exhibits hereto); and (e) references to any Person
shall be deemed to mean and include the successors and
permitted assigns of such Person (or, in the case of a
Governmental Authority, Persons succeeding to the
relevant functions of such Person).
12.3 Other Terms. Except as otherwise
specifically provided, each accounting term used herein
shall have the meaning given to it under GAAP.
ARTICLE XIII
MISCELLANEOUS
13.1 Survival of Representations and Warranties.
All of the representations and warranties of the
parties contained in this Agreement shall survive the
Closing hereunder for a period of ninety (90) days.
13.2 Benefit and Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties
hereto, their heirs, successors, assignees, and
beneficiaries in interest; provided, however, that this
Agreement may not be assigned by the either party
without the prior written consent of the other party.
13.3 Governing Law. This Agreement shall be
governed by and construed in accordance with the
internal laws of the State of Wisconsin (regardless of
such State's conflict of laws principles), and without
reference to any rules of construction regarding the
party responsible for the drafting hereof.
13.4 Expenses.
(a) Except as otherwise herein provided, all
expenses incurred in connection with this Agreement or
the transactions herein provided for shall be paid by
the party incurring such expenses and costs.
(b) Notwithstanding any provision in this
Agreement to the contrary, if this Agreement is
terminated by the Seller pursuant to Section 11.1(c)
after receipt of a Superior Proposal, then the Seller
shall reimburse the Buyer upon demand for all out-of-
pocket fees and expenses incurred by or on behalf of
the Buyer in connection with this Agreement and the
transactions contemplated herein, including all
reasonable fees of counsel, accountants, consultants,
and the Seller shall pay to the Buyer the Termination
Fee, as defined below, in cash, such payment to be made
promptly, but not less than the second business day
following the date of such termination. For purposes
of this Agreement, "Termination Fee" means $100,000.
13.5 Submission to Jurisdiction. Each of the
Buyer and the Seller submits to the jurisdiction of any
state or federal court sitting in Madison, Wisconsin,
in any action or proceeding arising out of or relating
to this Agreement and all agreements and transactions
contemplated hereby, and agrees that all claims in
respect of the action or proceeding may be
<PAGE>
heard and
determined in any such court. Each of the Buyer and
the Seller also agrees not to bring any action or
proceeding arising out of or relating to this Agreement
or any agreement or transaction contemplated hereby in
any other court. Each of the Buyer and the Seller
waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and
waives any bond, surety, or other security that might
be required of any other party with respect thereto.
Each party agrees that a final judgment in any action
or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner
provided by law or in equity.
13.6 Notices. Any and all notices, demands, and
communications provided for herein or made hereunder
shall be given in writing and shall be deemed given to
a party at the earlier of (i) when actually delivered
to such party, (ii) when facsimile transmitted to such
party to the facsimile number indicated for such party
below (or to such other facsimile number for a party as
such party may have substituted by notice pursuant to
this Section 13.6) or (iii) when mailed to such party
by registered or certified U.S. Mail (return receipt
requested) or sent by overnight courier, confirmed
by receipt, and addressed to such party at the address
designated below for such party (or to such other
address for such party as such party may have
substituted by notice pursuant to this Section 13.6):
(a) If to the Buyer: General Counsel
Promega Corporation
2800 Woods Hollow Road
Madison, WI 53711-5399
Facsimile Number: (608) 277-2660
With a copy to: Tod B. Linstroth, Esq.
Michael Best & Friedrich LLP
One South Pinckney Street
Suite 700
Madison, WI 53703
Facsimile Number: (608) 283-2275
(b) If to the Seller: Susan Maynard, Secretary
Ophidian Pharmaceuticals, Inc.
5445 East Cheryl Parkway
Madison, WI 53711
With a copy to: Michael Skindrud, Esq.
LaFollette Godfrey & Kahn
One East Main Street
Madison, WI 53701
13.7 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which
together shall constitute one and the same instrument,
provided that all such counterparts, in the aggregate,
shall contain the signatures of all parties hereto.
<PAGE>
13.8 Headings. All Section headings herein are
inserted for convenience only and shall not modify or
affect the construction or interpretation of any
provision of this Agreement.
13.9 Amendment, Modification and Waiver. This
Agreement may not be modified, amended or supplemented
except by mutual written agreement of all the parties
hereto. Any party may waive in writing any term or
condition contained in this Agreement and intended to
be for its benefit; provided, however, that no waiver
by any party, whether by conduct or otherwise, in any
one or more instances, shall be deemed or construed as
a further or continuing waiver of any such term or
condition. Each amendment, modification, supplement or
waiver shall be in writing signed by the party or the
parties to be charged.
13.10 Mutual Release of Certain Liabilities of
Each Party to the Other Upon Closing. Upon completion
of Closing and without any further action to be taken
by either party, each party to this Agreement hereby
releases the other party, fully and completely, from
those obligations and liabilities that may be owed to
the other on the date of Closing under their Lease
Agreement for office and laboratory space and related
furniture and fixtures at 5445 East Cheryl Parkway,
Madison, Wisconsin, and their Disclosure of Technology
with Application to Incidental Markets Agreement dated
September 23, 1991. All other liabilities between the
parties, including liabilities under this Agreement,
the Note and the Assignment, Bill of Sale and
Assumption Agreement, shall survive the Closing as set
forth herein and therein.
13.11 Entire Agreement. This Agreement and
the Exhibits and Schedules attached hereto represent
the full and complete agreement of the parties with
respect to the subject matter hereof and supersede and
replace any prior understandings and agreements among
the parties with respect to the subject matter hereof
and no provision or document of any kind shall be
included in or form a part of such agreement unless
signed and delivered to the other party by the parties
to be charged.
13.12 Third-Party Beneficiaries. No third
parties are intended to benefit from this Agreement,
and no third-party beneficiary rights shall be implied
from anything contained in this Agreement.
13.13 Publicity. The Buyer and the Seller
agree that no publicity announcements concerning the
terms of this Agreement or concerning the transactions
contemplated hereby shall be made without the mutual
consent of the Buyer and the Seller, except that Seller
may make disclosures it deems necessary as a publicly
traded company.
13.14 Specific Performance. Each of the Buyer
and the Seller acknowledges and agrees that the other
parties would be damaged irreparably in the event any
of the provisions of this Agreement are not performed
in accordance with their specific terms or otherwise
are breached. Accordingly, each of the Buyer and the
Seller agrees that the other parties shall be entitled
to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and all agreements and
transactions contemplated hereby, and to enforce
specifically this Agreement and all agreements and
transactions contemplated hereby, and the terms and
provisions hereof or thereof in any action instituted
in any court of the United States or any state thereof
having
<PAGE>
jurisdiction over the parties and the matter
(subject to the provisions set forth in Section 13.5),
in addition to any other remedy to which it may be
entitled, at law or in equity.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the date and year
first above written.
PROMEGA CORPORATION
By: /s/ William A. Linton
--------------------------------
William A. Linton, President
OPHIDIAN PHARMACEUTICALS, INC.
By: /s/ Margaret van Boldrik
------------------------------------
Margaret van Boldrik, Vice President
[Exhibits and Schedules have been omitted based on Rule
601(b)(2) of Regulation S-K. Such Exhibits and
Schedules are described in the Agreement. The
Registrant hereby agrees to furnish to the Securities
and Exchange Commission, upon request, any or all
of such omitted Exhibits or Schedules.]
